Death Penalty Jurisprudence: An Attempt to Persuade as to the Nature of Justice

Do you think you have the right to retaliation against your country and its laws?...You must either persuade it or obey its orders, and endure in silence whatever it instructs you to endure, whether blows or bonds, and if it leads you into war or to be wounded or killed, you must obey. To do so is right, and one must not give way or retreat or leave one’s post, but both in war and in courts and everywhere else, one must obey the commands of one’s city and country, or persuade it as to the nature of justice.1

- Crito, Plato

Death is the end to our corporeal existence on this world.2 Laws against causing the death of another have followed human existence throughout the ages.3 Perhaps the most profound ‘law’ against murder is the sixth commandment of the Old Testament.4 And yet, ancient and modern societies have continued to utilize capital punishment in their criminal justice systems. Indeed, two of the earliest, most renowned death sentences and subsequent executions were those of Socrates and Jesus of Nazareth.5 Ironically, their deaths came as a result of their spoken word.6 While the crimes for which capital punishment is sought are no longer so totalitarian in most modern societies, capital punishment continues to be an accepted form of criminal justice.7 Despite a worldwide trend toward abolition, the United States stands out as a stalwart advocate of capital punishment.8 While the U.S. Supreme Court’s position on capital punishment has fluctuated in the last quarter-century, the Court’s current position is that capital punishment does not violate the Constitution.9 Despite this, a minority of states have chosen to abolish the use of capital punishment.10 Lest one perceive this as a trend, New York recently reinstated the death penalty.11 In addition, the number of individuals executed continues to increase.12 This essay focuses on the jurisprudential arguments utilized in Connecticut to support the continued administration of capital punishment. Part I of this essay will summarize the U.S. Supreme Court’s response to capital punishment challenges. Part II will discuss the arguments for and against capital punishment in the State of Connecticut.

I. Federal Jurisprudence
In 1976, the Supreme Court held the death penalty per se did not violate any provision of the United States Constitution.13 The Court has continued to reaffirm this interpretation. Gregg v. Georgia reinstated an interpretation of the Constitution which the court had formerly affirmed since the founding of our country. Only for a period of four years had the Court held the death penalty unconstitutional.14 Since Gregg, the Court has continued to clarify when the death penalty may be administered and the procedural safeguards which must be strictly followed in order for a death penalty to pass constitutional muster. Except for these criteria, the death penalty does not violate the United States Constitution.

A. Pre- Furman
As early as 1878, the Supreme Court held that the death penalty did not violate the Eight Amendment’s guarantee against cruel and unusual15 punishment as long as the method by which a sentence of death is carried out is not ‘cruel and unusual.’16 The Court later defined cruel punishment as that which involves “torture or a lingering death” and that the Eighth Amendment “implies...something inhuman and barbarous, something more than the mere extinguishment of life.”17 The Court again held that “the punishment of death is not cruel, within the meaning of that word as used in the Constitution."18 In Weems v. United States, the Court tied what constitutes ‘cruel’ to something more than a static definition.19 It held that the “Eighth Amendment is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice.”20 Despite the Court’s refusal to hold the death penalty unconstitutional, some members of the Court began to suggest limits as to which crimes would justify such a penalty.21 In addition, the Court began to recognize some other limitations on when and how a death penalty may be sought.22 However, the Court by and large embraced a deferential attitude toward state procedure where the death penalty was concerned.23 Indeed, just before the decision in Furman v. Georgia, the Court held that entrusting a jury with standardless discretion to impose a sentence of death did not violate the Constitution of the United States.24

B. The Furman v. Georgia25 and Gregg v. Georgia26 Thematic Pronouncements
In Furman, the Supreme Court was concerned with the arbitrary and capricious way in which death penalties were administered and the insufficient number of procedural safeguards in the states.27 In response, the Court effectively overturned every state’s capital punishment system.28 While some suggest that Furman declared the death penalty unconstitutional, others more accurately suggest that Furman merely held the existing administration of the death penalty unconstitutional.29 The Court concluded “that the imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”30 Since each justice filed his own opinion, it is difficult to graph any agreed upon set of guidelines from Furman.31 As a result, it appears that courts most often refer to those opinions that were based on the narrowest grounds.32 Despite this difficulty, thirty-five states enacted legislation to reintroduce death penalty schemes which conformed with Furman’s mandate.
Four years after Furman, “the Court in Gregg authorized a virtual return to the days before Furman v. Georgia, and to a regime in which the jury has unfettered discretion to elect death.”33 Thus, any protection an individual has from the death penalty per se must not be sought from the United States Constitution, but rather from provisions within state constitutions or statutes.34

II. Connecticut Death Penalty Jurisprudence
The Supreme Court of Connecticut has held that its constitution may afford its citizens greater protection than that of the United States Constitution.35 Nevertheless, the State of Connecticut continues to uphold the constitutionality of capital punishment as a means to administer justice.36 Thus, the Connecticut Constitution does not afford its citizens any greater protection of their lives than does the United States Constitution.37 The following section introduces the analysis which the Connecticut Supreme Court employs when addressing a state constitutional issue for the first time. This introduction is followed by a discussion of various arguments presented before the court which both support and oppose the use of capital punishment.

A. The Analysis for Novel State Constitutional Issues
The Connecticut Supreme Court has identified six factors to be considered when addressing a state constitutional issue for the first time. These include: “(1) the text of the constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of our constitutional forebearers; and (6) contemporary understandings of applicable economic and sociological norms.”38 While the court has not clearly articulated a methodology to be used in applying the Geisler factors,39 they do provide a foundation from which to analyze decisions. Indeed, the court has employed all six factors when it first considered the state constitutionality of the death penalty in Connecticut.40 Therefore, it is prudent to be aware of these factors in our discussion of Connecticut death penalty jurisprudence.

B. State Constitutional Arguments
While the death penalty has been utilized in Connecticut since pre-1650,41 its use,42 and the statutes authorizing its use, have become more restrictive over the last fifty years.43 Despite this move toward de facto abolition,44 the state’s death penalty statutes were effectively invalidated by the United States Supreme Court in Furman v. Georgia.45 In State v. Aillon, the Connecticut Supreme Court acknowledged Furman and the unconstitutionality of the Connecticut death penalty scheme.46 The court responded by remanding cases on appeal “for the limited purpose of resentencing the defendant to a term of life imprisonment.”47 In 1973, the Connecticut legislature reintroduced death penalty legislation48 “presumably in accordance with the guidelines suggested in Furman v. Georgia.”49 The legislation was enacted and codified.50 Interestingly, only six individuals have received a sentence of death under the statute since 1974.51 Upon hearing challenges to the constitutional validity of the new statute, the Connecticut Supreme Court found the new death penalty statute to be valid under the federal guidelines established in Furman v. Georgia and Gregg v. Georgia.52 However, the court did not address state constitutional issues regarding Connecticut’s death penalty statute until 1994.53 The court has since addressed additional challenges to the constitutionality of the death penalty under the state constitution.
In considering challenges to the Connecticut death penalty statute, the Connecticut Supreme Court has addressed arguments suggesting that the penalty is cruel and unusual and violates the social compact adopted through Article 1, Section 1 of the Connecticut Constitution. In addition, the court has been presented with arguments suggesting the death penalty violates the equal protection clauses and is without a supporting ”compelling state purpose.” While none of these arguments has succeeded in persuading a majority of the court,54 there are weaknesses in the court’s analyses of these arguments.55 It should be noted that there are only two cases where the Connecticut Supreme Court has heard arguments challenging the validity of the death penalty under the state constitution. As a result, each of these cases tends to represent the court’s position on particular arguments presented before it.56

