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State v. Santiago

Supreme Court of Connecticut.
Aug 25, 2015
318 Conn. 1 (Conn. 2015)

Summary

holding that the death penalty no longer comported with contemporary standards of decency and violated the state constitutional ban on excessive and disproportion punishment and its prospective abolition applied to capital sentences already imposed

Summary of this case from State v. Jenks

Opinion

No. 17413.

08-25-2015

STATE of Connecticut v. Eduardo SANTIAGO.

Mark Rademacher, assistant public defender, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom were Matthew A. Weiner, deputy assistant state's attorney, and, on the brief, Kevin T. Kane, chief state's attorney, Gail P. Hardy, state's attorney, Susan C. Marks, supervisory assistant state's attorney, and Marjorie Allen Dauster, Donna Mambrino and John F. Fahey, senior assistant state's attorneys, for the appellee (state). Constance de la Vega, pro hac vice, and Hope R. Metcalf, New Haven, filed a brief for experts on international human rights and comparative law as amicus curiae. Alex V. Hernandez and Brian W. Stull filed a brief for legal historians and scholars as amicus curiae. Sandra J. Staub, David J. McGuire and Lauren R. Masotta filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae. Kent S. Scheidegger, pro hac vice, and Judith Rossi, Rocky Hill, filed a brief for the Criminal Justice Legal Foundation as amicus curiae.


Mark Rademacher, assistant public defender, for the appellant (defendant).

Harry Weller, senior assistant state's attorney, with whom were Matthew A. Weiner, deputy assistant state's attorney, and, on the brief, Kevin T. Kane, chief state's attorney, Gail P. Hardy, state's attorney, Susan C. Marks, supervisory assistant state's attorney, and Marjorie Allen Dauster, Donna Mambrino and John F. Fahey, senior assistant state's attorneys, for the appellee (state).

Constance de la Vega, pro hac vice, and Hope R. Metcalf, New Haven, filed a brief for experts on international human rights and comparative law as amicus curiae.

Alex V. Hernandez and Brian W. Stull filed a brief for legal historians and scholars as amicus curiae.

Sandra J. Staub, David J. McGuire and Lauren R. Masotta filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.

Kent S. Scheidegger, pro hac vice, and Judith Rossi, Rocky Hill, filed a brief for the Criminal Justice Legal Foundation as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.

The listing of justices reflects their seniority status on this court as of the date of oral argument.

Opinion

PALMER, J.

TABLE OF CONTENTS

Page

I.

STATE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT

13

A.

Federal Constitutional Standards

15

1.

Inherently Barbaric Punishments

16

2.

Excessive and Disproportionate Punishments

17

3.

Arbitrary or Discriminatory Punishments

18

B.

Relevant State Constitutional History

20

1.

Preconstitutional Legal Traditions

20

2.

1818

24

C.

Relevant Constitutional Text

27

D.

Relevant Connecticut Precedents

29

E.

Persuasive Sister State Precedents

30

F.

Conclusion

31

II.

THE DEATH PENALTY FAILS TO COMPORT WITH CONTEMPORARY STANDARDS OF DECENCY

31

A.

Historical Development

35

B.

Legislative Enactments

39

C.

Current Practice

48

D.

Laws and Practices of Other Jurisdictions

50

E.

Opinions and Recommendations of Professional Associations

53

F.

Conclusion

54

III.

THE DEATH PENALTY IS DEVOID OF ANY LEGITIMATE PENOLOGICAL JUSTIFICATIONS

55

A.

Deterrence

57

B.

Retribution

61

1.

Legislative Judgments

62

2.

Delays

62

3.

Possibility of Error

64

4.

Caprice and Bias

66

C.

Vengeance

71

D.

Conclusion

73

IV.

RESPONSE TO THE DISSENTING JUSTICES

74

A.

Whether the Questions Decided Are Properly before the Court

74

1.

Arguments Allegedly Not Raised by the Defendant

74

2.

Opportunity for Briefing

77

3.

Extra–Record Materials

77

B.

Connecticut's Historical Acceptance of Capital Punishment

79

C.

Whether Deference to the Legislature Requires That We Uphold P.A. 12–5

81

IV.

CONCLUSION

84

Although the death penalty has been a fixture of Connecticut's criminal law since early colonial times, public opinion concerning it has long been divided. In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No. 09–107 (P.A. 09–107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date. Then Governor M. Jodi Rell vetoed P.A. 09–107, however, and it did not become law. Three years later, in 2012, the legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts 2012, No. 12–5 (P.A. 12–5); and, this time, Governor Dannel P. Malloy signed it into law. During the public hearings on both P.A. 09–107 and P.A. 12–5, supporters argued that the proposed legislation represented a measured and lawful approach to the issue. Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment. Perhaps most notably, Chief State's Attorney Kevin T. Kane, who serves as this state's chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass constitutional muster. Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a "fiction” and that, "[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a matter of constitutional law.... [A]ny death penalty that has been imposed and not carried out would effectively be nullified.” In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abolish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capital crimes before that date. Upon careful consideration of the defendant's claims in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.

In March, 2009, when he testified before the Judiciary Committee as to the constitutionality of a bifurcated, prospective only repeal, Kane stated that "[t]he [s]tate could not and would not, could not constitutionally and would not as a matter of public policy seek to execute somebody for a crime they committed today when they could not be executed for committing the same crime tomorrow. I don't think that would stand up as a matter of constitutional law. I don't think the courts would permit that....” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2009 Sess., p. 2403. "[I]f this [legislature] decides to abolish the death penalty for a crime that's committed later on,” he continued, "I think the Connecticut Supreme Court would decide ... in effect that the community standard is such that this is now cruel and unusual punishment.” Id., at p. 2412. For that reason, Kane advised the legislature that the passage of a prospective only repeal "would actually ify the death penalty for anybody who has not yet been executed.” Id., at p. 2403. Kane's substantially similar 2012 testimony regarding the constitutional defects inherent in a prospective only repeal is discussed in part II B of this opinion.

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2009 Sess., p. 2716.

Following a trial on charges that included capital felony in violation of General Statutes (Rev. to 1999) § 53a–54b (2) and General Statutes § 53a–8, a jury found the defendant guilty as charged, and the trial court, Lavine, J., rendered judgment accordingly. The court then conducted a penalty phase hearing pursuant to General Statutes (Rev. to 1999) § 53a–46a, at which the jury found the existence of an aggravating factor, one or more jurors found the existence of one or more mitigating factors, and the jury found that the aggravating factor outweighed the mitigating factor or factors.The trial court thereupon imposed a sentence of death, and the defendant appealed to this court from both the judgment of conviction and the death sentence. See State v. Santiago, 305 Conn. 101, 117–18, 49 A.3d 566 (2012) (Santiago I ). While the appeal was pending, the legislature repealed the death penalty for all crimes committed on or after the effective date of the repeal, April 25, 2012. See P.A. 12–5. On June 12, 2012, this court ultimately affirmed the judgment of conviction but reversed the sentence of death and remanded the case for a new penalty phase hearing on the ground that the defendant had been deprived of the opportunity to review and use certain potentially mitigating evidence. See State v. Santiago, supra, at 215, 308, 49 A.3d 566. Thereafter, the defendant filed a motion for reconsideration in which he asked this court to consider, among other things, whether the prospective repeal leads inexorably to the conclusion that capital punishment has ceased to comport with state constitutional requirements. The adoption of P.A. 12–5, when considered in light of the history of capital punishment in our state and other recent legal developments, compels us to conclude that the death penalty now constitutes cruel and unusual punishment, in violation of the state constitution. Consequently, we reverse the judgment of the trial court with respect to the sentence of death on the capital felony count and remand the case to that court with direction to sentence the defendant to life imprisonment without the possibility of release on that count.

Hereinafter, all references to § 53a–54b are to the 1999 revision, unless otherwise noted.

The jury also found the defendant guilty of one count each of murder, felony murder, conspiracy to commit murder, stealing a firearm, and larceny in the sixth degree, and two counts each of burglary in the first degree and conspiracy to commit burglary in the first degree. The murder and felony murder counts were merged with the capital felony count for purposes of sentencing.

In addition to the sentence of death, the trial court also imposed a total effective term of imprisonment of forty-five years and ninety days on the remaining charges of which the defendant was convicted; see footnote 4 of this opinion; to run consecutive to the death sentence.

Our determination that the defendant must be sentenced on the capital felony count to life imprisonment without the possibility of release has no bearing on the sentence imposed by the trial court on the remaining charges. See footnote 5 of this opinion.

The underlying facts of this case, which are set forth in detail in Santiago I, may be summarized briefly as follows. In December, 2000, Mark Pascual agreed to give the defendant a snowmobile from Pascual's repair shop if the defendant would kill the victim, Joseph Niwinski, for whose girlfriend Pascual had developed romantic feelings. Id., at 121, 49 A.3d 566. That same month, with the assistance of Pascual and another friend, the defendant entered the victim's apartment and shot and killed the victim as he slept. Id., at 123, 49 A.3d 566. The defendant was charged with, among other things, the capital felony of "murder committed by a defendant who is hired to commit the same for pecuniary gain,” in violation of § 53a–54b (2).

In his original appeal to this court, the defendant raised numerous challenges to his conviction of capital felony and his conviction on other charges, as well as his death sentence. Id., at 142–46, 49 A.3d 566. This court affirmed the defendant's conviction on all counts; see id., at 118, 143, 308, 49 A.3d 566 ; and declined his invitation to revisit our prior decisions holding that the death penalty is not a per se violation of the Connecticut constitution. Id., at 307, 49 A.3d 566. We also concluded, however, that the trial court, Solomon, J., improperly had failed to disclose to the defendant certain confidential records in the possession of the Department of Children and Families that were mitigating in nature. Id., at 215, 239–41, 49 A.3d 566. Accordingly, we reversed the trial court's judgment with respect to the sentence of death and remanded the case to the trial court for a new penalty phase hearing. Id., at 241, 308, 49 A.3d 566.

In a footnote, the author of the majority opinion in Santiago I, Justice Norcott, expressed that he maintained his long-standing belief that the death penalty is a violation of the state constitution, and that he was able to author the majority opinion only because there was a possibility that, on remand, the defendant would not be sentenced to death. State v. Santiago, supra, 305 Conn. at 307 n. 166, 49 A.3d 566.

While the defendant's appeal was pending in this court, the legislature passed and the governor signed P.A. 12–5, which repealed the death penalty for all crimes committed on or after the date of passage, April 25, 2012. See generally P.A. 12–5. Shortly before we released our opinion in Santiago I, the defendant filed a motion for permission to file a supplemental brief in support of his argument that the prospective abolition of capital punishment barred the state from seeking the death penalty at his new penalty phase hearing. See State v. Santiago, supra, at 307–308 n. 167, 49 A.3d 566. Specifically, the defendant sought review of what we characterized as four "new appellate claims,” the first of which was that, "although his crimes were committed prior to the effective date of [P.A. 12–5], that legislation nevertheless 'represents a fundamental change in the contemporary standard[s] of decency in Connecticut and a rejection of the penological justifications for the death penalty,’ rendering the death penalty now cruel and unusual punishment....” Id., at 308 n. 167, 49 A.3d 566.

We denied the defendant's motion, concluding that his new appellate claims would be more appropriately addressed in the context of a postjudgment motion. See id. Thereafter, the defendant filed such a motion, in which he sought reconsideration of our decision in Santiago I. In support of his motion, he again maintained, among other things, that P.A. 12–5 "represents a fundamental change in the contemporary standard[s] of decency in Connecticut and a rejection of the penological justifications for the death penalty, eliminating the constitutional prerequisites to the validity of the death penalty, such that it is now cruel and unusual punishment forbidden by ... article first, §§ 8 and 9, of the [state] constitution....” The defendant also urged this court to order supplemental briefing and further oral argument on this and related issues, particularly in light of the fact that the constitutionality of imposing the death penalty following a prospective only repeal presents a question of first impression in Connecticut and one that, to our knowledge, no jurisdiction has addressed comprehensively in the modern era. See State v. Santiago, Conn. Supreme Court Records & Briefs, April Term, 2013, Amicus Brief of the American Civil Liberties Union Foundation of Connecticut p. 2. We granted the defendant's motion for reconsideration and request for supplemental briefing and further oral argument without limitation.

Thereafter, we granted permission to a group of experts on international human rights and comparative law, a group of legal historians and scholars, and the American Civil Liberties Union Foundation of Connecticut to file amicus briefs in support of the defendant's position, and permission to the Criminal Justice Legal Foundation to file an amicus brief in support of the state's position. We also issued an order requesting supplemental briefs from the parties to address a then unpublished paper in which the author asserted that the death penalty may be imposed for crimes committed before April 25, 2012, as provided in P.A. 12–5. See K. Barry, From Wolves, Lambs: The Case for Gradual Abolition of the Death Penalty (preliminary working draft), subsequently published at K. Barry, "From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual Abolition of the Death Penalty,” 66 Fla. L.Rev. 313 (2014). The defendant filed a second supplemental brief addressing the paper, but the state declined to do so.

On reconsideration, although the defendant focuses on the claim that P.A. 12–5 creates an impermissible and arbitrary distinction between individuals who committed murders before and after April 25, 2012, in light of the prospective abolition of capital punishment, he also asks this court to "exercise its independent judgment as to the current acceptability of the death penalty in Connecticut.” Specifically, he argues that the enactment of P.A. 12–5 means that "the death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.” That claim is the sole issue that we address herein.

The defendant also claims that imposing the death penalty on a person, such as the defendant, who committed a capital felony before April 25, 2012, would (1) be arbitrary, in violation of General Statutes § 53a–46b (b), (2) violate the equal protection guarantees of the federal and state constitutions, (3) violate the substantive due process guarantees of the federal and state constitutions, (4) violate the federal constitutional prohibition against bills of attainder, (5) violate the federal constitutional prohibition against ex post facto laws, and (6) violate the provision of article first, § 9, of the constitution of Connecticut barring punishments "except in cases clearly warranted by law.” Because we conclude that the state constitutional prohibition against cruel and unusual punishment no longer permits the imposition of the death penalty, we need not address these claims. Certain of these claims are addressed, however, in Justice Eveleigh's concurring opinion and Chief Justice Rogers' dissenting opinion.

Public Act 12–5 not only reflects this state's longstanding aversion to carrying out executions, but also represents the seminal change in the four century long history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other important developments that have transpired over the past several years. Historians have given us new chronicles of the history and devolution of the death penalty in Connecticut. Legal scholars have provided new understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that the risk of capital punishment falls disproportionately on people of color and other disadvantaged groups. Meanwhile, nationally, the number of executions and the number of states that allow the death penalty continue to decline, and convicted capital felons in this state remain on death row for decades with every likelihood that they will not be executed for many years to come, if ever. Finally, it has become apparent that the dual federal constitutional requirements applicable to all capital sentencing schemes—namely, that the jury be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death, on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic biases. For all these reasons, and in light of the apparent intent of the legislature in prospectively repealing the death penalty and this state's failure to implement and operate a fair and functional system of capital punishment, we conclude that the state constitution no longer permits the execution of individuals sentenced to death for crimes committed prior to the enactment of P.A. 12–5.

In part I of this opinion, we review the scope, nature, and history of the protections from cruel and unusual punishment afforded by article first, §§ 8 and 9, of the constitution of Connecticut, both as a general matter and as applied to capital punishment in particular. In part II of this opinion, we explain why, in view of the adoption of P.A. 12–5, and the state's near total moratorium on carrying out executions over the past fifty-five years, capital punishment has become incompatible with contemporary standards of decency in Connecticut and, therefore, now violates the state constitutional prohibition against excessive and disproportionate punishments. In part III of this opinion, we explain why the prospective repeal also means that the death penalty now fails to satisfy any legitimate penological purpose and is unconstitutionally excessive on that basis as well. Finally, in part IV of this opinion, we address certain general objections raised by the dissenting justices, and we explain why their arguments are unpersuasive.

We address certain other, more specific objections of the dissenting justices throughout this opinion.

I

STATE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISHMENT

Since this court first considered the constitutionality of capital punishment, we have recognized that, "in the area of fundamental civil liberties—which includes all protections of the declaration of rights contained in article first of the Connecticut constitution—we sit as a court of last resort. In such constitutional adjudication, our first referent is Connecticut law and the full panoply of rights Connecticut citizens have come to expect as their due.” (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 247–48, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) ; accord State v. Mikolinski, 256 Conn. 543, 547, 775 A.2d 274 (2001).

It has been argued that, when an appellant challenges a statute or practice under both the state and federal constitutions, this court should first consider the state claims, turning to the federal claim only after determining that the appellant's state constitutional challenges will not succeed. See W. Horton, The Connecticut State Constitution (2d Ed.2012) p. 37. This approach is particularly apt when, as in the present case, the claim is one of first impression under both the federal and state constitutions. Accordingly, we will evaluate and resolve the defendant's claim under the state constitution. Because the legal framework that we apply with respect to allegedly cruel and unusual punishments is not fundamentally distinct from that adopted by the United States Supreme Court, we have no reason to believe that the eighth amendment would compel a different result. In any event, because the defendant prevails under the state constitution, we need not speculate as to how that court might resolve his federal claims or decide whether the state constitution provides broader protection than the federal constitution in this regard.

It is by now well established that the constitution of Connecticut prohibits cruel and unusual punishments under the auspices of the dual due process provisions contained in article first, §§ 8 and 9. Those due process protections take as their hallmark principles of fundamental fairness rooted in our state's unique common law, statutory, and constitutional traditions. See State v. Ross, supra, 230 Conn. at 246–47, 646 A.2d 1318 ; State v. Lamme, 216 Conn. 172, 178–79, 184, 579 A.2d 484 (1990). Although neither provision of the state constitution expressly references cruel or unusual punishments, it is settled constitutional doctrine that both of our due process clauses prohibit governmental infliction of cruel and unusual punishments. See State v. Rizzo, 266 Conn. 171, 206, 833 A.2d 363 (2003) (Rizzo I ); State v. Ross, supra, at 246, 646 A.2d 1318.

The relevant portions of article first, §§ 8 and 9, of the Connecticut constitution of 1965 are derived almost verbatim from article first, §§ 9, 10 and 13, of the Connecticut constitution of 1818. See State v. Joyner, 225 Conn. 450, 486 and n. 5, 625 A.2d 791 (1993) (Berdon, J., dissenting) (comparing article first, §§ 8 and 9, of Connecticut constitution of 1965 with article first, §§ 9 and 10, of Connecticut constitution of 1818); see also Conn. Const. (1818), art. I, § 13.

Article first, § 8, of the Connecticut constitution of 1965, as amended by article seventeen of the amendments, provides in relevant part: "No person shall be ... deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law....”


Although article twenty-nine of the amendments amended article seventeen of the amendments in 1996, article twenty-nine did not amend the foregoing language.


Article first, § 9, of the Connecticut constitution of 1965 provides: "No person shall be arrested, detained or punished, except in cases clearly warranted by law.”



In this part of the opinion, we examine the freedoms from cruel and unusual punishment traditionally enjoyed by the citizens of this state. Because we have not previously undertaken a comprehensive review of these constitutional liberties, we first consider their scope and nature in full, before considering how they apply to the defendant's specific challenge to Connecticut's current capital punishment scheme. In parts II and III of this opinion, we turn to that issue, namely, whether, in light of the enactment of P.A. 12–5, the Connecticut constitution now forbids the imposition of the death penalty.

In State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), we identified six nonexclusive tools of analysis to be considered, to the extent applicable, whenever we are called on as a matter of first impression to define the scope and parameters of the state constitution: (1) persuasive relevant federal precedents; (2) historical insights into the intent of our constitutional forebears; (3) the operative constitutional text; (4) related Connecticut precedents; (5) persuasive precedents of other states; and (6) contemporary understandings of applicable economic and sociological norms, or, as otherwise described, relevant public policies. See id., at 684–85, 610 A.2d 1225 ; see also State v. Rizzo, supra, 266 Conn. at 208, 833 A.2d 363. These factors, which we consider in turn, inform our application of the established state constitutional standards—standards that, as we explain hereinafter, derive from United States Supreme Court precedent concerning the eighth amendment—to the defendant's claims in the present case.

This ordering of the Geisler factors reflects the order in which we consider them for purposes of the present case and does not necessarily reflect their relative importance generally.

In some of our decisions, we have utilized the multifactor Geisler analysis to flesh out the general nature and parameters of the state constitutional provision at issue. Having done so, we proceeded to resolve the appellant's particular constitutional challenge according to the legal test and framework relevant and suited to that area of the law, rather than performing the substantive legal analysis under the somewhat artificial auspices of the six Geisler factors. See, e.g., State v. Linares, 232 Conn. 345, 379–87, 655 A.2d 737 (1995) (concluding, on basis of Geisler factors, that state constitution affords expansive protection to free speech in public places but then concluding that challenged statute did not infringe impermissibly on those protections under facts presented). In other cases, by contrast, we have used the Geisler framework to perform the actual substantive legal analysis. See, e.g., State v. Rizzo, 303 Conn. 71, 135–45, 31 A.3d 1094 (2011) (Rizzo II ) (evaluating challenges to death penalty according to six Geisler factors), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012) ; see also State v. Ross, supra, 230 Conn. at 249–51, 646 A.2d 1318. In the present case, we follow the former approach because, as we explain more fully hereinafter, the constitutionality of a criminal sanction, like the constitutionality of a limitation on the free expression at issue in Linares, is governed by its own distinct legal rules and standards. Accordingly, assuming that the Geisler framework is even applicable to the ultimate question of whether the death penalty now constitutes excessive and disproportionate punishment following the enactment of P.A. 12–5; cf. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 227, 957 A.2d 407 (2008) (undertaking Geisler analysis following conclusion that plaintiffs met state constitutional standard applicable for determining quasi-suspect class status); our consideration of the relevant Geisler factors is interwoven into our application of the legal framework that properly governs such challenges. See parts II and III of this opinion.

A

Federal Constitutional Standards

The eighth amendment to the federal constitution establishes the minimum standards for what constitutes impermissibly cruel and unusual punishment. See, e.g., State v. Rizzo, supra, 266 Conn. at 206, 833 A.2d 363. Specifically, the United States Supreme Court has indicated that at least three types of punishment may be deemed unconstitutionally cruel: (1) inherently barbaric punishments; (2) excessive and disproportionate punishments; and (3) arbitrary or discriminatory punishments. In Ross, we broadly adopted, as a matter of state constitutional law, this federal framework for evaluating challenges to allegedly cruel and unusual punishments. See State v. Ross, supra, 230 Conn. at 252, 646 A.2d 1318.1

The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

The cruel and unusual punishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See Robinson v. California, 370 U.S. 660, 666–68, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962).



In addition, some members of the United States Supreme Court have suggested that a punishment may be so unusual that it runs afoul of the eighth amendment on that basis alone. See, e.g., Furman v. Georgia, 408 U.S. 238, 331, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring); Weems v. United States, 217 U.S. 349, 390, 30 S.Ct. 544, 54 L.Ed. 793 (1910) (White, J., dissenting). For the most part, however, the court has treated the term "unusual” as little more than constitutional surplusage. See, e.g., Furman v. Georgia, supra, at 276–77 n. 20, 92 S.Ct. 2726 (Brennan, J., concurring) (meaning of term is of minor significance); Trop v. Dulles, 356 U.S. 86, 100 n. 32, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion) ("[o]n the few occasions [the] [c]ourt has had to consider the meaning of the phrase ['unusual’], precise distinctions between cruelty and unusualness do not seem to have been drawn”).

It is well established, however, that "[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.” State v. Lamme, supra, 216 Conn. at 184, 579 A.2d 484. Accordingly, we are not necessarily bound, for state constitutional purposes, to reach the same conclusions as the United States Supreme Court has with regard to any particular punishment or legal challenge.

As we previously indicated; see footnote 11 of this opinion; because the present appeal presents an issue that, to our knowledge, is a question of first impression not only in Connecticut but also for the federal courts, we need not determine, in resolving the defendant's state constitutional claims, whether the state constitution affords broader protections against cruel and unusual punishment than does the eighth amendment. Even if those protections are merely coextensive, however, we note that, in another case, this court nevertheless might conclude that practices and punishments that the United States Supreme Court has expressly approved are nevertheless unconstitutionally cruel and unusual in Connecticut. This might be true either because our state's contemporary standards of decency differ from those of the nation as a whole, or because this court simply reaches a different conclusion when applying to the relevant constitutional facts, as a matter of state constitutional law, standards similar or even identical to those that the United States Supreme Court has articulated.



