In his oral and written arguments to the state Supreme Court on Tuesday, public defender Mark Rademacher argued that executing death row inmate Eduardo Santiago would be unconstitutionally unfair.

Rademacher is seeking to spare Santiago the death penalty in his murder case by arguing the state’s ban of capital punishment should be applied retroactively. The state outlawed capital punishment last year, but only for crimes committed after April 25, 2012. Santiago was sentenced to die in 2005 for the murder-for-hire shooting of a West Hartford man.

Santiago’s case is the first to ask the state Supreme Court to consider the legal issues surrounding retroactive use of the death penalty.

Senior Assistant State’s Attorney Harry Weller, defending the new law, countered that if the state doesn’t execute Santiago, it will undermine public perception that "the system does what it says it will do."

Weller said he didn’t know if the death penalty deters crime, but argued that the state’s integrity is symbolically on the line in this case. Now that death of off the table, observed Justice Dennis Eveleigh "we know it can’t possibly deter crime" into the future.

Weller asked the seven justices to consider the possibility that another legislature, in the future, might decide that it wanted the death penalty back – and urged the justices to not view capital punishment an issue that’s forever settled.

The public isn’t settled on the question, Weller noted, saying polls have shown that up to 70 to 80 per cent of the people of Connecticut have favored the death penalty.

Polls, countered Rademacher, have no place in deciding a constitutional question. He urged the justices to view the legislature’s vote as saying "from this point on, there will be life." Justice Flemming L. Norcott pointed out that that could be called a "half-empty or half-full" argument, because they also voted to have earlier convicts like Santiago, punished by death.

The death row inmates uppermost in the public’s – and lawmakers’—minds are Steven Hayes and Joshua Komisarjevsky, who in a July 2007 home invasion murdered the wife and daughters of Dr. William A. Petit, Jr..

Petit was badly beaten and tied up, barely escaped death himself. He has been a leading opponent to death penalty repeal, in legislative testimony and public statements.

The justices struggled with the defense argument that the act’s effective date was the feature that made it arbitrary and unconstitutional.

Chief Justice Chase Rogers questioned whether the court could send the issue back to the legislature for more action, as it did in the education segregation case of Sheff v. O’Neil. Weller objected strenuously to that idea.

"This court has held that the death penalty is not a per se violation of due process," Weller reminded them, and urged the court to act boldly. "This is a per se ruling you have to make," he said, adding, "this court should validate the statute and allow it to act the way the legislature intended."

If any part of the statute is struck down, Weller contended, the entire statute would need to be invalidated.

Questioning defender Rademacher, Norcott asked him whether he was afraid he might win the battle of Santiago’s appeal, and lose the war by having the legislature’s death penalty repeal struck down as unconstitutional.

Either way, Rademacher replied, a single arbitrary date – the statute’s enactment—should not be the basis for deciding who lives and who dies.

Reaching a decision in a complex legal issue such as this has been known to take a year or more.