It was around this time last year that lawmakers decided to repeal the death penalty in Connecticut.

Legislators were careful, however, to word the statute in such a way as to ensure the prior convicted members of death row – like the Cheshire home invasion killers- Steven Hayes and Joshua Komisarjevsky — were still subject to capital punishment.

But in a challenge to the state Supreme Court this week, death penalty opponents argue, among other things, that retroactive application of capital punishment would constitute cruel and unusual punishment. They say executing a man convicted of murder in 2005 would be a violation of the 8th Amendment of the U.S. Constitution.

"We believe it’s very important for the court to know that these are unchartered waters," said Brian Stull, of the American Civil Liberties Union’s Capital Punishment Project in Durham, N.C. Stull submitted an amicus brief arguing that the justices should not allow retroactive application of the death penalty.

"No state has executed a prisoner after repealing the death penalty," said Stull. "We just think it’s so important for the court to know Connecticut would be the first state to and that’s not a stat any state wants to take."

Stull said Hawaii, Minnesota, New Jersey and Illinois have also repealed the death penalty in the past and applied it prospectively, similar to Connecticut. However, he said their state’s governors later commuted the sentences. Stull said the same thing occurred in Missouri, Oregon and Arizona but those states then brought back the death penalty.

The case giving rise to the challenge in Connecticut is that of Eduardo Santiago in a murder-for-hire plot.

Santiago and two other men were convicted in the fatal shooting of Joseph Niwinski, 45, in West Hartford in 2000. Police said Santiago was promised a pink-striped snowmobile with a broken clutch in exchange for the killing.

Santiago has denied allegations that he agreed to kill Niwinski in exchange for the broken snowmobile. He was sentenced to lethal injection in 2005 after a jury convicted him, despite no clear evidence that he was the one who pulled the rifle trigger.

Santiago appealed and in June 2012 the state Supreme Court upheld his conviction but overturned his death sentence, saying the trial judge wrongly withheld key evidence from the jury. As such, the state’s highest court ordered a new penalty phase hearing.

Since state lawmakers repealed the death penalty just a couple months prior to the state Supreme Court’s decision, Santiago’s defense lawyer, Assistant Public Defender Mark Rademacher, filed a motion requesting that the court consider his claim. He argues that the new law bars the imposition of the death penalty in his case.

"The state wanted the case reargued too," said Rademacher. "There’s only maybe one or two pending prosecutions that would be abated if the appeal applied to them. Obviously [the case] is of great importance to the ten guys on death row."

Though still on death row, Rademacher does not consider his client an 11th member of death row since the penalty phase is to be reargued if this current challenge is unsuccessful.

Rademacher also asserts several constitutional claims. He argues that the legislature’s repeal of the death penalty shows that society has determined that capital punishment no longer serves a legitimate penological objective and that, under such circumstances, executing him would constitute cruel and unusual punishment in violation of the 8th Amendment of the U.S. Constitution.

Rademacher also contends that the new law’s effective date provision violates the equal protection clause of the U.S. Constitution because it singles out a small group of offenders for the uniquely harsh penalty of death while dictating a life sentence for other similarly-situated offenders.

"Once the legislature decides — through repeal – that the death penalty is not necessary punishment, executing specific individuals for pre-repeal crimes does not serve a retributive interest," writes Rademacher. "The legislature’s role is to decide whether a death penalty is necessary as an available sentencing option, not to decide that it should be inflicted on specific individuals or for specific wrongs. The latter is not retribution as a penological objective of punishment; it is private vengeance."

Senior Assistant State’s Attorney Harry Weller is handling the arguments before the justices this week for the prosecution side. Weller, in a nutshell, is arguing that if the state isn’t to honor the death sentences of the current death row members, then the legislature needs to apply the capital punishment repeal retroactively.

"Statements from legislators with a broad spectrum of opinion on capital punishment all demonstrate that elimination was intended to be prospective only," said Weller in his brief to the state Supreme Court. "The fact that legislators relied on that assurance when they voted should remove any lingering doubt about legislative intent."

Kent Scheidegger, of the Criminal Justice Legal Foundation in Sacramento, Ca., submitted an amicus brief in support of the state’s position.

A retroactive decrease in the punishment for a crime is fundamentally unfair to the victims, in much the same way that a retroactive increase is unfair to defendants…," writes Scheidegger. "It does not follow, though, that justice must be denied to those who have already been through a trial and received at least a contingent promise that justice will be done."

Oral arguments will take place before the state Supreme Court at 10 a.m. Tuesday.

A state in a similar situation as Connecticut is New Mexico. In 2011, New Mexico’s Supreme Court took up the issue of retroactive application after the state had banned the death penalty prospectively.

A man named Michael Astorga was already convicted of a capital felony before the repeal was passed. Astorga’s lawyer argued that surely his client shouldn’t be sentenced to death now that future defendants committing a similar crime would not have to face a death sentence. That state’s high court disagreed, upholding the possibility of a death sentence for Astorga.

Two men remain on death row now in New Mexico. Since each have many remaining appeals, no retroactive execution is imminent.•