State v. Santiago

• Decision Date: 25 August 2015
• Docket Number: SC17413
• Court: Connecticut Supreme Court
• Parties: STATE v. SANTIAGO

STATE v. SANTIAGO

SC17413

Supreme Court of Connecticut

August 25, 2015

SECOND CONCURRENCE

EVELEIGH, J., concurring. Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today's world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. See U.S. Const., amend. VIII; Conn. Const., art. I, §§ 8, 9.¹ I therefore join the majority's analysis in all respects, and join in remanding the case with direction to sentence the defendant, Eduardo Santiago, to a term of life imprisonment without the possibility of release. I write separately to express my view that, although our state constitution provides separate and distinct protections to the citizens of Connecticut and appropriately prohibits capital punishment, the protections afforded by the eighth amendment to the United States constitution and existing federal case law would have been sufficient to prohibit capital punishment in the state of Connecticut. Moreover, although I agree with the majority that capital punishment is unconstitutional and that the majority properly reached the issue of unconstitutionality, in view of the dissents' claims about the appropriateness of the majority's reaching the issue, I conclude that the unconstitutional aspects of the act could have been severed in order to effectuate the legislature's clear intent to repeal the death penalty.

Historically, Connecticut has been a leader in recognizing limits to the application of the death penalty.² The death penalty is an especially brutal, archaic punishment, and one that has been kept alive only because of our society's acceptance of the traditional theories of punishment, namely, retribution and deterrence. Because the concept of retributive justice inextricably links the severity of a punishment with the culpability of the offender, the death penalty must be available for similarly culpable offenders in order for a capital sentencing scheme to fulfill a valid retributive purpose. By maintaining the death penalty for those who have committed a capital offense before the act's arbitrary effective date while eliminating the death penalty for any crime committed thereafter, no matter how heinous that crime may be, P.A. 12-5 severs the tie between the imposition of the death penalty and the culpability of the individual offender.

I

P.A. 12-5 RENDERS CONNECTICUT'S CAPITAL

PUNISHMENT STATUTORY SCHEME

UNCONSTITUTIONAL UNDER THE

EIGHTH AMENDMENT TO THE

UNITED STATES

CONSTITUTION

The eighth amendment to the constitution of the United States bans the infliction of all cruel and unusual punishments. See footnote 1 of this concurring opinion. In assessing the contours of the eighth amendment in the context of the death penalty, the United States Supreme Court has recognized that "the penalty of death differs from all other forms of criminal punishment, not in degree but in kind." (Internal quotation marks omitted.) Solem v. Helm, 463 U.S. 277, 289, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring).

When a particular type of punishment is challenged categorically or, in other words, when it is argued that a given penalty is never appropriate for a specific category of offender, "[t]he [c]ourt first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue. . . . Next, guided by the standards elaborated by controlling precedents and by the [c]ourt's own understanding and interpretation of the [e]ighth [a]mendment's text, history, meaning, and purpose . . . the [c]ourt must determine in the exercise of its own independent judgment whether the punishment in question violates the [c]onstitution." (Citations omitted; internal quotation marks omitted.) Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).

The Supreme Court also has recognized that, because of its ultimate and irrevocable effect, the death penalty cannot be imposed under procedures that create a substantial risk of its infliction in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Simply put, "[t]he [e]ighth and [f]ourteenth [a]mendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed." (Internal quotation marks omitted.) Id., quoting Furman v. Georgia, supra, 408 U.S. 310 (Stewart, J., concurring).

Following our legislature's prospective repeal of the death penalty, the single most determinative factor in whether a death penalty is imposed or carried out under our capital sentencing scheme is the date on which a defendant commits his or her crime—specifically, whether a defendant has committed his or her crime before April 25, 2012. As I explain in part I A of this concurring opinion, I conclude that, as amended by P.A. 12-5, Connecticut's capital sentencing scheme is contrary to the consensus against executions postrepeal of the death penalty. In addition, as I explain in part I B of this concurring opinion, to allow such an arbitrary factor, which lacks any connection to the purported purposes of the death penalty and the nature of the offenses committed, to have such an extreme impact on the ultimate fate of a limited class of individual defendants is the paradigm of capriciousness that the eighth amendment will not tolerate.

A

Executing the Defendant Following the Repeal of the

Death Penalty Is Inconsistent with Contemporary

Standards of Decency

Under the test reserved for categorical challenges to the death penalty for a particular class of offender, the first step is to consider objective indicia of society's standards. Graham v. Florida, supra, 560 U.S. 61-62. In the present case, this step requires the court to examine the standards expressed by legislatures and courts regarding the imposition of the death penalty following a prospective repeal. Although "[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures"; (internal quotation marks omitted) id., 62, quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); "[t]here are measures of consensus other than legislation. . . . Actual sentencing practices are an important part of the [c]ourt's inquiry into consensus." (Citation omitted; internal quotation marks omitted.) Graham v. Florida, supra, 62; accord Kennedy v. Louisiana, 554 U.S. 407, 433-34, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008); Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Atkins v. Virginia, supra, 316; Thompson v. Oklahoma, 487 U.S. 815, 821-29, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988); Enmund v. Florida, 458 U.S. 782, 794-96, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). On the basis of not only the actions of legislative and executive branches worldwide regarding prospective repeals of the death penalty, but also the actual sentencing practices of other jurisdictions during periods of time in which the death penalty has been repealed, I would conclude that current societal standards unequivocally indicate an unwillingness to impose the death penalty on defendants who committed their crimes prior to the repeal.Federal and State Case Law Although the United States Supreme Court has repeatedly upheld the facial validity of the death penalty; see Gregg v. Georgia, supra, 428 U.S. 187; in recent years, that court has limited the situations in which capital punishment is permissible. See Kennedy v. Louisiana, supra, 554 U.S. 413 (death penalty impermissible for nonhomicide crimes against individuals); Roper v. Simmons, supra, 543 U.S. 568 (death penalty impermissible for defendants who committed their crimes prior to age of eighteen); Atkins v. Virginia, supra, 536 U.S. 321 (death penalty impermissible for defendants whose intellectual functioning is in low range). That court, however, has never decided whether a state may carry out executions while a prospective repeal of the death penalty is in effect.

Nonetheless, this nation's highest court has considered the significance of a prospective repeal of the death penalty for purposes of eighth amendment analysis. In Atkins v. Virginia, supra, 536 U.S. 314-15, the United States Supreme Court determined that a national consensus existed against the execution of mentally disabled defendants, relying in part on the fact that eighteen of the thirty-eight states that permitted capital punishment had enacted legislation forbidding the execution of such individuals. See id., 342 (Scalia, J., dissenting). The court was well aware that, of those eighteen states, only seven had prohibited all such executions, while eleven had enacted statutes prospectively prohibiting the execution of mentally disabled individuals, thus maintaining death sentences for mentally disabled individuals who had committed capital offenses prior to the enactment of the repeals. See id.,...