The Connecticut Supreme Court is Right: Prospective Abolition of the Death Penalty is Cruel and Unusual

In 2012, the Connecticut legislature abolished the death penalty. Today, the Connecticut Supreme Court held that the death penalty violated the state constitution. You may be wondering how both of those sentences can be true (and no, they didn't reinstate it during the past three years). The answer is that the 2012 abolition was prospective; that is, it did not apply to those who had already been convicted and sentenced to death. The court's ruling, then, was that actually carrying out the death sentences that have already been imposed on Connecticut's 11 death row inmates would be (state-)unconstitutional. More specifically they held that executions would violate the due process provisions of the Connecticut constitution, which are understood to contain a ban on cruel and unusual punishments. Now, there's nothing especially remarkable about the idea that capital punishment is cruel and unusual. But the court's reasoning was, at least in part, new and interesting, and I quite like the move they make.

The basic puzzle of what, at the federal level, we call Eighth Amendment jurisprudence is determining what the second part of "cruel and unusual" means. Well, that's the puzzle if we reject the Scalia-esque "originalist"* notion that the phrase "cruel and unusual punishments" is just a shorthand for a discrete list of punishments considered cruel and unusual in 1791. Which we do. So the question then becomes, okay, we have a sense of what a "cruel" punishment is, but how to measure its unusuality? Do we just count the states? By raw number of jurisdictions, or by population? Do foreign countries count, and if so which ones? How quickly do new trends away from the use of a certain punishment become incorporated into the Constitution? Are public opinion polls relevant? All of this arises primarily in the federal context, wherein the U.S. Supreme Court is interpreting the Eighth Amendment as it applies to the federal government directly and to the states as incorporated into the Fourteenth Amendment. But analogous issues could arise when a state court interprets an analogous provision of the state constitution. How do the other 49 states get counted for that purpose? Do they play the same role as in federal Eighth Amendment analysis, or are they more like foreign nations? After all, they are external to the individual state. But within a given state a punishment won't be "common" or "unusual," it will either be provided for by state law or it won't be; internal counting becomes binary. The whole thing is rather a mess.**


The neat thing about this Connecticut case, though, is that it doesn't have to bother with that whole issue. Because what they say, at least in part, is that we know executing these condemned prisoners would be cruel and unusual because the Connecticut legislature has already said so. They abolished the death penalty! Because they thought it was cruel! Making it, thereafter, not to be found within the state of Connecticut. At all. Which is rather on the unusual side. This is brilliant, and, I think, surely right. Is it not truly anomalous, truly unusual, for a state to inflict a punishment which it has already abolished? Is there not something singularly cruel about saying to a handful of unlucky people, we now think it's wrong to punish anyone as we have determined to punish you, but we will so punish you nonetheless? It's, like, sick.*** It almost has a somewhat bill-of-attainder feel to it, i.e., "we will not impose capital punishment (except on these eleven specific individuals)."

One interesting thing, though, is the dynamic if the rule against prospective abolition (or rather, the rule that any purported prospective abolition must in fact be retroactive as well) became firmly established. Because presumably this would discourage any state that was considering a prospective abolition from doing so--assuming, of course, that there really wouldn't be the appetite for retroactive abolition in that state. So while in principle I might like it if the U.S. Supreme Court held that a state which has prospectively abolished the death penalty cannot carry out executions going forward (again, assuming they're not gonna just do the right thing and hold the whole thing unconstitutional), there might be some interesting prudential reasons not to do that, but rather to hope that the courts of each prospective-abolitionist state will surprise their legislatures with a ruling like this one out of Connecticut. Except that many state courts might come out the other way, and if not then at some point legislatures might wise up anyway. There's sort of an interesting game theory dynamic to the whole thing.

But the basic point is that this is a very clever and well-reasoned decision, and of course a humane and decent one. Also it makes me happy because it was a state law decision and therefore cannot be overruled by the federal courts. Hooray for state constitutional law!


*Asterisk meant to note that Scalia is by no means the exclusive and authoritative oracle of originalism, and other originalists, like Steven Calabresi, might not endorse his approach.
**Of course, this is one of the reasons why I like Justice William Brennan's approach from Furman v. Georgia, which understands "unusual" not to mean "rare" or "infrequent" but to mean "strange" or "weird." Thus he held capital punishment to be cruel and unusual because we long ago abandoned all other forms of corporal punishment, making execution qualitatively unlike any other punishment currently in use within America. Of course, this qualitative determination becomes a matter for the reasoned judgment of judges, rather than imposing any external/objective constraints on judges, but hopefully the paragraph above demonstrates that the quantitative approach is so ill-defined that it doesn't really constrain judges either. Also, y'know, the idea that we need to be constraining judges is itself wrong-headed, but that's sort of a broader point.
***Of course, this isn't the only context in which laws are passed reducing the available punishments for certain crimes on a prospective basis. Recently, for instance, both the federal government and many states have reduced sentences for various drug crimes, but have not automatically released every drug criminal who had already served more than the new maximum sentence for their crime. This feels less appalling, though, and I think the reason why must be found in Brennan's qualitative approach. Connecticut divested itself of the power to impose an entire class of punishment, except for a handful of unlucky souls. By contrast, reducing prison sentences for drug crimes does not strip the state of its power to imprison people. There is also the singular quality of executions, that they are carried out at a specific time subsequent to their imposition. Indeed actually carrying out an execution is commonly understood to be a distinct decision, separate from the decision to impose the sentence; hence, there is something singularly ill-seeming about making the decision to carry out an execution when the state can no longer make the decision to impose such a sentence. I would imagine, however, that other prospective abolitions of whole categories of punishment would raise similar issues.