A portrait photo of the Connecticut State Supreme Court building, which is seen on a sunny day from a walkway flanked by trees with purple leaves.
Connecticut Supreme Court. CT Mirror File Photo
Connecticut Supreme Court.
Connecticut Supreme Court. CT Mirror File Photo

The state Supreme Court declined Thursday to reverse its 2015 decision eliminating the last vestige of capital punishment in Connecticut – the sentences facing 11 men on death row when the legislature repealed the death penalty for future crimes.

The 5-2 ruling means an end to the death penalty, a punishment the General Assembly prospectively repealed in 2012 at the urging of Gov. Dannel P. Malloy, a Democrat and former prosecutor. The ruling was delivered in a terse two-paragraph per curiam decision, with three longer concurrences and two dissents.

In a 4-3 decision in August, the court lifted the death sentences of the men who had been sentenced before the legislative repeal, concluding that carrying out the sentences “would violate the state constitutional prohibition against cruel and unusual punishment.” They wrote that the death penalty “no longer comports with contemporary standards of decency.”

The retirement of one of the four justices, Flemming L. Norcott Jr., and an appeal by the state led to an unusual reconsideration of a major decision by the court.

In her concurring opinion, Chief Justice Chase T. Rogers, who had voted with the minority in August, joined the majority Thursday over the principle of stare decisis — the idea that the court should not lightly discard appellate precedents.

Chase T. Chase Rogers
Chief Justice Chase T. Chase Rogers CT Judicial Branch

“Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason—my respect for the rule of law,” Rogers wrote. “To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court’s integrity and the rule of law in the state of Connecticut.”

Rogers and Richard A. Robinson, the new justice who did not take part in the 2015 case, both based their concurrences on stare decisis, not a belief that the court correctly ruled last year. They joined Justices Richard N. Palmer, Dennis G. Eveleigh and Andrew J. McDonald in the majority.

Justices Peter T. Zarella and Carmen E. Espinosa each wrote lengthy dissents, complaining that the majority, especially the chief justice who so passionately agreed with them last year it was wrong to overturn the death sentence of an inmate named Eduardo Santiago, valued being consistent over being correct.

“I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error,” Zarella wrote in a stinging dissent. “Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so.”

In a separate concurrence, Robinson did not say last year’s Santiago decision was correct, only that it was “not so clearly wrong.”

“In my view, stare decisis considerations of this court’s institutional legitimacy and stability are at their zenith in this particular case, given that the only thing that has changed since this court decided Santiago is the composition of this court,” Robinson wrote. “Having considered Santiago in light of the arguments raised by the parties in this appeal, I conclude that it is not so clearly wrong that we should risk damaging this court’s institutional stability by overruling it.”

The 2015 case was an appeal brought by Santiago, who was sentenced to death in a 2000 murder-for-hire case in West Hartford. The decision Thursday came in response to an appeal the state brought to preserver the death sentence of Russell Peeler, convicted of conspiracy in the murders of Karen Clarke and her 8-year-old son, Leroy “B.J.” Brown Jr. in Bridgeport in 1999. The boy was to be a witness against Peeler in another homicide.

The Supreme Court during arguments in the Peeler case.
The Supreme Court during arguments in the Peeler case. CT-N

Espinosa referred to the majority decision Thursday as “the barely two paragraph disdainful majority opinion in the present case,” which was “terse and dismissive.” Espinosa, a former FBI agent, federal prosecutor and trial judge appointed to the high court by Malloy in 2013, suggested the re-examination of the Santiago decision was a farce.

“Dismissing the state’s arguments in the present case in a per curiam opinion creates the appearance that the outcome was predisposed, and that oral argument was allowed merely to avoid the perception that the state was being treated unfairly,” Espinosa wrote. “Indeed, Mark Rademacher, the assistant public defender who argued this appeal, stated that the purpose of granting the state’s motion for oral argument was  ‘[to make] the state feel good about losing.’ ’’

Like Zarella, Espinosa directed much of her dissent at Rogers, an appointee of two Republican governors: John G. Rowland named Rogers to the trial court in 1998; and M. Jodi Rell nominated her to the Appellate Court in 2006 and then named her chief justice of the Supreme Court in 2007. Zarella also is a Rowland appointee.

“The Chief Justice misstates the issue presented in this appeal, framing it as whether this court should overrule a recently decided case because the panel has subsequently changed. By formulating the issue in that manner, she erects a straw man. Obviously, if this court were to overrule a decision merely because the panel had changed, the court would do damage to the rule of law. That causal connection exists, however, only in the opinion of the Chief Justice, who certainly finds herself more than capable of knocking down the proposition she has put forward.”

