On Nov. 6, California narrowly missed becoming the 18th state to abolish the death penalty. But an equally compelling story is evolving in Connecticut, which successfully abolished its death penalty last spring but left in place the death sentences of its 11 death row prisoners. These 11 men join two others in New Mexico who remain on death row following that state's "prospective-only" repeal.
The seeming injustice of prospective-only repeal was not lost on Connecticut's General Assembly. Indeed, it was part of the deal that secured the repeal's passage. On July 23, 2007, a brutal home invasion and triple murder took place in the town of Cheshire. Many called for retribution, and the state obliged. The two perpetrators of that crime are among the 11 on Connecticut's death row. Several senators, persuaded in no small part by Dr. William Petit Jr., the lone survivor of the Cheshire attacks, refused to vote for repeal unless it assured that those men stayed on death row.
On the floor of the legislature, death penalty supporters and a few of its opponents asked how it could possibly be right to abolish the death penalty for some but not for all. "Pure politics," they chided. "Not morality."
These purist positions are attractive in their simplicity, but they miss the point. The legislature's decision to abolish the death penalty for all except the 11 on death row was surely political. But it was also moral. It was a sacrifice that had to be made to get rid of Connecticut's death penalty.
When we talk about sacrifice, we often think of those who willingly offer themselves up for a higher good like God or country. This is the stuff of heroes and martyrs and, for many, it is to be celebrated.
Being sacrificed, on the other hand, has a very different connotation. It's not about those who choose their fate, but those whose fate is chosen for them. They are lambs, plucked from the field and thrown onto the altar for some higher good. This bothers us — and it should. Who among us has the right to decide the fate of innocent others for some purported good? This is the stuff of genocide and is to be avoided at all costs.
Maybe, then, it is never moral to sacrifice others. Or perhaps it is moral in the very narrow circumstance playing out in Connecticut. The 11 men on death row are no martyrs, nor are they innocents plucked from the field. In these 11 men, Connecticut's legislature saw an opportunity to do something good. The legislature has, in effect, taken these 11 men from the death chamber and walked them to the altar. It has transformed their punishment into an act of sacrifice. From wolves, lambs. Yes, these 11 men remain on death row, but now they die for something; they die so that others will not be put to death.
This is the uneasy morality of gradual abolition. Dying, these men destroy our death penalty.
Tuesday, Connecticut's Public Defender Division intends to file a brief in State v. Santiago, a case involving one of the 11 men on death row. The division will argue that Connecticut's repeal should apply retroactively to Eduardo Santiago. If the Connecticut Supreme Court applies Connecticut's death penalty repeal retroactively, it will be reason to rejoice. It means that the court has defied its own precedent and the precedent of other federal and state courts, and has discovered a ram in the thicket of death penalty jurisprudence, a better angel to avert the sacrifice.
But if the Connecticut Supreme Court upholds the death penalty in this case, we should not lament. Instead, it is time for the gradualists to move. Bottle prospective repeal and sell it to every state with the death penalty. And as we use prospective repeal to win states to the abolitionist cause, let us use every tactic we can to delay the executions of those who remain on death row. Delay them long enough to win over that magic number of states that will lead the U.S. Supreme Court to abolish the death penalty for good.
Kevin Barry is a law professor at Quinnipiac University School of Law and co-director of the school's Civil Justice Clinic.