Having determined four years ago that capital punishment was constitutional in Connecticut, the state Supreme Court decided Aug. 13 that it isn't constitutional anymore, because of a law passed three years ago that repealed capital punishment for new offenses while confirming the death sentences already pending. The court found Aug. 13 that the new law signified a consensus in society that capital punishment is indecent and that this makes the pending death sentences "cruel and unusual" and thus unconstitutional.
No all-star first baseman ever accomplished such a stretch.
In fact, the new law was a political compromise recognizing that there was no consensus against capital punishment in Connecticut -- that, as polls long have shown and as the court recognized four years ago, most people support capital punishment in general; that even more support it in regard to the 11 murderers whose death sentences were pending and whose guilt was unquestioned; that many people regret the expense incurred by the long appeals of death sentences; that many people fear that death sentences might be imposed mistakenly in the future; and that opinion so favors capital punishment that repeal could be arranged only by splitting the difference.
As Gov. Dannel Malloy put it three years ago: "Any legislation I would sign would be prospective -- out into the future." The governor even "guaranteed" that any repeal of capital punishment would not affect death sentences imposed for the murder of the Petit family in Cheshire, an atrocity that shook the state.
A similar "guarantee" was offered by legislators advocating the repeal legislation, like then-Sen. Edward Meyer, (D.-Guilford), who said: "It doesn't affect the 11 inmates who are on Death Row right now." Then-Sen. Edith Prague (D.-Columbia), said she would not support repeal if it saved the perpetrators of the Cheshire atrocity.
Chief State's Attorney Kevin Kane knew better. He warned the legislature that the state Supreme Court would use any "prospective" repeal of capital punishment to undo all the pending death sentences as well. Indeed, that seemed to be the secret hope of many of the legislation's advocates -- that they could pretend to their constituents to be keeping the pending death sentences and the Supreme Court would take the responsibility for getting rid of them.
Writing for the court's 4-3 majority, Justice Richard Palmer acknowledged suspicion that such deception was the strategy of the repealers all along. Palmer even argued that the governor and legislators didn't really mean the assurances they gave the state about splitting the difference, that they really were part of the supposed consensus against capital punishment in all circumstances, including the circumstances in which the governor and legislators were assuring the state that death sentences would be imposed.
That was enough to cause the court's majority to invoke the constitutional doctrine most loved by judicial supremacists -- that "evolving standards of decency" let courts rewrite constitutions without benefit of public participation, so that, for example, a constitution that explicitly recognizes capital punishment, as Connecticut's does, can be cleansed of it by applying a phrase, "cruel and usual," that doesn't appear in that constitution but rather in the federal constitution, though the latter's arbiter, the U.S. Supreme Court, construes the phrase not to forbid capital punishment.
Judicial imperialism as it is, the Aug. 13 decision was no surprise. For 30 years Connecticut's Supreme Court has been a "results-oriented" court, a court that first chooses the policy it favors and then contrives a judicial rationale for it, the facts of the case, the law, and precedent notwithstanding. The only real change here since the court upheld capital punishment four years ago has been in the court's own composition -- the addition of another liberal justice, the former state senator and Malloy aide Andrew J. McDonald.
Chris Powell is managing editor of the Journal Inquirer, in Manchester, Conn.