Inherently Barbaric Punishments

First, the eighth amendment categorically prohibits the imposition of inherently barbaric punishments. Graham v. Florida, 560 U.S. 48, 59, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). This prohibition is directed toward manifestly and unnecessarily cruel punishments, such as torture and other wanton infliction of physical pain. See, e.g., Gregg v. Georgia, 428 U.S. 153, 170–72, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion announcing judgment); In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890). In the context of capital punishment, the eighth amendment also bars particular modes of execution that present a substantial or objectively intolerable risk of inflicting severe pain. Baze v. Rees, 553 U.S. 35, 50, 52, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (opinion announcing judgment).2

Excessive and Disproportionate Punishments

Second, the eighth amendment mandates that punishment be proportioned and graduated to the offense of conviction. See Graham v. Florida, supra, at 59, 130 S.Ct. 2011. In the capital punishment context, the United States Supreme Court has held, for example, that the death penalty is categorically excessive and disproportionate when imposed on certain classes of offenders. See, e.g., Roper v. Simmons, 543 U.S. 551, 568, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (prohibiting execution of individuals who were under eighteen years of age when they committed capital crimes); Atkins v. Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (execution of intellectually disabled individuals was held to be unconstitutional). The court also has concluded that capital punishment is never warranted for nonhomicide crimes against individuals. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 446, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (death penalty was held to be disproportionate punishment for child rape); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (eighth amendment does not permit execution of defendant who did not kill or intend to kill but who played minor role in felony in course of which murder was committed by others); Coker v. Georgia, 433 U.S. 584, 592 and n. 4, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion) (sentence of death for rape of adult woman was held to be grossly disproportionate and excessive punishment).

A reviewing court engages in a two stage analysis in determining whether a challenged punishment is unconstitutionally excessive and disproportionate. Enmund v. Florida, supra, 458 U.S. at 788–89, 102 S.Ct. 3368. First, the court looks to "objective factors” to determine whether the punishment at issue comports with contemporary standards of decency. (Internal quotation marks omitted.) Id., at 788, 102 S.Ct. 3368. These objective indicia include "the historical development of the punishment at issue,” legislative enactments, and the decisions of prosecutors and sentencing juries. Id.; see also Roper v. Simmons, supra, 543 U.S. at 563, 125 S.Ct. 1183 ; Thompson v. Oklahoma, 487 U.S. 815, 821–22, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988).

This objective evidence of contemporary social mores, however, does not wholly determine the issue. "Although legislative measures adopted by the people's chosen representatives provide one important means of ascertaining contemporary values, it is evident that legislative judgments alone cannot be determinative of [e]ighth [a]mendment standards since that [a]mendment was intended to safeguard individuals from the abuse of legislative power.” Gregg v. Georgia, supra, 428 U.S. at 174 n. 19, 96 S.Ct. 2909 (opinion announcing judgment). Because the eighth amendment imposes "a restraint [on] the exercise of legislative power”; id., at 174, 96 S.Ct. 2909 ; the United States Supreme Court repeatedly has emphasized that courts must conduct a second stage of analysis in which they bring their own independent judgments to bear, giving careful consideration to the reasons why a civilized society may accept or reject a given penalty. See, e.g., Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986, 1993, 1999–2000, 188 L.Ed.2d 1007 (2014) ; Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242 ; Thompson v. Oklahoma, supra, 487 U.S. at 822–23, 108 S.Ct. 2687. "Although the judgments of legislatures, juries, and prosecutors weigh heavily in the balance, it is for [the court] ultimately to judge whether the [constitution] permits imposition of the death penalty....” Enmund v. Florida, supra, 458 U.S. at 797, 102 S.Ct. 3368. Our independent analysis must be informed not only by judicial precedents, but also by our own understanding of the rights secured by the constitution. Kennedy v. Louisiana, supra, 554 U.S. at 434, 128 S.Ct. 2641. This analysis necessarily encompasses the question of whether the penalty at issue promotes any of the penal goals that courts and commentators have recognized as legitimate: deterrence, retribution, incapacitation, and rehabilitation. E.g., Graham v. Florida, supra, 560 U.S. at 71, 130 S.Ct. 2011. A sentence materially lacking any legitimate penological justification would be nothing more than the "gratuitous infliction of suffering” and, by its very nature, disproportionate. Gregg v. Georgia, supra, at 183, 96 S.Ct. 2909 (opinion announcing judgment).

Some justices of the United States Supreme Court have suggested that these considerations—whether a punishment is excessive or disproportionate, whether it comports with contemporary standards of decency and dignity, and whether it satisfies any legitimate penological goals—represent three distinct elements or prongs of the eighth amendment analysis. See, e.g., Furman v. Georgia, 408 U.S. 238, 330–32, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Marshall, J., concurring). Whether these considerations are treated as distinct elements or merely as distinct components of a common element, however, is merely semantic and ultimately immaterial, because it is clear that a sentence's failure to satisfy any of these requirements would render it unconstitutional under the eighth amendment.

3

Arbitrary or Discriminatory Punishments

Third, the eighth amendment prohibits punishments that are imposed in an "arbitrary and unpredictable fashion....” (Citations omitted; internal quotation marks omitted.) Kennedy v. Louisiana, supra, 554 U.S. at 436, 128 S.Ct. 2641. In the context of capital punishment, the United States Supreme Court has indicated that there are two dimensions to this rule.

On the one hand, in Furman v. Georgia, 408 U.S. 238, 239–40, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which the court held, in a per curiam opinion, that capital punishment as then applied violated the eighth amendment, and four years later in Gregg v. Georgia, supra, 428 U.S. 153, 96 S.Ct. 2909 in which the court held that Georgia's revamped capital punishment statute did not offend the United States constitution; id., at 206–207, 96 S.Ct. 2909 (opinion announcing judgment); the court established the principle that a capital sentencing scheme must provide the sentencing authority sufficient guidance as to which crimes and criminals are death worthy to ensure that the death penalty is not imposed in an arbitrary or freakish manner. Id., at 192–95, 96 S.Ct. 2909 (opinion announcing judgment). "To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” (Internal quotation marks omitted.) Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988). "This means that if a [s]tate wishes to authorize capital punishment it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty. Part of a [s]tate's responsibility in this regard is to define the crimes for which death may be the sentence in a way that obviates standardless [sentencing] discretion.... It must channel the sentencer's discretion by clear and objective standards that provide specific and detailed guidance, and that make rationally reviewable the process for imposing a sentence of death.” (Citations omitted; footnotes omitted; internal quotation marks omitted.) Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion).

In Davis v. Connecticut, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972), and Delgado v. Connecticut, 408 U.S. 940, 92 S.Ct. 2879, 33 L.Ed.2d 764 (1972), both memorandum decisions, the United States Supreme Court struck down a prior incarnation of Connecticut's capital punishment scheme as facially unconstitutional because it failed to comply with these requirements.

It goes without saying, moreover, that the eighth amendment is offended not only by the random or arbitrary imposition of the death penalty, but also by the greater evils of racial discrimination and other forms of pernicious bias in the selection of who will be executed. See, e.g., Tuilaepa v. California, 512 U.S. 967, 973, 114 S.Ct. 2630, 129 L.Ed.2d 750 (1994) (guarding against bias or caprice in sentencing is "controlling objective” of court's review); see also Graham v. Collins, 506 U.S. 461, 484, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993) (Thomas, J., concurring) (racial prejudice is "the paradigmatic capricious and irrational sentencing factor”); Furman v. Georgia, supra, 408 U.S. at 242, 92 S.Ct. 2726 (Douglas, J., concurring) (one aim of English Declaration of Rights of 1689, in which eighth amendment language originated, was to forbid discriminatory penalties); Furman v. Georgia, supra, at 310, 92 S.Ct. 2726 (Stewart, J., concurring) ("if any basis can be discerned for the selection of these few to be sentenced to die, it is the constitutionally impermissible basis of race”). The eighth amendment, then, requires that any capital sentencing scheme determine which defendants will be eligible for the death penalty on the basis of legitimate, rational, nondiscriminatory factors.

On the other hand, the United States Supreme Court also has insisted that, at the sentencing stage, juries must have unlimited discretion to assess "the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (opinion announcing judgment). The court in Woodson held that this sort of individualized sentencing determination is necessary to arrive at a just and appropriate sentence and to honor the eighth amendment's "fundamental respect for humanity....” Id. The court also has consistently indicated that the government has broad discretion as to whom to prosecute and what charge to file. See, e.g., Hartman v. Moore, 547 U.S. 250, 263, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) ; McCleskey v. Kemp, 481 U.S. 279, 296–97, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987) ; Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985). As currently construed, then, the federal constitution simultaneously requires that states narrowly limit and carefully define which offenders are eligible for capital punishment, while, paradoxically, also giving prosecutors and juries, respectively, virtually unfettered discretion whether actually to charge defendants with capital crimes and whether to sentence convicted offenders to death.In response to Furman and Gregg, a majority of the states, including Connecticut, drafted new capital punishment statutes in the 1970s that attempted to define with greater precision that small subset of felonies the commission of which could subject an offender to the ultimate punishment. During the ensuing four decades, a majority of the United States Supreme Court has continued to hold—in the face of persistent dissent—that capital punishment comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner. See, e.g., Kansas v. Marsh, 548 U.S. 163, 181, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006) ; McCleskey v. Kemp, supra, 481 U.S. at 291–92, 107 S.Ct. 1756. That court, however, never has addressed the specific issue raised by the present appeal, namely, whether a state's prospective only repeal of its capital felony statutes renders its continued imposition of the death penalty unconstitutionally excessive and disproportionate punishment. Indeed, the parties have not brought to our attention any case in which a federal court has addressed that question.

B

Relevant State Constitutional History

We next consider our state's constitutional and pre-constitutional history with respect to the freedom from cruel and unusual punishment. We consider, first, the preconstitutional era and the legal traditions that inform the meaning of the Connecticut constitution and, second, the period leading up to the adoption of the Connecticut constitution of 1818. 1

See footnote 44 of this opinion (noting cases in which this court has permitted citation to extra-record reference materials, including state histories, as evidence of contemporary societal norms or to advocate for new interpretation of state constitution).

With respect to the Connecticut constitution of 1965, see footnote 31 of this opinion.

We acknowledge that both the 1818 and 1965 Connecticut constitutions make express reference to capital punishment and that such punishment no doubt was considered constitutional at the time of their adoption. In part IV B of this opinion, we explain why that historical acceptance does not alter our conclusion that capital punishment no longer comports with contemporary standards of decency or serves a legitimate penological purpose in Connecticut.



Preconstitutional Legal Traditions

We first consider the preconstitutional roots of the freedom from cruel and unusual punishment in Connecticut. As early as 1672, our colonial code, which incorporated a quasi-constitutional statement of individual liberties, provided that, "for bodily punishment, none shall be inflicted that are Inhumane, Barbarous or Cruel.” The Book of the General Laws for the People within the Jurisdiction of Connecticut (1672) p. 58 (Laws of Connecticut); see also W. Holdsworth, Law and Society in Colonial Connecticut, 1636–1672 (1974) p. 484 (unpublished doctoral dissertation, Claremont Graduate School) (explaining that 1672 code incorporated what were, in essence, constitutional statutes). The 1672 code also differed from prior Connecticut statutes in that it (1) forbade the use of torture to extract confessions, (2) placed new restrictions on the use of corporal punishment, and (3) afforded novel procedural rights to criminal defendants, especially in capital cases. See Laws of Connecticut, supra, at p. 65; W. Holdsworth, supra, at pp. 513–14, 527, 539, 581. Many of these protections, in turn, derived from the Massachusetts Body of Liberties of 1641; see C. Collier, " The Common Law and Individual Rights in Connecticut Before the Federal Bill of Rights,” 76 Conn. B.J. 1, 12 (2002) ; a declaration of rights that was far more progressive than English law at that time. See A. Granucci, " 'Nor Cruel and Unusual Punishments Inflicted:’ The Original Meaning,” 57 Calif. L.Rev. 839, 851 (1969).

This provision was retained in the 1702 laws; see Acts and Laws, of His Majesties Colony of Connecticut in New–England (1702) p. 98; but was left out of the 1784 laws in keeping with the general sentiment of that time that such protections were not properly the subject of written legal codes.

In addition to recognizing the freedom from cruel, inhuman, and barbarous punishments, the 1672 code also guaranteed those accused of capital offenses the right to a trial by jury and provided for a special jury of life and death. See W. Holdsworth, supra, at p. 581.

In her dissenting opinion, Chief Justice Rogers chides our use of terms such as "progress” and "progressive,” implying that we improperly have exceeded our constitutional mandate and embraced a progressive socio-political viewpoint. (Internal quotation marks omitted.) Footnote 12 of Chief Justice Rogers' dissenting opinion. Nothing could be further from the truth. The United States Supreme Court has instructed, on literally dozens of occasions, that, in construing the eighth amendment, courts must look to "the evolving standards of decency that mark the progress of a maturing society.” (Emphasis added; internal quotation marks omitted.) Hall v. Florida, supra, 134 S.Ct. at 1992 ; accord Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (plurality opinion); see also Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ("[the eighth amendment] in the opinion of the learned commentators may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by a humane justice” [emphasis added] ). Indeed, Chief Justice Rogers acknowledges shortly thereafter in her dissenting opinion that this is the governing federal standard. See text accompanying footnote 15 of Chief Justice Rogers' dissenting opinion. Furthermore, in more than twenty of our cases, including four capital appeals, this court has recognized that "our state constitution is an instrument of progress ....” (Emphasis added; internal quotation marks omitted.) State v. Rizzo, supra, 266 Conn. at 207, 833 A.2d 363 ; accord State v. Webb, 238 Conn. 389, 411, 680 A.2d 147 (1996) ; State v. Ross, supra, 230 Conn. at 248, 646 A.2d 1318 ; State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988). Both state and federal constitutional jurisprudence, then, has been marked by the use of such language. In the present case, we likewise use the term "progressive” in its established constitutional, rather than political, sense. We do agree with Chief Justice Rogers, however, that, although the arc of our history in this regard is both clear and profound, there is no constitutional mandate that our state's criminal law become increasingly compassionate.

For nearly one century after the adoption of the English Declaration of Rights of 1689, for instance, "the law of Great Britain condemned a prisoner who refused to plead to be slowly pressed to death by weights placed [on] his chest.” Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun eds., 1895) p. 63; see also W. Holdsworth, supra, at p. 356 (mutilating punishments were imposed far less frequently in seventeenth century Massachusetts and, especially, in Connecticut, than in England); W. Holdsworth, supra, at p. 361 (England permitted more extensive and more brutal corporal punishment than Connecticut in mid-seventeenth century); W. Holdsworth, supra, at pp. 431–32, 568 (capital punishment was considerably rarer in New England than in England, where theft of as little as one shilling constituted capital crime); W. Holdsworth, supra, at p. 569 ("[t]he courts and legislatures of Connecticut and New Haven succeeded in creating a more equitable and less brutal system of criminal justice than that of England”).

In perhaps the most substantial scholarly account of the early legal traditions of the Connecticut colony, William K. Holdsworth offers a window into the original meaning of Connecticut's inceptive prohibition of cruel punishment. Holdsworth describes the years leading up to the adoption of the 1672 code as a key formative period in the colony's legal history. W. Holdsworth, supra, at p. x. "The decade [of 1662 through 1672] was a watershed in the early history of Connecticut,” he explains, "a period of profound intellectual, social, economic, and political change that set the colony on a course of its own.” Id., at p. 582. During this period of "extraordinarily rapid and vital change”; id., at p. 479 ; a new generation of leaders restructured the colony's political and judicial systems. See id., at pp. 479–80, 547–48. The legislature "made fairer use of its juries ... gave formal recognition to numerous civil liberties, displayed a greater awareness of individual rights, dealt less severely with most criminal offenders than before, and, either formally or in practice, reduced the penalties for several capital crimes.” Id., at pp. 547–48. In the process, Connecticut's new leaders bequeathed to its citizens a "legacy of moderation....” Id., at p. 545.

During the decade, dramatic shifts in public, judicial, and executive attitudes toward crime and punishment resulted in fundamental changes in how the criminal law was applied, changes that directly foreshadowed the prohibition against cruel punishment and other freedoms that the legislature enshrined in the 1772 code. "[N]ew social conditions and new attitudes on the part of the people and their leaders” that emerged during the decade of 1662 through 1672 were mirrored by a growing judicial leniency. Id., at p. 537. Magistrates enjoyed considerable latitude in enforcing the nascent criminal code during this period, and Holdsworth suggests that the penalties that were actually imposed may provide a more accurate picture of Connecticut's early legal landscape, and particularly of public attitudes regarding what constituted acceptable punishment, than the first legal codes themselves provided. See id., at pp. 353–54. Although the punishments prescribed often were severe, the criminal law generally was enforced without "needless cruelty” in the 1660s; id., at p. 286; and, over the course of the decade, courts became increasingly lenient in the sanctions they imposed. See id., at pp. 286–87, 363, 576. Whipping began to fall out of favor, for example, with fines—and, in the case of fornication, mandatory marriage—emerging as the primary sanction for many sexual crimes and crimes against property. See id., at pp. 292, 295–300, 313–17. More brutal forms of corporal punishment "all but disappeared....” Id., at p. 364. Christopher Collier, Connecticut's state historian, observed that, "through the imposition of lenient punishments outside of statutory specifications, nonenforcement of restrictive statutes, a tendency to let local consensus be their guide, and a punctilious regard for due process ... Connecticut's jurists lightened the load of ancient oppressive laws....” C. Collier, supra, 76 Conn. B.J. at 49–50.

For example, a second wave of immigration brought new residents to Connecticut during this period, significantly expanding the colonial population. These immigrants did not share the founding generation's vision of Connecticut as a "new Israel under a new covenant,” committed to observing and strictly enforcing the judicial laws of Moses. W. Holdsworth, supra, at p. 124; see id., at pp. 532–34, 579–81. Whereas their predecessors were preoccupied with the moral aspects of sinfulness, the new citizens were more concerned with addressing the practical consequences of crime. See id., at p. 518. This "erosion of moral outrage” left the public less convinced of the need for strict punishment in many cases and resulted in more lenient public sentiment toward a number of crimes. Id., at p. 518; see id., at p. 576.

"[This unmistakable] tendency toward judicial moderation in the use of physical punishments in the years ... is all the more pronounced when we consider capital crimes and capital punishment.” W. Holdsworth, supra, at p. 365. As public attitudes evolved, magistrates grew more reluctant to inflict capital punishment and came to believe that the death penalty should be reserved for only the most heinous and universally condemned offenses. See id., at pp. 382, 431. Before adultery was demoted from a capital offense to a lesser crime in 1672; C. Collier, supra, 76 Conn. B.J. at 19 ; for example, "magistrates displayed marked reluctance to inflict death for the offense”; W. Holdsworth, supra, at p. 533; and courts found ways to avoid imposing the statutory death penalty on adulterers. C. Collier, supra, at 19 n. 42. By the 1670s, courts also were demonstrating less willingness "to exact the full measure of retribution” for sodomy and other capital crimes. W. Holdsworth, supra, at p. 418; see also id., at pp. 371, 519. In 1677, for example, a jury declined to convict Nicholas Sension of capital sodomy, despite what Holdsworth suggests was clear evidence of his guilt. See id., at pp. 418–19.

Even more than the courts, however, it was Connecticut's forward thinking governor, John Winthrop, Jr., a leading colonial physician and scientist, who was responsible for the restraint that the colony began to exercise in the 1660s with respect to capital crimes ranging from witchcraft and blasphemy, on the one hand, to adultery, sodomy, and rape, on the other. See id., at pp. 522–25, 579–80. Governor Winthrop's "legendary toleration and the force of his moderating influence over the affairs of his colony” effectively extinguished the colony's hysteria over witchcraft, and ultimately resulted in the delisting of adultery as a capital crime in 1672. Id., at p. 580. Holdsworth concludes that this dramatic evolution in public and judicial attitudes toward crime and penology during the 1660s directly influenced the decision in 1672 to adopt key freedoms that Massachusetts afforded its criminal defendants, including the freedoms from inhumane, barbarous and cruel punishments, in addition to torture, when formulating the new colonial statutes. See id., at pp. 513, 537, 539, 582. "The [c]ode of 1672 expounded in the language of law the new ideal of a new generation, a more moderate, more explicit, more progressive conception” of crime and punishment. Id., at p. 582. "By giving formal legal recognition to many of the changes that had transpired during the preceding decade,” Holdsworth explains, "the [c]ode of 1672 reflected to a greater extent than its predecessor the essential institutional character that was to mark Connecticut for the remainder of the colonial period.” Id., at p. 583.

In 1666, for example, a special court of assistants at Governor Winthrop's urging overruled Hannah Hackleton's death sentence for blasphemy. See W. Holdsworth, supra, at p. 381. The same year, in the case of Elizabeth Seager, Governor Winthrop himself directly overturned a capital sentence, this time for witchcraft, and ordered the defendant freed. See id., at pp. 519–20. Seager is believed to have been the first convicted witch to have escaped the gallows in Connecticut. See id., at p. 520. Four years later, a specially appointed court released another woman who had been sentenced to die for witchcraft. See id., at pp. 520–21. Katherine Harrison's case is noteworthy as the first instance in which a Connecticut court reversed a jury conviction in a capital case. See id., at p. 521.

In addition to abolishing such brutal forms of capital punishment as flogging to death and breaking on the wheel, the 1672 code lessened the severity of many criminal sanctions, reducing the maximum number of lashes that could be imposed for noncapital crimes and replacing whipping with imprisonment as the penalty for others. See id., at pp. 513, 537–39, 576. Moreover, although legislators did retain severe corporal punishments such as branding, which replaced death as the penalty for those crimes that were decapitalized in 1672, court records indicate that such punishments were rarely if ever inflicted. See id., at pp. 535, 576.It is apparent from this history that, long before the adoption of either the federal or state constitution, Connecticut citizens enjoyed a quasi-constitutional freedom from cruel punishment, one that reflected our unique social and political traditions and that far exceeded the protections recognized in England at the time. These protections were enshrined in Connecticut's early constitutional statutes and common law, and, from the start, were intimately tied to the principles of due process.

2

1818

We next consider the historical circumstances leading up to the adoption of the state constitution in 1818. The late eighteenth and early nineteenth centuries witnessed the twilight of a premodern system of criminal justice in the United States. See generally note, " The Eighth Amendment, Proportionality, and the Changing Meaning of 'Punishments,’ ” 122 Harv. L.Rev. 960 (2009). The rapid evolution in penology that occurred in the decades following the founding was especially pronounced in Connecticut. The late eighteenth and early nineteenth centuries in Connecticut witnessed a pronounced liberalization in public, legislative, and judicial attitudes toward crime and punishment. The period has been described as one characterized by penological reform, a broader commitment to human rights, and the first serious public questioning of the moral legitimacy of capital punishment. See L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 69–70. This time between the adoption of the federal and state constitutions also saw an emerging awareness of and compassion for "the fate of the condemned perpetrator.” Id., at p. 85. These changes coincided with the reopening of the newly established Newgate Prison (Newgate) in 1790, which provided the opportunity to impose incarceration as an alternative to more severe traditional punishments. See id., at p. 75.

During this period, Connecticut's legislators, jurists, and citizens refined their understanding of what constitutedcruel and unusual punishment. Nowhere was this more apparent than in the repudiation of corporal punishment as a legitimate penal sanction. "With the establishment of a [s]tate prison, many of the barbarous punishments [began] to disappear from the statute book, replaced by confinement for a term of years.” Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun eds., 1895) p. 98. In 1808, for instance, "legislators crafted a less draconian statute for the regulation of female sexuality”; L. Goodheart, supra, at p. 77; and, by the middle of the next decade, a broad consensus had emerged in the state that corporal punishment of any sort was degrading and debasing. See id., at pp. 77–78. When the criminal code was revised in 1821 to comport with the state constitution of 1818, bodily punishment was largely abolished. See Judicial and Civil History of Connecticut, supra, at pp. 98–99. The last vestige of the old system, the whipping post, survived only one decade more as a punishment for theft. Id., at p. 99.

That such punishments had come to be seen as cruel in Connecticut is apparent from the case of Polly Rogers, a Native American who petitioned the legislature for redress in 1815 after having been convicted of adultery and sentenced to whipping and branding. L. Goodheart, supra, at p. 78. "In keeping with the sensibility of the age,” Professor Lawrence B. Goodheart recounts, "she protested the 'cruel punishment of being branded with a hot iron.’ ” Id. The legislature granted her request and spared her. Id.

Moreover, although Newgate hardly would have met modern standards for the treatment of inmates, records from Connecticut's preconstitutional period clearly indicate that the legislature was concerned that prisoners not be treated cruelly. In 1809, the legislature appointed a committee that considered, and ultimately enacted, the governor's recommendation that the prisoners in Newgate would benefit from religious instruction. See 1 Crimes and Misdemeanors, 2d Series (1809) pp. 95a–96a. The following year, a second committee was appointed to evaluate the condition of the prison's inmates. See 1 Crimes and Misdemeanors, 2d Series (1810) p. 97a. On the basis of the resulting report, the legislature directed Newgate's overseers to provide the prisoners with a more diverse diet and to ensure that suitable bathing places were provided. See id., at pp. 99d–99e, 99z, 100a. At the same time, the legislature resolved to prohibit "unnecessary and cruel punishments” within the facility. Id., at p. 100a. In 1815, just three years before the adoption of the state constitution, a legislative committee went even further, condemning the practice of whipping at Newgate as "incompatible with ... decency and humanity,” and beginning to plan for the construction of a new state prison. 1 Crimes and Misdemeanors, 2d Series (1815) pp. 153a, 154c; see also 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) pp. 268–69 ("and though the law invests [jailers] with all the powers necessary for the interest of the commonwealth, yet they are not to behave with the least degree of wanton cruelty to their prisoners”).



