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Criticism Of Justice Palmer 'Legal Poppycock'

March 23, 2017

By DAVID S. GOLUB, Hartford Courant Opinion/Op-Ed

Connecticut Supreme Court Justices are appointed to eight year terms that are customarily renewed by the General Assembly without controversy. This year, however, some state Senate Republicans made an issue over the re-appointment of Justice Richard Palmer. Justice Palmer has been on the court for 24 years and before that had a distinguished career in law enforcement, serving as Connecticut's U.S. attorney and as chief state's attorney.

Justice Palmer drew the Republicans' ire because he was one of four justices who ruled in 2015 that the legislature's 2012 attempt to partially repeal the death penalty, based solely on the date of the crime, violated the constitutional prohibition on cruel and unusual punishment. Justice Palmer wrote the majority decision in State v. Santiago, which held, in simplest terms, that deciding who could be executed based solely on when the crime was committed (as opposed to the nature of the crime or the perpetrator's criminal history) is unconstitutional.

But Republicans had a problem criticizing the Santiago decision. When the legislature voted for the partial repeal bill in 2012, many Republican lawmakers, state Sen. Len Suzio, R-Meriden among them, argued that it was unconstitutional and would be struck down by the Connecticut Supreme Court.

At the vote this month on Justice Palmer's re-appointment, Sen. Suzio, a member of the Judiciary Committee, said he agreed with the result in Santiago but didn't like the way Justice Palmer wrote the decision. According to Suzio, Justice Palmer showed himself to be a "judicial activist" because he — and the other justices joining in the opinion — relied on "contemporary standards of decency" as a basis for striking down the law. Although Suzio admitted he was impressed by Justice Palmer's intellect, demeanor, patience and humility, he (and 15 of his Republican Senate colleagues) voted against Justice Palmer's re-appointment in protest of his judicial activism.

Last week, Courant columnist Kevin Rennie, a lawyer, echoed Suzio's criticism of Justice Palmer, citing Justice Palmer's reliance on the contemporary standards of decency test as proof of his judicial activism and decrying fainthearted senators who failed to vote against his re-appointment.

The notion that reliance on the contemporary standards of decency test constitutes "judicial activism" is, to be charitable, legal poppycock. The test — sometimes referred to as "the evolving standards of decency" test — was adopted more than 55 years ago by the U.S. Supreme Court as the basis for evaluating whether a punishment, including the death penalty, violates the "cruel and unusual punishment" provision of the Eighth Amendment. As the Supreme Court stated then, because "[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man," the amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." This test was applied nationwide in more than 5,000 decisions, including U.S. Supreme Court decisions by such notable Republican appointees as former Chief Justice William Rehnquist, current Justice Anthony Kennedy and even the late Justice Antonin Scalia, hailed by conservatives as the model of judicial restraint.

The Connecticut Supreme Court unanimously adopted the test in 1982 (before any of the court's current justices were appointed). Five years ago, in its last death penalty case before Santiago, the court unanimously followed the test.

One could disagree with the outcome of applying the test in Santiago (something Suzio specifically declined to do), but no one can fairly argue that it was inappropriate to use the test. "Judicial activism" would be failing to adhere to a principle so well-established by Connecticut case law and followed by federal and state judges nationally.

And, do Suzio (and Rennie) really believe courts should not apply contemporary standards of decency in deciding whether a form of punishment is permissible? When the Connecticut Constitution was adopted, permissible punishments for burglary included "branding of the capital letter B on the forehead;" "ears nailed to a post and cut off" and whipping. Does anyone believe that contemporary standards should not outlaw such barbarous punishments?

More recently, the test was the basis for banning executions of children and the mentally handicapped and for precluding unreviewable sentences of life without parole for minors. Would anyone argue that judges should not evaluate whether such punishments comply with "the evolving standards of decency that mark the progress of a maturing society?"

We live in a time of virulent attacks on the federal judiciary. But Connecticut has, until now, staunchly protected the independence of its judiciary from partisan attacks. Shame on Suzio and Rennie, both of whom know better, for their false attack on Justice Palmer.

David S. Golub is a lawyer based in Stamford.

Editor's note: This was edited from an earlier version to include further discussion of applying the evolving standards of decency test.

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