Dear Governor Rell,

Hi, it’s me, Gideon. This is my second attempt at a letter to you. The last one was somewhat trivial by comparision. I hope you take the time to read this, though, as I’m sure the last one ended up quickly at the bottom of your rubbish bin.

Governor, there is a piece of paper on your desk. A piece of paper that has the power to restore humanity and dignity to our State. A piece of paper that will say to the world: “We are no longer barbaric, we are no longer uncivilized, we are no longer cruel”. A piece of paper that has the chance to shape your legacy and the legacy of our Constitution State. A piece of paper that will close an ugly chapter that is the death penalty in our State.

You are concerned, I am led to believe, about the support of the public. You are concerned about the victims’ families. You are right to have that in your mind. But in doing so, I implore you to consider the families of all the victims, not just certain ones. I ask you to listen to Walter Everett, whose son was murdered, but the defendant did not receive the death penalty. I ask you to go to your window or perhaps even step out onto the grand foyer in the legislature this morning and listen to the victims’ families who will gather there. Their wishes must mean something.

You’re concerned about appearing “soft on crime”, about life without the possibility of release not being “justice”. Perhaps you’re afraid of appearing weak. I think you’ve got it backwards, Governor. It’s not weak to abolish the death penalty. In fact, it’s just the opposite. It’s a show of strength to rid ourselves of this blight. It’s a show of strength to tell the families of victims that they will no longer have to wait decades to begin the healing process, to have their names dragged through the spotlight, to relive their painful memories. It is strong to say that we are not in the business of retribution. It is weak to say we believe in an eye for an eye. A man far greater than either one of us can ever aspire to be warned us that “an eye for an eye makes the whole world go blind”. We should take heed, Madam Governor.

Do not hang your hopes on fixing the death penalty either. Over the last few weeks I’ve heard much said about the length of the “appeals process”. I’ve heard much about these “endless appeals and habeas appeals”. There is nothing that you or the legislature can do (or have done) that can “fix” it. These appeals take so long and there may be so many of them, because it is what is Constitutionally required.

I know that at times you have taken the position that the Constitution is a suggestion, not a mandate, but here is your chance to show the people of the Constitution State that you, just like them, take pride in its protections. Recognize that if you do not sign this bill, it won’t magically make execution dates be set for those on death row. That isn’t going to come for years. If ever. It is strong to say that you will not let that happen, that you will be the force that drives the victims’ families closer to healing.

I want to say just a little bit about the definition of justice used by those in your party. Many a times did I hear Republican Senators say that the death penalty is the only proportional punishment for murder. That’s false, Madam Governor, because it isn’t. The death penalty isn’t even applied to people convicted of murder. If it were, our death row would be much larger. And if we’re in the “tit for tat” business, then why isn’t the punishment for assault a sound beating? Why isn’t the punishment for robbery gunpoint theft of the robber’s own belongings? Why isn’t the punishment for rape rape? Because we don’t do that, just as we shouldn’t kill those that kill.

The death penalty cannot be fixed because it must be extremely narrow. And by being required to be extremely narrow, it opens itself up to the whims and fancies of individual prosecutors. It opens itself up to being applied in a racially discriminatory manner. I’ll give you two examples:

1. Michael Ross himself. Prosecutors in New London declined to charge him with the death penalty, while those in Waterbury did not.

2. Russell and Adrian Peeler. One committed the murders, one did not. Russell is on death row, while is brother serves 20 years.

What is “justice” in either one of those cases? How do you fix it? You don’t, because you can’t. And since you can’t fix it, the right thing to do is to get rid of it.

The decision before you, Madam Governor, is a momentous one. As Sen. Williams said this morning, passage of an abolition bill was unthinkable a mere 10 years ago. Much has changed, including the attitudes of people living in this State. Our standards of decency and morality have evolved. Let us join the rest of the New England states and most of the civilized (and “uncivilized”) world in rejecting an antiquated punishment that has no place in modern society. We claim to be an enlightened people; let us put that on paper.

The pen is in your hands.

Just last week, in a more convincing fashion, the State House of Representatives voted to abolish the death penalty as well. It is now up to one superficially loveable woman to decide whether our State will continue to impose this most barbaric of punishments. Almost anyone who pays any attention in CT agrees that the Governor will most likely veto this bill, having stated her preference for the death penalty ad nauseum over the last few weeks.