Connecticut's earliest reported judicial decisions indicate that the courts, like the legislature, had begun to adopt a broader conception of cruel and unusual punishment in the years leading up to the adoption of the 1818 constitution. In State v. Smith, 5 Day (Conn.) 175 (1811), for example, the defendant argued that imposing successive terms of imprisonment in Newgate for multiple incidents of counterfeiting was "novel, without precedent, cruel and illegal.” Id., at 178. A majority of this court ultimately denied the requested relief, but only because it concluded that "[n]o injustice [was] done to the prisoner; and this proceeding [was] neither new, nor without precedent; such [had] been the usage of our courts, for many years past, in this state.” Id., at 179. Indeed, the majority went out of its way to note that courts "are bound to become acquainted with the situation and circumstances of the prisoner, when they pronounce the sentence. If through infirmity, it should appear to be inhuman or improper to confine him to hard labor, in Newgate, immediately upon conviction, it would be the duty of the court to postpone the commencement of his confinement, to a future day.” Id.

That Connecticut had developed by the turn of the nineteenth century a more expansive conception of what constituted impermissibly cruel punishment is further revealed in the writings of former Chief Justice Zephaniah Swift. Swift did not hesitate to condemn as "cruel and illiberal” not only corporal punishment and the like, but also what he saw as outmoded and unjust common-law traditions. 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 398. Practices ranging from false imprisonment, to the denial of defense counsel in capital cases, to punishing a parent for harboring a fugitive child were all, to Swift, examples of cruelties that the law ought not countenance. See id., at pp. 58, 371–72, 398–99. Swift was especially troubled by the traditional English punishment for suicide—forfeiture of the deceased's estate and burial on a public highway with a stake driven through the body—which he characterized as the product of a "barbarous period of superstition, and cruelty.” Id., at p. 304. Nor was capital punishment immune from these broader currents in Connecticut's criminal justice system. Opposition to capital punishment gained traction in the decade before the adoption of the 1818 state constitution. In 1808, then Judge Swift instructed a grand jury that courts were adopting a "milder practice” in applying the capital law. (Internal quotation marks omitted.) L. Goodheart, supra, at p. 76; see also id., at p. 71. The following year, in a speech to the legislature, Lieutenant Governor John Treadwell shared his view that "[c]onfinement in Newgate ... [was] terrible, but not cruel; and it [was] probably more effectual to prevent [atrocious] crimes, than capital punishment....” J. Treadwell, "Lieutenant Governor Treadwell's Speech to the Legislature of Connecticut: October, 1809,” The American Register, January 1, 1810, p. 6. Although he lamented that there were few penitents among the inmates housed at Newgate, Treadwell proposedthat providing them with Bibles and religious instruction might have a beneficial effect. See id.

The fact that Swift later repudiated some of his more progressive penological views is of little moment. Swift did not begin to author his Digest of the Laws of the State of Connecticut until after he stepped down as Chief Justice in 1819; P. O'Sullivan, "Biographies of Connecticut Judges I: Zephaniah Swift,” 19 Conn. B.J. 181, 190–91 (1945); and it was in that work that he embraced a more severe philosophy of punishment. Indeed, in State v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), we recognized that it was Swift himself who, having inveighed against the barbaric and medieval forms of punishment of the past; id., at 450 n. 13, 497 A.2d 974 ; impressed on the legislature in the early 1820s to adopt "more rational and consistent laws” that would "proportion the punishment according to the nature and grade of the crime....” (Internal quotation marks omitted.) Id., at 451 n. 13, 497 A.2d 974.

Finally, in a series of events that culminated in the decision to convene a constitutional convention, the legislature voted in 1816 to grant a new trial for Peter Lung, who had been condemned to die for the murder of his wife. J. Zeldes, " Connecticut's Most Memorable 'Good for Nothing Rascal’ in This 'Land of Steady Habits,’ ” 80 Conn. B.J. 367, 380–81, 393–94 (2006). The deciding vote in favor of a retrial was cast by a member of the governing council who "was not willing that a man should be [hanged as a result of] his vote.” (Internal quotation marks omitted.) Id., at 394. Following his conviction upon retrial, Lung was in fact hanged. The following week, the Middlesex Gazette published an article remarking on the "infrequency of capital punishment” and observing that the "[behavior] of this unfortunate sufferer on this trying occasion, was such as to attract the tenderest sympathy of every rational beholder.” "Execution,” Middlesex Gazzette, reprinted in The Weekly Recorder: A Newpaper Conveying Important Intelligence and Other Useful Matter Under the Three General Heads of Theology, Literature and National Affairs, July 31, 1816, p. 8.

Justice Zarella is simply incorrect, then, when, in his dissenting opinion, he contends that "[w]hat is striking thing about this case ... is the lack of any suggestion by the legislature ... that the imposition of the death penalty was wrong.”

In summary, it is clear that, from the earliest days of the colonies, and extending until the adoption of the state constitution in 1818, the people of Connecticut saw themselves as enjoying significant freedoms from cruel and unusual punishment, freedoms that were safeguarded by our courts and enshrined in our state's pre-constitutional statutory and common law. That our history reveals a particular sensitivity to such concerns warrants our scrupulous and independent review of allegedly cruel and unusual practices and punishments, and informs our analysis thereof.

Although we look primarily to our state's preconstitutional traditions and the history and intent of the drafters of the 1818 constitution to parse the meanings of article first, §§ 8 and 9 ; see State v. Joyner, 225 Conn. 450, 486–87, 625 A.2d 791 (1993) (Berdon, J., dissenting); it also may be appropriate to consider how the 1818 provisions were interpreted in 1965, when they were incorporated into the state's present constitution. See W. Horton, The Connecticut State Constitution (2d Ed.2012) pp. 33–34. By that time, attitudes toward the purpose and permissible scope of punishment in Connecticut had, of course, evolved even further, in ways that are too numerous to count. Perhaps the clearest example of this evolution may be seen in the state prison in Somers, which replaced the Wethersfield facility shortly before the new constitution was adopted. See G. Demeusy, "State Dedicates New Prison with Note of Hope for Future,” Hartford Courant, February 16, 1964, p. 15B; G. Demeusy & J. Tucker, "400 Convicts Are Moved to New Somers Prison,” Hartford Courant, November 6, 1963, p. 1. At a dedication ceremony in 1964, the new facility was described as "a symbol of progress, a gateway to penal reform....” (Internal quotation marks omitted.) "Penal Outlook Hailed at State Prison Ceremony,” Hartford Courant, February 15, 1964, p. 4. Speaking at the dedication, Warden Frederick G. Reincke hailed the Somers prison as "the beginning of a new era ... primarily devoted to preparing inmates for adjusting to community living and responsibility when they are released.” (Internal quotation marks omitted.) Id. According to Reincke, "[t]he days of revenge imprisonment in Connecticut [were] over.” Id.

The chairman of the prison's board of directors, Charles Stroh, concurred, explaining that "we ... have launched a rehabilitation [facility] that centers not around retribution and punishment, but the individual training and treatment of inmates.” (Internal quotation marks omitted.) G. Demeusy, supra, at p. 15B. This new penal philosophy, he explained, reflected an emerging public "realization that there's something more to penology than simply locking up the lawbreakers.” Id. Stroh further explained: "There is punishment—but it's punishment for a purpose and it is accepted by the inmates as a part of their rehabilitation....” (Internal quotation marks omitted.) Id. For his part, Governor John Dempsey opined that the new state prison was "wholly in keeping with modern penology, [and] maintain[ed] Connecticut's reputation as a state that is forward-looking and progressive in all fields of human endeavor.” (Internal quotation marks omitted.) Id. To the extent that conceptions of cruel and unusual punishment prevalent at the drafting of the 1965 state constitution are relevant to the Geisler analysis, then, there is no doubt that our state's understanding of the permissible nature and purposes of punishment had undergone a thorough transformation.



C

Relevant Constitutional Text

We next consider the relevant provisions of the state constitution. In light of our state's firm and enduring commitment to the principle that even those offenders who commit the most heinous crimes should not be subjected to inhumane, barbarous, or cruel punishment, the question naturally arises why the framers of the 1818 constitution decided to embed these traditional liberties in our dual due process clauses; see Conn. Const. (1818), art. I, §§ 9 and 10 ; rather than in an express punishments clause. Although there is no indication that that question was debated during the 1818 constitutional convention, we find guidance in the broader legal history of turn of the century Connecticut.

Connecticut was among three of the original thirteen states that chose not to officially ratify the eighth amendment or, indeed, any of the first ten amendments to the federal constitution. C. Leedham, Our Changing Constitution (1964) p. 41. In 1787, the state's representatives to the federal constitutional convention had argued vehemently against the need for a bill of rights. See C. Collier, supra, at 57, 67. "In Connecticut, unlike those states that had recently been under the domination of royal and proprietary governors and appointed upper houses, limited government was taken for granted. Calvinist theory described limited government, [Connecticut's] Fundamental Orders [of 1639] proclaimed it, the [Connecticut] Charter [of 1662] established it, tradition demanded it, common law enforced it, and frequent elections guaranteed it.” Id., at 53. During the late eighteenth and early nineteenth centuries, for example, Connecticut courts routinely safeguarded the basic rights enshrined in the federal Bill of Rights on the basis of natural rights or common law, without the need for any formal constitutional sanction. See id., at 31, 65. Moreover, there was a particular fear in Connecticut that the adoption of a written bill of rights would imply, by negative inference, that citizens were no longer entitled to unenumerated protections long enshrined in the state's common law. See id., at 56–59. "A strong statewide consensus, then, held that no bill of rights was necessary and, indeed, might even limit individual liberty.” Id., at 57.

Connecticut ultimately approved the federal Bill of Rights in 1939, 150 years after its submission to the states for ratification in 1789. P. Maier, Ratification: The People Debate the Constitution, 1787–1788 (2010) p. 459.

The opinions of the dissenting justices reveal the prescience of these fears.

Although this viewpoint had become less prevalent by 1818, when Connecticut adopted its first formal constitution; see id., at 68–69; it retained many "influential adherents....” Id., at 69. This likely accounts for the fact that certain protections long entrenched in the state's constitutional common law were not expressly enumerated in the new written constitution. Indeed, in an 1821 speech, Governor Oliver Wolcott called on Connecticut's courts to articulate and protect the many natural rights that remained unenumerated by either constitution or statute. See id., at 37–38.

Accordingly, in Moore v. Ganim, 233 Conn. 557, 660 A.2d 742 (1995), we "assume[d] that the framers believed that individuals would continue to possess certain natural rights even if those rights were not enumerated in the written constitution. On the basis of this assumption, we [would] not draw firm conclusions from the silence of the constitutional text.... Rather, in determining whether unenumerated rights were incorporated into the constitution, we must focus on the framers' understanding of whether a particular right was part of the natural law, i.e., on the framers' understanding of whether the particular right was so fundamental to an ordered society that it did not require explicit enumeration. We can discern the framers' understanding, of course, only by examining the historical sources.” (Emphasis omitted.) Id., at 601, 660 A.2d 742.In her dissenting opinion, Chief Justice Rogers cites to Cologne v. Westfarms Associates, 192 Conn. 48, 60, 469 A.2d 1201 (1984), for the proposition that, by the time the 1818 constitution was adopted, the view that the basic liberties of the people should be enshrined in a written constitution had come to prevail in Connecticut. See footnote 6 of Chief Justice Rogers' dissenting opinion. Chief Justice Rogers, however, neglects to consider an adjacent passage in Cologne that recognizes that "[a]n opposing view was expressed that such a detailed specification of individual rights was superfluous and tended to abridge them, because all governmental powers not granted by the constitution were reserved to the people.” Cologne v. Westfarms Associates, supra, at 60, 469 A.2d 1201. In fact, history reveals that article first of the 1818 constitution was born of and reflected a compromise between these two constitutional philosophies. See R. Purcell, Connecticut in Transition: 1775–1818 (New Ed.1963) pp. 241–42 (discussing opposition to bill of rights at constitutional convention and implying that ultimate decision of which freedoms to enshrine and which to exclude was somewhat haphazard); J. Trumbull, Historical Notes on the Constitutions of Connecticut and on the Constitutional Convention of 1818 (1873) p. 53 (identifying prominent delegates to convention who opposed incorporation of any bill of rights in state constitution); J. Trumbull, supra, at p. 56 (recognizing ultimate compromise). For these reasons, we find little merit in the argument that the decision of the framers of the Connecticut constitution not to include an express bar on cruel and unusual punishment somehow suggests that this liberty was uncherished.

D

Relevant Connecticut Precedents

Turning to the next Geisler factor, namely, relevant Connecticut precedents, we write on a relatively blank slate with respect to cruel and unusual punishment. Nevertheless, since this court first recognized in Ross that our due process clauses independently prohibit cruel and unusual punishment; see State v. Ross, supra, 230 Conn. at 246–47, 646 A.2d 1318 ; we have begun to carve out the broad contours of that prohibition. In Ross itself, as we have noted, we adopted the aforementioned federal framework for evaluating challenges to allegedly cruel and unusual punishments. See id., at 252, 646 A.2d 1318. Specifically, we recognized that, under the state constitution, whether a challenged punishment is cruel and unusual is to be judged according to the "evolving standards of human decency”; id., at 251, 646 A.2d 1318 ; and that those standards are reflected not only in constitutional and legislative text, but also "in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.” Id. In Ross, we also rejected the theory that "article first, § 9, confers the authority to determine what constitutes cruel and unusual punishment solely on the Connecticut legislature and not on the courts.” Id., at 248, 646 A.2d 1318. "Although we should exercise our authority with great restraint,” we explained, "this court cannot abdicate its nondelegable responsibility for the adjudication of constitutional rights.” Id., at 249, 646 A.2d 1318.

Subsequently, in Rizzo I, we characterized it as "settled constitutional doctrine that, independently of federal constitutional requirements, our due process clauses, because they prohibit cruel and unusual punishment, impose constitutional limits on the imposition of the death penalty.” State v. Rizzo, supra, 266 Conn. at 206, 833 A.2d 363. In that case, we recognized that there is an "overarching concern for consistency and reliability in the imposition of the death penalty” under our state constitution. (Emphasis omitted.) Id., at 233, 833 A.2d 363. Accordingly, in order to avoid having to resolve the state constitutional question raised in that case, we construed General Statutes (Rev. to 1997) § 53a–46a to require that a jury must find beyond a reasonable doubt that the death penalty is the appropriate penalty. See id., at 234, 833 A.2d 363.Most recently, in State v. Rizzo, 303 Conn. 71, 184–201, 31 A.3d 1094 (2011) (Rizzo II ), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012), we engaged in a full analysis of the constitutionality of the death penalty pursuant to the state constitution. At that time, we reiterated that, "in determining whether a particular punishment is cruel and unusual in violation of [state] constitutional standards, we must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (Internal quotation marks omitted.) Id., at 187–88, 31 A.3d 1094. We also "recognize[d] that assessing the propriety of [a punishment] is not exclusively the domain of the legislature, and that this court has an independent duty to determine that the penalty remains constitutionally viable as the sensibilities of our citizens evolve.” Id., at 197, 31 A.3d 1094. We return to these well established principles in parts II and III of this opinion.

In State v. Rizzo, 303 Conn. 71, 142, 31 A.3d 1094 (2011) ( Rizzo II ), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012), we therefore identified Rizzo I as a case, albeit a rare one, in which we had treated the state constitution as providing greater protection to capital defendants than the federal constitution in concluding that the jury must find beyond a reasonable doubt that the aggravating factors outweigh mitigating factors in order for the death penalty to be imposed. Several members of this court, in dissent, also have determined that the state constitution affords broader protection from cruel and unusual punishment. See, e.g., State v. Santiago, supra, 305 Conn. at 309, 49 A.3d 566 (Harper, J., concurring in part and dissenting in part); State v. Rizzo, supra, 303 Conn. at 202–203, 31 A.3d 1094 (Norcott, J., dissenting); State v. Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., dissenting), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005) ; State v. Webb, 238 Conn. 389, 551, 680 A.2d 147 (1996) (Berdon, J., dissenting). As we have explained, however, the present case does not require that we determine whether the state constitution affords greater protection than the federal constitution with respect to cruel and unusual punishment.

In his dissenting opinion, Justice Zarella refuses to acknowledge that, in Rizzo II, we adopted and applied the federal courts' eighth amendment framework for evaluating challenges to the death penalty and other allegedly cruel and unusual punishments. He does so despite language in that decision that clearly indicates our adherence to the federal framework. See, e.g., State v. Rizzo, supra, 303 Conn. at 191, 31 A.3d 1094 ("[a]lthough the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures ... Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242 ; in assessing whether a punishment is constitutionally sound, it also is appropriate for us to consider what is occurring in actual practice” [internal quotation marks omitted] ).

E

Persuasive Sister State Precedents

The unique structure and text of the Connecticut constitution of 1965, in which the freedom from cruel and unusual punishment is embedded in our dual due process clauses rather than in a distinct punishments clause, mean that sister state authority is less directly relevant than in cases in which we have construed other constitutional provisions. We do agree with our sister courts, however, that, under the state constitution, the pertinent standards by which we judge the fairness, decency, and efficacy of a punishment are necessarily those of Connecticut. Although regional, national, and international norms may inform our analysis; see, e.g., State v. Rizzo, supra, 303 Conn. at 188–96, 31 A.3d 1094 ; the ultimate question is whether capital punishment has come to be excessive and disproportionate in Connecticut. Cf. Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) ( "[t]he standard of decency that is relevant to the interpretation of the prohibition against cruel and unusual punishment found in the Georgia [c]onstitution is the standard of the people of Georgia, not the national standard” [internal quotation marks omitted] ); District Attorney v. Watson, 381 Mass. 648, 661, 664–65, 411 N.E.2d 1274 (1980) (holding that death penalty violated state constitution on basis of contemporary standards of decency in Massachusetts); J. Acker & E. Walsh, " Challenging the Death Penalty under State Constitutions,” 42 Vand. L.Rev. 1299, 1325 (1989) ("[e]ven if state courts are guided by the doctrinal analysis now associated with the eighth amendment, their frame of reference for measuring evolving standards of decency must be within state borders” [internal quotation marks omitted] ); cf. also Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 188–213, 957 A.2d 407 (2008) (in context of determining whether gay persons are entitled to heightened protection for equal protection purposes under state constitution, court assessed their political power or lack thereof in Connecticut). Justice Zarella's arguments to the contrary notwithstanding, we also agree with those courts that have determined that it is perfectly reasonable to apply the federal evolving standards of decency rubric to cruel and unusual punishment claims brought under a state constitution. See, e.g., People v. Anderson, 6 Cal.3d 628, 647–48, 493 P.2d 880, 100 Cal.Rptr. 152, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972) ; Fleming v. Zant, supra, at 689–90, 386 S.E.2d 339 ; District Attorney v. Watson, supra, at 661–62, 411 N.E.2d 1274. Indeed, we are not aware of any court that has concluded that the federal evolving standards of decency rubric is inapplicable to state constitutional claims.

In Watson, the Supreme Judicial Court of Massachusetts struck down that state's death penalty as impermissibly cruel under the state constitution. District Attorney v. Watson, supra, 381 Mass. at 650, 411 N.E.2d 1274. In the November, 1982 election, Massachusetts voters approved a referendum amending the state constitution to permit the state legislature to reinstate capital punishment. See Commonwealth v. Colon–Cruz, 393 Mass. 150, 152, 470 N.E.2d 116 (1984). No such statute is currently in place.

In Anderson, the California Supreme Court struck down that state's death penalty as both cruel and unusual. See People v. Anderson, supra, 6 Cal.3d at 651, 656–57, 100 Cal.Rptr. 152, 493 P.2d 880. In the November, 1972 election, California voters passed a ballot initiative amending the California constitution and reinstating capital punishment. See People v. Frierson, 25 Cal.3d 142, 173, 599 P.2d 587, 158 Cal.Rptr. 281 (1979).

F

Conclusion

To summarize our analysis of the first five Geisler factors, when construing the state constitutional freedom from cruel and unusual punishment, we broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges. We apply this framework, however, with respect to the constitutional facts as they exist in Connecticut and mindful of our state's unique and expansive constitutional and preconstitutional history. To the extent that the sixth Geisler factor—economic and sociological norms and policy considerations—is relevant, we take such considerations into account in parts II and III of this opinion, in which we address the defendant's specific constitutional challenge.

We emphasize that we are not, as Justice Zarella suggests, in any way conflating the sociological considerations encompassed by the sixth Geisler factor with the standards by which federal courts have evaluated claims that a particular punishment is excessive or disproportionate, namely, that the punishment offends contemporary standards of decency or fails to accomplish legitimate penological purposes. Those standards are, rather, the substantive test according to which both this court and the federal courts evaluate such claims. The Geisler "test,” by contrast, is merely a scheme by which we organize and review, for purposes of state constitutional challenges, the various types of considerations that may bear on any question of first impression.

II

THE DEATH PENALTY FAILS TO COMPORT WITH CONTEMPORARY STANDARDS OF DECENCY

We next consider whether the death penalty, as currently imposed in Connecticut, and following the enactment of P.A. 12–5, is so out of step with our contemporary standards of decency as to violate the state constitutional ban on excessive and disproportionate punishment. We conclude that it is.

As we previously noted, both the federal and state constitutions prohibit the imposition of any punishment that is not proportioned and graduated to the offense of conviction. Whether a punishment is disproportionate and excessive is to be judged by the contemporary, "evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. 590 (plurality opinion); accord State v. Rizzo, supra, 303 Conn. at 187–88, 31 A.3d 1094. In other words, the constitutional guarantee against excessive punishment is "not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Weems v. United States, 217 U.S. 349, 378, 30 S.Ct. 544, 54 L.Ed. 793 (1910) ; see also Hall v. Florida, supra, 134 S.Ct. at 1992 ("[t]he [e]ighth [a]mendment's protection of dignity reflects the [n]ation we have been, the [n]ation we are, and the [n]ation we aspire to be”). Because the legal standard is an evolving one, it is both necessary and appropriate for us to consider the issue anew, in light of relevant recent developments, when it is raised. See State v. Rizzo, supra, 303 Conn. at 187–88, 31 A.3d 1094.

Although Chief Justice Rogers, in her dissenting opinion, suggests that, because the federal constitution makes express reference to capital offenses, it is an open question as to whether the federal courts ever would find the death penalty unconstitutional per se under the evolving standards of decency rubric, we disagree. In Gregg v. Georgia, supra, 428 U.S. at 153, 96 S.Ct. 2909 the United States Supreme Court made clear that even claims that capital punishment is categorically unconstitutional are to be evaluated according to that rubric, and that the constitutional text is not dispositive. See id., at 176–87, 96 S.Ct. 2909 (opinion announcing judgment).

On only two prior occasions has this court considered in any depth whether capital punishment violates the state constitutional ban on cruel and unusual punishment. See State v. Rizzo, supra, 303 Conn. at 184–201, 31 A.3d 1094 ; State v. Ross, supra, 230 Conn. at 248–52, 646 A.2d 1318. In those cases, we considered—and at times blurred the lines between—two distinct constitutional challenges: (1) the claim that capital punishment is inherently barbaric punishment and, therefore, offends the constitution at all times and under all circumstances; and (2) the claim that, although capital punishment may once have comported with constitutional requirements, our state's standards of decency have evolved such that execution now constitutes excessive and disproportionate punishment. See State v. Rizzo, supra, 303 Conn. at 187–88, 31 A.3d 1094 ; State v. Ross, supra, at 248, 250, 646 A.2d 1318. The dissenting justice in Ross likewise challenged capital punishment along both parameters. Compare State v. Ross, supra, at 298, 646 A.2d 1318 (Berdon, J., dissenting in part) ("[t]he punishment of death is inherently degrading to the dignity of a human being”), with id., at 301–313, 646 A.2d 1318 (Berdon, J., dissenting in part) (arguing that, inter alia, public no longer supports death penalty, penalty is unfairly applied, and recent evidence does not bear out deterrent effect).

The majority in Ross —consisting of two members of this court and two Appellate Court judges sitting by designation—focused its attention on the per se question of whether the "imposition of the death penalty invariably constitutes cruel and unusual punishment.” Id., at 245, 646 A.2d 1318. The majority evaluated the constitutionality of the death penalty under the rubric of the six Geisler factors. Id., at 249–52, 646 A.2d 1318. Dispensing with five of the factors in a single paragraph, the majority in Ross afforded each consideration no more than one sentence of attention. See id., at 249–50, 646 A.2d 1318. The sixth Geisler factor, which encompasses the full panoply of economic and sociological norms and policy considerations, received only slightly more attention. See id., at 251–52, 646 A.2d 1318.

The majority specifically stated: "The first five factors do not support the ... argument [of the defendant, Michael B. Ross]. In article first, § 8, and article first, § 19, our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances. Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution.... Federal constitutional law does not forbid such a statute outright.... Courts in the overwhelming majority of our sister states have rejected facial challenges to the death penalty under their state constitutions. Finally, Connecticut's history has included a death penalty statute since 1650, when it was incorporated into Ludlow's Code ... and such a penalty was considered constitutional at the time of the adoption of the constitution of 1818.” (Citations omitted; footnotes omitted.) State v. Ross, supra, 230 Conn. at 249–50, 646 A.2d 1318.

