Death Penalty Struck Down: Today Connecticut, Tomorrow The Whole Country?

Columnist Sam Wright explores Connecticut's landmark decision that ends the death penalty in the state.

Sometimes the most effective public interest lawyers wear robes.

Twelve years ago, the Massachusetts Supreme Judicial Court handed down an opinion in Goodridge v. Department of Public Health that legalized same-sex marriage in Massachusetts. The lead opinion, penned by Chief Justice Margaret Marshall and joined by two of her colleagues (with a third colleague concurring), relied on the Massachusetts constitution’s equal-protection and due-process provisions to extend marriage rights to same-sex couples throughout the Commonwealth. (The winning lawyer, by the way?  Mary Bonauto.)

Three justices dissented. Justice Martha B.  Sosman’s dissent contained some language that, in hindsight at least, seems particularly interesting:

As a matter of social history, today’s opinion may represent a great turning point that many will hail as a tremendous step toward a more just society. As a matter of constitutional jurisprudence, however, the case stands as an aberration.

Back then, some people (myself included) agreed with the Goodridge majority that there was no rational basis for limiting marriage to opposite-sex couples; however, many — probably more — people shared the dissent’s position that the lead Goodridge opinion appeared to be result-driven and was something of an analytical stretch.

Of course, the dissent’s language is interesting in hindsight precisely because what might have been a jurisprudential “aberration” twelve years ago now applies to the entire United States, after the Supreme Court relied on the United States Constitution’s Equal Protection and Due Process clauses to extend marriage rights to same-sex couples throughout the country. 

Now perhaps that scenario — a state-court “aberration” becoming the law of the land — will repeat itself in a different context.

Sponsored

Just last week, the Connecticut Supreme Court handed down an opinion in State v. Santiago and eliminated the death penalty in Connecticut. The lead opinion, penned by Justice Richard Palmer and joined by three of his colleagues, relied on the Connecticut constitution’s cruel-and-unusual-punishment provision to strike down Connecticut’s death penalty in toto, finding that it “fails to comport with contemporary standards of decency” and “is devoid of any legitimate penological justifications.”  

Three justices dissented. Justice Carmen Elisa Espinosa’s dissent contained some particularly interesting language:

The majority’s decision to exceed this court’s limited power appears to be designed to eliminate capital punishment in this state. Rather than faithfully applying a true contemporary standards analysis, the majority applies only the appearance of such an analysis, selecting for consideration only those aspects of each factor that support its conclusion.

Some people (myself included) agree that the death penalty should be struck down as an Eighth Amendment violation, period. However, many — probably more — people share the dissent’s position that the Santiago opinion appears to be result-driven and is something of an analytical stretch.

The basic parallels between Goodridge and Santiago are obvious. And additional context offers additional parallels: Goodridge came immediately on the heels of the Supreme Court’s decision in Lawrence v. Texas, which made major strides in terms of affording same-sex couples due process protections; Santiago follows a fifteen-year trend of restrictions on the death penalty by the Supreme Court, including Atkins v. Virginia (no death penalty for the intellectually disabled), Roper v. Simmons (no death penalty for children), and Kennedy v. Louisiana (generally no death penalty for crimes not involving a victim’s death).  

Sponsored

State courts of last resort take their cues from the Supreme Court, both in terms of trends like those and in terms of analytical approaches. Thus even in interpreting the Massachusetts constitution, the Goodridge opinion explicitly applied the Supreme Court’s tests for assessing constitutionality under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.  It was not really an aberration.  And even in interpreting the Connecticut constitution, the Santiago opinion explicitly applies Supreme Court precedent assessing constitutionality under Cruel and Unusual Punishment Clause of the Eighth Amendment.  It is not really just the “appearance” of an Eighth Amendment analysis — it is such an analysis.  

Because of this attention to Supreme Court trends and analysis, Santiago could, conceivably, serve as a detailed and persuasive amicus brief signed by four public interest lawyers wearing robes. Just like Goodridge did. And it could, conceivably, influence the Supreme Court. Or so say some commenters.  

Eventually.

So, given the obvious parallels between Goodridge and Santiago, the next question is obvious too: is Santiago a sign that the end of the death penalty is near?

We’ll see.


Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.