The Death Penalty Is Really Dead

Over the strongly worded dissents of  Justices Zarella and Espinosa, the Supreme Court today stood by its decision last August in State v. Santiago, which abolished the death penalty.  Today’s decision (actually six opinions) in State v. Peeler had the potential to reverse Santiago due to a change in the composition of the court.  But Chief Justice Chase Rogers, who had dissented from Santiago, switched sides and voted to reaffirm Santiago based on stare decisis.  Justice Richard Robinson also voted with the majority to reaffirm Santiago on that same ground.

It will take me some time to digest all of the opinions.  What is notable, however, is that the Court issued a per curiam opinion, rather than the customary majority opinion penned by particular judge.  The Chief Justice, Justice Palmer and Justice Robinson each wrote concurring opinions.  As noted, Justices Zarella and Espinosa dissented.  Justice Zarella did not hold back:

I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting—or at the very least from demonstrating to the public and to this court that he has undertaken a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.