1. The Cruel and Unusual Argument
There have been several claims that capital punishment constitutes cruel and unusual punishment and is therefore prohibited under the Connecticut Constitution. However, the Connecticut Constitution does not contain a specific prohibition against cruel and unusual punishment.57 In State v. Ross, the court concluded that, despite the absence of a specific prohibition against cruel and unusual punishment, the Constitution does condemn such punishment by incorporating through the due process clauses those “constitutional or quasi-constitutional rights that were recognized at common law in this state prior to 1818."58 The court further concluded that the “due process clauses impliedly prohibit punishment that is cruel and unusual.”59
Despite recognizing a protection against cruel and unusual punishment under the Connecticut Constitution, the Connecticut Supreme Court has refused to categorize the death penalty as cruel and unusual. In Ross, the court employed the Geisler factors to reach this conclusion.60 First, the court concluded that because the Connecticut Constitution specifically refers to a “capital offense” in Article I, Section 19,61 the text of the constitution supports capital punishment rather than condemns it.62 Second, the court stated that “Connecticut case law has recognized the facial constitutionality of the death penalty under the eight and fourteenth amendments to the federal constitution.”63 Here, the court may have misinterpreted the second Geisler factor. Earlier in Ross, the court had addressed the federal constitutional issues relating to the death penalty. In addition, the state constitutional issues relating to the death penalty had been left open until the court’s analysis in State v. Ross.64 Thus, the cases to which the court cites as “related Connecticut precedent” were limited to an analysis of federal constitutional issues. Therefore, it would seem that the court’s use of such Connecticut precedent was inappropriate in the context of the state constitutional analysis. The conclusion should have been one which acknowledged the absence of any specifically related Connecticut precedent.65
Third, citing Gregg v. Georgia, the court summarized the federal response to similar arguments by simply stating the death penalty is not considered cruel and unusual punishment. Fourth, the court noted precedent in the majority of sister states which had “rejected facial challenges to the death penalty under their state constitutions.”66 Fifth, the court stated that there has been a death penalty statute in Connecticut since even before 1650.67
Finally, the court reached the Geisler factor which was most relevant to the defendant’s claim that the death penalty “no longer comports with contemporary standards of decency and civilization”:68 whether the death penalty is no longer constitutional under “contemporary understandings of applicable economic and sociological norms”.69 In considering this question, the court rephrased its inquiry as whether the “defendant was correct in his contention that the death penalty is so inherently cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is fundamentally offense to evolving standards of decency.”
The Connecticut Supreme Court has recognized that “[c]onstitutional provisions must be interpreted within the context of the times . . . As one court said: ‘We must interpret the constitution in accordance with the demands of modern society or it will be in constant danger of becoming atrophied and, in fact, may even lose its original meaning.’”70 The court continued: “It is this court's duty to assure that our constitution does not become ‘a magnificent structure . . . to look at, but totally unfit for use.’ Moreover, a constitution is, in Chief Justice John Marshall's words, ‘intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.’”71 In Ross, the court recognized that “[j]udicial evaluation of evolving standards of human decency cannot proceed in a vacuum” and that “we should not follow a beaten path.”72 However, the court did, in fact, both proceed in a vacuum and follow a beaten path. By limiting its inquiry to the United States when evaluating ‘evolving community standards’, the court dismissed a worldwide movement to abolish the use of the death penalty.73 Specifically, the court missed the opportunity to join the states and world jurisdictions which have recognized that capital punishment is violative of human rights.74 The court also should have taken more than a cursory glance at statutory language. An inquiry into the use of the death penalty among sister states would suggest a different perspective, if not entirely different, from that of the court.75 Indeed, “public opinion must be gleaned from a society’s actual record in carrying out the death penalty.”76 Connecticut’s record suggests a de facto abolition considering there has not been an execution since 1960.
In contrast to the majority’s reliance on the legislatures of thirty-seven states,77 Justice Berdon, in his dissent, suggested a multi-faceted inquiry into contemporary standards of human decency. Such an inquiry should include a consideration of “(1) whether the punishment is degrading to the dignity of the human being; (2) whether the punishment is acceptable to the public; (3) whether the punishment has, in the past, been administered in an arbitrary and capricious manner; (4) whether the punishment has been imposed in a discriminatory fashion; (5) whether the punishment serves any legitimate purpose; and (6) whether the punishment is so final and complete that error cannot be corrected.”78 Justice Berdon argued that the death penalty “is inherently degrading to the dignity of a human being” because “the physical and psychological pain associated with it are barbaric” and “’the cruelty of capital punishment lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution...’”79 As to whether the punishment is acceptable to the public, he suggested that “public opinion should be measured objectively in terms of society’s actual record in imposing the death penalty.” Such a perspective yields a history which “demonstrates a reluctance to impose the death penalty.”80 Justice Berdon also concluded that the death penalty is administered in an arbitrary and capricious manner,81 is discriminatory in its effect,82 and serves no legitimate state purpose.83
Finally, Justice Berdon concluded that the incontrovertible finality of death is indicative of the cruel and unusual nature of the death penalty. With evidence demonstrating the mistake-prone nature of the criminal justice system, Berdon argues that “[e]ven if only one innocent life is extinguished in the process of putting people to death, that one life makes the cost of the death penalty unacceptable.”84 And, there oftentimes is no way to know whether an ‘innocent’ was executed or not “because once a defendant is executed there is no forum to evaluate guilt or innocence.”85 Various studies and reports have documented cases in which a possibly innocent individual was executed.86 National statistics reveal that of the 5,580 individuals sentenced to death between 1973 and 1995, thirty-four percent had their sentence or conviction overturned.87 Other studies document cases in which individuals who were on death row were later acquitted due to new evidence.88 Connecticut has not escaped such a phenomenon.89
The potential conviction and execution of an innocent individual might indeed support a conclusion that, as administered, the death penalty is cruel and unusual. However, the danger in relying on such an argument is that a time may arrive when innocents are no longer convicted, sentenced, and executed. In such a case, the death penalty would no longer be cruel and unusual under the “innocent execution” argument. In fact, depending on which party has the burden of proving the purity of the death penalty scheme, such a time may arrive sooner than later. For example, assume that a court did in fact rule that a justice system was an inexact science and barred use of the death penalty until the system was pure90 in its convictions and sentences. To whom would the court rely to demonstrate the system’s purity? Would legislative measures be enough to demonstrate a perfect (or near perfect) system? Would defendants be required to show at each trial or appeal that mistakes still occur? Or, would the state have the burden of proving that the system was pure? Each scenario brings with it significant consequences. In other words, the “innocent execution” argument suggests only the cruel and unusual nature of the death penalty as it exists today. Regarding a specific defendant, the delay obtained through a court’s acceptance of this argument could be considered a victory. However, the victory might be hollow when a court later finds the system is pure.91
In Ross, the Connecticut Supreme Court examined the constitutionality of Connecticut’s death penalty under its state constitution and found it facially valid. Through the application of the six Geisler factors, the court found no support for the defendant’s argument. However, in a more thorough analysis of Connecticut’s history and the contemporary standards of human decency, Justice Berdon provided a strong dissent in which he concluded the death penalty is violative of the state constitution.92 The court’s limited inquiry into “evolving standards of human decency” blinded it to the worldwide movement toward abolition of the death penalty. Indeed, such a movement emphatically suggests an overwhelming position that capital punishment is “fundamentally offensive to evolving standards of human decency.” Yet, Ross remains the Connecticut Supreme Court’s analysis of whether the death penalty constitutes cruel and unusual argument. Recently, indeed, this analysis has been reaffirmed.93

