68 CBJ 262. State v. Ross: New Life For Connecticut's Death Penalty?.


Connecticut Bar Journal

Volume 68.

68 CBJ 262.

State v. Ross: New Life For Connecticut's Death Penalty?

262State v. Ross: New Life For Connecticut's Death Penalty?By EMANUEL MAIRGOLIS (fn*)Fifteen years ago, one of the greatest of our Supreme Court Justices published a milestone article (fn1) which remains remarkable for its insight and foresight. Its main thrust was summarized by the author in these terms: State constitutions, too, are a font of individual liberties, their protection often extending beyond those required by the Supreme Court's interpretation of federal law. The legal revolution which has brought federal law to the fore must not be allowed to inhibit the independent protective force of state law - for without it, the full realization of our liberties cannot be guaranteed. (fn2)

The "independent protective force" of Connecticut constitutional law was to bear upon the most serious criminal law issue presented before our Supreme Court in decades: capital punishment. With five men in Connecticut currently on death row, (fn3) one of them, Michael Ross, urged upon the Court, inter alia, the independent applicability of the Connecticut Constitution to numerous issues involved in the imposition of the death penalty. (fn4) At the core of Ross's argument was his contention that the "Fundamental Rights" guaranteed under Article First, Sections 8 and 9, of the Connecticut Constitution provide the basis for "an independent, state-based death penalty jurisprudence." (fn5) The twin roots for such a jurisprudence are (1) the explicit due-process guarantees, and (2) the implicit common law ban on cruel punishments incorporated in Article First, Sections 8 and 9.

263 It is hardly surprising that, in this first capital punishment case to reach our state supreme court since 1971, (fn6) the federal Eighth Amendment model is being ignored in favor of statebased doctrinal analysis. An almost steady stream of death penalty statutes have been held to pass constitutional muster under the Eighth Amendment in recent decades. A brief look backward presents a federal decisional landscape which is a bleak, largely unfriendly terrain for a convicted capital defendant.


    In the milestone case of Furman v. Georgia, (fn7) the Supreme Court virtually invalidated all death penalty statutes in the country. By a 5-4 vote, the Court held the imposition of the death penalty to be a violation of the Eighth Amendment. (fn8) The Furman decision had the effect of striking down death penalty legislation in 39 states, the District of Columbia, and the federal jurisdiction, and vacating approximately 600 death sentences throughout the country. (fn9)

    By 1976, the shift began. The punishment which was viewed as unacceptably "cruel" in Furman was given constitutional legitimacy in Gregg v. Georgia (fn10) and four companion cases. (fn11)

    In Gregg, the court held that the death penalty was not barred per se by the Constitution's cruel and unusual punishment prohibition. The new, more accommodating rationale refused to treat capital punishment as being beyond the constitutional pale 11 regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it." (fn12) What appeared to be "unthinkable" under Furman had become quite thinkable.

    264 Gregg and Proffitt upheld the statutory mechanism of requiring the death-penalty sentencing authority to consider aggravating and mitigating circumstances as an appropriate means for constitutionalizing" capital punishment. (fn13)

    Now no longer "cruel," capital punishment became increasingly less "unusual." Between 1976 (when Gregg, Proffitt and the other three legitimizing decisions came down) and 1982, a total of six persons were executed in the United States. (fn14) By year's end 1993, a total of 31 capital punishment offenders had been executed in a single year, averaging more than 2.5 per month. (fn15) At this writing, there are 2,729 inmates under sentence of death, of whom 1,072 are African-American. (fn16)

    The past eight years have witnessed continuing contraction of the capital defense perimeter. The most noteworthy examples are Lockhart v. McCree (fn17) (upholding exclusion of death-penalty opponents from juries determining capital defendants' guilt or innocence); Tison v. Arizona (fn18) (expanding the category of participants in felony murders who qualify for capital punishment); McCleskey v. Kemp (fn19) (upholding the constitutionality of capital punishment as being neither cruel nor an equal-protection violation despite highly reliable statistical evidence demonstrating that such punishment is applied discriminatorily to minorities, especially blacks); Walton v. Arizona (fn20) (upholding a sentencing process whereby the burden of proof as to mitigating circumstances is upon a capital defendant); and Payne v. Tennessee (fn21) (permitting the introduction of "victim impact" evidence during capital sentencing).