With respect to the contention that the death penalty is fundamentally offensive to evolving standards of decency, the majority dismissed the claim of the defendant, Michael B. Ross, with a one sentence quote from the New Jersey Supreme Court: "When, in the course of a decade, thirty-seven states call for the death penalty, the probability that the legislature of each state accurately reflects its community's standards approaches certainty.” (Internal quotation marks omitted.) Id., at 251, 646 A.2d 1318 quoting State v. Ramseur, 106 N.J. 123, 173, 524 A.2d 188 (1987). In his lengthy dissent, Justice Berdon lamented that the majority had given so novel and weighty a question such "cursory analysis....” State v. Ross, supra, 230 Conn. at 295, 646 A.2d 1318 (Berdon, J., dissenting in part).

We note that the dissenting justices, while criticizing our departure from the court's discussion of capital punishment in Ross, make no attempt to defend the adequacy of the analysis therein.

Subsequently, this court reiterated the holding of, or merely cited to Ross, without any further elaboration, in one-half dozen cases presenting facial challenges to the death penalty under the state constitution. See State v. Colon, 272 Conn. 106, 383, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) ; State v. Breton, 264 Conn. 327, 418, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003) ; State v. Reynolds, 264 Conn. 1, 236, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004) ; State v. Cobb, 251 Conn. 285, 497, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ; State v. Webb, 238 Conn. 389, 402–405, 680 A.2d 147 (1996) ; State v. Breton, 235 Conn. 206, 217–18, 663 A.2d 1026 (1995). Accordingly, it was not until 2011, in Rizzo II, that we first seriously explored the scope of the state constitutional ban on cruel and unusual punishment with regard to the modern death penalty. See State v. Rizzo, supra, 303 Conn. at 184–201, 31 A.3d 1094.

In Webb, this court did consider and reject an alternative argument: that capital punishment violates the social compact clause of article first, § 1, of the state constitution. State v. Webb, supra, 238 Conn. at 406–12, 680 A.2d 147.

In Rizzo II, as in Ross, we had no difficulty rejecting the defendant's facial challenge, reasoning that a penalty that is referenced explicitly in the state constitution cannot have been unconstitutional at all times and under all circumstances. See id., at 188, 646 A.2d 1318. In that case, however, we also recognized that the fact that capital punishment has been practiced throughout much of our state's history and was considered constitutional in 1818 says little about its legal status two centuries later. See id., at 187–88, 646 A.2d 1318. Rather, under the governing legal framework, "we must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.... This is because [t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” (Internal quotation marks omitted.) Id.; see also People v. Anderson, supra, 6 Cal.3d at 637–39, 100 Cal.Rptr. 152, 493 P.2d 880 (incidental references to death penalty in state constitution merely acknowledge that penalty was in use at time of drafting and do not enshrine its constitutional status as standards of decency evolve); District Attorney v. Watson, supra, 381 Mass. at 660–62, 411 N.E.2d 1274 (interpretation of state constitutional prohibition against cruel and unusual punishment is not static and depends on contemporary moral standards).

In Rizzo II, we also recognized that whether the death penalty constitutes excessive and disproportionate punishment is a subtler and more nuanced question than the majority in Ross had acknowledged. Our understanding of what constitutes excessive punishment is informed not only by the laws on the books, both in Connecticut and elsewhere, but also by developments in how those laws are applied by prosecutors and sentencing juries. See State v. Rizzo, supra, 303 Conn. at 188–98, 31 A.3d 1094. Accordingly, we undertook a more sweeping review of contemporary social mores and the actual implementation of capital punishment at the state, national and even international levels. See id. We ultimately concluded, however, that "there remain[ed] powerful evidence of strong public support for the death penalty in the form of long-standing laws enacted by the democratically elected representatives of this state and other jurisdictions within the United States....” Id., at 198, 31 A.3d 1094. Notwithstanding various indications that there had been a drop off in support for the death penalty, we perceived no "dramatic shift” in the constitutional or legislative landscape. (Internal quotation marks omitted.) Id., at 191, 31 A.3d 1094.

We first take this opportunity to clarify that, although a sudden sea change in public opinion would be sufficient to demonstrate a constitutionally significant shift in contemporary standards of decency, such a dramatic shift is not necessary for us to recognize that a punishment has become repugnant to the state constitution. If the legally salient metaphor is the evolution of our standards of decency, then a gradual but inexorable extinction may be as significant as the sociological equivalent of the meteor that, it is believed, suddenly ended the reign of the dinosaurs. In any event, new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to abolish the death penalty prospectively, persuade us that we now have not only a clear picture of the long, steady devolution of capital punishment in our state, and, indeed, throughout New England, but also a dramatic and definitive statement by our elected officials that the death penalty no longer can be justified as a necessary or appropriate tool of justice.

This court and the United States Supreme Court have looked to five objective indicia of society's evolving standards of decency: (1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations. See, e.g., Graham v. Florida, supra, 560 U.S. at 61–67, 130 S.Ct. 2011 ; Atkins v. Virginia, supra, 536 U.S. at 311–16, 122 S.Ct. 2242 ; Thompson v. Oklahoma, supra, 487 U.S. at 830, 108 S.Ct. 2687 ; Enmund v. Florida, supra, 458 U.S. at 788–89, 102 S.Ct. 3368 ; State v. Rizzo, supra, 303 Conn. at 187–96, 31 A.3d 1094. We consider each factor in turn.

We do not disagree with Chief Justice Rogers that the last two factors—the laws and practices of other jurisdictions, and the opinions and recommendations of professional associations—are of less importance, and we agree that those considerations alone would constitute an insufficient basis for deeming a punishment cruel and unusual in the absence of any evidence that it has come to be so in Connecticut. We do, however, disagree with Chief Justice Rogers' suggestion in her dissenting opinion that the defendant has asked that we consider the constitutional implications of the adoption of P.A. 12–5 in a complete factual and jurisprudential vacuum, ignoring any and all other evidence that capital punishment no longer comports with contemporary standards of decency in Connecticut, even insofar as that evidence pertains to the defendant's claim that the death penalty is now unconstitutional in light of P.A. 12–5. In fact, in his brief to this court, the defendant expressly asked us to consider previous decisions of this court that explored all of these factors in substantial depth.

A

Historical Development

We begin by considering "the historical development of the punishment at issue....” Enmund v. Florida, supra, 458 U.S. at 788, 102 S.Ct. 3368. The history of capital punishment in Connecticut is especially important both because substantial new historical information has become available in recent years and because the ultimate legal question—whether the death penalty remains consonant with our evolving standards of decency following the enactment of P.A. 12–5—necessarily requires that we consider the broader historical perspective. We cannot ascertain how our moral standards have evolved without first understanding what they once were.

We previously have permitted citation to extra-record reference materials as evidence of contemporary societal norms or to advocate for a new interpretation of the state constitution. See, e.g., State v. Rizzo, supra, 303 Conn. at 184 n. 81, 31 A.3d 1094 ; see also Hall v. Florida, supra, 134 S.Ct. at 1993–96 (relying on medical and psychological research in concluding that eighth amendment does not permit states to adopt rigid rule that individuals with intelligence quotient [IQ] test scores higher than 70 are precluded from offering other evidence of mental disability). Notice also may be taken in this context of treatises reporting the public history of Connecticut. See 1 B. Holden & J. Daly, Connecticut Evidence (1988) § 31, pp. 128–29. More generally, it is well established that an appellate court may take notice of "legislative facts,” including historical sources and scientific studies, "which help determine the content of law and policy,” as distinguished from the "adjudicative facts,” which concern "the parties and events of a particular case.” (Internal quotation marks omitted.) Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977) ; accord State v. Rizzo, supra, 303 Conn. at 184 n. 81, 31 A.3d 1094.

Our task in this regard has been greatly facilitated by Professor Lawrence B. Goodheart, who recently published the first comprehensive history of capital punishment in Connecticut in "The Solemn Sentence of Death: Capital Punishment in Connecticut.” Beginning with the founding of the Connecticut and New Haven colonies in the 1600s, and proceeding methodically through the first decade of the current millennium, Goodheart's award winning book traces nearly 400 years of the state's implementation and public perception of the death penalty. Two recurring themes emerge from this survey. First, the acceptability of imposing death as a form of judicial punishment has declined steadily over Connecticut's nearly 400 year history. Secularization, evolving moral standards, new constitutional and procedural protections, and the availability of incarceration as a viable alternative to execution have resulted in capital punishment being available for far fewer crimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public acceptance. Second, what has not changed is that, throughout every period of our state's history, the death penalty has been imposed disproportionately on those whom society has marginalized socially, politically, and economically: people of color, the poor and uneducated, and unpopular immigrant and ethnic groups. It always has been easier for us to execute those we see as inferior or less intrinsically worthy.

See Association for the Study of Connecticut History, 2012 Award Recipients (announcing Goodheart as recipient of 2012 Homer D. Babbidge, Jr., Award for best monograph on significant aspect of Connecticut's history published in calendar year), available at http://asch-cthistory.org/awards/2012-recipients (last visited July 27, 2015).

Beginning with the seventeenth century, Goodheart explains that early Connecticut penal statutes reflected the Puritans' deep-seated commitment to the Mosaic legal code of the Old Testament. See L. Goodheart, supra, at pp. 10–12. In 1656, the New Haven colony recognized twenty-three different capital crimes. Id., at p. 12. An individual could be executed for conduct offending the colony's strict religious sensibilities (e.g., idolatry, witchcraft, blasphemy, cursing or smiting a parent, defiance by a rebellious son, profaning the Sabbath); for behavior deemed to be sexually deviant (adultery, masturbation, bestiality, heterosexual and homosexual sodomy, incest); for repeated incidents of burglary or robbery; as well as for rape, rebellion, and killing of various sorts. See id. From the founding of the colonies through the end of the seventeenth century, more people were executed in Connecticut for witchcraft (eleven) and for sexual infractions, such as bestiality and sodomy (eleven, including one rape), than for homicide (ten). See id., at pp. 17, 22, 33.

Even in that era, however, judges and juries often hesitated to enforce the capital laws as written. See, e.g., C. Collier, supra, 76 Conn. B.J. at 19 n.42. In many adultery cases, for example, courts avoided imposing the ultimate punishment by finding the parties not guilty but "highly suspicious,” and thus imposing a sentence of something other than death. Id.

Commencing with the Age of Enlightenment in the late 1600s, and continuing for the next three plus centuries, Connecticut's courts and elected officials have steadily pared back the number and types of crimes deemed worthy of the ultimate punishment. See generally L. Goodheart, supra, at cc. 2–7. By the early 1660s, juries, magistrates, and the governor himself all were taking steps to, in essence, decapitalize crimes such as sodomy, blasphemy, and witchcraft, in keeping with the public's increasingly secular attitudes toward crime and punishment. See part I B 1 of this opinion. The last executions for bestiality and witchcraft were carried out in 1662 and 1663, respectively. L. Goodheart, supra, at pp. 33, 97. Adultery was delisted as a capital offense in 1672, the same year Thomas Rood was executed for incest, and, since then, no one has been executed in Connecticut for any nonviolent sexual crime. See id., at p. 31. The revised Connecticut laws of 1750 removed the capital crimes of idolatry, man stealing, and various offenses of rebellious offspring from the books; id., at pp. 38, 45–49 ; and, two years later, the General Assembly blocked an execution for the crime of blasphemy, effectively decapitalizing that crime. Id., at pp. 49, 68. The last execution in Connecticut for infanticide, a charge under which married and unmarried mothers were treated differently, took place in 1753; id., at p. 57 ; followed in 1768 by the last hanging for burglary or any purely economic crime. Id., at pp. 65–66.The colonialists' commitment to Mosaic eye for an eye justice had been grounded not only in their religious convictions, but also in the fact that they lacked any viable alternatives to execution. See W. Holdsworth, supra, at pp. 356–57. That changed with the advent of modern correctional facilities. Although one dozen capital crimes remained on the books through the end of the eighteenth century, after Newgate opened in East Granby in 1773, no one was executed in Connecticut for any crime other than homicide or rape. See L. Goodheart, supra, at pp. 68, 75. Moreover, the last execution for rape, in 1817; id., at p. 94; was carried out just one decade before the opening of the state prison in Wethersfield; id., at p. 101; which Goodheart characterizes as reflecting "more hopeful, even utopian, assumptions about penology.” Id. With the ideal and means of achieving rehabilitation well established, in 1846, the legislature, for the first time, created a distinction between first and second degree murder to further limit the application of the death penalty. Id., at pp. 104–105. One century later, "[i]n 1951, the legislature enacted a statute that allowed the jury to recommend life imprisonment rather than death for individuals convicted of first degree murder, making it even easier for the jury to avoid imposing the death penalty. See Public Acts 1951, No. 369.” State v. Ross, supra, 230 Conn. at 303, 646 A.2d 1318 (Berdon, J., dissenting in part).

Goodheart distinguishes infanticide from homicide in that, from 1699 to 1808, an unmarried woman who lost her infant during childbirth was legally presumed to have killed the baby to conceal her shame. See L. Goodheart, supra, at p. 20. This presumption of infanticide could be rebutted if a witness to the birth testified that the baby was stillborn. See id.

Connecticut's steadily waning commitment to capital punishment also has been evidenced in the narrowing range of offenders who have been subject to the ultimate punishment. No female has been executed in the state since 1786, and no male under the age of eighteen at the time of the offense since 1904. See L. Goodheart, supra, at pp. 81–82, 136. Indeed, our legislature has "acted ahead of the United States Supreme Court”; State v. Rizzo, supra, 303 Conn. at 189, 31 A.3d 1094 ; in prohibiting the execution of persons with intellectual disabilities; Public Acts 1973, No. 73–137, § 4; of offenders who committed their capital crimes when they were under eighteen; Public Acts 1973, No. 73–137, § 4; and for any crime not involving the death of a victim. State v. Rizzo, supra, at 189, 31 A.3d 1094.

Although the past 380 years have witnessed an ongoing decline in our state's commitment to the death penalty as a legitimate form of punishment, it is noteworthy that Connecticut's two constitutions, adopted in 1818 and 1965, were drafted during periods of particularly dramatic change. As we previously discussed, the late eighteenth and early nineteenth centuries were characterized by penological reform, an emerging commitment to human rights, and the first widespread public questioning of the moral legitimacy of capital punishment in Connecticut. See L. Goodheart, supra, at pp. 69–70. Throughout the first half of 1786, the New Haven Gazette had reprinted Cesare Beccaria's entire 1764 treatise "On Crimes and Punishments,” a seminal Enlightenment era work that condemned torture and the death penalty, and that led to widespread questioning of the latter throughout Europe and the United States. See id., at pp. 67–70. The impact of Beccaria's progressive approach to penology may be seen in the case of Henry Wilson, a convicted rapist whose death sentence the General Assembly commuted in 1822. See id., at pp. 96–97. Goodheart implies that the decision reflected the fact that neighboring states, such as Rhode Island, already had decapitalized that crime. See id., at p. 97.

One hundred and fifty years later, when Connecticut adopted the 1965 constitution, there was an "unofficial moratorium” on the death penalty in the state. Id., at p. 196. The last execution in the state had taken place in 1960, and that only after the condemned man, Joseph Taborsky, "volunteered to die....” Id., at p. 193. Goodheart attributes the unofficial moratorium that began in the early 1960s to a myriad of factors: the expansion of defendants' federal constitutional rights; declining popular support for the death penalty; opposition from organized religion, which originally had championed capital punishment in Connecticut; and research indicating that, since 1930, "the death penalty [had fallen] inordinately on those at the bottom of society,” including the poor, uneducated, and mentally disabled. Id., at p. 202.

Another Connecticut execution would not occur until forty-five years later, in 2005, when Ross, like Taborsky, waived his right to further appeals and habeas remedies. Id., at pp. 228, 230–31, 244–46. No capital sentences have been carried out in the decade since Ross was executed. Over the past fifty-five years, then, during which time thousands of murders have been committed in the state, our criminal justice system has conducted but a single execution, and that only after the condemned man all but forced the state to carry out his sentence. See id., at pp. 230–31. The eleven men currently on death row in Connecticut are, at the least, many years, and most likely decades, away from exhausting all of their state and federal appeals and habeas remedies. Even if the legislature never had enacted P.A. 12–5, if past is prologue, there simply is no reason to believe that any Connecticut executions would be carried out in the foreseeable future.

As Justice Berdon observed in his dissent in Ross, this "whole state history demonstrates a reluctance to impose the death penalty.” State v. Ross, supra, 230 Conn. at 302, 646 A.2d 1318 (Berdon, J., dissenting in part). "[O]ur early capital laws were seldom enforced, and, indeed, the cases in which capital punishment has been inflicted have been exceedingly rare, some counties hardly having known an execution.” (Internal quotation marks omitted.) Id., at 303, 646 A.2d 1318 (Berdon, J., dissenting in part). "There have been, it is believed, within the last [220] years, fewer executions in Connecticut for crime, than in any other state of equal size in the world. The records of our courts have scarcely the stain of blood upon them....” (Internal quotation marks omitted.) Id.

Connecticut's historical ambivalence toward the death penalty also has manifested in persistent efforts to abolish capital punishment. As we previously discussed, the first serious organized opposition to the death penalty emerged in the early nineteenth century, and, by the mid–1800s, two governors and a majority of the state Senate had signed petitions for its repeal. L. Goodheart, supra, at pp. 130–31. Abolition efforts persisted throughout the nineteenth and twentieth centuries. See id., at pp. 163–64, 178, 191, 195. In 2009, the General Assembly passed P.A. 09–107, which would have repealed the death penalty for crimes committed after the passage of that act. See State v. Rizzo, supra, 303 Conn. at 198, 31 A.3d 1094. Governor Rell vetoed P.A. 09–107, however, and the legislature did not muster the two thirds vote necessary to override the governor's veto. Id. Similar legislation was introduced in 2011, which advanced through the Judiciary Committee but failed to achieve a full vote in either the House or the Senate. See id., at 199, 31 A.3d 1094. Finally, on April 25, 2012, Governor Malloy signed P.A. 12–5, which abolished the death penalty for all crimes committed on or after that date. Connecticut's history, then, evinces a steady, inexorable devolution in the popularity and legitimacy of the death penalty, culminating in its prospective abolition in 2012.

B

Legislative Enactments

With respect to the second indicator of our evolving standards of decency, both this court and the United States Supreme Court have stated that "the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures.” (Internal quotation marks omitted.) Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242 ; accord State v. Rizzo, supra, 303 Conn. at 191, 31 A.3d 1094. We last examined the constitutionality of the death penalty in Rizzo II. See State v. Rizzo, supra, 303 Conn. at 184–201, 31 A.3d 1094. At that time, we recognized that, during the preceding decade, (1) the United States Supreme Court had imposed additional restrictions on the range of offenses and offenders constitutionally subject to capital punishment; id., at 188, 31 A.3d 1094 ; (2) several additional sister states had abolished the death penalty; id., at 190, 31 A.3d 1094 ; and (3) the number of death sentences imposed and executions carried out in the United States had continued to decline. Id., at 192–93, 31 A.3d 1094. Nevertheless, we concluded "that, as long as there remains powerful evidence of strong public support for the death penalty in the form of long-standing laws enacted by the democratically elected representatives of this state and other jurisdictions within the United States, we will not attempt to discern a contrary view of the public will, or to answer complex policy questions best answered by the legislative process....” Id., at 198, 31 A.3d 1094.

There is no precedent for Chief Justice Rogers' contention that legislative enactments are relevant indicia of evolving standards of decency only to the extent that they accurately reflect popular opinion. See footnote 33 of Chief Justice Rogers' dissenting opinion. On the contrary, the United States Supreme Court repeatedly has instructed that, for purposes of the eighth amendment, social mores are to be measured by the legislation enacted by the elected branches of government, and not according to the shifting winds of public sentiment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (conflicting public sentiment, as expressed in polls and resolutions, does not evidence contemporary values until expressed in legislative action), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; cf. Furman v. Georgia, supra, 408 U.S. at 362, 92 S.Ct. 2726 (Marshall, J., concurring).

Public Act 12–5 pulled that linchpin out of our decision in Rizzo II. For the first time in our state's history, the governor and a majority of both legislative chambers have now rejected state sanctioned killing and agreed that life imprisonment without the possibility of release is a just and adequate punishment for even the most horrific crimes. For any future crimes, the death penalty has been removed from the list of acceptable punishments that may be imposed in accordance with law.

Public Act 12–5 thus represents the terminus of the four century long devolution of the death penalty in Connecticut. Although the prospective nature of P.A. 12–5 reflects the intent of the legislature that capital punishment shall die with a whimper, not with a bang, its death knell has been rung nonetheless. Our elected representatives have determined that the machinery of death is irreparable or, at the least, unbecoming to a civilized modern state. As a ranking member of the Judiciary Committee recognized in 2012, "this law is the best and most recent indication of evolving standards in our society of human decency.” 55 S. Proc., Pt. 2, 2012 Sess., p. 574, remarks of Senator John A. Kissel. The prospective abolition of the death penalty thus provides strong support for the conclusion that capital punishment no longer comports with contemporary standards of decency and, therefore, constitutes cruel and unusual punishment.

Although Justice Marshall appears to have coined the phrase "machinery of death” in Rumbaugh v. McCotter, 473 U.S. 919, 921, 105 S.Ct. 3544, 87 L.Ed.2d 668 (1985) (Marshall, J., dissenting from the denial of certiorari), it is widely attributed to Justice Blackmun's famous declaration, shortly before his retirement from the United States Supreme Court in 1994, that, "[f]rom this day forward, I no longer shall tinker with the machinery of death. For more than [twenty] years I have endeavored—indeed, I have struggled—along with a majority of [the] [c]ourt, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than continue to coddle the [c]ourt's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed. It is virtually self-evident to me now that no combination of procedural rules or substantive regulations ever can save the death penalty from its inherent constitutional deficiencies. The basic question—does the system accurately and consistently determine which defendants deserve to die?—cannot be answered in the affirmative.” (Footnote omitted; internal quotation marks omitted.) Callins v. Collins, 510 U.S. 1141, 1145, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from the denial of certiorari).

We fail to understand how Chief Justice Rogers could translate Senator Kissel's clear, unequivocal statement about P.A. 12–5 to mean nothing more than that he thought that "there was no reliable way to predict the outcome” of this court's review. (Internal quotation marks omitted.) Footnote 26 of Chief Justice Rogers' dissenting opinion. If there was any ambiguity in Senator Kissel's statement, it surely was resolved by his statement, during a Judiciary Committee hearing on the proposed repeal legislation, that "[e]very expert that I have asked ... has stated that the evolving societal standards evinced by a change in the law form ... very solid grounds under the cruel and unusual punishment portion of the constitution to support repeal of [the] death [penalty] for folks sitting on death row when a prospective bill is passed.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2549–50.

In her dissenting opinion, Chief Justice Rogers takes issue with the conclusion that the prospective repeal of the death penalty indicates that capital punishment no longer comports with our state's evolving standards of decency. She argues that, as a matter of common sense, legislators would not have voted to retain capital punishment on a retroactive basis if they had believed such punishment to be immoral, indecent, or unnecessary. Rather, she speculates that "the reason for the prospective repeal was not that a majority of legislators found the death penalty morally repugnant even for the worst crimes, or that they found life imprisonment an adequate substitute for the death penalty, but that they had determined that the death penalty simply had become impracticable.” Text accompanying footnote 19 of Chief Justice Rogers' dissenting opinion. The most reasonable interpretation of P.A. 12–5, Chief Justice Rogers posits, is that the legislature continues to believe that death is the appropriate punishment for certain crimes but that, for financial and other pragmatic reasons, our elected representatives were forced to accept a less severe form of punishment for the future.

We begin by observing that the United States Supreme Court, in Atkins v. Virginia, supra, 536 U.S. 304, 122 S.Ct. 2242 considered and rejected Chief Justice Rogers' argument that a prospective only repeal of a punishment does not indicate that the punishment no longer comports with society's evolving values. See id., at 313–16, 122 S.Ct. 2242 (recognizing emergence of national consensus against executing intellectually disabled, based on decisions of eighteen states to amend their death penalty statutes to exempt such persons from capital punishment, even though majority of those states had done so prospectively only); see also id., at 342–43, 122 S.Ct. 2242 (Scalia, J., dissenting) (criticizing majority for counting among those jurisdictions that no longer permitted execution of intellectually disabled eleven states that had abolished practice only prospectively). Similarly, in Fleming v. Zant, supra, 259 Ga. at 687, 386 S.E.2d 339, the Supreme Court of Georgia concluded that a statute that prohibited the death penalty for mentally disabled individuals on a prospective only basis nevertheless evidenced an evolving societal consensus that the execution of such individuals was inappropriate. See id., at 690 and n. 3, 386 S.E.2d 339. Accordingly, that court concluded that execution of mentally disabled individuals sentenced prior to the effective date of the Georgia statute would be cruel and unusual punishment, in violation of the Georgia constitution. Id., at 690, 386 S.E.2d 339 ; see also Van Tran v. State, 66 S.W.3d 790, 805 (Tenn.2001) (concluding that statute prohibiting execution of mentally disabled offenders was not intended to apply retroactively but also concluding, under Tennessee constitution, in light of Fleming, that statute evidenced evolving consensus that carrying out any such executions would be cruel and unusual).

