HARTFORD, Conn. — The Connecticut Supreme Court’s decision this month that declared its death penalty law to be unconstitutional drew not only praise from capital punishment opponents in the Constitution State, but also charges of judicial activism.

Connecticut abolished the death penalty in 2012. The law, however, did not apply retroactively to the 11 individuals who were already on death row at the time. The high court determined this was a violation of equal protection and due process.

The state Legislature and Gov. Dannel Malloy passed the law with that caveat because of two convicted murderers who were sentenced to death for a horrific 2007 armed home invasion in Cheshire, about 25 miles south of Hartford. The assailants raped and strangled a woman, sexually assaulted one of her two young daughters, doused them in gasoline and set the house on fire. The mother, Jennifer Hawke-Petit, and her daughters, ages 11 and 17, died of smoke inhalation.

Dr. William Petit, the husband and father of the murder victims, who survived the brutal attack, said in a written statement after the court’s ruling that the four justices who voted to repeal the death penalty law had disregarded the separation of powers and judicial precedent.

“The death penalty and its application is a highly charged topic with profound emotional impact, particularly on the victims and their loved ones,” he said.

Given the publicity, shock and horror that surrounded the Cheshire home invasion, Gary Rose, a professor at Sacred Heart University in Fairfield, Conn., who follows Connecticut state politics, told the Register that it would have been “political suicide” for Malloy and state lawmakers in 2012 to support a complete abolition of the death penalty.

Rose told the Register that he believes the governor and his allies, despite their assurances that the law would pass constitutional muster, knew that effectively creating two separate classes of murder convicts would be struck down whenever it reached the Connecticut Supreme Court.

“I think the whole thing was a preordained silent type of deal, quite frankly,” Rose said. “The court felt there was no way to have some people who were eligible for execution and others who weren’t, and I’m 100% convinced the governor probably knew that the law would put the Supreme Court in a very awkward and very compromised position.”

Said Rose, “It was a very clever move by the governor.”

Malloy issued a conciliatory statement after the court’s Aug. 13 ruling. He said capital punishment was a difficult and “deeply personal” issue for Connecticut residents and declared: “Today is a somber day, where our focus should not be on the 11 men sitting on death row, but with their victims and those surviving family members. My thoughts and prayers are with them during what must be a difficult day.”

 

Criticism

The governor’s statement did not satisfy Republican and some Democratic lawmakers who criticized the court’s ruling and Malloy in several local newspaper op-eds.

State Sen. Len Fasano, R-North Haven, who serves as the senate minority leader, has asked Malloy to publicly disclose the legal advice he relied upon when guaranteeing that the law would be upheld. In 2012, Fasano said, “It was clear that many lawmakers relied upon your words in making their tough decision regarding their votes on the repeal bill.”

“Without your guarantees, it is clear that you would not have had the support to advance any death-penalty repeal legislation,” Fasano wrote in an Aug. 17 open letter to Malloy.

Peter Wolfgang, executive director of the Family Institute of Connecticut, told the Register he also believes it is disingenuous for the governor or any state lawmaker to claim that they were surprised with the court’s decision.

“Everyone knew that the state Supreme Court would view it as a violation of equal protection,” said Wolfgang, who accused proponents of the 2012 law of “setting up” the high court.

“If they wanted a blanket abolishment, they should have done it the honest way. It should have been debated in the light of day, instead of setting up what everyone knew was a pretext for the supreme court to act,” Wolfgang said.

As predicted by many, the Connecticut Supreme Court, in a 4-3 vote, found the law to be untenable and ordered all 11 men to be released from death row. However, the court did not restrict its ruling to the issues of equal protection and due process, but also declared capital punishment to be unconstitutional because it “no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.”

The opinion drew harsh criticism from the three dissenting justices, including Chief Justice Chase Rogers, who wrote that the majority disregarded “the obvious,” that the legislature, “which represents the people of the state and is the best indicator of contemporary social mores, expressly retained the death penalty for crimes committed before the effective date of (the repeal).”

