Acruel and unusual ruling

Before U.S. District Judge Stefan Underhill’s ruling about them last week, Connecticut already may have been sick of the political duplicity around the 11 murderers sentenced to death but spared by years of legislative and judicial maneuvering. The murders were atrocious, there was no question about anyone’s guilt, the public was assured that the repeal of capital punishment by the General Assembly and Gov. Dannel P. Malloy would be “prospective,” affecting only future crimes, and that the pending death sentences would stand.

But then the state Supreme Court construed the repeal law so that it undid past sentences, construed it as signifying that the public now considered capital punishment “cruel and unusual” — thus forbidden by the federal constitution’s Eighth Amendment — though the federal and state constitutions both authorize capital punishment explicitly.

In fact the repeal law signified exactly the opposite about public opinion. The law was a compromise in which liberal legislators and a liberal governor recognized that the public very much wanted the death sentences imposed on the murderers already so sentenced. The state Supreme Court’s grossly political motivation and misrepresentation of the law will taint the court forever for usurping democracy.

Nevertheless, Judge Underhill has a point.

Since their assurances that repeal of capital punishment would not spare those already sentenced had proved false, legislators and the governor sought to look tough. So they legislated a severe substitute punishment for the 11 murderers who had been on Death Row: solitary confinement for 21 hours per day for life.

That punishment indeed was “unusual,” much different from the ordinary conditions of imprisonment.

Such solitary confinement also is easily considered “cruel,” likely to drive prisoners mad or madder — as some legislators noted in debate about the confinement law.

So Judge Underhill has ruled that such punishment is cruel and unusual and thus unconstitutional, that it must cease for the 11 murderers, and that they can even sue state government for damages.

But solitary confinement may not be quite as unusual as the judge thinks, since many prisons have used it as a temporary discipline.

While “unusual” may be defined well enough, the federal constitution fails to elaborate on “cruel” and thus leaves plenty of room for judges to rewrite or nullify criminal statutes. (The state Supreme Court defined “cruel” to give itself license to erase capital punishment even from the state constitution itself.)

Indeed, what imprisonment is cruel to some extent? For imprisonment separates a criminal from family, friends, and the ordinary pleasures. It also impairs his return to them. Amid imprisonment families disintegrate and job prospects evaporate. A prison sentence becomes stigma. So should there be no punishment at all?

Justice has always meant fitting the punishment to the crime, making punishment proportionate, but short of the death penalty there can be no proportionate punishment for murder.

Solitary confinement may be bad practice, but then why should a court’s misrepresentation of public opinion about cruel and unusual punishment keep trumping what the public’s representatives place plainly in constitutions and statutes?

That’s why Judge Underhill’s decision should be appealed — not to preserve solitary confinement but to preserve democracy.