2. The Social Compact Argument
The Connecticut Constitution provides that "[a]ll men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community."94 While the Connecticut Supreme Court has heard arguments invoking the “social compact” clause as constitutional support for minimal substinence95 and shelter,96 it was not until State v. Webb that the argument was used in a constitutional challenge to the Connecticut death penalty.97 Despite the court’s admonition that “the direct infraction of vested rights by the legislature would be considered ‘as a violation of the social compact, and within the control of the judiciary,’”98 the court has refused to validate arguments suggesting that certain statutory schemes violate the social compact and are thus unconstitutional.99 In essence, the court does not recognize the existence of the particular “vested” right argued before it. The failure to recognize a “vested” right eliminates any possible violation and quashes any social compact argument.
In its analysis of social compact arguments, the Connecticut Supreme Court has equated social compact theory with natural law.100 In addition, the court has refused to recognize unenumerated constitutional rights emanating from either the social compact clause or natural law principles.101 Indeed, the court’s examination of the “historical role of natural law in [Connecticut’s] constitutional system”102 led it to conclude “that our forebears did not understand natural law to be a source of expansive, unlimited rights that civil law was prohibited from subjecting to substantial statutory restrictions.”103 And yet, the court has recognized rights not explicitly enumerated in the Connecticut Constitution.104 The distinction may be that unenumerated rights recognized at common law are more worthy than those considered to have originated from ‘natural law’.105 To the Connecticut Supreme Court, only unenumerated rights which “are grounded in or derived from the constitutional text or Connecticut’s unique historical record” exist.106 In Webb, the defendant argued that “members of the social compact retain an absolute natural right to life.”107 As we have observed, the court’s examination of capital punishment in Connecticut history revealed nothing but support for capital punishment and certainly no evidence of a recognized ‘natural right to life.’108

3. The Equal Protection Argument
Many scholars have commented that empirical data suggest a racial bias in the administration of the death penalty in the United States.109 Despite this, the Connecticut Supreme Court has failed to address the issue of racism in the administration of the death penalty.110 Scholars have also commented on the arbitrary and capricious manner in which the death penalty is sought and obtained. This, too, the court seems to evade. However, the court may not be entirely to blame. While Justice Berdon includes the issues of racism and arbitrariness within his discussion of the death penalty as cruel and unusual punishment, it would seem more prudent to graph such arguments into a separate constitutional claim under the equal protection clauses and civil rights guarantees in the Connecticut Constitution. To date, this has not been done.

a. The “Purposeful Discrimination” Requirement
Such an approach to these issues is not novel.111 In fact, similar arguments have been made before the United States Supreme Court. In McClesky v. Kemp,112 the defendant argued that the administration of the Georgia capital punishment system violated the Eighth and Fourteenth Amendments.113 Specifically, the defendant argued that the Georgia system was administered in a racially biased manner and introduced a statistical study (the Baldus study) to demonstrate this bias.114 He claimed that race had “infected the administration of Georgia's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.”115 Despite the presumed validity of the Baldus study,116 the Court refused to recognize a valid equal protection claim. First, the Court held that a defendant must prove purposeful discrimination when alleging an equal protection violation.117 Second, the Court held that a “defendant must prove that the purposeful discrimination ‘had a discriminatory effect’ on him.”118 While the Court has allowed statistical studies to be the sole proof of discriminatory intent and personal, discriminatory effect,119 the Court held that capital punishment cases are different from those cases where such evidence has been accepted.120 Thus, ‘purposeful discrimination’ must be proven by the defendant in order to prevail on an equal protection claim under the Fourteenth Amendment.
Contrary to federal precedent, Sheff v. O’Neill121 suggests that the ‘purposeful discrimination’ requirement would not be necessary under the Connecticut Constitution. In Sheff, the Connecticut Supreme Court held that the discriminatory effects122 of the public school system in Hartford, Connecticut violated the Connecticut Constitution.123 In so doing, the court rejected the defendants’ argument urging the court to adopt the federal standard requiring plaintiffs to “prove intentional governmental discrimination against a suspect class.”124 In fact, the court specifically rejected the analysis relied upon by the Supreme Court in McClesky.125 First, the court explained that there is a fundamental right to an education in the Connecticut Constitution that is absent from the United States Constitution.126 Second, and most relevant to this discussion, the court reasoned that federal equal protection cases are guided by principles of federalism which are absent from state constitutional litigation. Thus, the Connecticut Supreme Court held that school segregation violates the state constitution even without a discriminatory purpose. This suggests that the Connecticut Supreme Court would not require a discriminatory purpose where a defendant alleges de facto discrimination in the administration of capital punishment.

b. Standard of Review
The Connecticut Constitution contains two provisions which have been interpreted to provide equal protection to Connecticut’s citizens.127 In addressing an equal protection challenge under the Connecticut Constitution,

the reviewing court must first determine the standard by which the challenged statute's constitutional validity will be determined. If, in distinguishing between classes, the statute either intrudes on the exercise of a fundamental right or burdens a suspect class of persons, the court will apply a strict scrutiny standard wherein the state must demonstrate that the challenged statute is necessary to the achievement of a compelling state interest. . . . If the statute does not touch upon either a fundamental right or a suspect class, its classification need only be rationally related to some legitimate government purpose in order to withstand an equal protection challenge. . . .128

If evidence demonstrates a racial bias in the administration of a death sentence, and race is a suspect class, should not the court apply a strict scrutiny standard? Likewise, if evidence demonstrates that the Connecticut death penalty scheme is arbitrary and capricious, and life is a fundamental right,129 must not the court also apply a strict scrutiny standard? Under such a standard, the state must demonstrate that the statute serves a compelling state interest and that the statute is necessary to accomplish such an interest.130 The Connecticut Supreme Court has evaded any such inquiry into whether a compelling interest exists.131 In other words, it has failed to address whether there is any ‘compelling state interest’ which justifies the death penalty.

c. Possible Compelling State Interests

Perhaps deterrence and retribution are the two interests most widely suggested as supporting the continued use of the death penalty.132 Deterrence is often considered the most important argument offered by death penalty advocates.133 Some claim that deterrence works by frightening would-be criminals. For example, the state might say, “If you cross the line, if you disregard our values, you will be punished. Conform or be condemned.” Others claim that deterrence works through sentencing guidelines by demonstrating a moral value placed on certain criminal activities. In other words, sentencing guidelines act as a moral Geiger counter by indicating correlations between the values placed on certain comforts and rights inherent in a civilized society and the criminal sanctions placed on those who threaten these comforts or violate these rights. Regardless of the message, evidence suggests the death penalty does not have a empirically valid deterrent effect. Specifically, the death penalty does not in fact deter homicides more than life imprisonment.134 Also, statistics indicate that often the murder rate in capital states is the same as or slightly higher than adjacent non-capital states.135 Thus, deterrence does not appear to be a valid, compelling interest or justification for the death penalty.

