Since the Connecticut Supreme Court decided State v. Santiago last August, which may have ended the death penalty in Connecticut, a debate has ensued about whether the decision constitutes a legitimate exercise of the power of “judicial review.” Judicial review refers to the power of federal and state courts and judges to strike down laws and executive actions if they conflict with, and thus violate, the United States Constitution or a state constitution.
The power of an appointed judge or panel of judges to tell an elected legislature that a law it debated and then passed, and that an elected governor or president signed, cannot be enforced because it is unconstitutional is truly extraordinary. It is also oft misunderstood. This post is an attempt to help readers understand the nature of the power and why its exercise is often controversial. Read the rest of this entry »
The Connecticut Supreme Court announced today that it will hear additional oral arguments on January 7, 2016 (10:00 a.m.) concerning the constitutionality of the death penalty. In particular, it will decide whether to reaffirm, or overrule, its decision last summer abolishing the death penalty.
In recent weeks, lawyers, the legal press in Connecticut, and this blog, have been discussing the possibility that a pending death penalty case in the Connecticut Supreme Court, State v. Peeler, could overrule the court’s recent decision in State v. Santiago. Santiago held that a statute passed in 2012, which expressly repealed the death penalty prospectively, had the unintended effect of rendering capital punishment unconstitutional under the state constitution for the 11 men already on death row. More accurately, the discussion has focused on whether the Supreme Court should use the Peeler case to overrule Santiago.
will may be my last post concerning the Connecticut Supreme Court’s 4-3 decision last week in State v. Santiago abolishing the death penalty entirely. As a death penalty opponent, I should be pleased with the result. As a lawyer who cares deeply about the rule of law, I have very serious doubts about the reasoning behind the majority’s decision.
Appellate judges are famous for asking hypothetical questions. They are a very important part of the oral argument process, as they help the judges understand how their decisions in particular cases may apply to future cases.
Advocates rarely get to ask judges hypothetical questions, but I’m going to ask one anyway. It is directed to the esteemed justices of the Connecticut Supreme Court who last week, in a 4-3 decision, abolished the death penalty. (I don’t expect an answer of course. This is just a thought experiment.) The Supreme Court held that a statute the General Assembly passed in 2012, which repealed the death penalty prospectively only–an essential element of the legislative compromise required to get the votes to support any repeal–had the unintended effect of rendering the death penalty cruel and unusual punishment, and thus violative of the Connecticut Constitution, for the 11 men already on death row. That is, according to the Supreme Court, the repeal statute accomplished precisely what it was not intended to do–abolish the death penalty entirely.