But those same people may forget that this isn’t just any Governor we’re talking about. This is the American Idol Governor, who seems to make her decisions based on opinion polls and votes. Well, there couldn’t have been a bigger vote than this. Connecticut’s elected members of the legislature voted a combined 107-73 in favor of abolishing the death penalty. Now she has a much tougher decision than anyone, perhaps including her, imagines. Don’t worry, I’ll help her make that decision in an upcoming post.

The debate on the floor of the House spanned 5 hours and had you been watching you would have seen and heard a cornucopia of arguments. Representatives stood up one after another and offered arguments either for or against the bill that ranged from the passionate to the disingenuous to the downright bizarre.

At the end of it, however, only one thing was certain: the great engine that is the abolition movement just turned over and inched slightly forward. The Constitution State is one step closer to making New Hampshire the only state in the expanded Northeast to still have the death penalty.

Of course, there are two obstacles to actual abolition forthcoming: a vote in the State Senate and then the Governor’s desk. My sources haven’t yet given me a sense of whether there are enough votes in the Senate for passage of this bill, but the Governor has already made her feelings known:

“I have always said that I support the death penalty because I do believe that there are some crimes that are so heinous that the death penalty is the only option,” Rell told reporters at the state Capitol complex. “I believe in the death penalty.

Rell dismissed arguments made by opponents.

“I don’t consider it revenge,” Rell said. “It’s justice.”

Of course, her position is likely to change if a QU/UConn poll is released shortly that shows the state’s residents favor abolition (credit for the joke goes to Ryan).

I guess I should mention that the bill is prospective only, but that makes me seem like a wet blanket.

Because, you see, it is the Mighty Defendant who has the power of soothsaying. The meeky and tiny state cannot be taken advantage of, fooled or otherwise made to lose a conviction, no matter what the circumstances.

Avid and attentive readers of this blog will remember that last year, the CT Supreme Court issued a duo of decisions reversing course on decades of kidnapping law. In State v. Salamon and State v. Sanseverino (I), the CtSC ruled that the law of kidnapping was always that the State must show the use of force greater than that required for the commission of another crime and that they’d gotten it wrong for 30-odd years. For example, a kidnapping conviction couldn’t stand alongside a sex assault conviction where the only “restraint” was that required to commit the sex assault. Mr. Salamon got a new trial and Mr. Sanseverino got an outright acquittal. In doing so, the Court wrote:

Contrary to [the dissent's] assertion that the state ‘could have proffered’ additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt.

Justice Katz (author of Sanseverino I), dissenting in Sanseverino II, explains further:

In Salamon, only after we had examined the evidence at length did we conclude that a retrial was warranted because the evidence actually adduced could be a sufficient basis for a reasonable jury to find a kidnapping upon a proper instruction under the revised rule. State v. Salamon. Although we could have reversed the defendant’s conviction in Salamon on the basis of instructional error— i.e., he did not have the benefit of an instruction under the rule that we set forth in that case—the court relied exclusively on insufficiency of the evidence. Sanseverino simply was an application of the Salamon rubric that yielded a different outcome.

But this joy was rather short lived. A few short weeks later, the Supreme Court started on the path to yesterday’s change of mind. In State v. DeJesus (which you will remember produced a noteworthy post title), the Court quickly disavowed its remedy in Sanseverino (in fact, it expressly reversed itself). So Mr. Sanseverino was enjoying relief, but it was on borrowed time.

In Sanseverino II, the Superme Court did what I expected: it explicitly reversed the remedy of Sanseverino I. Fine, if you want to do that, fine.

But the way it did it and what else it did are noteworthy and frankly, remarkable. Let’s take things one at a time. On reversing the remedy, the Court writes:

Recently, in State v. DeJesus, [...] this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant’s kidnapping conviction and to remand the case for a new trial.  As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant’s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, ‘‘the double jeopardy concerns that preclude the  [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any  insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state’s] failure to muster evidence.’’ (Internal quotation marks omitted.)

Note the subtle change in wording. Salamon goes from being “what the legislature always intended” to an “unforeseen change in the law”. Twist and shout.

Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.

[...], we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.

It is unfair that the court is willing to allow defendants to suffer the consequences of its erroneous interpretation of the kidnapping statute.  It is clear from reading Salamon and DeJesus that the court admitted that it got it wrong the first time:  when it interpreted the kidnapping statutes to cover restraint wholly incidental to the commission of another offense, it did not properly discern what the legislature intended to criminalize.  We now know that the legislature always intended kidnapping to exclude wholly incidental restraint.

