Tuesday, April 1, 2014
We’re kicking off our Monthly Spotlight series with an update on the legislative advocacy of the Quinnipiac University School of Law’s Civil Justice Clinic in support of abolition of the death penalty.
The Civil Justice Clinic works on a range of direct service cases, including wage and hour, prisoner re-entry issues, substandard housing conditions, and unemployment. Beginning in January 2012, the Clinic added legislative advocacy to its menu and started researching the legislative history surrounding Connecticut’s 2011 failed death penalty repeal bill. That bill was a “prospective-only” repeal—it left in place the sentences of those currently on death row but abolished the death penalty going forward.
One of the reasons the bill failed to pass, we discovered, was because several members of the legislature believed that prospective-only repeal of the death penalty in Connecticut would render the sentences of those currently on death row unconstitutional (on 8th amendment or Equal Protection grounds). These members wanted assurances that those on Connecticut’s death row—which included one (and later both) of the men who committed the now infamous home invasion triple murders in the town of Cheshire in 2007—would still face the death penalty after passage of a prospective-only repeal.
As the Clinic delved deeper into Connecticut case law and examined legal developments in New Mexico—the only other state to have faced this precise legal issue—we concluded that the legal argument against prospective-only repeal did not withstand scrutiny. So the Clinic wrote legislative testimony that turned out to be a reference guide to the issue of prospective-only repeal for Connecticut legislators. That testimony helped to change the debate from doomsday scenarios about how the Connecticut Supreme Court might interpret a prospective-only repeal, to a cogent legal argument concerning what the court most likely would do in light of binding precedent and persuasive authority, and it earned the Clinic CLEA’s Award for Excellence in a Public Interest Case in 2012.
This year, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in almost a century to determine the validity of prospective-only repeal of the death penalty. It will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Colorado, Delaware, Kansas, New Hampshire, and Washington State, with a total of 42 inmates on death row, are poised to abolish their death penalties prospective-only in the (hopefully) near future. For more on prospective-only death penalty repeal, see these two draft articles on SSRN, here and here.
Over the past seven years, six states have abolished the death penalty. If you and your students would like to get involved in the abolition effort—from coalition-building with your state and local bar associations in support of repeal, to drafting testimony or reports addressing racial disparity or other problems in the administration of the death penalty—please contact me. I’m happy to put you in contact with people on the ground in your state, provide materials for teaching these issues in class, and help you in whatever other ways I can. If you are already involved—thank you.