The majority opinion also claimed that racial, ethnic and socioeconomic biases are “inherent” in the death-penalty system, as well as commenting on the risk of executing innocent people, the cruelty of forcing people to wait to be executed and the costs involved with appeals.

 

The Legal Context

“The Connecticut ruling provides some good analysis, good insights and good data for people to chew on to consider whether their states are like Connecticut or not,” said Richard Dieter, senior program director at the Death Penalty Information Center, a national nonprofit that provides analysis and information on issues concerning capital punishment.

Dieter told the Register that the Connecticut ruling should be seen in light of the dissenting justices in the U.S. Supreme Court’s 5-4 decision in Glossip v. Gross on June 29 that upheld Oklahoma’s lethal-injection protocols. Writing in dissent, Justice Stephen Breyer raised broad questions about capital punishment and openly asked for a discussion on whether the death penalty violates the Constitution of the United States.

“The Connecticut decision was not out of the blue,” Dieter said. “This kind of debate is going on in many places. State legislatures are debating this issue. More state governors are putting capital punishment on hold in their states, including Pennsylvania, most recently.”

Capital punishment is still legal in 31 states, but the number of states that are deciding to abolish it has been growing in recent years. In May, Nebraska voted to repeal the death penalty. Maryland also abolished the death penalty in 2013. Dieter expects the U.S. Supreme Court will at some point agree to hear a case that could result in a possible landmark decision on the fate of capital punishment in the United States.

“Some states will hold on to the death penalty for dear life, but that doesn’t mean the death penalty won’t be seen as cruel and unusual punishment in the rest of the country’s eyes,” Dieter said, adding: “The death penalty is in the dock. It’s being examined very closely.”

 

Church Teaching

The Catholic Church teaches that capital punishment, unlike abortion or euthanasia, is not an intrinsic evil, and states have the right to its use. Church teaching acknowledges the state’s right to use the death penalty under certain circumstances, when it is the only means available to protect society against the offender.

However, referencing St. John Paul II in his 1995 encyclical Evangelium Vitae (The Gospel of Life), the Catechism of the Catholic Church states that in modern societies “the cases in which the execution of the offender is an absolute necessity ‘are very rare, if not practically nonexistent’” (2267).

“Prior to the 2012 abolishment, that was essentially the situation we had in Connecticut,” said Wolfgang, noting that the state has just had one execution since 1960. In 2005, convicted serial killer Michael Ross was put to death after deciding to end his legal appeals.

The Catholic Mobilizing Network to End the Use of the Death Penalty issued a statement to the Register welcoming the Connecticut Supreme Court’s ruling, adding that the court’s jurisprudence “is mirrored by the public’s increasing rejection of executions and the larger national conversation about commonsense criminal-justice reform.”

The Catholic Mobilizing Network further said: “The Catholic Church understands justice and God’s mercy are never achieved with the killing of another human being. As the past three Popes have stated, the death penalty does not serve a legitimate penological purpose and is not in keeping with our deep respect for life and the inherent dignity of the human person. We look forward to the day when our nation recognizes, as the Connecticut Supreme Court did, that the death penalty is never the answer.”

Wolfgang added that he is also opposed to the death penalty.

“So I’m fine with the result,” he said, “but the method by which it was reached was outrageous.”

 

Prayers for Victims and Their Families

The Connecticut Catholic Conference, articulating the Church’s modern teaching on the death penalty, has long supported repealing the death penalty and was an active participant in a statewide coalition to abolish capital punishment in Connecticut.

Commenting on the court’s Aug. 13 ruling, Michael Culhane, executive director of the Connecticut Catholic Conference, said the conference “concurs” with the court’s decision in accordance with the teachings of the Church.

Culhane added: “However, first and foremost, the conference is also very cognizant of the victims and their families … and our thoughts and prayers are with them as they deal with what must be a very difficult period.”

Register correspondent Brian Fraga writes from Fall River, Massachusetts.