By singling out Santiago and 10 other men on death row for harsher penalties, Rademacher argued that Connecticut's repeal of capital punishment violates Santiago's federal equal protection guarantees.
Senior Assistant State's Attorney Harry Weller argued in support of the new law, saying prospective repeal was the legislature's intent. He said it is constitutional and argued against the justices ruling on just part of the law. If the effective date of the law is found unconstitutional, the law must be struck in its entirety, he said.
Weller said he saw two outcomes to Tuesday's arguments, "and neither of them get the defendant what he wants." The first outcome, he said, would be to affirm the constitutionality of the new law. The second outcome would be a ruling that the new law is unconstitutional.
"But if you do that, the entire act is unconstitutional," Weller said. "This defendant remains subject to the death penalty and the death penalty remains in place."
State: Issue Best Left To Legislature
Weller said the state's highest court has always deferred to the legislature in regard to decisions about Connecticut's death penalty.
"This is quintessentially a legislative judgment, a judgment made by the people of the state of Connecticut, not this court," Weller said. "This is a major policy issue, this is a political issue ... this is subject to the debate across the street [at the Capitol], contributed to by the people of the state of Connecticut — that's where the policy is made on this, not in this court."
Weller said the state's highest court in the past has said, "unless the legislature is far off the mark, this court is powerless to act."
Weller said the repeal is not arbitrary and that those on death row have been prosecuted under due process of law and sentenced under "the most protected and probably the best capital statute in the entire country."
For the men currently on death row, Weller said, "the level of culpability is higher because at the time the crime was committed, there was a statement from the people of the state that the death penalty is the penalty of choice under certain circumstances."
In closing, Weller urged the justices to "validate the statute and allow the statute to act the way the legislature intended it to."
Former state Rep. Michael Lawlor, who served as House chairman of the judiciary committee and once worked as a state prosecutor, said Tuesday he does not expect the justices to find the repeal unconstitutional.
"If the Supreme Court ruled that way, it would be a first," Lawlor said. "No one is expecting that to happen."
Lawlor said it is not unusual for lawmakers to reduce penalties for crimes. Though several states, including Illinois and New Jersey, have repealed capital punishment in recent years, those states have not executed any inmates, Lawlor said.
Lawlor noted that the last person to be executed in Connecticut was serial killer Michael Ross, and it occurred in 2005 only after Ross waged a legal fight to end his appeals and to have the sentence imposed. Before Ross, the last execution in Connecticut was in 1960, when the state electrocuted Joseph "Mad Dog" Taborsky for murdering six people during a robbery spree.
"No matter what the Supreme Court does, it seems unlikely anyone will be executed any time soon," Lawlor said.