Connecticut Bar Journal
74 CBJ 216.
New Life For Connecticut's Death Penalty: Revised(fn*)
216New Life For Connecticut's Death Penalty: Revised(fn*)BY EMANUEL MARGOLIS (fn**)While debate gathers and intensifies throughout the United States over the issue of capital punishment, Connecticut appears to be moving in the opposite direction. Our state is poised to enter the quagmire of judicially approved executions.
Historically one of the most progressive states of the Union, Connecticut has been lengthening the line on its death row, expanding the offenses for inclusion therein, narrowing the grounds for exclusion there from and seeking to sanitize the process by which the state puts people to death. It has now been forty years since the last execution took place in our state: Joseph "Mad Dog" Taborsky died in the electric chair on May 17, 1960.
The U.S. Supreme Court's landmark decision in Furman v. Georgia in 1972 was the basis for its subsequent ruling that same year that Connecticut's capital punishment statutes did not pass constitutional muster.
Our legislature and Supreme Court have struggled for almost thirty years to put together a death penalty law that can survive constitutional attack. They have been seeking to give new life to punishment by death in Connecticut, making such sentences neither "unusual" nor "cruel."
As of this writing, (fn1) there are six men on Connecticut's death row. They are Daniel Webb, Sedrick Cobb, Richard Reynolds, Todd Rizzo, Robert Breton and Michael Ross. Three of the six are black. Two have exhausted their state appeals (fn2) and have filed petitions for certiorari to the United States Supreme Court. All six were convicted under the post Furman capital punishment sentencing law. (fn3)
217We appear to be on the cusp of recommencing actual executions in our state while the civilized world looks on with horror and the rest of America appears to be having second thoughts.
CONSTITUTIONAL Quagmire: From Furman To Ross
The "modern era" of Connecticut's death penalty laws begins with Furman v. Georgia. (fn4) In that case, the Supreme Court not only held the Georgia capital punishment scheme unconstitutional as a violation of the Eighth Amendment's cruel and unusual punishment clause, but those of many other states as well, including Connecticut's. (fn5) Furman struck down all such statutes primarily because they left the capital sentence with unfettered discretion to impose or not to impose capital punishment. (fn6)
This was the fatally flawed framework of the Connecticut law which placed two men on death row at the Somers state prison in 1971-72. Both had petitioned the U.S. Supreme Court for certiorari based on Eighth Amendment "cruel and unusual" principles. On the basis of Furman, both prevailed. The ancient regime of our death penalty law thus ended in 1972.
Arthur Davis was charged in six counts of murder in the first degree. He was tried by a statutory court of three judges. (fn7) In a rage growing out of the fact that his wife, Fanny, had left him and his inability to locate her, Mr. Davis went on a shooting rampage at his in-laws' home in New Haven on August 25, 1966, killing six people with a carbine. The trial court found the defendant guilty as charged on each of the six counts of the indictment and imposed the death sentence.
The Connecticut Supreme Court affirmed both the judgment and the sentence. (fn8) In the course of his opinion for
218a unanimous Court, Justice Ryan rejected the defendant's Eighth Amendment ("cruel and unusual punishment") argument as follows: Although the penalty of death may now be inflicted less frequently, as of the end of 1967, thirty-seven states, the District of Columbia and the federal government continued to authorize by statute the infliction of the death penalty for the crime of murder. In the same year, seventy-four persons were sentenced to death for the crime of murder. Thus, the death penalty remains an accepted method of punishment, even though it is less frequently used. (fn9)
Robert Delgado was similarly tried and convicted of murder by a three-judge capital court. (fn10) Mr. Delgado had been arrested on an outstanding warrant for breach of the peace by a Hartford police officer, Harvey Young. He was being driven to the police station in Young's cruiser. A fight developed between Young and Delgado in the vehicle, whereupon the officer stopped the car and the struggle inside the cruiser continued on the street. The officer struck him with his blackjack and Delgado grabbed Young's nightstick and hit him with it. The fight continued with both men wrestling on the ground. The officer drew his service weapon and fired a shot striking Delgado in the chest. Delgado wrested the pistol away from the officer and fired the weapon four times, killing the officer.