As for retribution, this does tend to be a plausible argument supporting the death penalty. As long as the crime for which one is sentenced to death is murder, there seems to be some basis for the ‘just deserts’, ‘make the punishment fit the crime’, or ‘an eye for an eye’ approach to justice. Yet, Albert Camus suggests that the death penalty is more cruel than the murder or homicide for which one has been sentenced to death. He wrote:

For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.136

Putting aside the rhetoric dismissing retribution as a flawed concept, one must assume that retribution is a legitimate, if not compelling, state interest. However, it is unlikely that retribution can overcome the inherent racial bias and arbitrary administration of the death penalty.
Finally, “[t]he death penalty sends a counterproductive message. Politicians regularly defend the death penalty on the ground that human life is so sacred that to snuff it out demands the highest penalty possible. Only by using the highest penalty, they argue, can we deter the taking of life and spread the message that life, above all other values, is never to be taken.”137 In other words, it is nonsensical to suggest that we enhance respect for life by taking it. On the contrary, we diminish respect for life by cheapening it. In turn, we send the very opposite message we intend to convey.
With both deterrence and retribution, the question is whether either is a compelling state interest. Can deterrence be a compelling state interest if there is no provable deterrent effect? Can retribution be a compelling state interest is there is no provable retributive effect? Can either be a compelling state interest if the message received is contrary to the message sent?

d. Making the Equal Protection Argument
A significant number of studies have demonstrated that the death penalty is administered in a racially discriminatory manner. While this discriminatory effect may not be intentional, Sheff suggests that a discriminatory purpose or discriminatory intent need not be proven by a defendant. Thus, it is possible that the Connecticut Supreme Court will not adopt the McCleskey doctrine. Such a fortuitous signal suggests that an equal protection argument might be successful. If life is considered a fundamental right and race is indeed a suspect class, there is no reason why a strict scrutiny standard should not be adopted by the court in considering the validity of the death penalty under a state constitutional, equal protection challenge. Under such an approach, the state must bear the burden of proving a demonstrable, compelling state interest which justifies the death penalty. In doing so, the state could not rely on deterrence as a compelling state interest because there is no provable deterrent effect. Likewise, the state could not rely on retribution because there is no provable retributive effect. Indeed, in some cases, the intended message may be the opposite of that received. As deterrence and retribution are considered the strongest and most common arguments supporting the death penalty, it would be nearly impossible for the state to provide a provable compelling state interest. However, until an equal protection argument is made under the Connecticut Constitution, the court’s response will be as elusive as the justice the death penalty seeks.

C. The Future of Death Penalty Jurisprudence in Connecticut
The interplay of a tripartite system of government in the formulation of a state policy on capital punishment will soon be more evident than before. Since the reintroduction of the death penalty in Connecticut, the legislature has often attempted to broaden the discretion of both judge and jury in sentencing individuals to death.138 Such legislation would be a move toward pre-Furman death penalty schemes held unconstitutional because they “allowed unconstitutionally broad discretion in determining whether the death sentence should be imposed...”139 Fortunately, previous legislative efforts were thwarted by Governor Lowell Weicker’s veto.140 With the election of Governor Rowland in 1994, the State of Connecticut no longer has a governor willing to veto legislation of this kind. Quite to the contrary, Governor Rowland favors such legislation.141 In addition, the Connecticut legislature continues to be intent on expanding the use of the death penalty. These two factors could have an impact on Connecticut death penalty jurisprudence by producing more death sentences and appeals.142 This increase will more than likely foster novel challenges to the constitutionality of the death penalty in Connecticut. As the en banc decision of State v. Webb indicates, Justice Berdon is no longer a ‘lone dissenter’.143 Rather, three justices believe the Connecticut death penalty scheme is unconstitutional.144 Were the composition of the court to change, the outcome could result in an unconstitutional death penalty in Connecticut. However, this is unlikely considering Governor Rowland’s position on the death penalty. His nominations to the Connecticut Supreme Court will more than likely be aligned with the Governor and Legislature in their zeal for a more vitalized death penalty.
The limited number of post-Furman appeals in Connecticut is a mixed blessing. On one hand, it significantly limits the nature and number of arguments challenging the death penalty. This limits the ability to test new theories and jurisprudential analysis. On the other hand, it reflects the small number of individuals who have been sentenced to death since Furman. While a change in the political landscape may reward academics with an increase in opportunities to publish analyses of Connecticut Supreme Court doctrine, it more than likely will result in more death sentences and possibly the first execution in Connecticut since 1960. One must hope an academic’s argument finds a receptive majority before the executioner begins her dance.

V. Where do we go from here?
What is it about the death penalty and capital punishment that enables individual judges and justices to condone, for so long, capital punishment as constitutional and then, in the twilight of their careers, declare “I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed?”145 Ironically, in so doing, they articulate beautifully what those challenging the constitutionality of capital punishment have been arguing all along. There are two ways of interpreting these soliloquies. First, one might assume that the change represents an acknowledgment that the death penalty has always been unconstitutional. Second, it is possible the individual merely recognizes that certain arguments, which at one time may have justified the the death penalty, are no longer sound. So, what is it that produces such a change of perspective? It might be that many members of state judiciaries feel their judicial independence threatened. In a recent speech, the Honorable Jon O. Newman expressed concern over recent ravings by some congresspeople who threatened impeachment of certain justices. The impetus for the congressional response was disagreeable decisions. Can it be that our country is indeed regressing? Judicial review and judicial independence have been cherished government institutions since Marbury v. Madison. On the state level, there are often “confidence votes” or elections which limit the tenure of judges and justices. These methods attempt to democratize the justice system. However, one can see how these methods make threats to judicial independence much more oppressive. Might “confidence votes” and vindictive legislative bodies be factors in justices’ decisions concerning the validity of capital punishment? One certainly hopes not.

1 In the dialogue, Socrates is quoting the Laws in the context of Crito’s request that Socrates escape and leave the Athens, thereby avoiding the death penalty. While Socrates quotes the Laws, he and Crito both agree that what they say is indeed correct.

2 I have phrased this sentence so as to avoid any discussion of whether life exists for our soul after we leave this earth. On two levels such a discussion does not belong in this essay. First, the death sentence is not administered in order to assure one’s descent into hell or ascent into heaven, gods be willing. Rather, the finality of death is the basis on which the death sentence is offered in our justice system (ie retribution). Second, the judgment of guilty and sentence of death is a judgment and sentence of this world and does not invoke a court, inquisitor, and jury in the afterlife.

3 This author believes that human nature insists on such a law or moral sense of what is right. Therefore, even when we were in a ‘state of nature’, there was a moral imperative inherent in natural law which forbade killing another person.

4 Exodus 20:13. The use of this reference to the Bible does not indicate any argument that the Bible condones or condemns capital punishment. However, it does serve to introduce the fact that murder and killing are in fact wrong according to many religions. Again, this essay does not explore the contradictions which arise from passages such as Leviticus 24:17 and Revelation 13:10. For a discussion similar to the one avoided here, see: Ledewitz, Bruce S. and Scott Staples, Reflections on the Talmudic and American Death Penalty. 6 J. Law. & Pub. Pol'y 33 (1993).

