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Connecticut and the death penalty
On August 25, 2015, a majority of the Supreme Court of the State of Connecticut ruled that the death penalty was so out of step with contemporary standards of decency as to violate that state’s constitutional ban on excessive and disproportionate punishment.
The ruling will not make much of a difference to the criminal justice system in Connecticut. Only one execution had been carried out in the State in the last 55 years and the State Legislature in 2012 had abolished the death penalty for all crimes committed after the law had been brought into force. That left the death penalty already imposed on prisoners found guilty of murder intact. There were 12 such prisoners in all. The court’s ruling accordingly was of real, immediate significance to only a small number of people.
The importance of the decision to my mind lies in the more general statements of principle the judges permitted themselves to declare and the chronicling of the slow demise of the death penalty both in the United States and internationally.
All told, 98 countries have abolished the death penalty for all crimes. In 1977, only 16 countries had removed the penalty from its law books.
When long standing abstention from carrying out executions is factored in, 140 countries have effectively renounced the death penalty, making both the United States and Commonwealth Caribbean States notorious holdouts.
In the United States, a total of 19 states and the District of Columbia no longer permit the imposition of new capital sentences, which leaves a majority which still keep the punishment on their books. But what is telling is not so much the number of states which have forsaken death as a punishment, but “the consistency of the direction of change.”
The total number of executions carried out across the nation had fallen by more than 60 per cent since 1999.
As for the number of penalties imposed, that dropped to new low of 73 in 2014, down from more than 300 annually in the mid-1990s.
Reflecting the caprice and race bias of the administration of criminal justice of the approximately 1,400 executions carried out nationwide since 1976, the 13 states of the former southern confederacy carried out more than 75 per cent of them.
It is not surprising that states which fought a civil war to maintain the barbarism of slavery would be the leaders in the promotion of a form of punishment disproportionately imposed and executed on black Americans.
It is statistics like that which has hastened the unacceptability of the death penalty. For as long as records have been available, it is a fact that “the death penalty has been imposed disproportionately on those whom society has marginalised socially, politically, and economically: people of color, the poor and uneducated, and unpopular immigrant and ethnic groups.”
As the Court lamented: “It always has been easier for us to execute those we see as inferior or less intrinsically worthy.”
There have also been significant shifts in the tolerance which participants in the criminal justice system have for the penalty.
During the debates in the Connecticut legislature, nearly every legislator stated that he or she had come to oppose capital punishment “as a matter of conscience or principle,” based either on their conclusion that life imprisonment without the possibility of release is a more appropriate punishment, or the unacceptable “possibility that the state might mistakenly execute an innocent person,” or that capital punishment was “incurably arbitrary and discriminatory.”
Trends in the imposition of the death penalty by juries also tell their own tale. As noted, the number of death sentences imposed has fallen dramatically over time, even as public opinion polls continue to show strong public support for retention.
But the result of jury trials is probably a better “barometer of social mores.” It is no doubt easy for members of the public to call for the ultimate penalty of death when not faced with a live case.
But, “the infrequency of its actual application suggests that among those persons called (on) to actually impose or carry out the death penalty it is being repudiated with ever increasing frequency.”
There is an important parallel here in the Caribbean. Public support for the death penalty has continued to be robust. But since judges became authorised in the Bahamas, Belize, Jamaica and the Eastern Caribbean to determine whether the death penalty was the appropriate sentence in any given case, not one death sentence has been imposed, or, if imposed by the trial judge, survived on appeal.
On the basis of these trends, the Connecticut Court concluded that capital punishment in Connecticut “no longer comports with contemporary standards of decency and, therefore, constitutes cruel and unusual punishment.”
The court also found that the death penalty had no penological justification. It obviously provided the perpetrator with no opportunity of rehabilitation.
There was no evidence that it deterred others from committing murder. Life imprisonment was just as effective in containing the offender and expressing outrage at the crime he had committed and it alone could effect his rehabilitation. Any retributive effect it might have had was outweighed by the increasingly frequent “intolerable event” of the “execution of legally and factually innocent persons,” and its disproportionate imposition on the weak and the marginalised.
Absent any such justification, the court found, the death sentence was “nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.”
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