If Connecticut’s Supreme Court finds the prospective nature of last year’s capital punishment repeal unconstitutional, then it should throw “the baby out with the bathwater” and strike down the entire law, a state’s attorney argued Tuesday. 

The Supreme Court heard oral arguments Tuesday morning on a lawsuit challenging the constitutionality of 2012 legislation that took the death penalty off the table as a sentencing option for crimes committed after the law was passed.

Attorney Mark Rademacher argued the case on behalf of Eduardo Santiago, who was sentenced to death after he was convicted of murder-for-hire in 2000. Last year, the Supreme Court overturned Santiago’s initial death sentence and ordered another penalty hearing after the legislature had already repealed capital punishment for future crimes.

Rademacher argued that his client should not be subject to a death sentence after lawmakers had already approved a law stating that life without parole is a sufficient maximum punishment for any crime, no matter how egregious.

Legislators knew when they voted for the law that the Supreme Court would end up examining the provision that made capital punishment sentences still apply to the 11 men already on death row, he said.

“They did not know [if the provision was constitutional] because the only body that can make that determination is this court,” Rademacher told the justices.

But Senior Assistant State’s Attorney Harry Weller argued that the court could not simply reject the provision setting an effective date for the law. He said the Supreme Court either needed to uphold the new law or strike it down entirely. Either way, Santiago would still be subject to the death penalty, he said. 

Weller said that Connecticut’s legislature attempted something novel by incrementally abolishing the death penalty. He said the court’s decision will have an impact in other states considering similar routes.

“Other legislatures are looking at this to determine if they can abolish the death penalty in steps,” he said. “This is a political issue, a quintessentially political issue.”

And should the court choose to reject a prospective repeal and the send the issue back to the legislature, it “will be telling the legislature that we can have either black or white. We can’t have any gray.”

Rademacher disagreed. He told the justices did not think the entire law necessarily needed to be returned to the legislature. He did not argue against the basic premise that people should not be executed. He argued against what he said was an arbitrary distinction based on the day a crime was committed.

“Once the legislature has said ‘No more death penalty,’ we should all agree that we do not make decisions like who lives and who dies based on something as arbitrary as the date of repeal,” he said.

Rademacher likened the practice of subjecting people to death based on the date a crime was committed to imposing death sentences based on the first letter of the offender’s last name.

“The legislature is in the business of deciding whether a group of individuals who commits certain crimes are subject to the death penalty, not deciding whether specific people guilty are certain crimes are subject,” he said.

In their questions, the Supreme Court justices seemed to be looking at the intent of the lawmakers who passed the legislation for guidance.

Lawmakers discussed the fate of the 10 men currently on death often during the debate on the abolition bill. At one point legislators considered adding language which would have required that the repeal be struck down if the court did not uphold their death sentences under the new law.

Sen. Eric Coleman, co-chairman of the Judiciary Committee, said the amendment was unnecessary because their current sentences were permitted under the prospective law.

Justice Richard Palmer asked Rademacher if Coleman’s statements did not establish legislative intent on the issue.

“We do rely on statements of [legislative] sponsors, whether or not we should is another matter, but we almost always do,” Palmer said. “In [Coleman’s view] that was the intent of the law.”

Weller agreed, saying the legislature never would have passed the bill without the prospective clause and there was no mechanism for severing one part of the bill from the other.