    In Herrera v. Collins, (fn22) the Court demonstrated its determination to remove as many constitutional restraints as possible from the states' increasingly unbridled claim "to execute whomever and however they please." (fn23) In that case, the "actual

    265innocence" claim of a Texas inmate on death row did not provide a basis for federal habeas relief from his sentence. While the district court granted Herrera's request for a stay of execution, the Court of Appeals vacated the stay of execution, (fn24) and the Rehnquist majority affirmed. In a dissenting opinion in which Justices Stevens and Souter joined, Justice Blackmun wrote as follows: I have voiced disappointment over this Court's obvious eagerness to do away with any restriction on the states' power to execute whomever and however they please ... [citations omitted] I have also expressed doubts about whether, in the absence of such restrictions, capital punishment remains constitutional at all ... Of one thing, however, I am certain. just as an execution without adequate safeguards is unacceptable, so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder. (fn25)

    The Supreme Court's capital punishment jurisprudence presents two distinct and incompatible strands of case law: (1) that the discretion of the sentencing authority to forego the death penalty must be narrowly limited in order that capital punishment should be fair and consistent; (fn26) and (2) that the death penalty must be individualized in order that its imposition should be reliable and appropriate in the specific case. (fn27) The incompatibility of these two lines of capital jurisprudence has not only frustrated the liberal Justices on the Court (Marshall, Brennan, Stevens and Blackmun), but its most conservative members as well. (fn28) Justice Blackmun, looking back over the 22 years since Furman v. Georgia, was recently forced to the

    267conclusion that the dictates of Furman and its progeny were hopelessly contradictory and irreconcilable. He declared: From this day forward, I no longer shall tinker with the machinery of death... While one might hope that providing the sentencer with as much relevant mitigating evidence as possible will lead to more rational and consistent sentences, experience has taught otherwise. It seems that the decision whether a human being should live or die is so inherently subjective - rife with all of life's understandings, experiences, prejudices, and passions - that it inevitably defies the rationality and consistency required by the Constitution. (fn29)

    State v. Ross (fn30) presented the Supreme Court of Connecticut with the opportunity to "tinker" once more with "the machinery of death" in this State. Over the course of more than 100 pages of text, the Court found the Connecticut Constitution was not sufficiently an independent protective force such as to invalidate our death penalty law. Unfortunately, the Ross decision has opened the door not only to "tinkering" by the Connecticut courts, but by the Connecticut legislature as well.


    In Ross, the defendant challenged a capital penalty statutory scheme practically identical to Pennsylvania's, which the U.S. Supreme Court upheld in a 5-4 decision. (fn31) Ross's attack upon Connecticut's partially mandatory provision for imposing the death penalty was both facial and as applied. The statute, he argued, treats the existence of an aggravating factor as conclusive, and prevents the sentencer from "independently assessing whether the degree of aggravation justifies execution." (fn32) This argument was rejected by the U.S. Supreme Court in the Pennsylvania case on two grounds: first, the demands of the Eighth Amendment do not extend beyond requiring the jury to consider mitigating factors, and, second, the U.S. Constitution does not require that Pennsylvania permit the jury to weigh the gravity of the aggravating factor before meting out capital punishment. The defendant's argument in Ross was thus precluded as a matter of federal constitutional law. Small wonder, therefore, that he grounded the main thrust of his appellate argument upon state constitutional doctrine, knowing that the Connecticut Supreme Court had not yet passed on the state constitutionality of the death penalty. (fn33)

    The effort fell...

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