Thus, it is patently incorrect to say that Sanseverino is not unfairly prejudiced by the order of a new trial or entering of judment on the LIO because he didn’t raise the claim raised in Salamon (sufficiency) and is just lucky that he can benefit at all from the Salamon decision.  This assertion bothers me for a few reasons.  First, he was truly unlucky to have committed his crime at at time when our supreme court didn’t feel it necessary to conduct a thorough interpretation of the kidnapping statutes.  I also don’t consider it “luck” to have our supreme court acknowledge that the legislature never intended for Sanseverino to be convicted of kidnapping.  Are we supposed to feel lucky not to be incarcerated for a crime we did not commit?!

Second, the court goes out of its way to say that because of the dramatic change in the law brought about by Salamon, the state could not have been expected to foresee the change and make strategic decisions re: what evidence to present and which LIOs to include in the jury instructions; yet the court is perfectly willing to criticize Sanseverino for not foreseeing the same “dramatic change” and raising the same sufficiency claim that had been rejected numerous times before.

So let’s talk about this LIO stuff now. The Court grants the State’s request that if it chooses not to retry him on the kidnapping charge, it is entitled to a conviction of Unlawful Restraint. Yes, that was worthy of italics. In doing so, the Court blurs the line between the jury’s role and an appellate court’s role. While expressly avoiding the legal issue on which numerous other courts have split, i.e., whether an appellate court can enter judgment on an LIO on which the jury was not instructed at trial, the court instead creates a special rule just for this particular case.  The concurring opinions aren’t any better.  All seem to agree that Sanseverino isn’t prejudiced here (see above), so it’s no big deal if the jury wasn’t instructed on the LIO the court now wants to impose as judgment (bearing in mind that the judgment will only enter if the state doesn’t exercise its option to have a re-trial on the kidnapping charge. Apparently the court feels so badly about blindsiding the state with its Salamon decision, that it’s allowing the State options to choose from to cure the prejudice . Sigh, that must be nice).

The only justice who seems to have opted out from this is Justice Shaller, who dissents from this second part of the Court’s decision:

[A] remand for sentencing on a lesser included offense is appropriate only when a jury properly has been charged on that offense because: (1) appellate courts should avoid resolving cases in ways that involve fact finding or blur distinctions between appellate and trial court determinations; (2) requiring an instruction maintains the distinction between an appellate court’s determination that the record evidence is sufficient to support a guilty verdict and a jury’s determination that the state proved its case beyond a reasonable doubt; (3) when the jury has been instructed on the greater offense only, any attempt to assess what the jury would have determined with respect to the lesser offense is speculative; (4) only when the jury has been instructed on the lesser offense and could have explicitly returned a verdict, is the defendant undeniably aware of his potential liability for the lesser offense; (5) the practice of remanding for sentencing on lesser offenses that have not been submitted to the jury may encourage the state to risk not seeking instructions; (6) the state gains an unfair strategic advantage if it alone can adopt an all or nothing approach at trial but, under some circumstances, change its position and argue that the lesser offense should have been submitted; and (7) the defendant may have forgone a particular defense or strategy due to the failure to instruct on a lesser included offense.

He also sums up the problems with the “luck” argument quite succinctly:

If, indeed, the defendant ‘‘has benefited from our holding in [State v. Salamon],’’ as the majority argues, the unexpected holding in Salamon can be said to have done no more than to remedy a deficiency in the law, a benefit to which the defendant doubtless was entitled.

It’s almost like a few days after Salamon and Sanseverino the Court realized that it had ruled in favor of defendants (and their rights) and were horrified by it, so they set about “remedying” (get it?) it.

(I would be remiss in not mentioning that this post was practically co-written by Miranda and she remains, as always, the real brains behind this operation. Oh, and the usual “this post is an expression of the personal opinions of Miranda and myself and not of our employer”.)

In all criminal prosecutions, the accused shall have a right … to be released on bail upon sufficient security… nor shall excessive bail be required…

The Eight Amendment to the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Despite this, the bonds imposed by local judges have grown at a tremendous rate. The numbers being thrown about these days are just… well…excessive. Take, for example, the recent tragic shooting at Wesleyan. When arrested, the police set bond on the defendant at $10 million, already an astronomical amount.

