Death Penalty in Connecticut Is a Dead Letter

By Kenneth J. Bartschi, Partner

In April 2012, the Connecticut Legislature abolished the death penalty for crimes committed after the date of the act’s passage in what is known as PA 12-5. The prospective effect act meant that current death-row inmates, including the two responsible for the home invasion murders in Cheshire, would still face execution. In State v. Santiago, 318 Conn. 1 (2015), a death-row inmate raised the effect of PA 12-5 on his appeal in a motion for reconsideration. By a 4-3 vote, the Connecticut Supreme Court held in an opinion by Justice Richard Palmer that the death penalty as applied violated the Connecticut Constitution. As one would imagine, the Court was sharply divided with vigorous dissents by Chief Justice Chase Rogers and Justices Peter Zarella and Carmen Espinosa.

The majority included Justice Fleming Norcott, who had reached the mandatory retirement age during the deliberations on Santiago but was permitted by statute to continue to participate in the case. Justice Norcott was replaced by Justice Richard Robinson by the time the Court heard another death penalty case, State v. Peeler, 321 Conn. ___ (2016) (SC 18125, officially released May 26, 2016). The question that naturally arose was whether the change in the composition of the Court would result in Santiago being overruled.

The answer, it turns out, is no. By a 5-2 vote, the Court held in a per curiam decision that Santiago controlled the outcome in Peeler. The Court reversed the judgment with direction to impose a penalty of life without possibility of parole and affirmed in all other respects.

Justice Palmer, writing for himself and Justices Dennis Eveleigh and Andrew McDonald (the three remaining justices in the majority in Santiago), addressed the arguments the state raised in claiming that Santiago was wrongly decided. Chief Justice Rogers and Justice Robinson both wrote concurrences basing their decision on stare decisis. Both were acutely sensitive to the fact that the only change between Santiago and Peeler was the change in the composition of the Court.

Justice Zarella dissented. In his view, the Court’s stare decisis jurisprudence was “inconsistent and irreconcilable.” He proposed a standard that balances reliance interests with the costs of adhering to an erroneous decision. Under his approach, he would have overruled Santiago. Justice Zarella’s approach has a lot to recommend it, but while reliance interests under his approach include societal reliance, i.e., decisions that have become part of the collective consciousness of the state (his example is Kerrigan v. Commissioner of Public Health, 289 Conn. 135 (2008), Connecticut’s marriage equality case), he seems overly optimistic in concluding that the public would not perceive the overruling of a landmark case as resulting from the appointment of a new justice.

Justice Espinosa for her part, wrote a blistering dissent largely directed at Chief Justice Rogers. Justice Espinosa cataloged twenty-five instances during Chief Justice Rogers’s tenure when the Court overruled prior decisions after a panel change. Justice Espinosa noted that many of these decisions had no discussion of stare decisis.

Theoretically, the legislature could act, either by repealing PA 12-5 and reinstating the death penalty or proposing a constitutional amendment. Neither seems likely and it would appear that Connecticut is done with the death penalty.