The Connecticut Supreme Court affirmed Delgado's conviction as well as the sentence of death by the statutory court. (fn11) As in Davis, the Court held that the "cruel and unusual" proscription in the U.S. Constitution's Eighth Amendment did not bar imposition of Connecticut's death penalty. For a unanimous Court, Chief justice House wrote as follows: This Court has ruled to the contrary in State v. Davis, 158 Conn. 341, 356, 260 A.2d 587. We note that the United States Supreme Court has granted certiorari in the cases of Aikens v. CaliVornia, Furman v. Georgia, Jackson v. Georgia and Branch v. Texas, 403 U.S. 952, 91 S. Ct. 2280, 2282, 2287, 29 L. Ed. 2d 863, 864, limited in each case to the following 219question: "Does the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments?" A decision from that court is, of course, controlling on a question of federal constitutional law but in the absence of such a controlling contrary decision we adhere to our decision in State v. Davis, supra, for the reasons therein stated. (fn12)
While Messrs. Davis and Delgado were on death row, petitions for certiorari were filed in their behalf with the U.S. Supreme Court. On June 29, 1972, the Supreme Court issued the following identical orders in Davis and Delgado: The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remanded for further proceedings. See Sterwart v. Massachusetts, 408 U.S. 845 [92 S. Ct. 2845, 33 L. Ed. 2d 7441 (1972). (fn13)
Subsequent to the decisions in Davis and Delgado, the Connecticut General Assembly and the Connecticut Supreme Court have expended much time and effort to "constitutionalize" our state's death penalty. The objective has been to make our capital punishment system compatible with due process as required by the federal constitution's Fourteenth Amendment ' and neither "cruel" nor "unusual."
The task has proven monumental. To this date, it has consumed almost three decades. And the end is not yet in sight. But, to paraphrase Winston Churchill, we may be witnessing "the beginning of the end."
"CONSTITUTIONALIZING" THE PENALTY OF DEATH
Commencing with its passage of Public Act 73-137 in 1973, (fn14) and continuing over a period of several decades, the Connecticut state legislature has cobbled together a pattern of death penalty laws intended to pass federal constitutional
220 muster. At the same time, the General Assembly has sought and found ways to expand the pool of death penalty eligible defendants while reducing the statutory criteria that would bar imposition of the death sentence.
In direct response to Furman and its negation of Connecticut's death penalty law, (fn15) the Connecticut legislature went back to the drawing board. It recognized the need for consistency, reliability and individualization if the penalty of death was to survive federal Eighth Amendment scrutiny. Such statutory objectives could only be realized if the capital sentencer's discretion was limited by criteria at once clear and objective. Individualization required a well-defined system under which the sentencer could properly distinguish between those defendants whom the state should put to death and those who should receive life sentences.
At the core of the new laws were (1) specificity as to the kinds of homicide for which the death penalty may be meted out, and (2) specific criteria in the form of aggravating and mitigating circumstances guiding the capital sentencer's decision-making so as to avoid the unbridled discretion condemned by the Furman decision.
Two decades following the Davis and Delgado decisions by the U.S. Supreme Court, Michael B. Ross became Connecticut's poster-man for imposing the death penalty under the state's revised statutes. Here was a serial killer who sexually assaulted and then strangled a nineteen-year-old on Thanksgiving Day 1983, two fourteen-year-olds on Easter Sunday 1984, and a seventeen-year-old on June 13, 1984. (fn16)
In Ross, the Connecticut Supreme Court upheld the constitutionality of our revised death penalty law (fn17) on the basis of what the Court characterized as a "three-tiered pyramid." (fn18) Writing for the Court, Chief justice Peters emphasized that "each tier narrows the class of defendants
221that may be found eligible for the death penalty." (fn19) The "first tier" at the base of the pyramid separates capital felony homicides from homicides generally, (fn20) with bifurcated hearings required if the...