In highly anticipated arguments Tuesday before the Connecticut Supreme Court, a convicted killer's lawyer offered what he called a simple solution to settling the controversy over a death penalty repeal that excluded inmates already on death row.
"You send it back to the legislature and you tell them this provision is unconstitutional and then they can do what they want to do," Senior Assistant Public Defender Mark Rademacher said.
But Supreme Court Justice Flemming L. Norcott Jr. questioned such simplicity.
"Conceivably you could end up winning this battle and losing the overall war with respect to the future of the death penalty, right?" Norcott asked.
Rademacher replied: "I think the epilogue would be the legislature, put to the choice of no repeal or repeal for all, would say repeal for all."
Legislators, Rademacher said, can agree or disagree about whether the death penalty is a good idea. But once lawmakers say there is no more death penalty, there should be agreement that decisions about who lives and who is executed should not be based upon "something as arbitrary" as the date of the repeal, he said.
Rademacher said singling out someone for execution based on whether a murder was committed before or after the repeal took effect is like choosing defendants for lethal injection based on the first letter of their last names.
"That renders the entire scheme arbitrary because they've stuck a factor in there that the state has to prove that has no bearing on an individual's culpability or the heinousness of the crime," Rademacher said.
Connecticut lawmakers abolished the death penalty a year ago but made the law prospective, effectively applying only to new cases and keeping in place the death sentences imposed on current death row inmates. That prompted legal challenges by attorneys representing those condemned to die by execution.
Last September, the state Supreme Court agreed to take up the new law's prospective issue when it granted a request by Eduardo Santiago, whose death sentence was overturned in June, two months after the repeal took effect.
The justices ordered a new penalty phase for Santiago, saying the trial judge failed to disclose "significant and relevant" mitigating evidence for jury consideration when jurors decided to send Santiago to death row for the December 2000 killing of Joseph Niwinski in West Hartford.
During the death penalty debate, some legislators questioned whether a prospective repeal would stand up in court. The provision was added following the high-profile trials of Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky, both of whom are on death row.
Defense Cites Top Prosecutor
In his arguments Tuesday, Rademacher noted one of those skeptics: Connecticut's top prosecutor.
"The problems with the prospective repeal were aptly summed up by Chief State's Attorney Kevin Kane when he told the legislature that prospective repeal creates two classes of people," Rademacher said.
"One will be subject to execution and the other will not, not because of the nature of the crime or the existence or absence of any aggravating or mitigating factor but because of the date on which the crime was committed," Rademacher said Kane told legislators in March 2012.
"That," he said, "is untenable as a matter of constitutional law or public policy. I just wouldn't plain feel right doing it," Rademacher recalled Kane saying.
Rademacher said no jurisdiction in the history of the United States has executed an offender after renouncing capital punishment. In Connecticut, the State Board of Pardons and Paroles — not the governor — has the power to commute a death sentence to life in prison.
"Connecticut, lacking any kind of executive clemency, has to make that decision, are we going to be the first and only state to do that?" Rademacher said.
Rademacher said such an execution would be cruel and unusual punishment and would violate the statutory prohibition against arbitrary death sentences. It would also violate constitutional prohibitions against arbitrary criminal laws that are unsupported by legitimate "penological objectives."