More importantly, the voluminous legislative history of P.A. 12–5 simply does not bear out Chief Justice Rogers' interpretation of that act. During the legislative debates, of the three dozen senators and representatives who spoke in favor of P.A. 12–5, nearly every legislator stated that he or she had come to oppose capital punishment as a matter of conscience or principle. Notwithstanding the solely prospective application of P.A. 12–5, numerous legislators declared that they categorically opposed state sanctioned killing or, in a few cases, that they had concluded that life imprisonment without the possibility of release is a more appropriate punishment for capital felons. They cited a range of principled objections to the death penalty. Many found unacceptable the possibility that the state might mistakenly execute an innocent person. Others condemned capital punishment as incurably arbitrary and discriminatory, or came to believe that death sentences retraumatize the families of murder victims. In his own remarks, one of the cochairmen of the Judiciary Committee left little doubt as to the primary rationale for the legislation: "This was a matter of conscience for me and I think it's a matter of conscience for everyone in this body, proponents and opponents alike. I want to make that very clear.” 55 S. Proc., Pt. 3, 2012 Sess., pp. 791–92, remarks of Senator Eric D. Coleman. Indeed, many of the senators and representatives who opposed P.A. 12–5 acknowledged that its supporters voted out of a conscientious and moral rejection of capital punishment.

See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 532–33, 593–95, remarks of Senator Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 661–62, remarks of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 670–71, remarks of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 765, remarks of Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks of Senator Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–86, remarks of Senator Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91, remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1136–37, remarks of Representative Patricia M. Widlitz; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1250–52, remarks of Representative Roland J. Lemar; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1256–57, remarks of Representative Michael L. Molgano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1258–60, remarks of Representative Gary A. Holder–Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1280–81, remarks of Representative Richard A. Smith; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1282–86, remarks of Representative Daniel S. Rovero; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1292–94, remarks of Representative Auden C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1295–96, remarks of Representative John F. Hennessy; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1310–12, remarks of Representative Linda M. Gentile; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1313–16, remarks of Representative Patricia B. Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1317–19, remarks of Representative Lile R. Gibbons; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1340–42, remarks of Representative Philip J. Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1375–76, remarks of Representative Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2557–59, remarks of Senator Martin M. Looney; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2514–16, 2523, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2690–92, remarks of Representative Charlie L. Stallworth.

See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 593–94, remarks of Senator Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 672–73, remarks of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator Edwin A. Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 772, remarks of Senator Carlo Leone; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 801–803, remarks of Senator Martin M. Looney; 55 S. Proc., Pt. 3, 2012 Sess., p. 812, remarks of Senator Donald E. Williams, Jr.; 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1002, remarks of Representative Gerald M. Fox III; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1049–50, remarks of Representative Terry Backer; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1090–91, remarks of Representative Mary Mushinsky; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1115–16, remarks of Representative John W. Thompson; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1280, remarks of Representative Richard A. Smith; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1291–94, remarks of Representative Auden C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1314–15, remarks of Representative Patricia B. Miller; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2514–15, remarks of Senator Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2690, remarks of Representative Charlie L. Stallworth; see also 55 S. Proc., Pt. 3, 2012 Sess., pp. 792–93, remarks of Senator Coleman (possibility of error is reason many legislators supported repeal).

See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 594, remarks of Senator Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1376, remarks of Representative Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2515–16, 2527, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2622, remarks of Senator Edwin A. Gomes; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2691, remarks of Representative Charlie L. Stallworth; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2843–44, remarks of Representative Gary A. Holder–Winfield.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry B. Gerratana; id., at p. 751, remarks of Senator Edwin A. Gomes; id., at p. 769, remarks of Senator Bob Duff; id., at pp. 772–73, remarks of Senator Carlo Leone; id., at p. 790, remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1256, remarks of Representative Michael L. Molgano; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2516, 2517, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2517, remarks of Senator Edward Meyer; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2629–30, remarks of Representative Richard A. Smith.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 747, remarks of Senator Len Suzio (stating that all members would agree that P.A. 12–5 concerns morality, not finances); id., at p. 757, remarks of Senator Paul R. Doyle ("I consider this a vote of consci[ence] for all of us”); id., at p. 804, remarks of Senator John McKinney ("[t]his is in many ways a vote of conscience, a vote of where your moral compass leads you”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1381, remarks of Representative Lawrence F. Cafero, Jr. (prospective repeal implies that "it is no longer the policy of the [s]tate of Connecticut to take a life”); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 593, remarks of Senator Coleman (observing that capital punishment is matter of principle for many legislators); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1385, remarks of Representative J. Brendan Sharkey (debate is about profound moral and ethical questions). Importantly, although some opponents of P.A. 12–5 chided supporters for what the opponents characterized as the inconsistency of prospectively repealing capital punishment while retaining it for those already on death row, they consistently characterized this dichotomy as a moral inconsistency rather than a merely pragmatic decision. See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 747–48, remarks of Senator Suzio.

Notably, although Chief Justice Rogers repeatedly chides the majority for failing to afford adequate deference to the legislative process, she herself is dismissive of legislators' own characterizations of their votes, favoring instead a narrative that is contradicted by the legislative record. It is certainly true, as Chief Justice Rogers emphasizes, that some proponents of the repeal also expressed concerns over monetary or practical challenges facing our state's capital punishment system. The fact that supporters voted to abolish capital punishment for both moral and practical reasons, however, in no way demonstrates that the death penalty continues to comport with contemporary standards of decency in Connecticut. An indecent punishment is no less indecent for the fact that it is also costly and ineffectual.

To our knowledge, not a single legislator has publicly indicated that the decision to repeal the death penalty prospectively while retaining it for those who offended prior to April 25, 2012, embodied the sort of grand financial and pragmatic agreement suggested by Chief Justice Rogers. In fact, comments by Senator Kissel, a ranking member of the Judiciary Committee, directly refute Chief Justice Rogers' theory that the legislative history of the act could support such an interpretation: "[T]his isn't being driven by cost savings. There [is] ... ample testimony, year in and year out, that say[s] we for moral, philosophical, religious reasons, because it doesn't deter crime and all these other factors, say[s] that people stridently oppose this penalty in Connecticut. People will stand up on the floor of the House and the floor of the [Senate] and say, if we had a bill in front of us with complete abolition, I'd support it, but for political reasons or expediency or for whatever reason, that's not the bill the Judiciary Committee gave us. But because this gets us one step closer to full abolition, I'm going to support this at this time.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2766–67. Ultimately, of the three dozen legislators who spoke in favor of P.A. 12–5 during the legislative hearings and debates, only two indicated that they personally supported the repeal primarily for pragmatic reasons. Why, then, did a legislature committed to abolishing the death penalty vote to retain it for the handful of inmates already on death row? It is clear from the legislative history of P.A. 12–5, as well as the record of other recent attempts to abolish capital punishment in Connecticut, that, as Senator Kissel indicated, the vast majority of those legislators who voted for P.A. 12–5 would have supported a full repeal but were forced at that time to accept half a loaf because there were not enough votes to pass a full repeal. With regard to the handful of legislators whose support for a repeal was contingent on retaining the death penalty for previous capital felons, the legislative record strongly suggests that they insisted on a prospective only repeal not for the pragmatic and financial reasons offered by Chief Justice Rogers but, rather, for one of two reasons.

Ignoring Senator Kissel's explanation that members of the legislature have indicated over the course of many years their moral opposition to the death penalty, Chief Justice Rogers queries "how Kissel could have known that.” Footnote 26 of Chief Justice Rogers' dissenting opinion. The relevant question, rather, is on what basis Chief Justice Rogers would purport to know better than a twelve term senator and ranking member of the Judiciary Committee what lies in the hearts and minds of his colleagues.

See 55 S. Proc., Pt. 2, 2012 Sess., pp. 583–84, remarks of Senator Carlo Leone; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74, remarks of Representative Juan R. Candelaria.

Chief Justice Rogers also takes out of context public testimony by Professor Kevin Barry, which she offers as evidence that support for P.A. 12–5 was driven primarily by financial considerations. See footnote 19 of Chief Justice Rogers' dissenting opinion; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2765–66. In fact, in the quoted testimony, Barry is speaking about the decision of the New Mexico legislature to repeal that state's death penalty on a prospective only basis. Id., at p. 2765. Specifically, Barry refers to evidence that New Mexico's repeal was motivated in large part by that state's pending budget crisis. Id. Although Barry does propose that the state might try to make a similar argument in Connecticut, he provides no support for the proposition that cost considerations were of comparable importance for the legislators who supported P.A. 12–5. Indeed, his statements amount to little more than a recommended litigation strategy for those who would seek to preserve the death penalty retroactively.



First, some legislators opposed retroactive abolition out of a principled belief that the state had made a commitment to families of victims murdered before the passage of P.A 12–5 that the state would pursue the death penalty in those cases. Those legislators felt that the state was morally obliged to honor that prior commitment, even if it had foresworn capital punishment going forward. For such legislators, retaining the death penalty on a retroactive basis represented the lesser of two evils. Indeed, at least one legislator speculated that an unwillingness to "up end” victims' expectations was the primary rationale for enacting a prospective only repeal. 55 S. Proc., Pt. 3, 2012 Sess., p. 720, remarks of Senator Andrew W. Roraback; see also K. Barry, " From Wolves, Lambs (Part II): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty,” 35 Cardozo L.Rev. 1829, 1837 (2014) ("[p]rospective-only repeal grants the 'victim's mother’ her pound of flesh and then bids her adieu”). Indeed, at oral argument before this court, the state acknowledged that the legislature indicated that "keeping a promise to the victims” was one of the primary rationales for enacting a prospective only repeal.For other legislators, support for a prospective only repeal appears to have reflected a calculation that they could accommodate the public demand that certain notorious inmates remain on death row; see part III C of this opinion; with little concern that those death sentences ever would be carried out. During the debates over P.A. 12–5, many legislators were of the opinion that, once the death penalty had been prospectively abolished, the official policy of the state would then disapprove capital punishment, and it would, therefore, become unconstitutional to execute offenders whose crimes were committed prior to the repeal. It was widely predicted that the individuals already on death row would immediately seek appellate or habeas relief upon passage of a prospective repeal, and that this court would bar all future executions. Although not all legislators were in agreement on this point, it is noteworthy that Chief State's Attorney Kane, who heads the Division of Criminal Justice and represents the state in this matter, has himself publicly taken the position that, following a prospective repeal, any efforts to execute those already on death row would be unlikely to pass constitutional muster. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2601–2602 ("I can't imagine how we would be executing somebody who's on death row today”); id., at pp. 2630–35 (indicating that, after prospective repeal, capital punishment would fail to comport with evolving standards of decency in Connecticut).

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith Prague (opposing capital punishment out of moral concern that innocent not be wrongly executed, but favoring retroactivity out of respect for survivors of victims of capital felonies committed before 2012); id., at p. 662, remarks of Senator Andrew W. Roraback ("I have long believed that the [s]tate shouldn't be in the business of taking life. And as strongly as I believe that, I believe even more strongly that the [s]tate shouldn't be in the business of breaking its commitment to victims of crime.”).

We do not share Chief Justice Rogers' conviction that those legislators who believed capital punishment to be indecent or unjustified, and yet who held out for a prospective only repeal in order to honor the state's prior commitments to the families of murder victims, are somehow illogical or "morally incoherent....” Footnote 22 of Chief Justice Rogers' dissenting opinion. There are, no doubt, opponents of the death penalty whose principled opposition is so staunch and so unyielding that they would not countenance its use under any circumstances. We are equally certain, however, that there are people of good faith and clear mind who, although they have come to believe that, on balance, state sanctioned killing is impermissibly excessive, or arbitrary, or subject to error, are not so stridently opposed that their opposition cannot yield to countervailing moral commitments. Each day legislators no less than judges must balance conflicting moral principles and commitments: between free expression and national security; between environmental conservation and the fruits of economic development; between a right to life and a freedom of choice. Why Chief Justice Rogers believes that opposition to the death penalty, alone among principled beliefs, must be uncompromising simply eludes us. See generally K. Barry, "From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual Abolition of the Death Penalty,” 66 Fla. L.Rev. 313 (2014) (articulating principled defense of prospective only repeal of capital punishment on moral grounds).

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator Kissel; id., at pp. 748–49, remarks of Senator Len Suzio; id., at pp. 795–96, remarks of Senator Leonard A. Fasano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1381–82, remarks of Representative Lawrence F. Cafero, Jr.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 795–96, remarks of Senator Leonard A. Fasano (many legal scholars believe retroactive component of bill is unconstitutional); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1354, remarks of Representative John W. Thompson ("it seems the consensus here that nobody on death row will now be executed”); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2485, remarks of Representative Al Adinolfi (numerous attorneys believe that prospective repeal will render retroactive application unconstitutional); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2507–2508, remarks of Representative Richard A. Smith (many legislators are concerned that inmates on death row will be removed therefrom upon prospective repeal); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2534, remarks of Representative Arthur J. O'Neill ("there seems to be pretty much a consensus by both the prosecutor and the defense people here in Connecticut most familiar with death penalty issues that that's going to be a very difficult hill for the prosecutors to climb in terms of defending the existing sentences and that we should expect that if we repeal with so-called prospective only language, that as a practical matter, no one will have the death penalty imposed [on] them in the state of Connecticut”); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2549–50, remarks of Senator Kissel ("[e]very expert that I have asked ... has stated that the evolving societal standards evinced by a change in the law form ... very solid grounds under the cruel and unusual punishment portion of the constitution to support repeal of [the] death [penalty] for folks sitting on death row when a prospective bill is passed”).

Kane's statements on the question are no less unambiguous than those of Senator Kissel; see text accompanying footnote 49 of this opinion; see also footnote 1 of this opinion; and Chief Justice Rogers' insistence that Kane expressed no opinion on the matter is equally puzzling. See footnote 28 of Chief Justice Rogers' dissenting opinion.

Some legislators, then, may have seen a prospective repeal as an opportunity to retain the support of constituents committed to the execution of particular residents of death row, while leaving to this court the task of abolishing capital punishment retroactively. Professor Kevin Barry, on whose opinions Chief Justice Rogers repeatedly relies, has argued that adoption of a prospective only repeal represented precisely this sort of "strategic” decision on the part of legislators "to discard the death penalty going forward ... while punting the hard political decisions about what to do with those on death row....” K. Barry, supra, 35 Cardozo L.Rev. at 1836 ; see also id., at 1834 (noting that abolitionists adopted similar strategy of gradual abolition in movement to end slavery); id., at 1836 (prospective only repeal is politically viable because it removes so-called " 'victim's mother’ ” effect). We do not consider such action to evidence legislative endorsement of the death penalty as a fitting and acceptable means of punishment in modern Connecticut.

It bears noting that senators rejected an amendment crafted to ensure that capital punishment would be retained for those already on death row in the event that a court declared P.A. 12–5 unconstitutional. The proposed amendment provided that, if a court were to conclude that a bifurcated, prospective only repeal of the death penalty was unconstitutional, the repeal would be ified, and the state's capital felony statutes would revert to their pre–2012 status. See 55 S. Proc., Pt. 3, 2012 Sess., pp. 652–53, 662–64, remarks of Senator Roraback; see also id., at p. 669 (vote on amendment).

We are perplexed by Chief Justice Rogers' suggestion that it is improper for us to conclude that some legislators, in supporting a prospective only appeal, may have acted in part out of political motivations. That conclusion, Chief Justice Rogers contends, violates what she refers to as the "constitutional principle that this court must presume that the legislature has acted for legitimate reasons....” Text accompanying footnote 23 of Chief Justice Rogers' dissenting opinion. We have no quarrel with this principle generally, but Chief Justice Rogers' reliance on it in the present case is misplaced. First, there is nothing improper about a legislator acting on the basis of political considerations. Moreover, Chief Justice Rogers' argument improperly conflates equal protection and eighth amendment principles. As she asserts; see text accompanying footnote 93 of Chief Justice Rogers' dissenting opinion; when a statutory classification is challenged on equal protection grounds, but the classification does not involve a fundamental right or suspect class, such as race or national origin, it will be evaluated under the highly deferential "rational basis” standard of review. (Internal quotation marks omitted.) Contractor's Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071 (2007). Under rational basis review, a statutory classification will be upheld, as long as it is supported by some plausible legitimate rationale, regardless of whether the legislature actually had that rationale in mind when enacting the legislation. See id. This unremarkable legal principle is, however, wholly irrelevant to the question before us. Under the eighth amendment and the corresponding provisions of the state constitution, the issue is not whether there is any legitimate justification for a statutory classification but, rather, what a penal statute actually indicates about contemporary social mores. It is no more improper for a court to consider the legislative calculations involved in the crafting of such a statute than in any other situation in which we look to legislative history to help discern the meaning of a statute. See, e.g., Local No. 82, Furniture & Piano Moving, Furniture Store Drivers, Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 542 n. 17, 104 S.Ct. 2557, 81 L.Ed.2d 457 (1984) ( "[t]he legislation contains more than its share of problems for judicial interpretation because ... many sections contain calculated ambiguities or political compromises essential to secure a majority” [internal quotation marks omitted] ); Kerrigan v. Commissioner of Public Health, supra, 289 Conn. at 205 n. 45, 957 A.2d 407 (concluding "that the disclaimer set forth in [General Statutes] § 46a–81r [1] was a political compromise designed to assure persons opposed to homosexual conduct of this state's unwillingness to approve or condone such conduct”); see also Griswold Inn, Inc. v. State, 183 Conn. 552, 561–62, 441 A.2d 16 (1981) (court is not bound to accept most constitutionally favorable interpretation of state action).



Lastly, we note that, if the primary concern of the legislature had been with the workability of the death penalty, as Chief Justice Rogers contends, then the legislature certainly could have implemented measures, short of abolition, aimed at removing some of the impediments in the state's capital punishment scheme. That option was proposed on several occasions during the hearings and debates on P.A. 12–5 but ultimately rejected. The only plausible reading of the legislative history, then, is that the legislature made a principled determination that capital punishment should no longer be the policy of Connecticut.

Among the many steps that the legislature could have taken in this regard include habeas corpus reform, the allocation of additional resources for the purpose of expediting the lengthy appeals process for this state's capital cases, simplification of our death penalty statutes, and streamlining the procedures applicable to capital cases.

See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2594–95, remarks of Chief State's Attorney Kane; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2741–42, remarks of Robert Fromer.

Turning our attention to the other elected branch of government, we also recognize that the meaning of a statute is revealed not only in the intent of the legislators who draft and enact it, but also in the aspirations of the governor who signs it. As Chief Justice Rogers, writing for the court in Rizzo II, recently explained: "The governor, like our legislators, is an elected representative of the people of the state. Additionally, executive approval ... of legislation is an integral part of the legislative process ... and it is axiomatic that when the governor exercises this power, he or she is acting in a substantive legislative role.... Thus ... a governor's [signing statement issued upon] approval of legislation may provide evidence of the motivations underlying that legislation....” (Citations omitted.) State v. Rizzo, supra, 303 Conn. at 199–200, 31 A.3d 1094. In fact, Chief Justice Rogers observed in this very context that "it may be, at some times, on some subjects, that the [governor] elected by all the people is rather more representative of them all than are the members of either body of the [l]egislature whose constituencies are local and not [statewide]....” (Emphasis added; internal quotation marks omitted.) Id., at 201, 31 A.3d 1094. In the present case, Governor Malloy made clear, in signing P.A. 12–5, that his decision to approve legislation abolishing the death penalty was a principled one: "Many of us who have advocated for this position over the years have said there is a moral component to our opposition to the death penalty. For me, that is certainly the case....

"I [have come] to believe that doing away with the be unfairly imposed.” Gov. Malloy on Signing Bill To Repeal Capital Punishment (April 25, 2012) (Governor's Statement).

Once again, Chief Justice Rogers begs the question in assuming that Governor Malloy's opposition to a retroactive repeal precluded him from supporting P.A. 12–5 out of a sincere belief that the death penalty is a punishment unbecoming a modern, enlightened state. In fact, Governor Malloy's signing statement, in which he makes it abundantly clear that his opposition to capital punishment is principled rather than pragmatic, notwithstanding his stated preference for a prospective only repeal, offers perhaps the clearest and most powerful refutation of Chief Justice Rogers' interpretation of P.A. 12–5. Nor would we join Chief Justice Rogers in labeling the governor's stated beliefs logically and morally "incoherent.” Footnote 22 of Chief Justice Rogers' dissenting opinion. What is illogical, rather, is the assumption that one cannot believe that something is indecent or unacceptable unless one is prepared to reject it categorically, under every possible circumstance.

In conclusion, although support for a legislative compromise as significant and complex as Connecticut's prospective abolition of the death penalty is bound to arise from and reflect a range of sentiments and concerns, the best evidence of legislative intent available to us strongly suggests that both of the elected branches were motivated in no small part by a principled belief that state sanctioned executions are no longer a necessary or appropriate form of punishment, even for the most heinous crimes.

C

Current Practice

"Although the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures ... in assessing whether a punishment is constitutionally sound, it also is appropriate for us to consider what is occurring in actual practice.” (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 191, 31 A.3d 1094. "[T]he sentencing decisions that juries have made ... [are] a significant and reliable objective index of contemporary values because [juries are] so directly involved” in the administration of criminal justice. (Internal quotation marks omitted.) Enmund v. Florida, supra, 458 U.S. at 794, 102 S.Ct. 3368. For example, "[s]tatistics about the number of executions may inform the consideration whether capital punishment ... is regarded as unacceptable in our society.” Kennedy v. Louisiana, supra, 554 U.S. at 433, 128 S.Ct. 2641 ; see id. (finding social consensus against capital punishment for crime of child rape); see also Graham v. Florida, supra, 560 U.S. at 64, 74, 130 S.Ct. 2011 (determining that sentence of life imprisonment without possibility of parole is cruel and unusual punishment for juvenile who had committed nonhomicide offense when only 123 people were serving such sentences in eleven jurisdictions nationwide). The number of death sentences actually imposed and carried out is a key barometer of social mores because, although "it is easy for the public to respond to the conviction of a vicious murderer or a serial killer by advocating the ultimate penalty of death, it is far more difficult for society to carry out that penalty by taking the life of that person.” State v. Ross, supra, 230 Conn. at 297, 646 A.2d 1318 ; see also D. Garland, Peculiar Institution: America's Death Penalty in an Age of Abolition (2010) p. 60. "Although death penalty statutes do remain on the books of many jurisdictions, and public opinion polls show opinion to be divided as to capital punishment as an abstract proposition, the infrequency of its actual application suggests that among those persons called [on] to actually impose or carry out the death penalty it is being repudiated with ever increasing frequency.” People v. Anderson, supra, 6 Cal.3d at 648, 100 Cal.Rptr. 152, 493 P.2d 880 ; see also District Attorney v. Watson, supra, 381 Mass. at 662, 411 N.E.2d 1274 (prolonged dearth of executions evidences current standards of decency).

In the post-Furman era, Connecticut has imposed sustained death sentences at a rate (taken as a percentage of capital eligible convictions) that is among the lowest in the nation. See J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?,” 11 J. Empirical Legal Stud. 637, 638 (2014). Of the 205 capital eligible murders committed in Connecticut between 1973 and 2007, of which approximately two thirds were charged capitally, only 12 resulted in death sentences. Id., at 641. Indeed, since 1973, whereas juries in states such as Texas and Florida have imposed death sentences at an average rate of approximately two per month, Connecticut juries on average have imposed a death sentence only approximately once every two years.

Death Penalty Information Center, "Death Sentences in the United States from 1977 by State and by Year,” available at http://www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

Moreover, each of the capital sentences imposed in Connecticut has, in effect, become the equivalent of life imprisonment. As we discussed, there has been an almost complete moratorium on executions in the state since 1960. Connecticut has put only one offender to death over the past fifty-five years, and that was a serial killer who believed that he deserved to die and voluntarily waived his right to further appeals and habeas remedies. L. Goodheart, supra, at pp. 228, 230–31, 244–46. Even then, it took the state more than two decades to carry out his sentence. See id., at p. 248. Nor is there even the remotest likelihood that any of the inmates currently on death row in Connecticut will exhaust their federal and state appeals and habeas remedies any time in the foreseeable future.

The United States Supreme Court also has recognized that the willingness or reluctance of prosecutors to seek a particular punishment constitutes further objective evidence of whether society considers that punishment to be excessive or disproportionate. See Enmund v. Florida, supra, 458 U.S. at 796, 102 S.Ct. 3368. This is because prosecutors "represent society's interest in punishing crime....” Id. In Connecticut, Chief State's Attorney Kane, testifying before the legislature prior to the enactment of P.A. 12–5, strongly suggested that, following the prospective repeal of the death penalty, he no longer would consider it appropriate to seek the death penalty for eligible crimes. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2602, 2633. At neither the charging nor the sentencing stages, then, have the key decision makers in our state's capital punishment system demonstrated that the death penalty continues to comport with contemporary standards of decency in Connecticut.

