A Survey of Criminal Law Opinions
| Publication year | 2021 |
| Pages | 3 |
Tejas Bhatt, J. [*]
Criminal law cases make up a significant portion of the docket of our Supreme and Appellate Courts. This article surveys the criminal law opinions issued by those courts to answer the question: what do criminal law practitioners need to know about the opinions issued by the Connecticut Supreme and Appellate courts during the period of January, 2015 to April 2016? In writing this, nearly every Connecticut Supreme Court opinion has been summarized. However, the volume of cases decided by the Connecticut Appellate Court makes it a near impossible task to review and summarize each one. In summarizing cases, care has been taken to not mention issues and analyses that are unremarkable, or merely 'axiomatic.' Rather, this review focuses only on those opinions that should be of particular note to the criminal bar.
I. Death Penalty
The most significant issue decided by our supreme court in the past 15 months is the abolition of the death penalty in Connecticut. That is where this review will begin. In August 2015, our supreme court issued its momentous opinion in State v. Santiago (Santiago ii),[1] abolishing the death penalty entirely in Connecticut. This decision was further cemented as precedent by our supreme court in May 2016 in State v. Peeler.[2]
In 2012, our supreme court vacated Eduardo Santiago's death sentence and ordered a new penalty phase in State v. Santiago (Santiago i).[3] While the Santiago appeal had been pending, the legislature enacted Public Act 12-5 (Reg. Sess.), which repealed the death penalty for all crimes committed on or after the effective date of the repeal, April 25, 2012. Santiago then moved for reconsideration of the court's decision to order a new penalty phase, asking the court "to consider, among other things, whether the prospective repeal leads inexorably to the conclusion that capital punishment has ceased to comport with state constitutional requirements."[4] In a 4-3 decision released in August 2015, our supreme court held that execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment because, after passage of the Public Act, our state's death penalty "no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose."[5]
In Part I of the opinion, the court reviewed the scope, nature, and history of the protections from cruel and unusual punishment afforded by article first, sections 8 and 9, of the Connecticut Constitution. The court examined the six nonexclusive tools of analysis identified in State v. Geisler[6]that are to be considered when determining the scope and parameters of the state constitution. First, the court noted the absence of any federal court decision addressing whether a state's prospective only repeal of the death penalty renders its continued imposition of the death penalty unconstitutional. Second, the court examined this state's pre-constitutional and constitutional history and concluded that "from the earliest days of the colonies, and extending until the adoption of the state constitution in 1818, the people of Connecticut saw themselves as enjoying significant freedoms from cruel and unusual punishment."[7] Third, with respect to the text of our state constitution, the court found "little merit in the argument that the decision of the framers of the Connecticut constitution not to include an express bar on cruel and unusual punishment somehow suggests that this liberty was uncherished."[8] Fourth, the court considered the limited Connecticut precedent on the subject of cruel and unusual punishment, noting that it was writing "on a relatively blank slate" and that assessing the propriety of a punishment is not exclusively the domain of the legislature, for the court "has an independent duty to determine that the penalty remains constitutionally viable as the sensibilities of our citizens evolve."[9] Fifth, the court found that because of the "unique structure and text" of our constitution, "sister state authority is less directly relevant than in cases in which we have construed other constitutional provisions."[10] The court considered the sixth factor – economic and sociological norms and policy considerations – in parts II and III of its opinion.
In Part II of the opinion, the court held that "the death penalty, as currently imposed in Connecticut, and following the enactment of Public Act 12-5 (Reg. Sess.), is so out of step with our contemporary standards of decency as to violate the state constitutional ban on excessive and disproportionate punishment."[11] The court looked to five objective indicia of society's evolving standards of decency. First, the court examined our state's historical ambivalence toward the death penalty and concluded that our history "evinces a steady, inexorable devolution in the popularity and legitimacy of the death penalty, culminating in its prospective abolition in 2012."[12] Second, the court looked to legislative enactments, observing that with the enactment of Public Act 12-5 (Reg. Sess.), "[f]or the first time in our state's history, the governor and a majority of both legislative chambers have now rejected state sanctioned killing and agreed that life imprisonment without the possibility of release is a just and adequate punishment for even the most horrific crimes."[13]The court took note of legislative intent to retain capital punishment for offenses prior to April 25, 2012, but found that the stated reasons for opposing full repeal of the death penalty – moral obligation to honor the commitment to families of victims murdered and accommodating public demand that certain notorious inmates remain on death row – do not "evidence legislative endorsement of the death penalty as a fitting and acceptable means of punishment in modern Connecticut,"[14] particularly where there was such doubt expressed about the prospect of any execution actually taking place. Third, the court looked to current practice in Connecticut and concluded that the low rate of imposition of the death penalty, the almost complete moratorium on executions, and the reluctance of prosecutors to seek the death penalty demonstrate that the death penalty does not comport with contemporary standards of decency in this state. Fourth, the court observed the trend of abolition elsewhere, and noted specifically that Connecticut is an outlier in New England. Fifth and finally, the court considered opinions and recommendations of professional associations against the death penalty.
In Part III of the opinion, the court held that following the passage of Public Act 12-5 (Reg. Sess.), capital punishment no longer measurably contributes to any legitimate penological goal and also violates article first, sections 8 and 9 of the Connecticut constitution for that reason. Specifically, the court concluded that "any deterrent value the death penalty may have had no longer exists"[15] because it is no longer available as punishment for future crimes and the execution of the defendant will not deter future crimes. The court also questioned the deterrent value of the death penalty, even absent prospective repeal, in light of Connecticut's history of failing to carry out executions. The court concluded that the death penalty no longer measurably contributes to retribution because (1) the legislature has determined that the death penalty is no longer necessary to achieve retributive purposes; (2) lengthy delays between the crime and potential execution "spoil [the death penalty's] capacity for satisfying retribution;"[16] (3) there is risk that an innocent person will be wrongly executed; and (4) "the selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias."[17]
In a concurring opinion joined by Justice McDonald, then-Justice Norcott wrote separately to express profound concerns about "the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state's experience with capital charging and sentencing decisions."[18] Justice Eveleigh wrote a separate concurring opinion to explain his views that "vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future;"[19] that the outcome of the appeal would have been the same had it been decided on federal constitutional grounds; and that "the unconstitutional aspects of the act could have been severed in order to effectuate the legislature's clear intent to repeal the death penalty."[20]
Chief Justice Rogers wrote a dissenting opinion, in which she challenged the majority's holding as being outside the scope of what was raised by the defendant. She described the defendant's claim as limited to the unconstitutionality of the death penalty after the passage of Public Act 12-5 (Reg. Sess.). In her view, the defendant did not challenge the death penalty on all of the grounds considered by the majority opinion, and, for that reason, she could reach no conclusion except "that the death penalty is constitutional."[21]
Justice Zarella, joined by Justice Espinosa, wrote to take issue with the "new hybrid test"[22] applied by the majority, the lip service the majority paid to the Geisler factors, and the "majority's unorthodox reasoning in this case."[23]
Finally, Justice Espinosa also wrote a dissenting opinion, in which she criticized the majority for ignoring the will of the people and for "exceeding the constitutional bounds of its power in order to impose its personal notion of what justice and fairness require."[24] She also urged the legislature to review and consider whether the death penalty...
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