Would Executing Death-sentenced Prisoners After the Repeal of the Death Penalty Be Unusually Cruel Under the Eighth Amendment?

JurisdictionConnecticut,United States,Federal
Publication year2021
CitationVol. 86 Pg. 329
86 CBJ 329
Connecticut Bar Journal
December 2012

Robert M. Casale [*] Johanna S. Katz [**]

On a cool mid-December morning last year, Adam Lanza committed crimes of unspeakable horror and depravity. Systematically, he gunned down twenty children and six adults at the Sandy Hook Elementary School in Newtown, committing one of the worst crimes in the history of the state of Connecticut.[1] From a penological perspective, one thing is certain: had Lanza not taken his own life that day, state prosecutors would be powerless to subject him to the punishment reserved for the worst of the worst-the death penalty. This is because the Connecticut Legislature, by Public Act 12-5, repealed capital punishment for all crimes committed on or after April 25, 2012. Simply put, spree killers and mass murderers (like Lanza) will no longer face the death penalty in Connecticut.

Short of closing the books on capital punishment, however, P.A. 12-5 leaves a chapter open: what should become of the eleven prisoners who were sentenced to death before the death penalty was repealed? Should they be put to death? Did the legislature recognize the futility (or immorality) of capital punishment too late to spare their lives? Would it violate the Eighth Amendment's ban against cruel and unusual punishments to execute death-sentenced prisoners after the repeal of the death penalty?

These questions are presently before the Connecticut Supreme Court.[2] The eleven prisoners whose death sentences are ostensibly unaffected by the legislature's prospective repeal of the death penalty are challenging the propriety of their executions in light of the jurisprudential sea change that P.A. 12-5 arguably brings about. In broad terms, these challenges assert that no rational basis exists to discriminate between murderers solely on the basis of the date on which they commit their crimes; that executing prisoners after the repeal of the death penalty would be arbitrary in violation of the Eighth Amendment's ban against cruel and unusual punishments and the Fourteenth Amendment's guarantee of equal protection and substantive due process, and that P.A.12-5's effective date provision violates the prohibitions against ex post facto laws and bills of attainder.[3] These arguments will not be repeated here. Rather, this Article ponders a different question: what would James Madison say?

Because the U.S. Supreme Court often references the intent of the Framers in determining the meaning of the text of the Constitution, [4] and because it is entirely proper to interpret constitutional text as the drafters of that text intended, how might those who drafted and adopted the Bill of Rights answer this question: would it violate the punishments' clause of the Eighth Amendment to execute death-sentenced prisoners after the sovereign repeals the death penalty?

At the outset, we recognize that interpreting any provision of the Constitution according to its original public meaning in 1791 is largely an exercise in historical speculation. When the Bill of Rights was ratified, the definitions of crimes, the prosecution of offenses, and the administration of punishments were largely governed by the common law; statutory regulation was in its infancy, [5] and the Eighth Amendment did not apply to the states. Nevertheless, in pondering the constitutional legitimacy of executing prisoners in the twenty-first century after the repeal of the death penalty, the question naturally arises: what did the architects of the Eighth Amendment mean by the phrase "cruel and unusual" punishments?[6] We know, by today's standards, that extremely cruel punishments were routinely (and constitutionally) imposed throughout the United States long after the Eighth Amendment was ratified.[7] Did the Framers' intend the term "unusual" to merely modify "cruel" or was it intended to have independent significance?

Interestingly, our research suggests that the terms "cruel" and "unusual" were intended to safeguard against related but different evils. Had this precise issue arisen in 1791 when the Eighth Amendment was ratified, death-sentenced prisoners would likely not have been executed after the repeal by the sovereign (federal or state) of the death penalty. Eighteenth century jurisprudence would find that once a punishment is legislatively repealed, or is otherwise stripped of public authorization, it becomes a constitutionally prohibited "unusual" punishment.