D

Laws and Practices of Other Jurisdictions

Although trends within Connecticut are the most direct and relevant indicators of contemporary standards of decency with respect to the state constitution, we also look to developments in our sister states, and even the international community, for additional input. See State v. Rizzo, supra, 303 Conn. at 192–96, 31 A.3d 1094 ; see also Roper v. Simmons, supra, 543 U.S. at 578, 125 S.Ct. 1183 ("[t]he opinion of the world community [opposing the death penalty for juveniles], while not controlling our outcome, does provide respected and significant confirmation for our own conclusions”). Globally, 98 countries have now formally abolished the death penalty for all crimes, up from just 16 countries in 1977, and 140 countries effectively have renounced the death penalty by law or practice. "The 'age of abolition’ ... has made America an anomaly, the last remaining holdout in a historical period that has seen the [w]estern nations embrace abolitionism as a human rights issue and a mark of civilization.” D. Garland, supra, at p. 11.

See Amnesty International, "Death Penalty Trends,” available at http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts/death-penalty-trend (last visited July 27, 2015).

Domestically, although capital punishment remains legal in a majority of jurisdictions within the United States, the number of states eschewing the death penalty continues to rise. The United States Supreme Court has explained that "[i]t is not so much the number of these [s]tates that is significant, but the consistency of the direction of change.” Atkins v. Virginia, supra, 536 U.S. at 315, 122 S.Ct. 2242 ; see also Hall v. Florida, supra, 134 S.Ct. at 1997. When Nebraska repealed its death penalty in May, 2015, it became the seventh state in just nine years to have abolished capital punishment either prospectively or completely. In total, nineteen states and the District of Columbia no longer permit the imposition of new capital sentences. And, significantly, no state or nation that has repealed the death penalty prospectively ever has carried out another execution. See, e.g., State v. Santiago, Conn. Supreme Court Records & Briefs, April Term, 2013, Amicus Brief of legal historians and scholars p. 1.

Death Penalty Information Center, "States with and without the Death Penalty,” available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited July 27, 2015); see also Death Penalty Information Center, "Crimes Punishable by the Death Penalty,” available at http://www.deathpenaltyinfo.org/crimes-punishable-death-penalty#BJS (last visited July 27, 2015). Besides Connecticut (2012) and Nebraska (2015), the others are New York (2007), New Jersey (2007), New Mexico (2009), Illinois (2011), and Maryland (2013). Death Penalty Information Center, "States with and without the Death Penalty,” supra.

Death Penalty Information Center, "States with and without the Death Penalty,” available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited July 27, 2015).

Even within those jurisdictions where it remains legal, "use of the death penalty (in terms of executions and especially death sentences) has declined significantly in recent years.” C. Steiker & J. Steiker, Report to the American Law Institute Concerning Capital Punishment, in A.L.I., Report of the Council to the Membership of the American Law Institute on the Matter of the Death Penalty (April 15, 2009) annex B, p. 2. The total number of executions carried out nationally has fallen by more than 60 percent from the post-Furman peak of 1999, dropping from 98 in 1999 to 39 in 2013, and then falling again to 35—a 20 year low—in 2014. Of the 35 executions carried out in 2014, approximately 90 percent occurred in just four states: Texas, Missouri, Florida, and Oklahoma.

Death Penalty Information Center, "Executions by Year Since 1976,” available at http://www.deathpenaltyinfo.org/executions-year (last visited July 27, 2015).

Death Penalty Information Center, "Execution List 2014,” available at http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27, 2015).

"Nationwide death sentences have dropped even more precipitously”; id.; falling from modern era highs of more than 300 annually in the mid–1990s to modern era lows of 85 or fewer since 2011. The number of death sentences imposed in 2014, 73, was by far the lowest in the post-Furman era. That same year, Governor Jay Inslee of the state of Washington imposed a moratorium on the carrying out of the death penalty in that state, and Governor Martin O'Malley of the state of Maryland announced his intention to commute all remaining death sentences for those inmates in the state's prison system to life without parole. The latter decision, reached after Maryland's attorney general called into question the legality of carrying out previously imposed death sentences, effectively transforms Maryland's prospective only repeal into a full abolition of the death penalty. Notably, by 2012, less than 2 percent of the nation's counties accounted for all of the death sentences imposed nationwide. Glossip v. Gross, –––U.S. ––––, 135 S.Ct. 2726, 2761, 192 L.Ed.2d 761 (2015) (Breyer, J., dissenting).

Death Penalty Information Center, "Death Sentences in the United States from 1977 by State and by Year,” available at http://www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

Death Penalty Information Center, "Death Sentences in the United States from 1977 by State and by Year,” available at http://www.deathpenaltyinfo.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

See "Gov. Jay Inslee Announces Capital Punishment Moratorium” (February 11, 2014), available at http://www.governor.wa.gov/news-media/gov-jay-inslee-announces-capital-punishment-moratorium (last visited July 27, 2015).

A. Blinder, "Life Sentences for Last Four Facing Death in Maryland,” N.Y. Times, January 1, 2015, p. A12.

When we interpret the protections afforded under the state constitution, trends and norms in our neighboring New England states, with which Connecticut shares a cultural and historical affinity, can be especially pertinent. See, e.g., State v. Rizzo, supra, 303 Conn. at 204 n. 4, 31 A.3d 1094 (Norcott, J., dissenting) (emphasizing in 2011 that New Hampshire was only New England state other than Connecticut with death penalty); cf. State v. James, 237 Conn. 390, 452, 678 A.2d 1338 (1996) (Berdon, J., dissenting) (noting that "[e]very state but one in the northeast ha[d] adopted a standard of proof in excess of the preponderance of the evidence to determine the voluntariness of a confession”).In the case of capital punishment, the regional disparities are both instructive in their character and striking in their magnitude. Of approximately 1400 executions carried out nationwide since 1976, nearly two thirds have been performed in just 5 states, and Texas alone accounts for more than 37 percent of the total. Ten states have accounted for 83 percent of the post-Furman executions in the country. The geographic concentration of those executions is remarkable. The thirteen states that comprised the Confederacy have carried out more than 75 percent of the nation's executions over the past four decades. Adding in Oklahoma and Arizona—not yet states at the time of the civil war—brings the total to nearly 90 percent. In stark contrast, the six New England states have carried out a combined total of one execution since 1976. Adding in New York, New Jersey, and Pennsylvania, the nine northeastern states have accounted for less than one-third of 1 percent of the nation's post-Furman executions. Connecticut's execution of Ross has been the only execution in the entire Northeast in the new millennium.

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

The thirteen states are Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Tennessee, Texas, and Virginia.

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

Death Penalty Information Center, "Number of Executions by State and Region Since 1976,” available at http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last visited July 27, 2015).

In fact, only a few northeastern states still permit capital punishment. The death penalty was abolished by Maine in 1887, Vermont in 1964, Massachusetts and Rhode Island in 1984, and New York and New Jersey in 2007. Following Connecticut's prospective abolition of the death penalty in 2012, New Hampshire is the only remaining New England state in which new death sentences may be imposed. No one has been executed in New Hampshire since 1939, however, and it does not even have an operational death chamber. Accordingly, Connecticut now stands as an outlier, the sole remaining New England state in which execution remains a legal and potentially viable option.

Death Penalty Information Center, "States with and without the Death Penalty,” available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited July 27, 2015).

Death Penalty Information Center, "New Hampshire,” available at http://deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015).

Death Penalty Information Center, "New Hampshire,” available at http://deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015). In May 2014, the New Hampshire House of Representatives approved a bill that would have repealed the death penalty, but the New Hampshire Senate deadlocked. See Death Penalty Information Center, "News,” available at http://deathpenaltyinfo.org/news/past/99/2014 (last visited July 27, 2015).

Some scholars have gone so far as to suggest that these pronounced geographic disparities in the legality and use of the death penalty may be more than mere happenstance. See C. Steiker & J. Steiker, supra, at pp. 28–29 (referencing "broad scholarly literature ... point [ing] to the fact that executions are overwhelmingly confined to the South [and states bordering the South], the very same jurisdictions that were last to abandon slavery and segregation, and that were most resistant to the federal enforcement of civil rights norms”).

E

Opinions and Recommendations of Professional Associations

The United States Supreme Court also has looked to the opinions of "respected professional organizations,” such as the American Law Institute, to help illuminate "civilized standards of decency” in the capital punishment context. Thompson v. Oklahoma, supra, 487 U.S. at 830, 108 S.Ct. 2687 ; accord Hall v. Florida, supra, 134 S.Ct. at 1994–95 (relying on American Psychological Association). Indeed, when the United States Supreme Court effectively reinstated the death penalty in Gregg, it relied heavily on the American Law Institute's work in developing Model Penal Code § 210.6 for its determination that juror discretion can be sufficiently cabined to avoid arbitrary and capricious imposition of the death penalty. See Gregg v. Georgia, supra, 428 U.S. at 193–95, 96 S.Ct. 2909 (opinion announcing judgment); see also B. Newton, " The Slow Wheels of Furman's Machinery of Death,” 13 J.App. Prac. & Process 41, 47 (2012).

The American Law Institute no longer holds out such hopes. During the hearings on P.A. 12–5, the legislature heard testimony that, following a two year study commissioned by the American Law Institute, unequivocal conclusions were reached regarding the modern death penalty: "[A] review of the unsuccessful efforts to constitutionally regulate the death penalty, the difficulties that continue to undermine its administration, and the structural and institutional obstacles to curing those ills forms the basis of our recommendation to the [American Law] Institute. The [long-standing] recognition of these underlying defects in the capital justice process, the inability of extensive constitutional regulation to redress those defects, and the immense structural barriers to meaningful improvement all counsel strongly against the Institute's undertaking a law reform project on capital punishment, either in the form of a new draft of § 210.6 or a more extensive set of proposals. Rather, these conditions strongly suggest that the Institute recognize that the preconditions for an adequately administered regime of capital punishment do not currently exist and cannot reasonably be expected to be achieved. ” (Emphasis added.) C. Steiker & J. Steiker, supra, at p. 49 ; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2923, written testimony of Chief Public Defender Susan O. Storey. On the basis of those conclusions, and consistent with the recommendations to the American Law Institute, in 2009, § 210.6 was withdrawn. Members of the American Law Institute opted not to develop a revised or replacement model death penalty statute, in light of their concerns that "real-world constraints make it impossible for the death penalty to be administered in ways that satisfy norms of fairness and process.” A.L.I., supra, at p. 5.

We are compelled to agree. In his concurrence in Furman, Justice Brennan observed that the "acceptability of a severe punishment is measured, not by its availability, for it might become so offensive to society as never to be inflicted, but by its use.” Furman v. Georgia, supra, 408 U.S. at 279, 92 S.Ct. 2726 (Brennan, J., concurring). In passing P.A. 12–5, the legislature simply has acknowledged and formalized what has become apparent in Connecticut, among our sister New England states, and throughout the industrialized world for more than one-half century. Although some opinion polls continue to reflect public support for the death penalty in theory, in practice, our state has proved increasingly unwilling and unable to impose and carry out the ultimate punishment. "The evolution of this punishment,” Justice Brennan observed, "evidences, not that it is an inevitable part of the American scene, but that it has proved progressively more troublesome to the national conscience.” Id., at 299, 92 S.Ct. 2726 (Brennan, J., concurring).

In Rizzo II, the defendant, Todd Rizzo, offered public opinion polling data for this court's consideration as another purported source of evidence regarding contemporary standards of decency. See State v. Rizzo, supra, 303 Conn. at 194–95, 31 A.3d 1094. Chief Justice Rogers, writing for the court in that case, properly rejected the relevance of such information, "recogniz[ing] the weaknesses inherent in public opinion polls as objective measures of the popular psyche....” Id., at 195, 31 A.3d 1094.

Now, in a stark about-face, Chief Justice Rogers criticizes the majority for not focusing on the question of whether a majority of Connecticut citizens, as gauged by public opinion polls, currently believe that the death penalty is immoral. She then proceeds to cite to various opinion polls, polls that demonstrate, at best, that a slim and shrinking majority of Connecticut registered voters continue to support the death penalty. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2623, remarks of Senator Edwin A. Gomes (reciting polling data and concluding therefrom that "[t]he public [has] ... soured on the death penalty”).


Chief Justice Rogers simply ignores the fundamental principle that "[t]he right to be free [from] cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote.... The very purpose of a [b]ill of [r]ights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” (Internal quotation marks omitted.) Furman v. Georgia, supra, 408 U.S. at 268–69, 92 S.Ct. 2726 (Brennan, J., concurring). "The [f]ramers were well acquainted with the danger of subjecting the determination of the rights of one person to the tyranny of shifting majorities.” (Internal quotation marks omitted.) Immigration & Naturalization Service v. Chadha, 462 U.S. 919, 961, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (Powell, J., concurring in the judgment). That same principle animates article first of the constitution of Connecticut. It never has been the practice of this court to define the scope of our fundamental liberties according to a "popularity contest,” and we will not begin to do so now. See Volusia County Kennel Club, Inc. v. Haggard, 73 So.2d 884, 898 (Fla.) ("If popularity contests ever become the criteria for determining the validity of law, the uncontrolled will of the mob will become the substitute for constitutional government. It seems superfluous to say that a poll to ascertain public opinion should never be the necessary prerequisite to a judicial opinion under our constitutional system for the administration of [j]ustice.”), cert. denied sub nom. Lane v. Volusia County Kennel Club, Inc., 348 U.S. 865, 75 S.Ct. 87, 99 L.Ed. 681 (1954) ; Gillis v. Yount, 748 S.W.2d 357, 369 (Ky.1988) (Leibson, J., concurring) ("[c]onstitutional validity is not decided by a popularity contest”).



F

Conclusion

In conclusion, we are aware that the issue of whether the death penalty is an appropriate punishment for the most heinous crimes is one about which people of good faith continue to disagree. Nevertheless, our review of the five objective indicia that have been deemed relevant under both the federal and state constitutions compels the conclusion that, following the enactment of P.A. 12–5, Connecticut's capital punishment scheme no longer comports with our state's contemporary standards of decency. It therefore offends the state constitutional prohibition against excessive and disproportionate punishment.

As we have recognized, society's standards of decency need not always evolve in the same direction. We express no opinion as to the circumstances under which a reviewing court might conclude, on the basis of a revision to our state's capital felony statutes or other change in these indicia, that capital punishment again comports with Connecticut's standards of decency and, therefore, passes constitutional muster. See Fleming v. Zant, supra, 259 Ga. at 690, 386 S.E.2d 339 (conclusion that prospective repeal of death penalty as to mentally disabled offenders rendered execution of such individuals impermissibly cruel and unusual punishment did not amount to "per se” prohibition).

In her dissenting opinion, Chief Justice Rogers accuses the majority of, among other things, cherry picking its sources, improperly advocating for certain political agendas, imposing its personal moral beliefs and policy preferences on the people of Connecticut, disregarding this court's precedents, and usurping the legislature's power. If Chief Justice Rogers truly believes that we have arrived at this conclusion by "relying solely on [our] own views” about capital punishment; footnote 33 of Chief Justice Rogers' dissenting opinion; and merely because "it offends [our own] subjective sense of morality,” it is only because she herself has refused either to consider or to recognize the import of the words of our elected officials, the actions of our jurors and prosecutors, the story of our history, the path trodden by our sister states, and the overwhelming evidence that our society no longer considers the death penalty to be necessary or appropriate. In any event, we do not question the sincerity or good faith of Chief Justice Rogers' views, and we find it unfortunate that she deems it necessary to question ours. Although it should go without saying, we feel compelled to emphasize that we, no less than the dissenting justices, have decided this case on the basis of our understanding of and dedication to the governing legal principles, and our decision should in no way be taken as an indication of our personal views with respect to the morality of capital punishment.

III

THE DEATH PENALTY IS DEVOID OF ANY LEGITIMATE PENOLOGICAL JUSTIFICATIONS

As the constitution requires, we next consider whether, on the basis of our independent review of the available evidence executing those individuals who committed capital felonies prior to the enactment of P.A. 12–5 would serve any legitimate penological purpose. In light of the history and desuetude of the death penalty in Connecticut over the past one-half century, culminating in its prospective abolition in 2012, we conclude that capital punishment no longer measurably contributes to any legitimate penological goal.

Enforcing the criminal law means marshaling the awesome coercive power of the state to deprive its own citizens of the life, liberty, or property to which they are otherwise naturally entitled. See, e.g., Stutson v. United States, 516 U.S. 193, 196, 116 S.Ct. 600, 133 L.Ed.2d 571 (1996) ; State v. Vumback, 247 Conn. 929, 933, 719 A.2d 1172 (1998) (Berdon, J., dissenting from the denial of certification to appeal). The death penalty represents the most extreme exercise of this power. See, e.g., State v. Rizzo, supra, 266 Conn. at 227, 833 A.2d 363. Such a deprivation must, of course, be justified, and society traditionally has recognized four principal justifications for the imposition of criminal sanctions. Criminal penalties may be imposed (1) to deter the perpetrator and others from committing crimes (deterrence), (2) to punish the perpetrator and give voice to the moral outrage experienced by the victim and society at large (retribution), (3) to prevent the perpetrator from committing additional offenses (incapacitation), or (4) to transform the perpetrator into a better, more law-abiding citizen (rehabilitation). See, e.g., Graham v. Florida, supra, 560 U.S. at 71–74, 130 S.Ct. 2011. "A sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.” Id., at 71, 130 S.Ct. 2011. Neither the federal nor the state constitution will permit the imposition of a sanction "so totally without penological justification that it results in the gratuitous infliction of suffering.” Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. 2909 (opinion announcing judgment).In the case of the death penalty, the punishment itself terminates any opportunity for rehabilitation. Hall v. Florida, supra, 134 S.Ct. at 1992–93. Moreover, execution, as compared to life in prison without the possibility of release, offers minimal additional value by way of incapacitation. See Spaziano v. Florida, 468 U.S. 447, 461, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (noting that "incapacitation has never been embraced as a sufficient justification for the death penalty”). Accordingly, it is generally accepted that, if capital punishment is to be morally and legally justified, it must be based on the deterrent or retributive value of executions. E.g., Kennedy v. Louisiana, supra, 554 U.S. at 441, 128 S.Ct. 2641 ; Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. 2909 (opinion announcing judgment). Unless the imposition of the death penalty "measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” (Emphasis added; internal quotation marks omitted.) Atkins v. Virginia, supra, 536 U.S. at 319, 122 S.Ct. 2242. "At the moment that [the death penalty] ceases realistically to further these purposes ... its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the [s]tate would be patently excessive and cruel and unusual....” Furman v. Georgia, supra, 408 U.S. at 312, 92 S.Ct. 2726 (White, J., concurring).

There is presumably some de minimus incapacitative value to the death penalty in that one in prison for life may still escape or offend against other inmates and prison staff.

We previously have acknowledged that "the value of [a criminal sanction], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures....” (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197, 31 A.3d 1094. We also have recognized, however, that this assessment "is not exclusively the domain of the legislature, and that this court has an independent duty to determine that the penalty remains constitutionally viable as the sensibilities of our citizens evolve.” Id.; see also part IV C of this opinion. Deference to legislative assessments is least warranted, and judicial scrutiny must be especially exacting, when, as in the present case, the policy judgments embodied in the relevant legislation are ambiguous. Upon close consideration of the arguments and the available research, and particularly in light of the legislature's decision to abolish capital punishment for all future crimes, we conclude that the death penalty no longer measurably contributes to the penological goals of deterrence or retribution. We consider each in turn.

Public Act 12–5 simultaneously abolished the death penalty for all crimes committed on or after April 25, 2012, while preserving it for identical crimes committed prior to that date. The act contains no statement of policy or underlying findings purporting to explain the rationale therefor.

A

Deterrence

Turning first to deterrence, we observe that it is clear that, with the passage of P.A. 12–5, any deterrent value the death penalty may have had no longer exists. As Justice Harper explained in his dissent in Santiago I: "The ultimate test of this deterrence claim is whether the state, by executing some of its citizens, better achieves the unquestionably legitimate goal of discouraging others from committing similar crimes. As a general matter, the empirical evidence regarding deterrence is inconclusive. Following the abolition of the death penalty for all future offenses committed in Connecticut, however, it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.” (Emphasis omitted; footnote omitted.) State v. Santiago, supra, 305 Conn. at 320–21, 49 A.3d 566 (Harper, J., concurring in part and dissenting in part).

In her dissenting opinion, Chief Justice Rogers rejects Justice Harper's commonsense conclusion that once the legislature enacts a high profile repeal of a punishment, that punishment no longer serves as a deterrent. Rather, she contends, by maintaining capital punishment for offenders sentenced to death before the enactment of P.A. 12–5, the state can send a "message” to potential offenders that the laws are stable and will be enforced as written. This, she believes, can strengthen the deterrent force of all penal laws.

As authority for this theory, Chief Justice Rogers relies on public statements made by Professor Barry, as well as a brief, conclusory citation to People v. Floyd, 31 Cal.4th 179, 191, 72 P.3d 820, 1 Cal.Rptr.3d 885 (2003). There is no indication what empirical evidence, if any, supports this novel theory of deterrence.

We very much doubt that the citizens of Connecticut, learning that the death penalty has been abolished, will somehow infer that they can now rape, pillage, and exceed the speed limits with impunity. In fact, during the legislative hearings on P.A. 12–5, a member of the Judiciary Committee rejected the suggestion that the legislature was adopting a prospective only repeal "to convince people that the government is really serious about carrying out its penalties.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2781–82, remarks of Representative Arthur J. O'Neill (responding to law student who proposed that solely prospective repeal could be justified on basis of deterrence).

In any event, the horse that Chief Justice Rogers seeks to corral has long since left the barn. Of the more than 4000 individuals who have committed murder in Connecticut since the death penalty was reinstated four decades ago, only one has been executed, and then only after he demanded that the state carry out his death sentence. L. Goodheart, supra, at pp. 228, 230–31. The overwhelming majority of killers are not sentenced to death. As we discuss more fully hereinafter, those who are sentenced to death routinely spend decades on death row, and there is every reason to believe that they would die there, outlived by their various appeals and habeas petitions. Chief Justice Rogers fails to explain how it is that this system of unexecuted capital punishment promotes a respect for the law or leads our citizens to expect that the state will carry out prescribed punishments as written.

Even if the legislature had not prospectively abolished the death penalty, it would appear that capital punishment, as administered in Connecticut in the post-Furman era, has failed to demonstrate a sufficient deterrent effect to justify continued state imposed killing. Although some studies have purported to document a deterrent effect, "the majority of social science research on the issue concludes that the death penalty has no effect on the homicide rate.” D. Beschle, "Why Do People Support Capital Punishment? The Death Penalty as Community Ritual,” 33 Conn. L.Rev. 765, 768 (2001). A principal reason for this failure of deterrence appears to be the substantial delays involved in actually carrying out a sentence of death. The number of potential state and federal postconviction remedies available, the range and complexity of legal issues involved in capital appeals, and the multiple stages of review mean that at least one decade typically passes from capital crime to execution, and delays of twenty years or more are not at all uncommon. See, e.g., A. Kozinski & S. Gallagher, " Death: The Ultimate Run–On Sentence,” 46 Case W. Res. L.Rev. 1, 10–11, 17 (1995). The delays, moreover, appear to be getting longer. Of the thirty-five offenders executed in the United States in 2014, only one had been on death row for less than one decade, and the average time from sentencing to execution exceeded seventeen years. The situation is no different in Connecticut. Of the eight men sentenced to death in the state between 1987 and 2007 whose sentences were not later overturned, only one has been executed. Ross was executed by lethal injection in 2005, eighteen years after sentencing, and then only after he voluntarily abandoned further legal challenges. L. Goodheart, supra, at pp. 228, 230–31, 246. Of the eleven men currently on death row in Connecticut, one has been awaiting execution for twenty-five years, two others for nearly that long, and one for twenty years.

See, e.g., I. Ehrlich, "The Deterrent Effect of Capital Punishment: A Question of Life and Death,” 65 Am. Econ. Rev. 397, 397–98 (1975); M. Frakes & M. Harding, "The Deterrent Effect of Death Penalty Eligibility: Evidence from the Adoption of Child Murder Eligibility Factors,” 11 Am. L. & Econ. Rev. 451, 494–95 (2009); C. Sunstein & A. Vermeule, "Is Capital Punishment Morally Required? Acts, Omissions, and Life–Life Tradeoffs,” 58 Stan. L.Rev. 703, 706 (2005).

See generally J. Donohue & J. Wolfers, "Uses and Abuses of Empirical Evidence in the Death Penalty Debate,” 58 Stan. L.Rev. 791 (2005) (questioning reliability of existing data on deterrence); J. Fagan, "Death and Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment,” 4 Ohio St. J.Crim. L. 255 (2006) (concluding that there is no reliable evidence of deterrence and that studies demonstrating deterrent effect are fraught with error); M. Radelet & T. Lacock, "Do Executions Lower Homicide Rates?: The Views of Leading Criminologists,” 99 J.Crim. L. & Criminology 489 (2009) (overwhelming consensus among criminologists is that death penalty does not add any significant deterrent effect above that of long-term imprisonment).

See Death Penalty Information Center, "Execution List 2014,” available at http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27, 2015); see also B. Newton, supra, 13 J.App. Prac. & Process at 42 (average time from sentencing to execution is close to twenty years when postappeal resentencings are taken into account).

