On May 29, the Connecticut Supreme Court over­turned the death sen­tence of Eduardo Santiago, one of eleven men who remained on the state’s death row despite the recent abo­li­tion of the death penal­ty for future crimes. Justice Lubbie Harper, Jr., (pic­tured) agreed with the majority’s rea­son­ing and con­clu­sions about Santiago, but also came to the con­clu­sion that the state’s death penal­ty as applied to those still on death row is uncon­sti­tu­tion­al. Justice Harper wrote, ​“It is clear to me both that cap­i­tal pun­ish­ment vio­lates our state’s con­sti­tu­tion­al pro­hi­bi­tion against cru­el and unusu­al pun­ish­ment and that this pun­ish­ment is sys­tem­at­i­cal­ly plagued by an unac­cept­able risk of arbi­trary and racial­ly dis­crim­i­na­to­ry impo­si­tion that under­mines the fair­ness and integri­ty of Connecticut’s crim­i­nal jus­tice sys­tem as a whole.” He con­clud­ed, ​“Upon review of both the objec­tive evi­dence of pre­vail­ing norms of human decen­cy, as well as oth­er rel­e­vant social and legal fac­tors, I can­not but con­clude that cap­i­tal pun­ish­ment is incom­pat­i­ble with evolv­ing stan­dards of human decen­cy in our society.”

With respect to the issue of inno­cence, Justice Harper wrote: ​“I note also the obvi­ous fact that the irre­versible nature of the death penal­ty makes the pos­si­bil­i­ty of the con­vic­tion and exe­cu­tion of a fac­tu­al­ly inno­cent per­son uniquely dangerous.” 

On the jus­ti­fi­ca­tion of the death penal­ty based on ret­ri­bu­tion, he wrote: 

I acknowl­edge that many in our soci­ety desire the exe­cu­tions of oth­ers because of the sever­i­ty of the crimes they have com­mit­ted, and I rec­og­nize that some of these peo­ple hold the prin­ci­pled posi­tion that pun­ish­ment is jus­ti­fied as ret­ri­bu­tion for past wrongs com­mit­ted. I nonethe­less con­clude that par­tic­u­lar­ly with respect to cap­i­tal pun­ish­ment, which by def­i­n­i­tion applies only to crimes of such mag­ni­tude that they are like­ly to incite anger and even hatred, there is no reli­able line between ret­ri­bu­tion and revenge, and too eas­i­ly ratio­nal moral cal­cu­lus gives way to right­eous but unprin­ci­pled rage. If it is upon this rage that the death penal­ty depends, then that penal­ty cannot stand.

The defen­dant in the case before the court was sen­tenced to death while his two co-defen­dants were sen­tenced to life in prison. The Supreme Court unan­i­mous­ly ordered a new penal­ty phase for Santiago, say­ing that his tri­al judge did not allow ​“sig­nif­i­cant and rel­e­vant” evi­dence that might have led the jury to give a lesser sentence.

(A. Griffin, ​“Death Sentence Reversed In Snowmobile Murder-For-Hire Case,” Hartford Courtant, June 4, 2012; Connecticut v. Eduardo Santiago, SC 17413 (May 29, 2012) (Harper, J., con­cur­ring in part and dis­sent­ing in part)). Read more New Voices. Listen to DPIC’s pod­cast on U.S. Supreme Court deci­sions.

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