Apparently that wasn’t enough. Perhaps in a show of force for the public and/or media, the judge raised the bond to $15 million. Now, I know nothing about the financial circumstances of the defendant here, but I find it hard to believe that there are people who can post bond in the amount of $10m, but not $15m. That’s entirely silly and nothing more than appearances. (One might argue that it doesn’t make a difference because he couldn’t post $10 million anyway, so who cares if it’s $15 million or $30 million. I care, that’s who.)

So at what point does a bond become “excessive” and thus in violation of either the State or Federal constitutions? The point of bond (or bail) isn’t to ensure that the defendant cannot post it, but rather to ensure that he has enough invested in the posting of that bond that it provides an incentive for him to return to court and thus avoid forfeiting that amount.

Now, this isn’t a jurisprudential hot topic, so cases on point are relatively few and far between. But there is some guidance. Starting with the Constitutional import of bail, in State v. Ayala¹, the CT Supreme Court reiterated that the Constitutional provisions:

guarantee[] bail in a reasonable amount in all cases, even capital cases not falling within the exception . . . The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offense.

[In Ayala, though, the Court ruled that this Constitutional provision doesn't prohibit a judge from revoking bail if the defendant commits a new crime while on release and the judge is not required to impose a new bond amount. Fmr. Justice Berdon argues in a dissent - and convincingly so, in my opinion - that the Constitutional provisions aren't vague and that bond must be set in every case at all times. He didn't get any support. So much for the Constitution.]

Onto the question of what bail is excessive: Certainly if the reasoning behind bail provisions is to ensure the appearance of the defendant in Court,  then one cannot circumvent the Constitutional mandate by setting a bond so high that the defendant cannot reasonably post it. Indeed, the State Supreme Court recognized as much in State v. Menillo²:

The fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings, including final judgment. If an accused were kept locked up in jail from the time of his arrest, there would be no question as to his availability at all times. But the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered. This is reinforced by a further provision in the same section of our constitution prohibiting a requirement of “excessive bail”, which thus prevents a court from fixing bail in an unreasonably high amount so as to accomplish indirectly what it could not accomplish directly, that is, denying the right to bail.

In State v. McDowell³, the Connecticut Supreme Court wrote that

To impose a financial requirement which is beyond [a defendant's] means is unreasonable and, of course, makes the determination of eligibility [for bail] purposeless.

But does this mean that a judge always has to set an amount that the defendant can make? No, and it doesn’t have to be that way. Again, going back to the reasonableness of bond, from Menillo:

But a reasonable amount is not necessarily an amount within the power of an accused to raise. It is an amount which is reasonable under all the circumstances relevant to the likelihood that the accused will flee the jurisdiction or otherwise avoid being present for trial. See 2 Swift, Digest, p. 395.

But, going back to the question I posed half-jokingly above, what difference does it make if the defendant can’t post even half the bond that is set? An argument can be made that setting such excessive bonds constitutes a form of preventive detention that carries along with it a presumption of guilt. Why else would such a big bond need to be set, unless everyone suspected that the guy was guilty as sin. Justice Berdon puts it more eloquently, from the dissent in Ayala:

The framers of our state constitution placed a high priority on the right to be free pending a determination of guilt. By drafting article first, § 8 of our constitution, which has its roots in our first constitution; see Conn. Const. of 1818, art. I, § 14; 6 the framers obviously recognized that more than liberty is lost when bail is denied. It is well documented that “[p]retrial detention lessens [the presumption of innocence] because an accused is now treated as a convict before trial. An accused individual loses time and liberty, jobs frequently disappear, family and friend relationships are disrupted. The physical appearance of an accused is affected during this period of detention. This impedes upon the ability to prepare an effective defense. As a result, an accused individual is more likely to be convicted and there is a greater likelihood that a severe sentence will be imposed. This violates due process since an accused individual loses liberty during pretrial detention prior to an adjudication of guilt at trial.” Comment, “United States v. Salerno: A Reduction of Individual Rights,” 15 New Eng. J. on Crim. and Civ. Confinement, 147, 161-62 (1989).

The lesson to be learned, I believe, is that bond must be imposed only as necessary and only after great consideration of the facts and circumstances of each case and in no event must be imposed or raised only for the sake of appearances.

When the amount of bond set in a case seems ridiculous, it probably is excessive.

1. 222 Conn. 331 (1992)
2. 159 Conn. 264 (1970)
3. 241 Conn. 413 (1997)