"The deterrent value of any punishment is, of course, related to the promptness with which it is inflicted.” Coleman v. Balkcom, 451 U.S. 949, 952, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981) (Stevens, J., concurring in the denial of certiorari); see also Gomez v. Fierro, 519 U.S. 918, 918, 117 S.Ct. 285, 136 L.Ed.2d 204 (1996) (Stevens, J., dissenting) ("[d]elay in the execution of judgments imposing the death penalty frustrates the public interest in deterrence and eviscerates the only rational justification for that type of punishment”); Furman v. Georgia, supra, 408 U.S. at 302, 92 S.Ct. 2726 (Brennan, J., concurring) ("[a] rational person contemplating a murder or rape is confronted, not with the certainty of a speedy death, but with the slightest possibility that he will be executed in the distant future”); Jones v. Chappell, 31 F.Supp.3d 1050, 1064 (C.D.Cal.2014) (law and common sense dictate that "long delays preceding execution frustrate whatever deterrent effect the death penalty may have”); People v. Anderson, supra, 6 Cal.3d at 652, 100 Cal.Rptr. 152, 493 P.2d 880 ("capital punishment can have a significant deterrent effect only if the punishment is swiftly and certainly exacted”); L. Powell, commentary, " Capital Punishment,” 102 Harv. L.Rev. 1035, 1035 (1989) ("years of delay between sentencing and execution ... [undermine] the deterrent effect of capital punishment and [reduce] public confidence in the criminal justice system”). Even prior to the enactment of P.A. 12–5, the fact that one who commits the most heinous of crimes can expect to spend decades in prison prior to any execution suggests that capital punishment promises little if any deterrence over and above life imprisonment. The legislature heard extensive expert testimony to this effect when considering P.A. 12–5, and numerous legislators cited the lack of a deterrent effect as a justification for their decision to abolish the death penalty. Indeed, Chief State's Attorney Kane, who represents the state in this and all other death penalty cases, acknowledged in public testimony that there is insufficient evidence to conclude that capital punishment deters crime. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2623 ("I don't know if I'd even go so far as to say [the death penalty] might well be a deterrent because the studies are mixed. I'm not ready [to say that the] ... answer is clear enough to justify that as a reason for having the death penalty.”).

To the extent that the dissenting justices contend that such delays are constitutionally irrelevant because they are the fault of criminal defendants, who improperly delay their executions by filing frivolous appeals and post-conviction challenges, we cannot agree. As Justice Breyer explained in his dissenting opinion in Glossip v. Gross, supra, 135 S.Ct. at 2726, between 1973 and 1995, state and federal courts found errors in more than two thirds of the capital cases that they reviewed. Id., at 2771 (Breyer, J., dissenting). Delays, then, are indispensable if the ultimate punishment is to be reliably applied, and, if the constitution did not mandate such close scrutiny, the execution of innocent persons would inevitably result. See id., at 2771–72 (Breyer, J., dissenting); see also Kyles v. Whitley, 514 U.S. 419, 422, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("[o]ur duty to search for constitutional error with painstaking care is never more exacting than it is in a capital case” [internal quotation marks omitted] ).

See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2783, remarks of Representative Arthur J. O'Neill ("the record here was replete with the proponents of getting rid of capital punishment saying it has no deterrent effect”); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 595, remarks of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 670, remarks of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., pp. 764–65, remarks of Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 775, remarks of Senator Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., p. 783, remarks of Senator Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., p. 813, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2515, remarks of Senator Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2546, remarks of Senator Martin M. Looney; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2622, remarks of Senator Edwin A. Gomes; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2660–61, remarks of Hartford Police Chief Daryl K. Roberts; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2687, remarks of Professor Khalilah Brown Dean; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2825, remarks of Representative Gary A. Holder–Winfield.

In addition, aside from the inevitable delays, the sheer rarity with which death sentences are imposed and carried out in Connecticut—and, indeed, the entire northeastern United States—suggests that any conceivable deterrent value will be far less than in a state like Texas, for example, which carries out executions on a regular basis. "[C]ommon sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.” Furman v. Georgia, supra, 408 U.S. at 312, 92 S.Ct. 2726 (White, J., concurring). Judge Alex Kozinski of the Ninth Circuit Court of Appeals puts the problem most plainly: "Rather than go through the competing considerations, let's cut to the meat of the coconut. The death penalty, as we now administer it, has no deterrent value because it is imposed so infrequently and so freakishly. To get executed in America these days you have to be not only a truly nasty person, but also very, very unlucky....” A. Kozinski & S. Gallagher, supra, 46 Case W. Res. L.Rev. at 25.

Our legislature's adoption of P.A. 12–5 underscores this state's historical and profound ambivalence with respect to the death penalty, and is further reason to believe that, even if we were to sustain its constitutionality, the delays in the administration of our capital sentencing scheme would not abate. On the contrary, as we previously noted, no state or nation ever has executed someone after a prospective only repeal of the death penalty. See, e.g., State v. Santiago, Conn. Supreme Court Records & Briefs, April Term, 2013, Amicus Brief of legal historians and scholars p. 1. Whether death has been belayed by executive clemency or simple public aversion, it universally has been considered unseemly to carry out an execution after the people's representatives have expressed their will that the sentence of death no longer shall be imposed. Accordingly, Connecticut's prospective repeal of capital punishment provides strong reason to believe that those persons currently on death row never will be executed. In any event, in light of the passage of P.A. 12–5, and in the absence of any indication that the death penalty, as administered in this state, has forestalled the commission of capital crimes, it is apparent that capital punishment no longer serves any meaningful deterrent function in Connecticut. B

Although concededly somewhat anecdotal, it bears mention that the one execution that was carried out in Connecticut over the past fifty years does not appear to have had any beneficial impact on the state's murder rate. In fact, the opposite may be true. In the three years prior to Ross' 2005 execution, an average of 102 murders were committed annually in Connecticut, a figure that is actually inflated by virtue of the inclusion of sixteen deaths resulting from a single nursing home arson. Crimes Analysis Unit, Department of Emergency Services & Public Protection, "Crime in Connecticut: January–December 2011” (2013) p. 11, available at http://www.dpsdata.ct.gov/dps/ucr/data/2011/Crime% 20In% 20Connecticut% 20-COMPLETE% 202011.pdf (last visited July 27, 2015). By contrast, from 2006 through 2008, an average of 124 murders were committed per annum; id.; a 22 percent increase.

We also note that murder rates actually fell in the wake of the mid–2012 abolition of the death penalty. The number of reported murders in the state's largest urban areas fell by more than 33 percent in the first half of 2013, as compared to the first half of 2012. See Federal Bureau of Investigation, "Crime in the United States 2013: January–June Preliminary Semiannual Uniform Crime Report,” Table 4, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/preliminary-semiannual-uniform-crime-report-january-june-2013/tables/table-4-cuts/table_4_offenses_reported_to_law_enforcement_by_state_colorado_through_idaho_2013.xls (last visited July 27, 2015). In fact, the most recent available statewide statistics indicate that the rates of every major category of violent crime declined from 2012 to 2013. See Federal Bureau of Investigation, "Crime in the United States 2013,” Table 4, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.2013/tables/4tabledatadecoverviewpdf/table_4_crime_in_the_united_states_by_region_geographic_division_and_state_2012-2013.xls (last visited July 27, 2015).



Retribution

The second commonly articulated rationale for the death penalty is that, regardless of whether capital punishment provides any tangible benefits such as deterrence, incapacitation, or rehabilitation, it is a justified moral response to a heinous crime such as the one committed by the defendant in the present case. This retributive function of the criminal law has been expressed in varying terms: giving the offender his "just deserts”; providing a sense of restoration and closure to victims and their families; expressing society's outrage at the crime and denunciation of the perpetrator; and, more philosophically, restoring balance to the moral order.

Both this court and the federal courts have recognized that, as society has evolved and matured, the erstwhile importance of retribution as a goal of and justification for criminal sanctions has waned. See, e.g., State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183 (1986) (agreeing with observation of United States Supreme Court that reformation and rehabilitation of offenders, rather than retribution, has become primary goal of criminal jurisprudence). Over time, "our society has moved away from public and painful retribution toward ever more humane forms of punishment.” Baze v. Rees, supra, 553 U.S. at 80, 128 S.Ct. 1520 (Stevens, J., concurring in the judgment). In addition, the United States Supreme Court has cautioned that, of the valid justifications for punishment, "retribution ... most often can contradict the law's own ends. This is of particular concern ... in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” Kennedy v. Louisiana, supra, 554 U.S. at 420, 128 S.Ct. 2641. Accordingly, "[r]etribution is no longer the dominant objective of the criminal law.” Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).

Critics of the death penalty have articulated in passionate and persuasive terms why, in their view, it can never be morally appropriate for the state to kill one of its own. See, e.g., District Attorney v. Watson, supra, 381 Mass. at 677–86, 411 N.E.2d 1274 (Liacos, J., concurring). On the other hand, we are sympathetic to the view, expressed by Justice Scalia, among many others, that, however barbaric a modern execution may seem, it pales in comparison to the suffering and trauma experienced by the victims and their families. See Callins v. Collins, 510 U.S. 1141, 1143, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Scalia, J., concurring in the denial of certiorari) ("How enviable a quiet death by lethal injection compared with that!”). Regardless of one's general beliefs about the morality of the death penalty, however, there are four reasons why capital punishment, as administered in Connecticut, simply does not serve a meaningful retributive purpose.

1

Legislative Judgments

First, as we previously discussed; see part II B of this opinion; the passage of P.A. 12–5 reflects a legislative judgment that capital punishment no longer serves a necessary moral function in our state. The retributive rationale for capital punishment always has been that the worst of the worst, those who commit especially heinous crimes, have thereby cut themselves off from the human community. See Roper v. Simmons, supra, 543 U.S. at 568, 125 S.Ct. 1183 ("[c]apital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution” [internal quotation marks omitted] ). In other words, execution is the ultimate form of ostracism. "[T]he decision that capital punishment may be the appropriate sanction in [such] extreme cases is an expression of the community's belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.” (Emphasis added.) Gregg v. Georgia, supra, 428 U.S. at 184, 96 S.Ct. 2909 (opinion announcing judgment).By prospectively repealing the death penalty, however, the legislature necessarily has made a determination that he who lives by the sword need not die by it; that life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes; and that we can express our moral outrage, mete out justice, bring some measure of solace to the families of the victims, and purge the blemish of murder on our community whilst the offender yet lives. If this is true, then, although the death penalty still might serve some minimal retributive function in Connecticut, it lacks any retributive justification. In other words, to whatever limited extent capital punishment may still further these retributive purposes, the legislature has determined that the death penalty is no longer necessary to achieve them. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2638, remarks of Representative Gary A. Holder–Winfield (if justice can be achieved in capital eligible case without death penalty, then it is unnecessary). Lacking such necessity, the death penalty in Connecticut has become unconstitutionally excessive. Cf. Furman v. Georgia, supra, 408 U.S. at 342, 92 S.Ct. 2726 (Marshall, J., concurring) (capital punishment unjustified when less severe penalties satisfy legitimate legislative goals). As Justice Brennan explained in his concurrence in Furman, "[w]hen the overwhelming number of criminals who commit capital crimes go to prison, it cannot be concluded that death serves the purpose of retribution more effectively than imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with the execution of a random few.” Id., at 304–305, 92 S.Ct. 2726 (Brennan, J., concurring).

2

Delays

The second reason the death penalty has lost its retributive mooring in Connecticut is that the lengthy if not interminable delays in carrying out capital sentences "do not just undermine the death penalty's deterrent effect; they also spoil its capacityfor satisfying retribution.” D. Garland, supra, at p. 45; see also Jones v. Chappell, supra, 31 F.Supp.3d at 1064. Of the eleven individuals awaiting execution in Connecticut, four have been there for more than twenty years, and several others for well over one decade. Nor is there any reasonable probability that anyone will be executed in this state for many years to come, given the availability of various appellate and postconviction remedies, as well as the historical reluctance—indeed, unwillingness—of our sister states and other countries to carry out executions after prospectively abolishing capital punishment. See State v. Santiago, Conn. Supreme Court Records & Briefs, April Term, 2013, Amicus Brief of legal historians and scholars p. 1. "[W]hen imposition of the [death] penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied.... Nor could it be said with confidence ... that community values are measurably reinforced by authorizing a penalty so rarely invoked.” Furman v. Georgia, supra, 408 U.S. at 311–12, 92 S.Ct. 2726 (White, J., concurring); see also Valle v. Florida, ––– U.S. ––––, 132 S.Ct. 1, 2, 180 L.Ed.2d 940 (2011) (Breyer, J., dissenting from the denial of stay of execution) ("I would ask how often [the] community's sense of retribution would forcefully insist [on] a death that comes only several decades after the crime was committed”); Lackey v. Texas, 514 U.S. 1045, 1045–46, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (mem. respecting the denial of certiorari) (expressing doubt whether execution following extended imprisonment satisfies state's interest in retribution); B. Newton, supra, 13 J.App. Prac. & Process at 65 ("systemic delays have undermined the legitimate purposes of capital punishment”); L. Powell, supra, 102 Harv. L.Rev. at 1041observing that retributive value of capital punishment diminishes as imposition of sentence becomes even farther removed from time of offense). As one federal court recently observed in holding that California's capital punishment scheme violates the eighth amendment, "for most [individuals on death row], systemic delay has made their execution so unlikely that the death sentence carefully and deliberately imposed by the jury has been quietly transformed into one no rational jury or legislature could ever impose: life in prison, with the remote possibility of death. As for the random few for whom execution does become a reality, they will have languished for so long on [d]eath [r]ow that their execution[s] will serve no retributive or deterrent purpose and will be arbitrary.” (Emphasis omitted.) Jones v. Chappell, supra, at 1053.

After such lengthy delays, scholars have questioned whether there can be any true retribution when the middle aged inmate who goes to the gallows bears little resemblance to the individual who offended years before: "The man you wanted to kill was the abusive robber, high on crack, who pistol-whipped and shot two customers at a [7–Eleven] store in 1984. Instead, in 1990, the state electrocutes a balding, religious, model prisoner in a neat blue-denim uniform.” (Internal quotation marks omitted.) D. Garland, supra, at pp. 45–46, quoting S. Gross, "The Romance of Revenge: Capital Punishment in America,” 13 Stud. L. Pol. & Society 71, 82 (1993); see also L. Powell, " Unraveling Criminal Statutes of Limitations,” 45 Am.Crim. L.Rev. 115, 130 (2008) ("[t]he passage of time may ... lead to profound changes in ... identity, arguably making punishment less deserved” [footnote omitted; internal quotation marks omitted] ). Even such staunch advocates of capital punishment as the German philosopher Immanuel Kant, the deacon of retributive justice, have recognized that the retributive value of the death penalty is not realized unless and until the actual execution is carried out. See, e.g., I. Kant, The Metaphysics of Morals (1991) p. 142; see also Coleman v. Balkcom, supra, 451 U.S. at 960, 101 S.Ct. 2031 (Rehnquist, J., dissenting from the denial of certiorari) ("[t]here can be little doubt that delay in the enforcement of capital punishment frustrates the purpose of retribution”).

What then remains of retribution when one who commits a heinous crime is not executed until after he has spent half a lifetime or more on death row, if ever? Unlike with deterrence, the retributive value of an execution defies easy definition and quantification, shrouded as retribution is in metaphysical notions of moral restoration and just deserts. What is clear, however, is that the most tangible retributive fruit of capital punishment—providing victims and their families with a sense of respite, empowerment, and closure—is grievously undermined by the interminable delays in carrying out the sentence imposed. "[I]n reality, rather than affording them a quick and final disposition of the case against the murderer, so that they may finalize the tragedy and begin rebuilding their lives, the capital punishment process often creates a second victimization of survivors. They must contend with repeated reminders about the murder during the protracted proceedings in which the death penalty's implementation is—usually unsuccessfully—sought.” R. Tabak & J. Lane, "The Execution of Injustice: A Cost and Lack–of–Benefit Analysis of the Death Penalty,” 23 Loy. L.A. L.Rev. 59, 129 (1989); see also Nichols v. Heidle, 725 F.3d 516, 559 (6th Cir.2013) (Martin, J., concurring) (noting, inter alia, protracted nature of death penalty cases, which, in turn, provides "no closure for the families of the victims”), cert. denied, ––– U.S. ––––, 135 S.Ct. 704, 190 L.Ed.2d 438 (2014). Psychologically, the capital punishment system actually may impede the healing process. R. Tabak & J. Lane, supra, at 131.Legislators heard substantial testimony to this effect when considering P.A. 12–5, with both mental health professionals and the relatives of individual murder victims speaking about the retraumatization that our capital punishment scheme often inflicts on victims' families. Many legislators cited such testimony as a basis for their decision to support the repeal of the death penalty, while at the same time recognizing that there are, of course, families who continue to seek the death penalty for the offenders who murdered their loved ones. Governor Malloy, upon signing the bill, shared the sentiments of one victim's survivor: "Now is the time to start the process of healing, a process that could have been started decades earlier with the finality of a life sentence. We cannot afford to put on hold the lives of these secondary victims. We need to allow them to find a way as early as possible to begin to live again.” (Internal quotation marks omitted.) Governor's Statement, supra.

See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2664–66, remarks of Anne Stone; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2835–37, remarks of Dawn Mancarella; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2845–47, remarks of Gail Canzano; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2861–63, remarks of Walter H. Everett; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2865–66, remarks of Victoria Coward; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2867–69, remarks of Jane Caron.

3

Possibility of Error

The third reason that capital punishment fails to satisfy the demands of retributive justice is the ever present danger of irreversible error. It is axiomatic that "the execution of a legally and factually innocent person would be a constitutionally intolerable event.” Herrera v. Collins, 506 U.S. 390, 419, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993) (O'Connor, J., concurring). Indeed, "[t]he execution of a person who can show [that] he is innocent comes perilously close to simple murder.” (Internal quotation marks omitted.) State v. Cobb, supra, 251 Conn. at 549, 743 A.2d 1 (Norcott, J., dissenting), quoting Herrera v. Collins, supra, at 446, 113 S.Ct. 853 (Blackmun, J., dissenting).

Unfortunately, numerous studies have found that "[e]rrors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence.” State v. Ross, supra, 230 Conn. at 315, 646 A.2d 1318 (Berdon, J., dissenting in part). A study of all death sentences in the United States in the two decades following Furman found "extremely high error rates”; A. Gelman et al., "A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States,” 1 J. Empirical Legal Stud. 209, 261 (2004); with at least two thirds of capital sentences eventually overturned on appeal. Id., at 209 ; see also D. Benson et al., "Executing the Innocent,” 3 Ala. C.R. & C.L. L.Rev., no. 2, 2013, 9 (placing number of exonerations since reinstatement of death penalty at 140); R. Tabak, " Finality Without Fairness: Why We Are Moving Towards Moratoria on Executions, and the Potential Abolition of Capital Punishment,” 33 Conn. L.Rev. 733, 748 (2001) (capital punishment system is "collapsing under the weight of its own mistakes” [internal quotation marks omitted] ). Statistical analyses have demonstrated to a near certainty that innocent Americans have been and will continue to be executed in the post-Furman era. See Glossip v. Gross, supra, 135 S.Ct. at 2756 (Breyer, J., dissenting) (citing "convincing evidence” that, "in the past three decades, innocent people have been executed”); id., at 2758 (Breyer, J., dissenting) (citing evidence that "about [4 percent] of those sentenced to death are actually innocent”); see also H. Bedau & M. Radelet, " Miscarriages of Justice in Potentially Capital Cases,” 40 Stan. L.Rev. 21, 36 (1987) (citing high rate of error in death penalty cases); D. Benson et al., supra, 3 Ala. C.R. & C.L. L.Rev. at 3 ("We know ... that [the] intolerable event [of executing an innocent person] takes place with some regularity in ... death penalty jurisdictions” [emphasis omitted] ); U. Bentele, " Does the Death Penalty, by Risking Execution of the Innocent, Violate Substantive Due Process?,” 40 Hous. L.Rev. 1359, 1365 (2004) ("[s]ince capital punishment was given a renewed seal of approval in 1976, more than [100] people have been sentenced to death [and have been] subsequently found to be innocent” [footnote omitted] ).

From a retributive standpoint, the problem is simple: "[m]istakes cannot be corrected after a person is executed.” State v. Ross, supra, 230 Conn. at 314, 646 A.2d 1318 (Berdon, J., dissenting in part). "We know that persons have been condemned who were innocent; we know that future scientific evidence can overturn the seemingly most safe of convictions; and we know that we could easily avoid such problems in adopting an alternative sanction, such as life imprisonment. Therefore, we knowingly, foreseeably, and avoidably sentence innocent people to death ... if we continue to endorse capital punishment....” T. Brooks, "Retribution and Capital Punishment,” in Retributivism: Essays on Theory and Practice (M. White ed., 2011) p. 238. Of course, all punishment is tainted by the possibility of error. Capital punishment, however, "is especially problematic. When we impose capital punishment on a convicted murderer, there cannot be any room for error since the murderer can never be brought back to life afterward if error is discovered at some later date. If there remains a substantial risk of error, as demonstrated by advances in scientific testing in cases [in which] a person has been sentenced beyond a reasonable doubt in a fair trial, then we have good reason on retributivist grounds to reject capital punishment in favor of an alternative sanction.” Id., at p. 237.

It was this risk of error that led Illinois Governor George Ryan in 2003 to commute the death sentences of that state's 167 death row inmates to life imprisonment without the possibility of parole. See J. Wilgoren, "Citing Issue of Fairness, Governor Clears Out Death Row in Illinois,” N.Y. Times, January 12, 2003, p. 1. Governor Ryan concluded that "[o]ur capital system is haunted by the demon of error....” (Internal quotation marks omitted.) Id. The possibility of executing an innocent person was also a principal concern voiced by both of Connecticut's elected branches in their support of P.A. 12–5. We do not suggest that anyone currently on death row in Connecticut has a potentially viable claim of actual innocence. In concluding that the death penalty is unconstitutional, however, we recognize that the legal and moral legitimacy of any future executions would be undermined by the ever present risk that an innocent person will be wrongly executed.

See Governor's Statement, supra ("I [have seen] people wrongly accused or mistakenly identified”); footnote 51 of this opinion and accompanying text.

It is perfectly reasonable to believe, however, that more than a few innocent defendants have been executed throughout our state's history. See, e.g., W. Holdsworth, supra, at p. 519 (as many as eleven people were hanged as witches in seventeenth century Connecticut).

We note that P.A. 12–5 does not prevent the state from seeking the death penalty for any future defendant who is accused of having committed a capital felony prior to April 25, 2012, and one defendant, Richard Roszkowski, was in fact sentenced to death in May, 2014; A. Griffin, "New Death Sentence,” Hartford Courant, May 23, 2014, pp. A1, A5; approximately two years after the enactment of P.A. 12–5.

4

Caprice and Bias

The fourth reason that our state's capital punishment system fails to achieve its retributive goals is that the selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias. "[T]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. at 71, 130 S.Ct. 2011. In other words, the death penalty must be equally available for similarly culpable offenders if a capital sentencing scheme is to fulfill a valid retributive purpose. To the extent that the ultimate punishment is imposed on an offender on the basis of impermissible considerations such as his, or his victim's, race, ethnicity, or socio-economic status, rather than the severity of his crime, his execution does not restore but, rather, tarnishes the moral order. See generally O. Londono, "A Retributive Critique of Racial Bias and Arbitrariness in Capital Punishment,” 44 J. Soc. Phil. 95 (2013); D. McDermott, "A Retributivist Argument against Capital Punishment,” 32 J. Soc. Phil. 317 (2001); S. Nathanson, "Does It Matter if the Death Penalty Is Arbitrarily Administered?,” 14 Phil. & Pub. Aff. 149 (1985).

The problem is that, as we previously noted, there is an inherent conflict in the requirements that the eighth amendment's ban on cruel and unusual punishment, as interpreted by the United States Supreme Court, imposes on any capital sentencing scheme. On the one hand, Furman and its progeny stand for the proposition that any capital punishment statute, to avoid arbitrariness and pass constitutional muster, must cabin the discretion of prosecutors, judges, and juries by providing clear guidelines as to what specific types of crimes are eligible for the punishment of death. In the context of capital murder—the sole remaining crime against an individual for which capital punishment may be imposed under the eighth amendment—that requirement has been interpreted to mean that statutes must identify specific aggravating factors that the fact finder must find before imposing the death penalty. See Tuilaepa v. California, supra, 512 U.S. at 971–73, 114 S.Ct. 2630. The ultimate punishment must be reserved for the very worst offenders, and may not be "wantonly [or] ... freakishly imposed.” Furman v. Georgia, supra, 408 U.S. at 310, 92 S.Ct. 2726 (Stewart, J., concurring). On the other hand, since it decided Woodson v. North Carolina, supra, 428 U.S. at 280, 96 S.Ct. 2978 and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the United States Supreme Court has not wavered in its commitment to the principle of individualized sentencing: juries must be afforded unlimited discretion to consider any mitigating factor—any unique characteristic of the crime, the criminal, or the victim—before imposing the death penalty. See Tuilaepa v. California, supra, at 972–73, 114 S.Ct. 2630. In other words, the discretion of the jury to accord the capital defendant mercy may not be confined or restricted in any way.

