Last week, in State v. Santiago, in yet another exercise of liberal judicial activism, the Connecticut supreme court ruled by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (The majority opinion is here; the two concurrences and three dissents are available here. Note that although the “official release” date is August 25, the ruling was made public on August 13.)

At first glance, the decision might seem to add momentum to the effort to repeal state death-penalty laws. But I’d suggest that its effect (unintended, to be sure) may well be the opposite.

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. But by effectively expanding the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment,* the court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

* I tweaked this clause after my original posting.