Handicapping The Outcome of State v. Peeler (Part Two)Posted: January 10, 2016
In my preceding post I presented my thoughts on how the justices of the Supreme Court would cast their votes in State v. Peeler. In this post I discuss the various possible outcomes (“PO”). As I explain, there are a number of permutations beyond simply reaffirming or overruling State v. Santiago (Santiago II).
PO No. 1. A majority of the justices vote to reaffirm Santiago II in all respects.
PO No. 2. A majority of the justices vote to overturn Santiago II and hold that Public Act 12-5 is constitutional. In other words, the legal position espoused by the dissenters in Santiago II becomes the new majority decision. Under this possible outcome, the death penalty would be revived for the men already on death row (except Mr. Santiago) and any one else who may eventually be convicted of a capital felony committed prior to April 25, 2012, when Public Act 12-5 took affect. Mr. Santiago would not be subject to the death penalty, however, because the Santiago II decision has become final and unalterable as to him. He will face life in prison without possibility of parole.
PO No. 3. A majority of the justices vote to reaffirm Santiago II in most, but not all respects. In particular, a majority of the justices reject footnote 115 of Justice Palmer’s majority opinion, which states that the only way the people of the State of Connecticut can reinstate the death penalty is by amending the state constitution. Instead, a majority of justices adopt the position set forth in the third paragraph of Justice Espinosa’s dissenting opinion that what the General Assembly giveth, the General Assembly can taketh away (and vice versa). That is, because Santiago II held that the death penalty no longer comports with contemporary standards of decency as reflected in Public Act 12-5, a new act of the legislature, not a constitutional amendment, is all that is required to reflect the opinion of the people of the state that the death penalty is acceptable.
I will not repeat in full the problems I have with the legal analysis of the majority opinion in Santiago II. But I have always found footnote 115 of that opinion to be one of its most disturbing aspects. If an act of the legislature is the primary reason why the death penalty no longer comports with contemporary standards of decency, then an act of the legislature is all that is required to change that position. There is no legal justification for requiring a constitutional amendment to reinstate the death penalty.
There are a number of other ways in which, under PO No. 3, a majority of justices voting to reaffirm Santiago II might do so only if certain aspects of the decisions are changed. For example, a new majority might also take issue with Justice Norcott’s and Justice McDonald’s concurring opinion in Santiago II, which focused on race-based issues with the death penalty.
Let me be uncharacteristically blunt here: At least one of the three original dissenters from Santiago II, or Justice Robinson, will have to vote with the remaining three justices who were in the majority (Js. Palmer, Eveleigh and McDonald) in order to preserve Santiago II. That means the justice(s) who may be thinking of changing their original dissenting vote in Santiago II (or who did not vote in that case at all) will have a great deal of leverage. They may demand some modifications to the original Santiago II majority and concurring opinions as the “price” of their vote to reaffirm Santiago II. If that sounds a bit like realpolitik, it is. But it is not unethical or legally improper. A majority decision requires the votes of four justices. Justices often confer over the language of the majority decision so that it is palatable to all of them. The justice writing the majority opinion often makes changes to his/her draft opinion to accommodate other justices’ concerns.
PO No.4. A majority of the justices conclude that Public Act 12-5 is unconstitutional because it is ostensibly “arbitrary,” in a constitutional sense, to put some people to death, but not others, simply because of the date on which they committed a crime. However, the justices conduct a proper “severability” analysis and conclude that the part of the Act that repeals the death penalty prospectively cannot be severed from the part of the Act that left the death penalty in place for the men already on death row. Accordingly, the entire Act is deemed null and void, which means that the law as it existed before the Act was passed is revived. That means the death penalty would revived completely. Of course, the legislature could always revisit the issue and decide to abolish the death penalty entirely.
I invite readers to comment on this post and identify other possible outcomes that they envision.