Monday, June 16, 2014

Having your cake and eating it, too

In 2012 Connecticut did (and didn't) abolish the death penalty. The legislature passed a bill, later signed by the governor, that abolished the death penalty for all crimes committed after April 2012 - but not for crimes committed before that date. That decision left 11 men on death row.

Last month Richard Roszkowski was convicted of killing a 9-year-old and two adults. He was sentenced to death.

Now the question arises whether or not it's legal for the state to kill him. After all, if the state decided that no one else would be put to death because of fears of executing an innocent man, then does it really matter when the crime was committed?

Does putting a cut-off date on the death penalty raise a constitutional issue in Mr. Roszkowski's case? The cut-off date is certainly arbitrary. And if a state makes the decision not to kill any more inmates, what difference does it make when the crime occurred?

We run into much the same situation whenever a court makes a ruling that is prospective in nature - in other words, when the court declares that a rule will only apply to cases going forward and will not apply to those that have already been decided. If something is unconstitutional starting today - then shouldn't it be unconstitutional yesterday?

The problem in Connecticut arose because of the political compromise that led to the repeal. Conservatives didn't want to appear soft on crime so they insisted that those folks on death row remain there (even though the state had only executed one inmate in the last 50 years). More liberal-minded legislators were willing to agree to that provision if they could get their repeal. And thus was born a bad law.

It's quite interesting that Kevin Kane, the state's top prosecutor, told the legislature that he didn't like putting a cut-off date on the repeal of the death penalty. He told them he wouldn't seek the death penalty for a hypothetical crime committed after the date of repeal. He even told the legislature to seek the death penalty in such a case would be arbitrary.

But, when given the chance to back up his words, Mr. Kane passed.

Now the courts shall have the last word.


Lee said...

Paul, I thought that when a crime occurs makes a huge difference. In the concept of "ex post facto" that one has to be held to account for the laws that were in place at the time of the offence. Meaning that if I was speeding doing 65 in a 55 (like in about 10 years ago when our worthless legislature reduced the maximum statewide speed limits to 55) and today you do the exact same speed on the exact same highway where the speed limit in now 65, that I am not going to get my driving record expunged and my fine money refunded.

And if we finally caught a murder suspect that has committed murder back in 1975 and has been on the run for the past 40 years, we have to go back and research the laws that we had on the books in 1975 and prosecute him according to those laws.

So is my understanding of expost facto. We cant be held to the future or past laws (perks or not) but are held to the laws at the time in question.

Paul B. Kennedy said...

The Michael Skakel case is a perfect example of the problem with really old cases. Had he been arrested and charged when the crime occurred he may very well have been charged as a juvenile - and in that case, he shouldn't be in prison today.