Palmer, who was the U.S. attorney for Connecticut and chief state’s attorney before being appointed to the court in 1993 by Gov. Lowell P. Weicker Jr., a Republican-turned-independent, defended the Santiago decision as a logical progression in society’s turn away from capital punishment. Nineteen states have banned the death penalty, but only four on average conduct more than one execution a year.

The legislature’s repeal in 2012 was noteworthy, Palmer wrote, even though lawmakers made clear they wished Connecticut to join New Mexico as a state to let old death sentences stand while ending capital punishment for future crimes. Other states also repealed the death penalty prospectively, but their governors commuted the sentences of defendants on death row.

“It cast in a new light all of the various factors pointing to reduced societal acceptance of capital punishment,” Palmer wrote in a concurrence joined by McDonald and Eveleigh. “It swept away the most compelling arguments that capital punishment serves legitimate penological functions. And it reflected the awareness of the legislature that the infrequency with which the death penalty is imposed and the slowness with which it is carried out dramatically undermine its ability to serve a valid retributive function and to secure justice and peace for the families of murder victims.”

Eveleigh was named to the court by Rell in June 2010, her last appointment before leaving office six months later. McDonald, who was co-chair of the legislature’s Judiciary Committee, was Malloy’s top legal adviser before the governor named him to the court in 2013.

Palmer questioned whether a decision by the court to overrule itself in Santiago could survive federal constitutional scrutiny.

“The state now proposes that we reauthorize the death penalty and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 [the repeal statute] but to spare another, solely on the basis of the timing of their appeals.”

Palmer said he was aware of no case in a which a court of last resort had reversed its own landmark ruling in a matter of months.

“For this court to entomb the death penalty in Santiago, and then to exhume and revivify it nine months later, would be unprecedented and would make a mockery of the freedoms enshrined in article first of the state constitution,” Palmer wrote. “If the people of Connecticut believe that we have misperceived the scope of that constitution, it now falls on them to amend it.”

Kevin T. Kane, the chief state’s attorney, offered a measured reaction to the Peeler decision, which he acknowledged wipes out the sentences of every death-row inmate.

“I appreciate having been granted the opportunity to present the state’s position on all of the issues the present Court raised about Connecticut’s death penalty. The Court has now spoken and, as always, we respect its decision,” Kane said in a statement. “As such, we will move forward to re-sentence the individuals currently on death row to a sentence of life in prison without the possibility of release.”

The legislature’s bifurcated approach to repeal in 2012 was a political calculus.

A repeal bill that lifted the death sentences of the men already on death row, especially the two men convicted in the triple homicides of Dr. William A. Petit’s wife and daughters in Cheshire, was seen as more difficult to pass than a prospective law. As a candidate in 2010 and again as governor, Malloy was careful to call only for a prospective repeal.

Rogers, Zarella and Espinosa concluded in the 2015 Santiago decision that his approach was legally permissible. In a statement Thursday, Malloy addressed himself to the larger issue of whether capital punishment is just, not the legal ground he staked out in winning its abolition for future crimes.

“Several years ago, Connecticut joined more than a dozen other states and the majority of the industrialized world in replacing capital punishment with the punishment of life in prison without the possibility of parole. Today’s decision reaffirms what the court has already said: Those currently serving on death row will serve the rest of their life in prison with no possibility of ever obtaining freedom,” Malloy said.

He noted that executions here were rare. The last to be put to death in Connecticut were Joseph Taborsky by electrocution in 1960 and Michael Ross by lethal injection in 2006. Both consented to their deaths, dropping appeals.

“In the last half century, Connecticut has only executed two inmates, both of whom volunteered for that punishment,” Malloy said. “Capital punishment is an emotional issue, and my opposition to it arose after many years as a prosecutor, then as an attorney, and finally as a public servant. Opinions on this issue vary, and it’s critical that we respect that diversity of perspectives. These are deeply personal and moral issues that we as a society are facing and the court has once again ruled on today.”

He said the public focus should not be on the men on death row, but on their victims and their families.

“My thoughts and prayers are with them on this difficult day.”

Mark is the Capitol Bureau Chief and a co-founder of CT Mirror. He is a frequent contributor to WNPR, a former state politics writer for The Hartford Courant and Journal Inquirer, and contributor for The New York Times.

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