In support of this hypothesis, this Article is organized in four parts. Part I outlines the relevant framework for analysis. Part II discusses the historical meaning of the ban on " unusual" punishments, and Part III argues that, since no state has ever executed a defendant after the repeal of the death penalty, post-repeal executions would be doctrinally and normatively in conflict with the Eighth Amendment— then and now. Finally, Part IV suggests that retroactive amelioration—limited to death sentenced prisoners facing execution after the repeal of the death penalty—would avoid the constitutional problem of putting to death defendants whose culpability dwarfs that of mass murders and serial killers who, in light of P.A. 12-5, will not even face the death penalty for their crimes. We conclude that, at a minimum, twenty-first century prisoners should be afforded no less humanity than eighteenth century prisoners.

I. Framework For Analysis

A central tenant of American constitutionalism is that the authority to define crimes and set penalties is vested in the legislative branch and the authority to adjudicate criminal responsibility and administer sentencing law lies with the judicial branch. In this regard, "a court's constitutional obligation is to interpret, not rewrite, the law."[8] "Any responsibility to rewrite statutes lies with the legislature."[9]

Contemporary jurisprudence further provides that, absent a clear direction to the contrary, a law takes effect on the date of its enactment.[10] In Connecticut, statutes that affect substantive rights are presumed to apply prospectively.[11] Although the determination of whether an act should apply retroactively or prospectively typically depends on the intent of the legislature, [12] courts must "construe statutes, whenever possible, to avoid constitutional infirmities."[13]It follows that the duty to construe statutes in a manner that s aves them from constitutional jeopardy may require that they apply retroactively.[14]

With respect to P.A. 12-5, the legislature plainly established its effective date as April 25, 2012, thus leaving existing death sentences intact. Section 38 of P.A. 12-5 bolsters this conclusion. That section provides that the "savings" provisions of General Statutes Sections l-l(t) and 54-194 "shall apply and be given full force and effect with respect to capital felony committed prior to the effective date of this section."[15]

Thus, viewed through the lens of twenty-first century principles of statutory construction, the legislature has spoken in clear and unambiguous terms: the repeal of the death penalty, like any other legislative enactment, is effective prospectively. In non-capital cases, this does not pose special constitutional problems. As State v. Cote makes clear, under Connecticut law, when the legislature reduces the penalty a defendant may face, no right or remedy is created or implied to benefit previously sentenced defendants.[16] But death is different.[17] The act of the sovereign in putting its citizens to death, itself "unique and irreversible, "[18] is qualitatively different from any other state action. As Justice Kennedy warns, "[w]hen the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint."[19]

It follows that, in matters that literally determine who shall live and who shall die, heightened reliability is required throughout the process of adjudicating, sentencing, and executing prisoners. The legislature is bound to enact legislation that conforms to these requirements. In repealing the death penalty for all future offenders, specifically excepting eleven past offenders, the legislature engenders an inquiry into the constitutionality of inflicting punishments that have been repealed or otherwise stripped of public authorization.

II. The Punishments' Clause Of The Eighth Amendment

The Eighth Amendment's prohibition of cruel and unusual punishments defies precise definition, as the Framers likely intended.[20] Given the Constitution's explicit recognition of capital punishment, [21] and the fact that at the time of the ratification of the Bill of Rights such punishments as death by impalement, boiling in oil, and burning at the stake were common, [22] it is easy to conclude that the Framers saw no barbarity in putting criminals to death, even by gruesome means. This is largely true, with important reservations.

In 1791 when the ban on "cruel and unusual" punishments became a part of the Eighth Amendment, [23] it was a fairly common constitutional provision. Eight state constitutions, and the Northwest Ordinance of 1787, contained identical language.[24] Virtually no state opposed banning cruel or unusual punishments as a matter of constitutional law. In fact, there was virtually no debate over the meaning of this phrase when state conventions assembled to ratify the Bill of Rights.[25] As one scholar put it, the prohibition against cruel and unusual punishments "slipped into the Constitution with little fanfare or debate."[26]

This is likely because the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments embodied in the Eighth Amendment have historical antecedents (and understandings) that predate the U.S. Constitution.[27] Historians believe...

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