Case # SC 17413 (CT Supreme Court, 8/25/15)
In a 4-3 decision, the Connecticut Supreme Court recently held that the statute abolishing the death penalty had to be applied retroactively to the eleven inmates already on death row. The legislature abolished the death penalty in 2012 but did not make it retroactive to the cases of 11 persons already on death row. This decision is in compliance with international human rights principles and practice regarding the retroactive application of ameliorative statutes in criminal cases, as well as other international human rights standards.
The majority focused its decision on state law regarding cruel and unusual punishment but used several arguments from federal law to support it even though the U.S. Supreme Court has not addressed the issue of retroactivity in these cases. The Court also considered the history of the death penalty in Connecticut, which included the fact that only one person had been executed in the past 55 years, and only after that person had been on death row for 18 years and had given up his appeals. The delays in general led the Court to question deterrence and retribution as a basis for the death penalty, neither which is served by the lengthy stays on death row.
Justices Norcott and McDonald focused on the persistent allegations of racial and ethnic discrimination in the use of the death penalty, starting with its use against indigenous peoples, in the first concurring opinion. Justice Eveleigh focused on other states’ practice as well as other countries’ practices in the second concurring opinion.
The decision comports with international human rights standards on various levels. First, the principle of lex mitior international law provides that ameliorative changes in criminal penalties should apply to those already sentenced. This principle is codified in national constitutions and international human rights treaties. It has been interpreted to have special significance in the context of the death penalty. The global practice not to execute individuals after a jurisdiction repeals the death penalty is in accord with this principle. Justice Eveleigh referred to the global practice to support the majority decision. Justice Eveleigh thanked Amicus Curiae Experts on International Human Rights and Comparative Law represented by Professor de la Vega and Hope Metcalf and cited to authorities in the brief.
The lex mitior principle has been codified in Article 15 of the International Covenant on Civil and Political Rights. This treaty has been ratified by 167 parties including the United States. The United States did attach a reservation on Article 15 that in part reflects the centrality of states to criminal law enforcement in the United States. No other party to the treaty included a reservation to that article when ratifying the treaty.
Other international principles related to this opinion reflect the general movement towards prohibiting the death penalty. Further, the lengthy delays in it application in the United States led the European Court of Human Rights to rule that because those delays constitute a violation of the prohibition of torture or inhuman or degrading treatment or punishment parties to the European Convention could not extradite people to the United States without assurances that they would not be subject to the death penalty. The discussion in the first concurring opinion on the discriminatory use of the death penalty in Connecticut since its inception is also in compliance with the principle of non-discrimination in international law and the International Convention on the Elimination of All Forms of Racial Discrimination which the United States has also ratified.
Perhaps the decision of the Supreme Court of Connecticut will lead other states in the United States to question the validity of the death penalty.
