The state Supreme Court is set to hear arguments Tuesday on whether Connecticut's controversial prospective repeal of the death penalty is constitutional.
The General Assembly eliminated capital punishment a year ago. But to win passage, lawmakers forged a politically inspired compromise: repeal the death penalty for future cases but maintain it for the 10 men currently on death row, including Cheshire home invasion killers Steven Hayes and Joshua Komisarjevsky.
The challenge to the state's closely watched repeal of the death penalty was brought by Eduardo Santiago, who was convicted in a murder-for-hire scheme and sentenced to death in 2005.
Santiago's lawyer, Assistant Public Defender Mark Rademacher, argues that the application of the death penalty after its repeal would constitute cruel and unusual punishment. Arguments in the case are scheduled to be heard before the court, which could strike down portions or all of the act that repealed the death penalty.
"The execution of a handful of men who committed their crimes before repeal fails to achieve the constitutionally required goals of deterrence and retribution,'' Rademacher wrote in a supplemental brief filed on behalf of Santiago. "Their execution would be nothing but the purposeless and needless imposition of pain and suffering. This court should join with other states that reject death sentences when they lack justification as deterrence or retribution."
Several states, including Illinois and New Jersey, have repealed capital punishment in recent years but no state has executed an inmate after repeal, according to a friend of the court brief in support of Santiago filed by Brian W. Stull of the American Civil Liberties Union Foundation.
"The post-repeal execution of Eduardo Santiago would be the first execution following a state's repeal of the death penalty in the United States, violating the United States and Connecticut constitutions,'' Stull wrote.
Rademacher said that the state "offers no reason" that it should buck the national consensus and be the first state to execute an inmate after repealing the death penalty. "Doing so would plainly be cruel and unusual punishment forbidden by both the Eighth Amendment … of the Connecticut Constitution" and the U.S. Constitution, he wrote.
The legislature voted in April 2012 to repeal Connecticut's death penalty; the measure was signed into law by Gov. Dannel P. Malloy later that month.
But with the horror of the 2007 Cheshire murders still fresh in the minds of both lawmakers and the general public, a compromise was struck: the death penalty would remain for those currently on death row, including Hayes and Komisarjevsky, but those convicted of capital crimes going forward would be sentenced to life in prison without the possibility of parole.
Hayes and Komisarjevsky broke into the Cheshire home of the Petit family in July 2007. Dr. William A. Petit Jr. was beaten with a baseball bat and left to die in the basement.
Hayes raped and strangled Petit's wife, Jennifer Hawke-Petit. Their daughters, Hayley, 17, and Michaela, 11, died of smoke inhalation after they were doused with gasoline and the house was set on fire. William Petit managed to escape.
Petit became a strong advocate in support of maintaining the state's death penalty, making frequent appearances at the state Capitol to testify against repeal. "I still am in favor of the death penalty,'' he said in a message via Twitter on Monday, "and I trust the Supreme Court will recognize the validity and justice of this punishment in select cases. The issue is further crystallized by Newtown and Boston."
Harry Weller, the senior state's attorney, said that the legislature's intent regarding the death penalty was abundantly clear. "[All] that can be gleaned from the debate ... is that this particular legislature has eliminated the death penalty for crimes committed on or after the effective date" of the repeal, he wrote in a supplemental brief filed in connection with the case.
"It is equally clear that the legislature, as a body, wants deserving inmates to be executed for capital crimes committed before the effective date of the act. ... Indeed, Connecticut's legislature, but not its citizenry, has a dilemma about capital punishment and, for now, has decided to reach a political compromise to address that dilemma,'' Weller wrote.
Hanging in the balance is whether the death penalty will be meted out to anyone or abolished for all, Weller said. He argues the state's case that asserts that any tinkering with the prospective nature of the repeal would essentially invalidate the entire law.
The legislature's intent to maintain capital punishment for those already on death row is clear, Weller wrote in a brief. "[I]f this court 'saves' the act by exercising the 'effective-date provisions,' it will act in direct defiance of the legislature's will," he wrote. "[I]t must invalidate the entire act."
On the night that the bill was approved by the House of Representatives, Rep. Larry Cafero, a Republican from Norwalk and a death penalty supporter, called the measure "a fraud on the public" because it only applied to crimes after the law was enacted.
On Monday, Cafero, the Republican leader in the House, said he knew that a legal challenge would be brought. "To me, it's unconstitutional,'' he said Monday. "The proponents and the governor knew darn-well this is exactly what would happen."
The ACLU of Connecticut also filed a friend of the court brief in support of Santiago. "Our argument is that it is fundamentally unfair to apply the penalty of death to Mr. Santiago retroactively,'' said Sandra J. Staub, the group's legal director.
Santiago, formerly of Torrington, was convicted of capital felony and murder charges after shooting Joseph Niwinski in the left temple as he slept in his West Hartford apartment in December 2000. Two other men involved in the murder-for-hire scheme, Mark Pascual and Matthew Tyrell, pleaded guilty and were sentenced to life in prison.
Santiago was sent to death row in 2005, but last year, the state Supreme Court overturned that death sentence and unanimously ordered a new penalty hearing because the trial court judge withheld potentially mitigating information from the jury.Copyright © 2015, The Baltimore Sun