State v. Webb

KATZ, J.,

dissenting. I continue to believe that the death penalty fails to comport with contemporary standards of decency and thereby violates our state constitution’s prohibition against cruel and unusual punishment. See Corm. Const., art. I, §§ 8 and 9. Accordingly, I would remand this case to the trial court with direction to vacate the penalty of death and to impose *148a sentence of life imprisonment without the possibility of release. I believe, however, that I have a responsibility to speak out against the death penalty in every case in which this court reaffirms its position that the punishment of death meets contemporary and moral standards of decency.

As Justice Berdon stated so eloquently: “Whether a penalty constitutes cruel and unusual punishment depends in large part upon contemporary standards of decency. Unlike other constitutional precedents, this standard of review evolves and therefore the question must be evaluated in each case. I am confident that eventually both the judicial system and the citizens of this state will reflect back on this day with the same disbelief and sense of outrage that we currently hold in regard to those punishments that were inflicted during the eighteenth and nineteenth centuries in this state. The realization that the penalty of death fails to comport with contemporary standards of decency does not, however, depend upon the passage of time measured by centuries.” State v. Webb, 238 Conn. 389, 552-53, 680 A.2d 147 (1996) (Berdon, J., dissenting).

“Perhaps the most important principle in analyzing cruel and unusual punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.

“The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us.” (Internal quotation marks omitted.) Furman v. *149Georgia, 408 U.S. 238, 329, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring).1

“[A]s judges, we cannot eschew our individual responsibility for the death penalty that the court approves today simply because it is a legislative directive. We have a duty, as the final arbiters of the state constitution, to determine whether the punishment of death meets contemporary and moral standards of decency. If a penalty exceeds those bounds, as I believe the death penalty does, we have a constitutional obligation to declare it unconstitutional, just as we would if the legislature provided for punishment by the rack, the screw or the wheel.” State v. Webb, supra, 238 Conn. 554 (Berdon, J., dissenting).

Cruelty has been described as “total activity smashing total passivity.” H. Bedau, “Thinking About the Death Penalty as Cruel and Unusual Punishment,” 18 U.C. Davis L. Rev. 873, 917 (1985). The “power-relationship between two parties,” one of whom, the executioner, is “active, comparatively powerful,” and the other of whom, the condemned, is “passive, comparatively powerless,” reveals the very essence of capital punishment. P. Hallie, Cruelty (1982) p. 34. “We have perfected the art of institutional killing to the degree that it has deadened our natural, quintessentially human response to death.” S. Blaustein, “Witness to Another Execution,” *150Harper’s, May, 1994, pp. 53, 62. I recognize that some methods of execution are worse than others, but none is better. H. Bedau, “Philosophical Perspectives— Imprisonment vs. Death: Does Avoiding Schwarz-schild’s Paradox Lead to ShelefFs Dilemma?” 54 Alb. L. Rev. 481, 483 (1990). Therefore, whether carried out by impalement or electrocution, crucifixion or the gas chamber, firing squad or hanging, lethal injection or some other method yet to be designed, the very quintessence of capital punishment is cruelty. Although lethal injection may not disfigure the body, may not cause any pain,2 and brings about death within a few minutes, and while the practice of death by lethal injection may not rise to the same level of indignity as some of the other methods of execution, it is no less cruel when viewed in the context of the power relationship previously described. See P. Hallie, supra, p. 34.

I recognize that the notion of another person being executed is offensive only when there is something of value being destroyed and that once a person has been convicted of a ghastly crime, he no longer falls into that category. Nevertheless, society should not have the authority to sustain an institution the nature of which is to destroy its own members. If our status as moral creatures is to survive, the termination of our ability to accomplish a deliberate institutionalized method of execution heads my list of desiderata for this society.

The issue for me is not whether the defendant who has committed such hideous atrocities has the right to life, but whether we as a society have the right to kill. Certainly the defendant did not have that right. But to give this “affirmation of the humanity”3 of the defendant *151by treating him more or less the way he treated Diane Gellenbeck is, to me, bizarre. “The death penalty symbolizes unlimited impersonal power over the individual, with dramatically final and irreversible results whenever it is expressed. As long as we choose to hang this moral albatross around our necks, I see no way for us to enjoy, much less help the rest of the world to enjoy, the benefits of a truly human community.” H. Bedau, “A Reply to van den Haag,” in The Death Penalty in America: Current Controversies (H. Bedau ed. 1997) pp. 457, 469.

I respectfully dissent.

Indeed, during his tenure on the United States Supreme Court, Justice Blackmun eventually acknowledged that the death penalty was imposed in an arbitrary, capricious and racist manner, and was therefore unconstitutional. He stated: “From this day forward, I no longer shall tinker with the machinery of death.” Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). Similarly, after stepping down from the Supreme Court, Justice Powell’s views on the subject evolved such that he came to believe that capital punishment should be abolished. Four years after his retirement from the United States Supreme Court, Justice Powell was quoted as saying: “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind That Came Too Late,” N.Y. Times, June 23, 1994, p. A23, col. 1.

As Justice Norcott pointed out at oral argument, the problem with this assumption, of course, is that the only person who could tell us if this actually is true is no longer able to do so.

E. van den Haag, “The Death Penalty Once More,” 18 U.C. Davis L. Rev. 957, 972 (1985).