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

FIRST DISSENT

ROGERS, C. J., dissenting. The majority concludes that the death penalty is unconstitutional under the state constitution. Every step of its analysis, however, is fundamentally flawed. First, the majority engages in an extensive discussion of the ancient history of the death penalty in this state pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and concludes that these "constitutional facts" are "unique and expansive." The majority identifies absolutely nothing in our state's distant past, however, that would remotely support the conclusion that there has ever been a societal consensus in this state that the death penalty is an inappropriate punishment for the most heinous murders. Thus, this history is entirely irrelevant to the question before the court. Indeed, in apparent acknowledgment of the complete absence of any historical support for the conclusion that the state constitution provides materially different protections from cruel and unusual punishments than does the eighth amendment to the federal constitution in this context, the majority ultimately concludes that the proper framework for evaluating the defendant's claim is the same as "the framework that the federal courts have used to evaluate eighth amendment challenges." See part I F of the majority opinion. Under that framework, the court is required to determine whether the death penalty is consistent with contemporary standards of decency. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) ("an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the [e]ighth [a]mendment"); see also Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (eighth amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"). Even assuming that the federal contemporary standards of decency rubric is the proper standard for evaluating a claim that the death penalty is categorically unconstitutional under the state constitution, however, this court rejected a claim that the death penalty is inconsistent with the contemporary societal mores of this state a mere four years ago, concluding that, as of 2011, "there remains powerful evidence of strong public support for the death penalty" in this state. State v. Rizzo, 303 Conn. 71, 198, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). Nevertheless, the majority concludes that, as the result of the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), in which the legislature abolished the death penalty for crimes committed after the effective date of the act, April 25, 2012, the death penalty is somehow now unconstitutional. In making this determination, the majority disregards the obvious: the legislature, whichrepresents the people of the state and is the best indicator of contemporary societal mores, expressly retained the death penalty for crimes committed before the effective date of P.A. 12-5. The majority's reasoning also contains a glaring contradiction that cannot be reconciled: at the same time that the majority concludes that the prospective repeal of the death penalty demonstrates that the people of this state have rejected the death penalty as an appropriate punishment for the most egregious murders, it concludes that the retention of the death penalty for capital offenses committed before April 25, 2012, evinces a constitutionally impermissible societal desire to wreak vengeance against the perpetrators of such crimes.¹ Moreover, in making its determination that the death penalty violates contemporary standards of decency in this state, the majority: (1) addresses societal factors affecting the constitutionality of the death penalty that the defendant, Eduardo Santiago, has not raised and that neither party has had an opportunity to address; (2) relies on contested and slanted extra-record materials that neither party has had an opportunity to review or respond to; and (3) improperly applies the governing legal standard. Thus, the majority's determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.

I

Before addressing the merits of the majority's decision, it is important to clarify the procedural context in which these issues arose, in order to demonstrate the extent to which the majority has exceeded its authority as a court whose function it is to act as a "neutral arbiter of matters the parties present." (Internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 146, 84 A.3d 840 (2014). While the defendant's appeal in the present case was pending, the defendant filed a motion for permission to file a supplemental brief and for oral argument to address the impact of the passage of P.A. 12-5 on his appeal. Specifically, the defendant claimed that the passage of P.A. 12-5 raised serious questions about the continued constitutional validity of the death penalty.² On June 12, 2012, we issued our decision in the defendant's appeal. See State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012). In that decision, we "denied the defendant's motion [to file a supplemental brief and for oral argument] because . . . these constitutional issues would be more appropriately addressed in the context of post-judgment motions." Id., 308 n.167. We also rejected in Santiago the defendant's claim that the "the death penalty is per se unconstitutional under the Connecticut constitution, and that we should overrule our decisions holding to the contrary." Id., 306. The defendant then filed a motion for reconsideration and a renewedmotion to file a supplemental brief on the same issues that he had identified in his original motion, "as well as any others relating to the impact of [P.A.] 12-5 on the validity of [the defendant's] continued prosecution seeking a death sentence that are revealed by additional research." (Emphasis added.) This court granted both motions.

Thereafter, the defendant filed a supplemental brief in which he raised the following six claims for the court's consideration: (1) P.A. 12-5 renders the defendant's death sentence arbitrary under General Statutes § 53a-46b (b); (2) executing the defendant when P.A. 12-5 had abolished the death penalty for future offenses would be cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution because, among other reasons, the act evinces a societal consensus against the death penalty; (3) carrying out an execution after the passage of P.A. 12-5 would violate the equal protection and substantive due process guarantees of the fourteenth amendment to the United States constitution and article first, §§ 1, 8, 9 and 20, of the state constitution; (4) the effective date provision of P.A. 12-5 violates the prohibition on bills of attainder and ex post facto laws contained in article one, § 10, of the federal constitution; (5) executing the defendant after the enactment of P.A. 12-5 would violate article first, § 9, of the state constitution because the death sentence is not " 'clearly warranted by law' "; and (6) the unconstitutional portion of P.A. 12-5 is severable under state law.

Thus, it is perfectly clear that the sole issue that is before this court is the effect of the passage of P.A. 12-5 on the continued constitutional validity of the state's death penalty statute, specifically, the defendant's claim that the death penalty became unconstitutional after the passage of P.A. 12-5, because the act reflects a legislative determination that the death penalty no longer comports with contemporary societal mores and it rendered the death penalty arbitrary. The defendant has not contested, for purposes of this appeal, the correctness of this court's previous decisions holding that the death penalty is not prohibited by the due process clauses of our state constitution, including our decision in State v. Rizzo, supra, 303 Conn. 201, and has asked us only to determine whether P.A. 12-5 reflects a recently emerged societal consensus that the death penalty is cruel and unusual. Thus, the defendant has made no claim that the death penalty is unconstitutional on the basis of the historical development of the death penalty in this state, the rarity of its imposition in this state in recent decades, the sentencing practices of other states in recent decades (other than the sentencing practices of states that have prospectively repealed the death penalty), the opinions and recommendations of professional associations, delays in executions in recentdecades, racial disparities in the imposition of the death penalty, the possibility of erroneous death sentences, or the "inherent conflict" between the requirement that the discretion of the jury to impose the death penalty must be cabined and the requirement that its discretion to accord mercy may not be constrained in any way. Because all of these factors relate to societal conditions and practices that existed before the passage of P.A. 12-5, the defendant has effectively conceded that they carry no weight here.³

II

With this procedural history in mind, I turn to the merits of the majority's opinion. I begin with the majority's Geisler analysis.⁴ After reviewing the Geisler factors, the majority concludes that: (1) the United States Supreme Court's repeated holdings that the death penalty "comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner" carry no weight because that court has never considered whether the death penalty may be...