4 The order of the names is merely a representation of their respective place in history. No claim is made here that one individual is more or less important than the other.

5 Socrates was charged and convicted of “corrupting the young and of not believing in the gods in whom the city believes, but in other new divinities”. Plato, Apology at 24b. Jesus of Nazareth was charged and convicted of sedition. John 18:33-:38 & 19:4-:16.

6 Here I want to check on modern countries v. those where political execution still exists.

7 The Death Penalty: Facts and Figures 1996.

8 Gregg v.Georgia, 428 U.S. 153 (1976); Proffitt v. Florida, 428 U.S. 242 (1976); and, Jurek v. Texas, 428 U.S. 262 (1976).

9 As of December 1996, the following states (jurisdictions, as the District of Columbia is included) do not have a death penalty: Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia and Wisconsin. United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Bulletin: Capital Punishment 1995, December 1996. (Hereinafter referred to as the “1995 BJS Report”.)

10 Governor Pataki made the reintroduction of the death penalty a campaign issue in 1994. New York State reintroduced the death penalty in 1995. In the same year, three abolitionist states survived attempts at reintroduction of the death penalty (Iowa, Massachusetts, and Wisconsin). The Death Penalty: Facts and Figures 1996.

11 Id.

12 Gregg v.Georgia, 428 U.S. 153 (1976).

13 In Furman v. Georgia, 408 U.S. 238 (1972), the Court held the death penalty to be unconstitutional as administered in those states’ systems which were before it.

14 In Trop v. Dulles, the Court noted in a footnote that ‘unusual’ had never been distinguished from ‘cruel’. 356 U.S. 86, 101 n. 32. The Court suggested that were it necessary to do so, the meaning of ‘unusual’ would probably be in its normal sense. Id. The issue in Trop was whether denationalization was violative of the Eight Amendment. The Court held it was. In footnote 32, Chief Justice Warren for the Court indicated that denationalization fit the concept of ‘unusual’. Id.

15 Wilkerson v. Utah, 99 U.S. 130, 136-37 (1878). Were the death penalty violative of the Eighth Amendment, it would be barred to the states through the Fourteenth Amendment. For such an analysis, see the discussion of Furman v. Georgia infra.

16 In re Kemmler, 136 U.S. 436, 447 (1890). The source of the Constitutional provision against “cruel and unusual punishment” derives from the English Declaration of Human Rights of 1688 wherein “it is declared that ‘excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’” Id. at 446, quoting 1 Wm. & Mary, 2d Sess. (1689), c. 2. Those same principles can be traced further back to the Magna Carta. Trop v. Dulles, 356 U.S. 86, 100 (1958).

17 Id.

18 217 U.S. 349 (1910).

19 Id. at 350. In Trop v. Dulles, Chief Justice Warren summarized Weems as holding that the “Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 356 U.S. 86, 100 (1957).

20 See Justice Goldberg’s dissent, which Justices Douglas and Brennan joined, in Rudolph v. Alabama, 375 U.S. 889 (1963). See also Weems v. United States, “In interpreting the Eighth Amendment it will be regarded as a precept of justice that punishment for crime should be graduated and proportioned to the offense.” 217 U.S. at __.

21 See: United States v. Jackson, 390 U.S. 570 (1968) (holding that a statute may not make the possibility of the death penalty a price to pay for a jury trial and that such a provision "needlessly penalizes the assertion of a constitutional right.” Id. at 583)(but see Brady v. United States, 397 U.S. 742 (1970) holding that Jackson did not rule “that all pleas of guilty encouraged by the fear of a possible death sentence are involuntary pleas nor that such encouraged pleas are invalid whether involuntary or not.” Id. at 747.); Witherspoon v. Illinois, 391 U.S. 510 (1968) (holding “that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction...No defendant can constitutionally be put to death at the hands of a tribunal so selected.” Id. at 522.);

22 See Solesbee v. Balkcom, 339 U.S. 9 (1950) (holding that it is quite constitutional to leave an insanity determination to a Governor where supported by physicians’ reports and where such a determination will determine whether a convicted defendant will be sentenced to death); Williams v. New York, 337 U.S. 241 (1949) (holding that the Fourteenth Amendment due process clause did not require that a defendant confront witnesses who gave evidence out of court even where a jury had recommended a life sentence and the trial court sentenced a defendant to death).

23 McGuatha v. California, 402 U.S. 183, 196 (1971).

24 408 U.S. 238 (1972).

25 428 U.S. 153 (1976).

26 Patricia L. Ragone and J. Michael Williams, Conference: The Death Penalty in the Twenty-First Century, 45 Am. U.L. Rev. 239, 246 (1995).

27 Id.

28 Francis J. Mootz, III, The Ontological Basis of Legal Hermeneutics: A Proposed Model of Inquiry Based On the Work of Gadamer, Habermas, and Ricouer, 68 B.U.L. Rev. 523, 609 (1988).

29 Furman v. Georgia, 408 U.S. 238, 239-40 (1972).

30 Furman, 408 U.S. 238. Justices Douglas, Brennan, Stewart, Marshall, and White filed opinions in support of the judgments while Chief Justice Burger, Blackmun, Powell, and Rehnquist filed opinions against the judgments.

31 State v. Breton, 562 A.2d 1060, 1063 n.4 citing R. Rosen, The 'Especially Heinous' Aggravating Circumstance in Capital Cases -- The Standardless Standard, 64 N.C.L. Rev. 941, 948 n.40 (1986).

32 John E. Coons, Consistency, 75 Calif. L. Rev. 59 (1987).

33 Of course, this conclusion is based on the present state of Supreme Court precedent discussed above. There may come a time where the sense of public decency or morality calls for a different interpretation of the Constitution. It should also be noted that ‘death penalty per se’ is used to distinguish between arguments that the death penalty is unconstitutional per se and those which argue the procedure (on any number of levels) by which the sentence was imposed may violate the guidelines articulated by the Court. In such a case, a state’s methodology may indeed violate the Constitution. However, an analysis of these arguments is beyond the scope of this article.

34 State v. Miller, 227 Conn. 363, 379-80 (1993).

35 The frequency with which capital punishment is used in Connecticut is quite low. Since 1977, there have been no executions in the State of Connecticut. Tracy L. Snell, Capital Punishment 1995, 1996 Bur. Just. Stat. Bull. 10. In addition, only 5 individuals were under a sentence of death as of 12/31/95. Id. at 6.

36 In State v. Ross, the court held that “the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated [which] require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to assure that the death penalty is being imposed consistently and reliably, and on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant’s character or record as well as the circumstances of the particular offense. Our death penalty statute, @ 53a-46a, meets these minimum state constitutional requirements.” 646 A.2d 1318, 1357 (1994). It was through an analysis of these requirements that the court held that “the jury’s finding of ‘no mitigating factor’ cannot stand because of the trial court’s evidentiary and instructional rulings that did not comply with the statutory requirements of @53a-46a.” Id. at 1360. As a result, the court ordered a new sentencing hearing. Id.

37 State v. Ross, 230 Conn. 183, 249 (1994)citing State v. Geisler, 222 Conn. 672, 684-86 (1992). Hereinafter, these factors will be referred to as the “Geisler factors” or Geisler factor”.

