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The Connecticut Supreme Court, the U.S. Supreme Court and Pope Francis all address the death penalty

Are alleged sentencing arbitrariness in death penalty cases and a shift in public opinion setting the death penalty on the road to the U.S. Supreme Court? Last year, of the 31 states that allow capital punishment only seven states carried out executions. Nineteen states and the District of Columbia have abolished the death penalty entirely, seven of them in the last decade. There has been one execution in Connecticut in the past 55 years. Against this backdrop, Connecticut tried to partially repeal the death penalty while keeping it in place, it would seem, to punish two death row inmates whose crime shocked the state and the nation.

In Connecticut v. Santiago, the Connecticut Supreme Court declared the state's death penalty unconstitutional. The State Legislature repealed the death penalty in 2012 but made the appeal prospective only. Why? Two on death row, Joshua Komisarjevsky and Steven Hayes, had committed the horrific 2007 crime, involving sexual assault, triple murder, including burning two daughters alive, and beating the husband, the only survivor, with a baseball bat. The Legislators, likely influenced by the feeling of their constituents, felt that death was called for.

While it would have been a reasonable and judicious route for the Court to declare the Legislature's distinction (applying the death penalty to two groups differently based only on the date of their offense) was arbitrary and, thus, a violation of due process, equal protection or both, the 4-judge majority in a 92-page decision questioned the seemingly impossible selection of which offenders live and which offenders die as "appear[ing] to be inescapably tainted by caprice and bias."

As the Court noted, the death penalty can't be automatic but must result from specific findings about the crime and the defendant relying on specifically identified "aggravating factors," which is the means by which like cases are sought to be treated alike. However, in an effort to treat each defendant as an individual, the jury is given absolute discretion to consider any "mitigating factors" that it deems relevant. These are the constitutional parameters articulated by the U.S. Supreme Court in Furman v. Georgia.

In the view of the Connecticut Supreme Court majority, however, the "individualized sentencing requirement allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude in Furman, or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing."

The Connecticut case followed by six weeks the U.S. Supreme Court's decision in Glossip v. Gross in which the Court rejected a challenge to Oklahoma's lethal injection protocol. Writing in dissent, Justices Breyer and Ginsberg wrote that the death penalty was "highly likely" to violate the Eighth Amendment's prohibition of cruel and unusual punishment and that the Court should invite full briefing on that question "rather than try to patch up the death penalty's legal wounds one at a time."

Finally, Pope Francis, too, has recently chimed in writing a letter to the President of the International Commission Against the Death Penalty, expressing the Catholic Church's opposition to the death penalty and calling it "inadmissible, no matter how serious the crime committed." He continued: "It does not render justice to the victims, but rather fosters vengeance." He acknowledged society's need to protect itself from aggressors, but said, "When the death penalty is applied, it is not for a current act of aggression, but rather for an act committed in the past. It is also applied to persons whose current ability to cause harm is not current, as it has been neutralized -- they are already deprived of their liberty." He also addressed questions of methods of execution, saying, "There is discussion in some quarters about the method of killing, as if it were possible to find ways of 'getting it right'. ... But there is no humane way of killing another person."

Time will tell where the death penalty is headed but it seems to be on the move...

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