Thursday, August 20, 2015

Talking About the Death Penalty, Court to Court - The New York Times

Seven years ago when the New Jersey legislature abolished the death penalty I organized a symposium at Seton Hall Law School.  There former Chief Justice Deborah Poritz acknowledged that the systematic "proportionality review" she had led proved to be a failure.  They could not squeeze the arbitrariness out of the decisions about who lives and who dies.  The discretion of prosecutors, and of juries builds that into the system.
As Linda Greenhouse illuminates the Connecticut Supreme Court has bitten that bullet.  The state's repeal was prospective.  The state Supreme Court found that execution of any of the eleven on death row would be arbitrary and unconstitutional. - gwc
Talking About the Death Penalty, Court to Court - The New York Times
by Linda Greenhouse
The Connecticut Supreme Court could have taken an easy route to finding the state’s death penalty unconstitutional in thedecision it issued last week. The State Legislature repealed the death penalty in 2012, but it made the repeal prospective, leaving 11 men on death row. The reason for the prospective-only repeal was obvious to all: Two of the death-row inmates, Joshua Komisarjevsky and Steven Hayes, had committed a horrific home-invasion triple murder that shocked the state in 2007, and the prospect of barring their execution was unpalatable to Connecticut politicians and many members of the public.
As a matter of constitutional doctrine, the State Supreme Court might simply have found the distinction between those who committed murder before and after the repeal date of April 25, 2012, to be arbitrary — a violation of due process, equal protection or both. Taking the repeal law, signed by Gov. Dannel P. Malloy, to embody the collective judgment of the people’s elected representatives that capital punishment is no longer an appropriate tool of criminal justice in Connecticut, on what basis could the state apply the death penalty to one class of murderers and spare another, with the two groups separated only by the date of offense?
The 92-page majority opinion in Connecticut v. Santiago, written by Justice Richard N. Palmer for four of the court’s seven justices, was much more ambitious than that, however, and in its ambition lies its significance.
On hearing that the Connecticut Supreme Court had invalidated the state’s death penalty, many people probably shrugged and thought, “O.K., that’s one little blue state that hardly ever executed anyone (a single execution in the past 55 years, if you’re counting) and that was already never going to add anyone new to death row. How important can this decision be?”
That was, frankly, my thought as well, and I picked up the decision — more than 200 pages, including concurring and dissenting opinions — with some reluctance and a sense of obligation. (My apartment building is across the street from the New Haven courthouse where crowds, gathered for the consecutive trials in the home-invasion murders, blocked the sidewalks for weeks in 2010 and 2011.) But I turned the pages with mounting excitement. In the breadth of its perspective on the history and current problematic state of the death penalty, in its cleareyed dissection of the irreconcilable conflict at the heart of modern death-penalty jurisprudence, the Connecticut Supreme Court not only produced an important decision for its own jurisdiction; but it addressed the United States Supreme Court frankly and directly. The decision engages the Supreme Court at a crucial moment of mounting unease, within the court and outside it, with the death penalty’s trajectory over the nearly four decades since the court permitted states to resume executions.
Next year marks the 40th anniversary of Gregg v. Georgia and the four other Supreme Court decisions that reviewed the new generation of laws the states enacted in an effort to comply with the 1972 decision that had invalidated all existing death-penalty laws. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote in a concurring opinion in the 1972 caseFurman v. Georgia. The new laws that the Supreme Court upheld were supposed to avoid just such arbitrariness by limiting those defendants deemed eligible for the death penalty and by channeling juries’ discretion over when to impose it.
The problem, as the Connecticut Supreme Court demonstrates, is that it hasn’t worked. Of some 200 cases in the state that might have been charged as capital murder between 1973 and 2007, prosecutors sought the death penalty in some 130 and obtained death sentences in 12. “The selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias,” the court said, pointing to “an inherent conflict in the requirements that the Eighth Amendment’s ban on cruel and unusual punishment, as interpreted by the United States Supreme Court, imposes on any capital sentencing scheme.”
On the one hand, the death penalty can’t be automatic, but has to result from specific findings about the crime and the defendant through a process that relies on specifically identified “aggravating factors.” That’s the effort to channel discretion and treat like cases alike. On the other hand, the jury must have absolute discretion to consider any “mitigating factors” that it deems relevant. That’s the effort to treat each defendant as an individual. The United States Supreme Court deems both efforts as constitutionally essential. But to quote from the Connecticut opinion:
“The question is whether this individualized sentencing requirement inevitably allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude in Furman, or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing. In other words, is it ever possible to eliminate arbitrary and discriminatory application of capital punishment through a more precise and restrictive definition of capital crimes if prosecutors always remain free not to seek the death penalty for a particular defendant, and juries not to impose it, for any reason whatsoever? We do not believe that it is.”
Six weeks earlier, Justices Stephen G. Breyer and Ruth Bader Ginsburg, dissenting from the decision that rejected a challenge to Oklahoma’s lethal-injection protocol, identified another inherent contradiction. Deploring lengthy delays that “both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale” (the average delay between sentencing and execution is now more than 17 years, they noted), the justices said that the “special need for reliability and fairness in capital cases” means that substantial delay is inevitable. Justice Breyer, who wrote the 42-page dissenting opinion that Justice Ginsburg joined, said this: “In this world, or at least in this nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both.”

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