38 See Michael J. Besso, Commentary: Commenting on the Connecticut Constitution, 27 Conn. L. Rev. 185, 206 (1994) and Martin B. Margulies, Commentary: The Uses and Misuses of History: A Reply to Michael Besso, 27 Conn. L. Rev. 231, 234 (1994). See also, Thomas Morawetz, Commentary: Deviation and Autonomy: The Jurisprudence of Interpretation in State Constitutional Law, 26 Conn. L. Rev. 635, 644-45 (1994), where the author discusses the “smorgasbord approach” and its limitations as observed in State v. Miller, 630 A.2d 1315 (1993).

39 Ross, 230 Conn at 249.

40 Id. citing G. Clark, A History of Connecticut (1914).

41 The last execution in Connecticut occurred in 1960. As of December 31, 1995, only five individuals are under sentence of death in Connecticut. As of April 1997, this number has increased to six.

42 “According to Swift, by 1796, only seven crimes -- treason, murder, rape, bestiality, sodomy, aggravate mayhem, and arson that endangers life -- were punishable by death in Connecticut. 2 Z. Swift A System of the Laws of the State of Connecticut (1796) p. 296. Furthermore, . . . [b]y 1818, when the state’s constitution was adopted, bestiality and sodomy were no longer punishable by death. 2 Swift’s Digest, supra, pp. 264, 292-94, 304. In 1830, the legislature removed rape and aggravated mayhem from the list of capital offenses, and reduced arson to a noncapital offense except in cases where death resulted. General Statutes (1835 Rev.) tit. 21, c.1 @@ 1-13, 156, pp. 119-21, 158.” State v. Ross, 646 A2d 1318, 1376 (1994) (J. Berdon, dissenting). In 1846, the Connecticut legislature bifurcated types of murder into categories consisting of those punishable by death (murder in the first degree) and those punishable by life imprisonment (murder in the second degree). State v. Walters, 138 A.2d 786, 792-93 (1958). For a more modern example, the Connecticut legislature in 1951 replaced a mandatory death sentence with a scheme that allowed a jury to recommend a sentence of mandatory, nonpardonable life sentence. State v. Ellis, 497 A.2d 974, 977 (1985), citing Public Acts 1951, No. 369.

43 408 U.S. 238 (1972). This assertion should be qualified by acknowledging legislative action which has tended to revitalize the use of the death penalty in Connecticut.

44 State v. Martin, 506 A.2d 109, 115 (1986).

45 295 A.2d 666 (1972). The court cited Davis v. Connecticut, 408 U.S. 935 (1972) and Delgado v. Connecticut, 408 U.S. 940 (1972). Id. at 666.

46 State v. Cofone, 319 A.2d 381, 382 (1972). See also State v. Delgado, 297 A.2d 75 (1972) and State v. Davis, 316 A.2d 512 (1972) reversing earlier decisions upholding the death penalty in State v. Delgado, 260 A.2d 587 (1971) and State v. Davis, 260 A.2d 587 (1969), respectively.

47 Public Acts 1973, No. 73-137, @ 3.

48 Id.

49 See Conn. Gen. Stat. 53a-46a (1994) (Hearing On Imposition of Death Penalty: Aggravating and Mitigating Factors) (amended in 1980, 1985, 1993, and 1995). As yet, 53a-46a has not been amended to broaden the discretion of the judge and jury in sentencing an individual to death. It is worth noting that the pre-Furman Connecticut death penalty statutes were held to be unconstitutional because they “allowed unconstitutionally broad discretion in determining whether the death sentence should be imposed...” Cofone, 319 A.2d at 382. The legislature should be cognizant of the minimal federal guidelines acknowledged by the Connecticut Supreme Court in State v. Ross, 646 A.2d at 1318. See also Conn Gen. Stat. 53a-54b (1994) (Capital felony statute) (amended in 1977, 1980, 1985, and 1992).

50 Tracy L. Snell, Capital Punishment 1995, 1996 Bur. Just. Stat. Bull. 14. These individuals are: Michael Ross, Robert Breton, Sr.(1989), Sedrick Cobb (1991), Daniel Webb (1991), and Terry Johnson (1993). State v. Ross, 646 A.2d at 1383-84 (J. Berdon, dissenting).

51 See State v. Daniels, 542 A2d 306 (1988) (Daniels I) (holding the state has “the burden of proving one of the statutorily defined aggravating factors beyond a reasonable doubt, and thereafter to impose upon the defendant the burden of proving a statutorily defined mitigating factor by a preponderance of the evidence”; “neither of these burdens can be met without a unanimous finding by the trier of fact”; “if the jury cannot agree on the existence of a mitigating factor, the trial court has discretion to declare a mistrial”; “[i]n such circumstances...the trial court may pursue one of three courses of action: it may declare a mistrial; it may make factual findings ‘acquitting’ the defendant of the death penalty; or it may exercise its dismiss the death penalty proceeding”); State v. Daniels, 550 A.2d 885 (1988) (Daniels II) (holding the trial court did not violate the principles of double jeopardy when it imposed both a life sentence for murder and an additional life sentence for capital felony); State v. Breton, 562 A.2d 1060 (1989) (holding the aggravating factor “especially cruel” is not unconstitutionally vague so long as it is ‘limited and construed so as to pass constitutional muster’. Id. at 1065. Such a constitutional gloss would be “the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” Id. at 1066).

52 State v. Ross, 646 A.2d 1318 (1994).

53 Justice Berdon, however, is an ardent supporter of the abolition of the death penalty. His dissenting opinions have recognized and articulated many of these arguments.

54 The discussion below addresses these weaknesses by examining both arguments for and against the death penalty. For purposes of clarity, arguments for the death penalty (‘justification arguments’) have been incorporated into the discussions of those arguments challenging the facial validity of the penalty (facial arguments). This article is limited to a discussion of facial arguments. It was this author’s original intent to address challenges to the manner and procedure by which death sentences are administered. However, such an analysis is beyond the scope of this article. It should be noted that non-facial arguments are significant in that they are often able to reverse a death sentence on a case by case basis. That is, while arguments challenging the facial validity of the death penalty attack the penalty itself, procedural arguments challenge the way in which death penalties are administered. In so doing, they often must focus on the particulars of the case before the court. Examples of procedural arguments include those challenging the proportionality of a death sentence (proportionality arguments) and those challenging capital sentencer requirements (capital sentencer arguments). Proportionality arguments challenge the validity of a death sentence imposed upon a defendant who’s crime is not proportional to the severity (and finality) of death. Capital sentencer arguments challenge death penalty schemes where the judge or jury (depending on the case and scheme) does not understand that the determination of ’whether a specific human being should die at the hands of the state’ is its responsibility. Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). In Connecticut, it has been argued that under the death penalty statute neither the judge or jury is the capital sentencer. The judge bases her decision on the jury’s determination of aggravating and mitigating factors. The jury determines “whether aggravating or mitigating factors exist, but never makes the specific moral judgment of whether the defendant should die.” State v. Ross, 646 A.2d 1318, 1389 (1994) (J. Berdon, dissenting).

55 For example, State v. Ross articulates the majority’s analysis of the cruel and unusual argument and State v. Webb articulates the majority’s analysis of the social compact argument. This may have a lot to do with the limited number of cases addressing the constitutionality of the death penalty under the Connecticut Constitution.

