By striking down Connecticut’s last vestige of capital punishment, the state Supreme Court on Thursday created an opportunity for politicians to use the death penalty as a wedge issue in races for the General Assembly in 2016.
The court’s 4-3 decision spares 11 men from death row, most notably Steven J. Hayes and Joshua Komisarjevsky, the killers of a mother and her two daughters in 2007 during a home invasion in Cheshire, survived only by their husband and father, Dr. William Petit.
A repeal of the death penalty passed by legislators and signed by Gov. Dannel P. Malloy in 2012 was written with Cheshire in mind: It ended capital punishment only for future crimes, saving legislative supporters from an accusation they voted to spare Hayes and Komisarjevsky.
Republican opponents of repeal warned in 2012 that the death penalty for the 11 previously condemned prisoners was unlikely to survive if the state banned capital punishment going forward.
The bill passed 20-16 in the Senate without GOP support and 86-72 in the House, where a half-dozen Republicans voted for the measure.
“It is a situation of ‘I told you so,’” said Sen. Joseph Markley, R-Southington, who voted against the 2012 bill. “That is going to create a vulnerability for the folks who voted to repeal the death penalty.”
“I do think they bear a moral responsibility for that,” said Senate Minority Leader Len Fasano, R-North Haven. “They bear a moral responsibility to Dr. Petit and all the family members to uphold the promises that were made.”
But House Majority Leader Joseph Aresimowicz, D-Berlin, was skeptical about how loudly the issue will resonate. He noted the death penalty’s prospective repeal was not used in a major way against Malloy or legislators in 2014.
Use of the death penalty in the U.S., the last of the western democracies to impose capital punishment, has been waning. Executions hit a 20-year low of just 35 last year, with 90 percent of them in just four states: Texas, Missouri, Florida and Oklahoma.
Connecticut has executed just two prisoners in more than half a century, most recently serial killer Michael Ross in 2005, but both defendants had dropped their appeals and sought execution as an alternative to serving life in prison.
The state already had a de facto repeal, given the reluctance of the courts to allow executions to go forward in Connecticut, said Michael P. Lawlor, the governor’s criminal justice advisor.
“That’s just the overarching reality here,” Lawlor said.
Lawlor said Connecticut had only a limited mechanism for executions: It constructed a death chamber, but it has been unable to purchase the drugs used for lethal injections. The 11 on death row now will join 50 others in Connecticut who are now servicing sentences of life without the possibility of parole, he said.
Petit’s father, William Sr., told the New Britain Herald after the court’s decision was released Thursday that it probably made no difference in the lives of Hayes and Komisarjevsky.
“Realistically, they were probably never going to be put to death anyway,” Petit said. “No one other than Michael Ross has been put to death in 50 years. It wasn’t my anticipation that they would have been put to death.”
The court’s majority opinion authored by Justice Richard N. Palmer, a former U.S. attorney and chief state’s attorney, did not strictly rest on the disparity created in 2012 for defendants already convicted of capital felonies and those who would be charged for future crimes. Instead, it referred to the state’s “historical and legal landscape.”
“Upon careful consideration of the defendant’s claims in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.”
Palmer was joined in his opinion by Flemming L. Norcott Jr., who no longer is on the court, and Justices Dennis G. Eveleigh and Andrew J. McDonald. The ruling came on an appeal by Eduardo Santiago, a Torrington man convicted of a murder-for-hire.
Justice Carmen Espinosa, also a former federal prosecutor, invited legislators to revisit the death penalty in a dissent. Also dissenting were Chief Justice Chase T. Rogers and Justice Peter T. Zarella.
In a statement Thursday evening, Petit criticized the majority decision and praised the justices who dissented, singling out Espinosa.
“The dissenting justices clearly state how the four members of the majority have disregarded keystones of our governmental structure such as the separation of powers and the role of judicial precedent to reach the decision they hand down today,” Petit’s statement said. “The death penalty and its application is a highly charged topic with profound emotional impact, particularly on the victims and their loved ones. Justice Espinosa, in her dissent especially, forcefully and compassionately recognizes that devastating impact.”
Espinosa’s dissent said that, “[T]oday’s decision does not strike a dagger into the heart of the death penalty. Rather, it should be understood as an opportunity for the legislature to review and consider, in light of the majority decision, as well as the current views of the people of Connecticut, especially those of the families of the victims of the atrocious crimes committed by the eleven men on death row, whether the death penalty comports with contemporary standards of decency in this state.”
Even supporters of the death penalty said Thursday that invitation is unlikely to be accepted.
Espinosa offered no road map for how the legislature could restore capital punishment after a majority of the high court has declared it unconstitutional.
“I don’t think there would be an appetite to push to bring the death penalty back,” Fasano said.
“Once they’ve declared the death penalty unconstitutional, I don’t know how we can pass a bill to make it constitutional again,” said Rep. Arthur J. O’Neill, R-Southbury.
Senate President Martin M. Looney, D-New Haven, said a footnote Palmer wrote in response to Espinosa leaves little doubt that more than legislation would be necessary to reverse the court’s decision.
“The constitutional issues raised in Justice Palmer’s majority decision means that only a constitutional amendment can change today’s decision,” Looney said.
Former Sen. Donald Williams Jr., who played a crucial role in passing the repeal law as the Senate’s top leader, said legislators acted in good faith when they sought to draw a distinction between men already convicted under one set of rules and those who would be tried for future crimes.
He noted that Maryland and New Mexico took similar approaches before Connecticut acted in 2012. The Supreme Court in New Mexico has let the prospective law stand. In Maryland, then-Gov. Martin O’Malley commuted the sentences of those already on death row after passage of its repeal law.
“For those who say everyone knew a court in Connecticut would overrule the previous death sentences, what they are saying just doesn’t comport with the facts,” Williams said. “There was every reason to believe a prospective ban would be just that.”
Williams said he would not be surprised, however, if it becomes an issue next year.
“I understand that people are going to want to play politics with that,” he said. “That’s unfortunately part of the landscape.”
One of the few Connecticut politicians to pay a political price at the polls in recent years for opposing capital punishment praised the decision.
“I am glad our state is helping send the message that we are a better country,” said U.S. Rep. Elizabeth Esty, D-5th District, who lives in Cheshire.
In 2009, as a freshman member of the General Assembly, Esty voted to pass a repeal bill that was vetoed by Gov. M. Jodi Rell. Esty, a lifelong opponent of capital punishment, lost re-election in 2010 to an opponent who made his support of the death penalty a major issue.
Esty revived her career with election to Congress in 2012, but she has no illusion that the death penalty is dead as an issue in Connecticut.
“There are certainly places where it still and always will have power,” said Esty, conceding her hometown may be one of those places. “I happen to believe it is a far greater penalty to sentence someone to life without parole, so they can rot in jail.”