“[T]hroughout every period of our state’s history,” Justice Richard Palmer wrote in a Connecticut Supreme Court decision handed down on Thursday, “the death penalty has been imposed disproportionately on those whom society has marginalized socially, politically, and economically: people of color, the poor and uneducated, and unpopular immigrant and ethnic groups.” He added that it “always has been easier for us to execute those we see as inferior or less intrinsically worthy.”
That practice will not end for good with Thursday’s decision, but it will end in the state of Connecticut. Justice Palmer’s opinion holds that the death penalty is unconstitutional.
As a practical matter, Palmer’s opinion in State v. Santiago will only impact eleven inmates. In 2012, Connecticut abolished the death penalty for future crimes, but they did not make this law retroactive. Thus, the eleven men who were on death row when this bill became law remain eligible for execution.
The Santiago opinion lists several reasons why this situation is untenable. Though the death penalty is often justified because people believe that it will deter other people from committing capital crimes — an argument that is doubtful at best — that argument no longer applies in Connecticut. “As a general matter, the empirical evidence regarding deterrence is inconclusive,” Santiago explains in a passage quoting another opinion. “Following the abolition of the death penalty for all future offenses committed in Connecticut, however, it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.”
Much of the opinion, however, rests on an account of the history of the death penalty in Connecticut and throughout the country, which paints abolition as the logical culmination of the state’s longstanding rejection of executions. Noting that the proper question in a case alleging that a particular punishment is unconstitutionally cruel and unusual is “whether the punishment at issue comports with contemporary standards of decency,” the court argues that “the acceptability of imposing death as a form of judicial punishment has declined steadily over Connecticut’s nearly 400 year history.”
A centerpiece of its case that the death penalty no longer “comports with contemporary standards of decency” in Connecticut is the fact that the state has only executed one person in the last 55 years, and that person was “a serial killer who believed that he deserved to die and voluntarily waived his right to further appeals and habeas remedies.” Even in this case, however, the court notes that “it took the state more than two decades to carry out his sentence.”
Indeed, according to the court, states that continue to execute inmates with any frequency are outliers. “The total number of executions carried out nationally has fallen by more than 60 percent . . . dropping from 98 in 1999 to 39 in 2013, and then falling again to 35 — a 20 year low — in 2014.” Most jarringly, “[o]f the 35 executions carried out in 2014, approximately 90 percent occurred in just four states: Texas, Missouri, Florida, and Oklahoma.”