56 Michael J. Besso, Commentary: Commenting on the Connecticut Constitution, 27 Conn. L. Rev. 185, 199 (1994).

57 State v. Ross, 646 A.2d 1318, 1354 (1994).

58 Id.

59 Id. at 1356.

60 Article first, section 19, as amended, of the Connecticut Constitution reads “The right of trial by jury shall remain inviolate, the number of such jurors, which shall not be less than six, to be established by law; but no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent...” Furthermore, ‘capital’, as defined in 1845, included the meanings “[p]unishable by loss of the head or of life; incurring the forfeiture of life; punishable with death.” Webster’s Dictionary (Rev. ed. 1845).

61 Ross, 646 A.2d at 1356.

62 Id.

63 Id. at 1374 (J. Berdon, dissenting).

64 More appropriate precedent might have been those cases where the court had or had not recognized greater protection under the Connecticut Constitution.

65 Ross, 646 A.2d at 1356.

66 Id. citing G. Clark, A History of Connecticut (1914). But see J. Berdon dissenting in Ross, 646 A.2d at 1380-82 where a different interpretation of the same history suggests a reluctance in Connecticut to administer the death penalty. Discussed infra,

67 Ross, 646 A.2d at 1355.

68 State v. Ross, 230 Conn. 183, 249 (1994)citing State v. Geisler, 222 Conn. 672, 684-86 (1992).

69 State v. Dukes, 547 A.2d 10, 19 (1988).

70 Id. citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 222, 6 L. Ed. 23 (1824) and McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415, 4 L. Ed. 579 (1819).

71 Ross, 646 A.2d at 1356. It is worth noting that following a “beaten path” may yield different results with different issues. For example, if a court has consistently provided a more restrictive definition of what is a reasonable search and seizure under its state constitution than sister states or the Supreme Court, such a “beaten path” may be quite appropriate depending on one’s position. See e.g. State v. Joyce, 639 A.2d 1007 (1994) (holding that the Connecticut Constitution “requires the police, while lawfully in custodial possession of a suspect's clothing, to obtain a warrant before subjecting the clothing to a chemical analysis.” Id. at 1009). However, a court choosing to retain such a restrictive definition does not necessarily “proceed in a vacuum.” In any case, with any issue, a court should at least be aware of outside jurisprudence. The Connecticut Supreme Court has recognized this by employing the Geisler factors. Utilizing such an approach, the court is able to either give more weight to its own precedent and state history or give more weight to outside jurisprudence. Such an approach may make it appear that the court is “picking and choosing” an interpretation depending on the case and the court’s disposition toward the issues raised. On the contrary, the author believes that the Geisler approach considers all the factors and by doing so provides the court with a ‘freedom’ to determine the ‘best’ interpretation of the state constitution. Likewise, the Geisler approach allows advocates to argue their ‘best’ interpretation. This is not ‘picking and choosing’.

72 See also William A. Schabas, The Abolition of the Death Penalty in International Law (1993).

73 See Protocol No. 6 to the European Convention of the Protection of Human Rights and Fundamental Freedoms, E.T.S. 114 (1985) (“Article 1: The death penalty shall be abolished. No one shall be condemned to such penalty or executed.”); Treaties, etc. here. This might suggest a ‘seventh’ factor be considered when using the Geisler factors.

74 The federal system and twenty-four states have not executed a single individual since 1977.

75 Ross, 646 A.2d at 1377 (J. Berdon, dissenting).

76 Ross, 646 A.2d at 1357.

77 Id. at 1378 (J. Berdon, dissenting). While these six factors are discussed briefly here, factors three, four and five are discussed further below.

78 Id. at 1379. Justice Berdon’s dissent brilliantly and eloquently articulates support for each of these factors. While the author would enjoy quoting his arguments at length , space and time prohibit this. It is therefore emphatically recommended that his dissent be read in full.

79 Id. at 1380.

80 For a discussion of this factor, see infra, II. B. 3.

81 Id.

82 Id.

83 Ross, 646 A.2d at 1388.

84 45 Ala. L. Rev. 405, 425 (1994).

85 See generally Michael L. Radelet et al., In Spite of Innocence: Erroneous Convictions in Capital Cases (1992); Hugo A. Bedau and Michael L. Radelet, Miscarriage of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21 (1987); See also Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 Stan. L. Rev. 121 (1988); Hugo A. Bedau and Michael L.Radelet, The Myth of Infallibility: A Reply to Markman and Cassell, 41 Stan. L. Rev. 161 (1988).

86 Tracy L. Snell, Capital Punishment 1995, 1996 Bur. Just. Stat. Bull. 15.

87 Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions, Hearings Before the House Subcomm. on Civil and Constitutional Rights of the Comm. on the Judiciary, 103d Cong., 1st Sess. (1993).

88 Miller v. Warden, 1996 Conn. Super. LEXIS 874, March 27, 1996. Though Larry Miller was not on death row, evidence now suggests he is innocent and thereby wrongly convicted. As to those five sentenced to death in Connecticut between 1973 and 1995, only one sentence or conviction was overturned. Tracy L. Snell, Capital Punishment 1995, 1996 Bur. Just. Stat. Bull. 15.

89Pure’ is used to denote ‘exactness’ or the lack of any mistaken convictions.

90 This tension is demonstrative of the tension often found between defense attorney’s and academic theorists. The defense attorney’s concern must be focused on her client not the system in general. While she may utilize arguments attacking systemic problems, her arguments will no doubt be focused on the individual defendant and the present. While theorists might argue more universal critiques of the death penalty, they might not have the same viability as those arguments limited to the time and place in which they are presented to a court.

91 Ross, 646 A.2d (J. Berdon, dissenting).

92 State v. Webb, 680 A.2d 147, 160 (1996); State v. Breton, 663 A.2d 1026 (1995). The case was remanded to allow the defendant to challenge the constitutionality of execution by lethal injection.

93 Conn. Const. art. I, § 1.

94 Moore v. Ganim, 660 A.2d 742 (1995).

95 Hilton v. City of New Haven, 661 A.2d 973, 984 (1995).

96 State v. Webb, 680 A.2d 147, 160-61 (1996).

97 Hillier v. City of East Hartford, 355 A.2d 1,5 (1974) quoting Goshen v. Stonington, 4 Conn. 209, 225.

98 See Ganim, 660 A.2d at 754; Hilton, 661 A.2d at 984; and Webb, 680 A.2d at 161.

99 Webb, 680 A.2d at 161.

100 Id.

101 Id.

102 State v. Joyner, 625 A.2d 791, 802 (1993). The court bases its conclusion on that of Professor P. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L.J. 907 (1993).

103 Id. citing State v. Ross, 646 A.2d 1318 (1994). (implied prohibition against cruel and unusual punishment) and Kohlfuss v. Warden, 183 A.2d 626 (1962) (prohibition against double jeopardy).

104 While such a distinction may be worthy of more analysis, the inquiry is beyond the scope of this article.

105 Webb, 680 A.2d at 161.

106 Webb, 680 A.2d at 161.

107 See II.B.2., supra.

108 See generally, Stewart F. Hancock, Jr., et al., Race, Unbridled Discretion, and the State Constitutional Validity of New York’s Death Penalty Statute - Two Questions, 59 Alb. L. Rev. 1545 (1996); Gregory Russell, Analyzing Racial Bias Claims After McCleskey: The Death Penalty and Racial Bias: Overturning Supreme Court Assumptions (1994).

