In Connecticut’s politicized Supreme Court, exceptions have BECOME
the rule. That is what happened when Justice Richard Palmer constructed his
decision on the Constitutionality of Connecticut’s death penalty on a dissent
in Glossip v. Gross, a case in which a challenge to the death penalty on
Constitutional grounds had been denied by the U.S. Supreme Court, which upheld
Oklahoma’s lethal injection protocol. The decision was a narrow one, but
Justices Stephen G. Breyer and Ruth Bader Ginsburg managed in their dissent to
import larger issues.
In the same manner, Mr. Palmer inflated his decision by
importing into it extraneous detail. Mr.
Palmer’s decision rested upon putative changes in “contemporary standards of
decency,” a catch-all objection used by other courts to judicially repeal
constitutionally passed laws justices feel are no longer necessary, a process
that does indeed violate contemporary standards of judicial review. Mr. Palmer
determined that “the death penalty is no longer consistent with standards of
decency in Connecticut and does not serve any valid penological
objective." In virtually every poll addressing the issue of justices who imperiously
imagine themselves to be cultural psychologists and mini-legislators, the
public has determined by wide margins that appellate courts should say what the
law is and observe a necessary constitution modesty in rendering their
decisions.
In a concurring opinion, Justices Flemming Norcott and
Andrew J. McDonald, newly appointed to Connecticut’s Supreme Court by Governor
Dannel Malloy, strayed even further from the proper matter under review by
stressing allegations of racial and ethnic discrimination. Charges that
Connecticut’s judicial system is rife with discrimination have been percolating
in the appellate courts for decades; no decisive judgment on the issue has been
rendered. Since the Connecticut Supreme Court decision striking down the death
penalty rests entirely on Connecticut’s Constitution and not the U.S.
Constitution, the highly attenuated decision of the court may not be appealed
to the nation’s highest court.
Chief Justice Chase T. Rogers’ stinging dissent is, unlike
Mr. Palmer’s initial non-appealable dictat, as thoughtful as it is devastating.
"The majority's determination that
the death penalty is unconstitutional under our state's constitution,” Ms.
Rogers wrote, “is based on a house of cards, falling under the slightest breath
of scrutiny… Every step” of the majority’s opinion, Ms. Rogers wrote, was
“fundamentally flawed.”
While the majority opinion written by Justice Richard Palmer
cannot be appealed to the U.S. Supreme Court, Chief State's Attorney Kevin T.
Kane and Senior Assistant State's Attorney Harry Weller have requested that the
case be “argued’ – please note, not “reargued” – before Connecticut’s Supreme
Court, jocularly referred to by some irreverent legislators as the State Supreme
Legislature.
The Chief State's Attorney has requested that the whole
concurring opinion of Justices Flemming Norcott and Andrew J. McDonald should
be stricken from the record, a motion characterized in one newspaper as “extraordinary.” However, extraordinary concurrences can only be ameliorated
by extraordinary means. Justice McDonald should have recused himself from any
deliberation concerning Connecticut’s death penalty. Mr. McDonald was one of two co-chairs of the state's Judiciary Committee -- the other was Mike Lawlor, now Mr. Malloy’s meddlesome Under Secretary for Criminal
Justice Policy and Planning -- who were chiefly responsible for mounting
opposition to the death penalty in the General Assembly. As such, Mr. McDonald
is incapable of rendering a disinterested opinion on any matter touching the
death penalty.
So then, we have a decision on the death penalty rendered by
a partisan, highly politicized Connecticut Supreme Court that relies on a DISSENT
issued in a U.S. Supreme Court decision that UPHELD the death penalty; the
Connecticut Supreme Court’s faulty decision was roundly and properly denounced
by Chief Justice Chase Rogers as a house of cards that would fall apart at the slightest touch; the chief argument
wielded by Justice Palmer – that “community standards” require the court to
abolish the death penalty – is preposterous nonsense, according to multiple
juries that sentenced to death the eleven convicted murderers awaiting
punishment on Death Row; one of the Justices assenting to the majority
decision, Mr. McDonald, is inescapably and irretrievably prejudiced against the
death penalty – and, just to round off this repeating loop of absurdities – the
decision of the Court, resting entirely upon the state rather than the U.S.
Constitution, cannot be appealed to the U.S. Supreme Court, where it would be
quickly overthrown by thoughtful jurists more rigorous than Mr. Palmer.
This is how great Republics are ruined.
In Connecticut’s one party state, desperate republicans and
democrats -- note the lower case designations -- rely on a disinterested court
to call legislators to their constitutional obligations. But alas, the court,
the last bastion of republican and democratic government, is in danger of becoming a
mere appendage of one-party Democratic rule. Gone is judicial independence, a
fierce guardian of our liberties under law; gone is the separation of powers
upon which republican government precariously rests. And the result of the
concentration of power and the dissolution of independent political bodies is,
as Justice Rogers rightly warns us, “a house of cards” resting precariously on
the whimsy of self-interested politicians.
Comments