Appellate judges are famous for asking hypothetical questions.  They are a very important part of the oral argument process, as they help the judges understand how their decisions in particular cases may apply to future cases.

Advocates rarely get to ask judges hypothetical questions, but I’m going to ask one anyway. It is directed to the esteemed justices of the Connecticut Supreme Court who [recently], in a 4-3 decision, abolished the death penalty. (I don’t expect an answer of course. This is just a thought experiment.)

The Supreme Court held that a statute the General Assembly passed in 2012, which repealed the death penalty prospectively only – an essential element of the legislative compromise required to get the votes to support any repeal – had the unintended effect of rendering the death penalty cruel and unusual punishment, and thus violative of the Connecticut Constitution, for the 11 men already on death row.

That is, according to the Supreme Court, the repeal statute accomplished precisely what it was not intended to do – abolish the death penalty entirely.

Before I pose the question, let me disclose that I oppose the death penalty for many reasons.  Were I a legislator, I would support full repeal.  Were I a judge in Connecticut, and were I not bound by the stare decisis effect of several recent decisions upholding the constitutionality of the death penalty, I would be strongly inclined to find it unconstitutional based on evidence: (1) that it has proved impossible on a national level to administer the death penalty without racial bias; and (2) that innocent people have almost certainly been convicted of capital offenses and put to death.

Now, the hypothetical question.  Imagine that Connecticut is a jurisdiction, like Massachusetts, in which the governor or the legislature may ask the state supreme court for advisory opinions on the constitutionality of proposed legislation.  Further imagine that the General Assembly in Connecticut has publicly debated the death penalty repeal statute and it is clear that the votes are only there for passage if the repeal is prospective only.

The legislature asks the Connecticut Supreme Court to render an opinion on whether a prospective-only repeal of the death penalty is constitutional.  Thus, the justices know that if they answer “no” to that question, the result will be no repeal at all, i.e., the death penalty will remain on the books, with no likelihood of repeal in the foreseeable future.

Under these circumstances, knowing full well that their decision will be the difference between a prospective repeal or no repeal at all, I bet you dollars to donuts that a majority of the justices of the Connecticut Supreme Court would have upheld the constitutionality of the prospective-only repeal statute.  They would have supported the legislative compromise because half a loaf is better than no loaf at all.

UPDATE:  Readers have rightly asked, “Dan, what’s the point of your post?”  My point is this: I think the majority opinion is better understood as an example of highly motivated reasoning than as a fair and reasonable application of legal precedents.

It pains me to say that: as an opponent of the death penalty I should be dancing in the streets.  But as a lawyer, however, I see this case as a continuation of a deeply troubling trend in which justices of our state supreme court appear increasingly willing to depart from longstanding norms of judicial behavior and render decisions based on abstract notions of justice instead of a fair reading of the law.

Dan Klau is an attorney with McElroy, Deutsch, Mulvaney & Carpenter, LLP. He writes a blog entitled “Appealingly Brief,” and has recently released his second musical CD, “The Lawyer is a Tramp Champ.” Proceeds of its sale  through Dec. 31, 2015 will be donated to Connecticut legal aid organizations.