109 Webb, 680 A.2d at 233 (J. Berdon, dissenting).

110 Stewart F. Hancock, Jr., et al., Race, Unbridled Discretion, and the State Constitutional Validity of New York’s Death Penalty Statute - Two Questions, 59 Alb. L. Rev. 1545, 1546 (1996).

111 481 U.S. 279 (1987).

112 Id. at 285. The Eighth Amendment (cruel and unusual punishment) claim is not addressed here.

113 Id. The defendant offered a statistical study (the Baldus study) of the Georgia capital punishment system to support his claim. The Baldus study

purport[ed] to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in Georgia during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants. Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims. Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.

Id. at 285-87.

114 Id. at 292.

115 481 U.S. at 292 n.7.

116 Id. citing Whitus v. Georgia, 385 U.S. 545, 550 (1967) as well as Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-65 (1977) and Washington v. Davis, 426 U.S. 229, 240 (1976).

117 Id. citing Wayte v. United States, 470 U.S. 598, 608 (1985).

118 481 U.S. 293-94. The court refers to venire selection and Title VII contexts. One difference is that statistical challenges to the capital punishment scheme implicate the involvement of many entities where the venire selection and Title VII contexts implicate a small, limited number of entities. In addition, fewer variables are relevant to the challenged decisions. Id. at 294.

119 Id. at 295-96.

120 678 A.2d 1267 (1996).

121 These discriminatory effects were de facto segregation.

122 678 A.2d 1267, 170 (1996). Specifically, the court held that the discriminatory conditions in the public school system violated Article Eighth, Section 1 and Article First, Sections 1 and 20. Article Eighth, Section 1 provides "There shall always be free public elementary and secondary schools in the state. The general assembly shall implement this principle by appropriate legislation.” Article First, Section 1 provides “"All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community." Article First, Section 20, as amended, provides “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability."

123 Id. at 1278.

124 Id. at 1278-79. See supra notes 112-20 and accompanying text.

125 Id. at 1279.

126 Both Article I, § 1 and Article I, § 20 provide have been interpreted to provide equal protection. Article I, Section 20 provides "no person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability."

127 Florestal v. Government Emples. Ins. Co., 673 A.2d 474, 482 (1995)quoting Benjamin v. Bailey, 662 A.2d 1226, 1237 (1995).

128 Such an argument would not imply that life is so fundamental a right as to prohibit capital punishment. Rather, it would suggest that life is so fundamental a right that any death penalty scheme intrudes on the exercise of this right and the standard of review must, therefore, be strict scrutiny. The arbitrary and capricious nature of any particular scheme would help demonstrate the weaknesses in any alleged state interest or purpose.

129 Florestal v. Government Emples. Ins. Co., 673 A.2d 474 (1995); Cleburne v. Cleburne, Living Center, Inc., 473 U.S. 432, 440 (1985); Horton v. Meskill, 172 Conn. 640.

130 Of course, it may be the court does not reach this analysis because it does not consider the equal protection argument which would invoke the necessity for state evidence supporting a compelling state interest or purpose. Whatever the reason, the court has not addressed whether the state does indeed have such an interest. This portion of the article briefly addresses the possible absence of any such interests.

131 Hugo A. Bedau, The Case Against the Death Penalty, ACLU (1992).

132 Donald D. Hook & Lothar Kahn, Death in the Balance: The Debate Over Capital Punishment 41 (1989). Deterrence is also the predominant, political justification offered by foreign countries which still employ the death penalty. Roger Hood, The Death Penalty: A World-Wide Perspective 117 (1989).

133 Samuel Gross, The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 Buffalo L. Rev 469, 472 (1996). See also Bedau citing Uniform Crime Reports 1980-1989; Jonathan Abernethy, The Methodology of Death: Reexamining the Deterrence Rationale, 27 Colum. Human Rights L. Rev. 379, 380 n.4 (1996) (“The overwhelming majority of empirical studies have concluded that the death penalty is not a more effective deterrent than life imprisonment”) citing William J. Bowers, Executions in America 139-45 (1974); Thorsten Sellin, The Death Penalty 23-38 (1959); Thorsten Sellin, Homicides in Retentionist and Abolitionist States, in Capital Punishment 135, 135-38 (Thorsten Sellin ed., 1967); Brian E. Forst, The Deterrent Effect of Capital Punishment: A Cross State Analysis of the 1960s, 61 Minn. L. Rev. 743 (1977); Richard Lempert, The Effect of Executions on Homicides: A New Look in an Old Light, 29 Crime & Delinquency 88 (1983); Peter Passell, The Deterrent Effect of the Death Penalty: A Statistical Test, 28 Stan. L. Rev. 61 (1975). “In addition, many studies have concluded that executions have a brutalizing effect on society because they implicitly condone the infliction of lethal violence on those who commit capital murders” citing William J. Bowers, Legal Homicide 271-302 (1984). “The most famous study finding support for the theory that the death penalty is a more effective deterrent than life imprisonment was by economist Isaac Ehrlich.” Isaac Ehrlich, The Deterrent Effect of Capital Punishment: A Question of Life and Death, 65 Am. Econ. Rev. 397 (1975). “That study, however, was quickly and widely discredited” citing Lawrence R. Klein et al., The Deterrent Effect of Capital Punishment: An Assessment of the Estimates, in Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates 336; David C. Baldus & James W. L. Cole, A Comparison of the Work of Thorsten Sellin and Isaac Ehrlich on the Deterrent Effect of Capital Punishment, 85 Yale L. J. 170 (1975); William J. Bowers & Glenn L. Pierce, The Illusion of Deterrence in Isaac Ehrlich's Research on Capital Punishment, 85 Yale L. J. 187 (1975). “Professor Ehrlich answered his critics and continued to advance the claim that the death penalty may be a more effective deterrent than life imprisonment.” citing Isaac Ehrlich, Deterrence: Evidence and Inference, 85 Yale L. J. 209 (1975).

134 Hugo A. Bedau, The Case Against the Death Penalty, ACLU (1992).

135 Albert Camus, Resistance, Rebellion, And Death (J. O'Brien trans., 1961).

136 Rudolph J. Gerber, Death Is Not Worth It, 28 Ariz. St. L. J. 335, 351-52 (1996).

137 See supra note 50.

138 Cofone, 319 A.2d at 382.

139 Stephanie Glass, Connecticut Moves To Make Executions Easier, Reuters World Serv., Aug. 30, 1994.

140 Id. Governor Rowland would seek an “expanded, enforceable death penalty bill.” Id. His use of ‘enforceable’ may be indicative of a middle-ground approach to the radical legislation on one hand and more restrained efforts on the other.

141 While the legislature may seek to limit the number of appeals one may file and the time in which one may do so, this will not quell those appealing a sentence of death.

142 Webb, 680 A.2d 147.

143 Id.

144 Callins v. Collins, 114 S.ct. 1127, 1128 (1994) (J. Blackmun, dissenting). In addition, United States Supreme Court Justice Powell is reported to have said, “I have come to think that capital punishment should be abolished.” Ross, 646 A.2d at 1386.