In Ross, we adopted these principles under the due process clauses of the state constitution. See State v. Ross, supra, 230 Conn. at 252, 646 A.2d 1318 (principles articulated by United States Supreme Court "require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to [ensure] that the death penalty is being imposed consistently and reliably and, on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant's character or record as well as the circumstances of the particular offense”); see also State v. Rizzo, supra, 266 Conn. at 227, 833 A.2d 363 (same).

The question is whether this individualized sentencing requirement inevitably allows in through the back door the same sorts of caprice and freakishness that the court sought to exclude in Furman, or, worse, whether individualized sentencing necessarily opens the door to racial and ethnic discrimination in capital sentencing. In other words, is it ever possible to eliminate arbitrary and discriminatory application of capital punishment through a more precise and restrictive definition of capital crimes if prosecutors always remain free not to seek the death penalty for a particular defendant, and juries not to impose it, for any reason whatsoever? We do not believe that it is.

Justice Norcott has long expressed his profound concern that, "[a]s long as racial prejudice is a factor in our lives, and it is an undeniable factor in every facet of American life, there can be no place for a capital penalty in our society.” State v. Webb, supra, 238 Conn. at 570, 680 A.2d 147 (Norcott, J., dissenting); see also State v. Cobb, supra, 251 Conn. at 545–46, 743 A.2d 1 (Norcott, J., dissenting) ("I am convinced that the arbitrariness inherent in the sentencer's discretion is intensified by the issue of race”). In their concurring opinion, Justices Norcott and McDonald refer to what now appears to be strong evidence demonstrating that impermissible racial and ethnic disparities have, in fact, permeated this state's capital sentencing scheme. We decline to address or resolve such claims, however, because they are not before us at this time.

We fail to discern the contradiction that Chief Justice Rogers apparently sees in recognizing that the citizens of Connecticut, as a people, have traditionally been at the forefront in adopting a more modern and humane system of criminal justice; see part I B of this opinion; while at the same time acknowledging that the decisions of individual jurors and prosecutors may at times be tainted by the same sorts of subconscious biases and prejudices with which all of us wrestle. Cf. United States v. Mulkis, 39 F.2d 664, 664 (W.D.Wn.1930) ("surely there is not a righteous man [on] earth that doeth good and sinneth not” [internal quotation marks omitted] ).

We begin by observing that the United States Supreme Court itself has expressed serious doubts as to whether its own commandments can be reconciled. In Tuilaepa, the court recognized that "[t]he objectives of these two inquiries can be in some tension....” Id., at 973, 114 S.Ct. 2630. Fourteen years later, in Kennedy, the court again acknowledged that "[t]he tension between general rules and case-specific circumstances has produced results not altogether satisfactory.” Kennedy v. Louisiana, supra, 554 U.S. at 436, 128 S.Ct. 2641. "Our response to this case law,” the court frankly conceded, "is still in search of a unifying principle....” Id., at 437, 128 S.Ct. 2641 ; see also Turner v. Murray, 476 U.S. 28, 35, 106 S.Ct. 1683, 90 L.Ed.2d 27 (1986) (plurality opinion) ("[b]ecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate”).

In fact, in the four decades since the United States Supreme Court struck down the death penalty (as then applied) in Furman and then resuscitated it four years later in Gregg, at least one-half dozen members of that court—jurists of all jurisprudential stripes—have concluded that the demands of Furman, on the one hand, and of Woodson and Lockett, on the other, are, ultimately, irreconcilable. In Furman itself, of the five concurring justices, two (Justices Brennan and Marshall) took the position that capital punishment is so inherently arbitrary as to constitute cruel and unusual punishment under all circumstances, and a third (Justice Douglas) opined that any nonmandatory capital sentencing scheme would be inherently subject to discrimination and hence unconstitutional. See Furman v. Georgia, supra, 408 U.S. at 255, 92 S.Ct. 2726 (Douglas, J., concurring) ("we know that the discretion of judges and juries in imposing the death penalty enables the penalty to be selectively applied, feeding prejudices against the accused if he is poor and despised, and lacking political clout, or if he is a member of a suspect or unpopular minority, and saving those who by social position may be in a more protected position”); id., at 294, 92 S.Ct. 2726 (Brennan, J., concurring) ("[n]o one has yet suggested a rational basis that could differentiate ... the few who die from the many who go to prison”); id., at 365, 92 S.Ct. 2726 (Marshall, J., concurring) ("committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is ... an open invitation to discrimination” [internal quotation marks omitted] ).

Justice Marshall elaborated on this "fundamental defect” in the court's eighth amendment jurisprudence in Godfrey v. Georgia, supra, 446 U.S. at 420, 100 S.Ct. 1759 : "[A]ppellate courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the [c]ourt contemplated and hoped for in Gregg. The disgraceful distorting effects of racial discrimination and poverty continue to be painfully visible in the imposition of death sentences.... The task of eliminating arbitrariness in the infliction of capital punishment is proving to be one which our criminal justice system—and perhaps any criminal justice system—is unable to perform....

"The ... inability to administer ... capital punishment ... in an evenhanded fashion is ... symptomatic of a deeper problem that is proving to be genuinely intractable....

"[T]he task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. For this reason, I remain hopeful that even if the [c]ourt is unwilling to accept the view that the death penalty is so barbaric that it is in all circumstances cruel and unusual punishment forbidden by the [e]ighth and [f]ourteenth [a]mendments, it may eventually conclude that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether.” (Citations omitted; footnotes omitted.) Id., at 439–42, 100 S.Ct. 1759 (Marshall, J., concurring in the judgment). Both Justices Stevens and Blackmun have reached similar conclusions. See Baze v. Rees, supra, 553 U.S. at 85, 128 S.Ct. 1520 (Stevens, J., concurring in the judgment) ("[a] ... significant concern is the risk of discriminatory application of the death penalty”); Tuilaepa v. California, supra, 512 U.S. at 991–92, 114 S.Ct. 2630 (Blackmun, J., dissenting) ("One of the greatest evils of leaving jurors with largely unguided discretion is the risk that this discretion will be exercised on the basis of constitutionally impermissible considerations—primary among them, race.... For far too many jurors, the most important 'circumstances of the crime’ are the race of the victim or the defendant.” [Citations omitted.] ).

Justice Scalia, while drawing a different legal conclusion than his more liberal brethren, has been no less persuaded by the premise that the United States Supreme Court's Furman and Woodson/Lockett lines of jurisprudence are fundamentally incompatible: "Our cases proudly announce that the [c]onstitution effectively prohibits the [s]tates from excluding from the sentencing decision any aspect of a defendant's character or record, or any circumstance surrounding the crime: that the defendant had a poor and deprived childhood, or that he had a rich and spoiled childhood; that he had a great love for the victim's race, or that he had a pathological hatred for the victim's race; that he has limited mental capacity, or that he has a brilliant mind which can make a great contribution to society; that he was kind to his mother, or that he despised his mother.” (Emphasis in original.) Walton v. Arizona, 497 U.S. 639, 663, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990) (Scalia, J., concurring in part and concurring in the judgment), overruled in part on other grounds by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). "To acknowledge that there perhaps is an inherent tension between this line of cases and the line stemming from Furman, ” Justice Scalia continued, "is rather like saying that there was perhaps an inherent tension between the [a]llies and the Axis Powers in World War II. And to refer to the two lines as pursuing twin objectives ... is rather like referring to the twin objectives of good and evil. They cannot be reconciled.... The latter requirement quite obviously destroys whatever rationality and predictability the former requirement was designed to achieve.” (Citations omitted; internal quotation marks omitted.) Walton v. Arizona, supra, at 664–65, 110 S.Ct. 3047 (Scalia, J., concurring in part and concurring in the judgment). "In short, the practice which in Furman had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required.” Id., at 662, 98 S.Ct. 2954 (Scalia, J., concurring in part and concurring in the judgment).Since we decided Ross in 1994, four members of this court likewise have concluded that the degree of fact finder discretion required by the federal constitution means that the death penalty in Connecticut has been and inevitably will continue to be imposed with a degree of discrimination that is impermissible under the state constitution. See State v. Santiago, supra, 305 Conn. at 324, 49 A.3d 566 (Harper, J., concurring in part and dissenting in part) ("invidious discrimination ... pave[s] a smoother path to execution for a subset of the population”); State v. Peeler, 271 Conn. 338, 466, 857 A.2d 808 (2004) (Katz, J., dissenting) ("[w]e have not eliminated the biases and prejudices that infect society generally; therefore, it should not be surprising that such problems continue to influence the determination of who is sentenced to death, even within the narrower pool of death-eligible defendants selected according to so-called objective standards”), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005) ; State v. Breton, supra, 264 Conn. at 447, 824 A.2d 778 (Norcott, J., dissenting) ("[t]he passage of a few [years'] time has done nothing to blunt the pervasive and insidious influence of race and poverty in the administration of the death penalty”); State v. Webb, supra, 238 Conn. at 557, 680 A.2d 147 (Berdon, J., dissenting) ("the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it—and the death penalty—must be abandoned altogether” [internal quotation marks omitted] ); State v. Webb, supra, at 570, 680 A.2d 147 (Norcott, J., dissenting) ("the continual legislative and judicial efforts to bring about a real sense of fairness in the imposition of the death penalty are delusional endeavors”); see also State v. Breton, 212 Conn. 258, 281, 562 A.2d 1060 (1989) (Glass, J., dissenting) (expressing skepticism that state constitution "tolerates a certain amount of capriciousness in the application of the death penalty”). As Justice Norcott first put it nearly twenty years ago, there can be no death penalty scheme "adequate to cure the influence of arbitrariness and race in the overall equation that results in the imposition of death.” State v. Webb, supra, at 570, 680 A.2d 147 (Norcott, J., dissenting).

Similar concerns also have been expressed by legal scholars. See, e.g., D. Garland, supra, at p. 12 ("capital punishment in the United States subsists—inescapably—in a miasma of race” [internal quotation marks omitted] ); S. Bright, " Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” 35 Santa Clara L.Rev. 433, 434 (1995) ("race and poverty continue to determine who dies”); G. Dix, "Appellate Review of the Decision to Impose Death,” 68 Geo. L.J. 97, 161 (1979) (concluding that Gregg and its companion cases "mandate pursuit of an impossible goal”). In 1973, former Yale Law School Dean Louis H. Pollak, testifying regarding the legislature's efforts to craft anew post-Furman capital murder statute, opined that "[t]he conclusion that this [b]ill is unconstitutional is not a criticism of the drafters, it is rather a recognition that they were undertaking a constitutional impossibility. Maintaining the idea of a death sentence while [e]nsuring that it would in practice almost never be imposed, the result necessarily is not merely [that] death sentence[s] would be rarities but that those rarities would occur wantonly and freakishly and hence, unconstitutionally.” (Internal quotation marks omitted.) 16 S. Proc., Pt. 4, 1973 Sess., p. 1892.

After thoroughly reviewing the operation of Connecticut's capital sentencing scheme over the past four decades, we are persuaded that these critiques are well founded and that the opportunity for the exercise of unfettered discretion at key decision points in the process has meant that the ultimate punishment has not been reserved for the worst of the worst offenders. There is no doubt that our death row has counted among its residents the perpetrators of some of the most heinous crimes in Connecticut history. It is equally clear, however, that the process of selecting offenders for execution has been both under inclusive and over inclusive. Many who commit truly horrific crimes are spared, whereas certain defendants whose crimes are, by all objective measures, less brutal are condemned to death. The defendant in the present case is, perhaps, the clearest example. He shot the sole victim, an adult white male, in his sleep, killing him instantly. The defendant had no prior criminal convictions. And yet, of the seventeen offenders convicted of committing capital eligible murders for hire in the state since 1973, Eduardo Santiago was the only one sentenced to death. To the extent that the population of death row has been chosen on grounds other than the atrocity of the offenders' crimes, this would undermine all confidence that capital punishment, as applied, is morally proportionate and serves a legitimate retributive function in Connecticut.

See J. Donohue, "Capital Punishment in Connecticut, 1973–2007: A Comprehensive Evaluation from 4686 Murders to One Execution,” pp. 130–31, 143, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1095&context=john_donohue (last visited July 27, 2015).

Once again, these concerns were at the forefront for the legislators who supported P.A. 12–5; see footnote 50 of this opinion and accompanying text; and for Governor Malloy when he signed the act. See Governor's Statement, supra ("In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it's a good system designed with the highest ideals of our democratic society in mind, like most of human experience, it is subject to the fallibility of those who participate in it. I saw people who were poorly served by their counsel. I saw people wrongly accused or mistakenly identified. I saw discrimination. In bearing witness to those things, I came to believe that doing away with the death penalty was the only way to ensure it would not be unfairly imposed.”).

C

Vengeance

Finally, it bears emphasizing that, to the extent that the statutory history of P.A. 12–5 reveals anything with respect to the legislature's purpose in prospectively abolishing the death penalty while retaining it for the handful of individuals now on death row, it is that the primary rationale for this dichotomy was neither deterrence nor retribution but, rather, vengeance—the Hyde to retribution's Jekyll. Vengeance, unlike retribution, is personal in nature; it is motivated by emotion, and may even relish in the suffering of the offender. See R. Nozick, Philosophical Explanations (1981) p. 367. Accordingly, vengeance traditionally has not been considered a constitutionally permissible justification for criminal sanctions. See Ford v. Wainwright, 477 U.S. 399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) (finding no retributive value in "the barbarity of exacting mindless vengeance”). On the contrary, "[i]t is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.” Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977) (plurality opinion).

There are, no doubt, cases in which the line between a principled commitment to retributive justice and an impermissible acquiescence to private vengeance is a gray one. There is every indication, however, that P.A. 12–5 was crafted primarily to maintain the possibility of executing two particular offenders—the much reviled perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire's Petit family. K. Barry, supra, 35 Cardozo L.Rev. at 1837–38. In suggesting that the legislators who voted in favor of a solely prospective repeal of the death penalty were equally committed to executing the defendant in the present case and other inmates on Connecticut's death row, Chief Justice Rogers ignores the overwhelming evidence that the perpetrators in the Cheshire case, Joshua Komisarjevsky and Steven Hayes, were the principal targets of the decision to retain the death penalty retroactively. There is certainly no question what

Legislators who supported P.A. 12–5 and those who opposed it agreed that public outrage at the perpetrators in the Cheshire case in particular was a primary reason the act was drafted to retain the death penalty retroactively. See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 539, remarks of Senator Kissel ("there's no political will to abolish the death penalty because of those two”); 55 S. Proc., Pt. 3, 2012 Sess., p. 675, remarks of Senator Toni Boucher ("the Petit family ... is behind the whole rational[e] for making this prospective”); 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator Kissel ("Hayes and ... Komisarjevsky ... [are] why it's almost impossible to get a bill through this [l]egislature right now that would repeal the death penalty across the board”); 55 S. Proc., Pt. 3, 2012 Sess., p. 746, remarks of Senator Len Suzio ("some members actually changed their vote only a year ago in response to the horrible [Petit] tragedy”); 55 S. Proc., Pt. 3, 2012 Sess., p. 781, remarks of Senator Edith Prague (opposed repeal out of respect for William Petit); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1043, remarks of Representative Lawrence F. Cafero, Jr. ("It is no secret that what is weighing over all of us is the Petit murders.... In fact, it was widely reported that one of the reasons this General Assembly didn't take this bill up earlier was because of the freshness of those awful crimes.”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1063, remarks of Representative Al Adinolfi ("many people in this room ... have changed ... their vote to abolish the death penalty rather than vote against abolishing the death penalty based on [those] ... who are on death row being executed, especially, Komisarjevsky and Hayes”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1209, remarks of Representative Themis Klarides ("[I]f anyone deserves the death penalty, those two guys deserve the death penalty because what they did [was] so bad. We don't really support it for anybody else going forward [however]....”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1305, remarks of Representative Ernest Hewett (addressing "members who are voting for a prospective bill so they can make sure that Hayes and Komisarjevsky get the death penalty”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1317, remarks of Representative Lile R. Gibbons ("[i]n the wake of the terrible Petit murders, it's very hard for any of us to want to vote to repeal the death penalty”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1337, remarks of Representative Robert C. Sampson ("We've talked a lot tonight about the murders in Cheshire. The two people—the two men that committed those acts of violence are not men at all. They are animals. And I don't want to let them off the hook....”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1383, remarks of Representative Lawrence F. Cafero, Jr. ("in many respects it's because of [Hayes and Komisarjevsky] that we have the bill that we have before us”); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2544, remarks of Senator Martin M. Looney (legislature deferred consideration of repeal in 2011 due to Cheshire case).

By contrast, every legislator whom Chief Justice Rogers cites as having been equally committed to executing the other residents of death row voted against P.A. 12–5, and would have retained the death penalty both retroactively and prospectively. Their principled views, while no less deserving of respect, are simply not relevant to the question before us: whether those legislators who voted to abolish capital punishment only on the condition that it be retained for those already occupying death row did so out of a principled belief in the appropriateness of the death penalty or, rather, to satisfy a public or private call for vengeance against the perpetrators in the Cheshire case.



motivated one state senator, who opined that " '[t]hey should bypass the trial [in the Cheshire case] and take that second animal and hang him by his penis from a tree out in the middle of Main Street....’ ”

B. Connors, "Prague: 'Hang the Animal By His ...’,” NBC Connecticut (May 12, 2011), quoting Senator Edith Prague, available at http://www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-by-His-121670559.html (last visited July 27, 2015).

It has been suggested that it would be a morally permissible "sacrifice” for Connecticut to allow those men currently on death row to be executed so as to hasten the abolition of capital punishment in other jurisdictions. K. Barry, " From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual Abolition of the Death Penalty,” 66 Fla. L.Rev. 313, 325 (2014). Such judgments are not for us to make. We can say, however, that it would not be constitutionally permissible to execute the defendant in the present case, and others similarly situated, without any legitimate penological purpose, merely to achieve the politically popular end of killing two especially notorious inmates.

D

Conclusion

For all of these reasons, the death penalty no longer serves any legitimate penological goal in our state. As Judge Kozinski concludes, "we have little more than an illusion of a death penalty in this country. To be sure, we have capital trials; we have convictions and death sentences imposed; we have endless and massively costly reviews by the state and federal courts; and we do have a small number of people executed each year. But the number of executions compared to the number of people who have been sentenced to death is minuscule, and the gap is widening every year. Whatever purposes the death penalty is said to serve—deterrence, retribution, assuaging the pain suffered by victims' families—these purposes are not served by the system as it now operates.” (Footnotes omitted.) A. Kozinski & S. Gallagher, supra, 46 Case W. Res. L.Rev. at 3–4. We therefore conclude that, following the enactment of P.A. 12–5, capital punishment also violates article first, §§ 8 and 9, of the Connecticut constitution because it no longer serves any legitimate penological purpose.

Because we conclude both that the continued imposition of the death penalty in Connecticut following the enactment of P.A. 12–5 offends contemporary standards of decency and that it fails to satisfy any legitimate penological objective, we need not determine whether it has come to be so rarely imposed that it also violates the state constitutional prohibition on unusual punishment. As we discussed; see footnote 16 of this opinion; the United States Supreme Court has at times suggested that the eighth amendment may contain an independent prohibition against punishments that are unusual, even if they are not cruel. Recent scholarship supports this interpretation and suggests that, especially in light of the enactment of P.A. 12–5, the death penalty in Connecticut has become impermissibly unusual. See R. Casale & J. Katz, "Would Executing Death–Sentenced Prisoners after the Repeal of the Death Penalty Be Unusually Cruel under the Eighth Amendment?,” 86 Conn. B.J. 329, 341, 344–45 (2012). For example, Professor John F. Stinneford has observed that, under the original meaning of unusual punishment, "when a traditional [common-law] punishment falls completely out of usage, it loses the presumption of validity that comes with being usual,” and attempts to reintroduce it would be met with as much or more scrutiny as entirely novel punishments. J. Stinneford, "The Original Meaning of 'Unusual’: The Eighth Amendment as a Bar to Cruel Innovation,” 102 Nw. U.L.Rev. 1739, 1746, 1813 (2008). This reflects the principle that, "[a]s courts decide cases year after year and century after century, impractical and unjust legal practices fall away like dross, while practical and just ones survive”; J. Stinneford, supra, at 1775 ; and may apply with equal force to punishments eliminated by legislative reform. See id., at 1814. This interpretation of the constitutional ban on unusual punishment also is consistent with Connecticut common law in the years leading up to the adoption of the 1818 constitution. See, e.g., State v. Smith, supra, 5 Day (Conn.) at 178–79 (reviewing claim that punishment was new or "novel, without precedent”); L. Goodheart, supra, at pp. 68, 76–77 (in 1808, legislature voted to commute death sentence of Clarissa Ockry, who otherwise would have been first woman executed in Connecticut for infanticide since 1753).

IV

RESPONSE TO THE DISSENTING JUSTICES

Lastly, we take this opportunity to address briefly certain general arguments that the dissenting justices have raised. Although we recognize and respect that their opinions are grounded in a principled and commendable commitment to judicial restraint, we find them to be unpersuasive and, in a few instances, somewhat troubling.

A

Whether the Questions Decided Are Properly before the Court

We first address Chief Justice Rogers' argument that some of the issues, evidence, and arguments considered in this opinion are not properly before this court. Specifically, she contends that (1) some of the arguments that we consider in this opinion never were raised by the defendant, (2) the parties were not afforded an adequate opportunity to brief the issues addressed in this opinion, and (3) the majority relies on research and statistics that are not properly the subject of judicial notice. We consider each argument in turn.

1

Arguments Allegedly Not Raised by the Defendant

Chief Justice Rogers first contends that we improperly have considered certain arguments that the defendant himself has not raised. For example, she contends that the defendant did not adequately preserve the arguments that (1) the death penalty is rarely imposed in Connecticut, (2) the death penalty has slowly fallen out of use in Connecticut, and (3) other states recently have abolished the death penalty, while respected professional organizations, such as the American Law Institute, no longer support its use. We are not persuaded by this contention.

We begin by noting that the defendant indisputably preserved the claim that, following the enactment of P.A. 12–5, the death penalty now offends the state constitution in that it (1) fails to comport with contemporary standards of decency, and (2) is now devoid of any legitimate penological value. We recognized as much in our initial decision in this case; see State v. Santiago, supra, 305 Conn. at 307–308 n. 167, 49 A.3d 566 ; and, on reconsideration, the defendant dedicates pages of discussion to this claim in his supplemental briefs. Indeed, his argument on reconsideration begins with the statement that "[P.A. 12–5] represents the considered judgment of our legislature and governor that the death penalty is no longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.” That is precisely the issue that we have considered in parts II and III of this opinion.

Although Justice Zarella contends otherwise, we disagree for the reasons stated in this opinion.

Chief Justice Rogers' objection, then, is merely that the defendant did not brief the issue in sufficient depth, and, specifically, that he did not expressly address certain facts and factors—the accuracy of which is not reasonably in dispute—on which we rely in this opinion. Her view appears to be that, even though a significant change in the legal landscape, such as the prospective repeal of the death penalty, may warrant a full review of whether that punishment remains consistent with contemporary standards of decency, and even though that analysis necessarily encompasses the consideration of various factors and historical developments that this court and other courts have considered in past cases involving challenges to the death penalty on other grounds, we may take those factors into consideration in the present case only if the defendant fully briefs each of them anew. This makes little sense.

In the present case, the defendant, in his initial appeal, submitted an opening brief of nearly 300 pages, in which he raised more than twenty distinct legal claims. He also submitted a 122 page reply brief, as well as more than 2000 pages of appendices. Upon our grant of reconsideration, he submitted approximately 200 more pages of briefing and appendices, addressing new legal claims. The state, of course, responded with many hundreds of pages of its own briefing and appendices.

Rather than exhaustively brief every aspect of the question of whether capital punishment now offends the state constitution, the defendant chose instead to focus on the impact of the enactment of P.A. 12–5 on that question, and to incorporate by reference the other factors that this court has considered at length in previous capital appeals. The state, in rejecting the defendant's constitutional claim, likewise relied primarily on references to our prior cases. We can only assume that this choice represented a calculated decision, by both parties, that, with their briefs already taking up more than a ream of paper, resources—both natural and judicial—would be better addressed to the novel issues presented by the defendant's case, and that we had more than sufficient resources at our disposal to allow us to fully review the present constitutionality of capital punishment in a thorough and comprehensive manner. This decision was perfectly reasonable.

The approach that Chief Justice Rogers advocates would force counsel representing defendants in capital appeals to make a Hobson's choice. When, as in the present case, this court previously has rejected a constitutional claim, counsel either would have to (1) forgo that and related claims for all subsequent capital defendants, or (2) fully brief each aspect of the issue in each capital appeal, repeatedly addressing every potential argument, legal theory, and constitutional fact that this court might find relevant or persuasive, on the mere possibility that we might agree that intervening developments warrant a fresh consideration of the issue or present novel grounds for finding a constitutional violation. If counsel followed the first path, we would be precluded from ever revisiting important constitutional questions, even those where, as in the case of cruel and unusual punishment, the legal standard itself envisions that punishments once permissible may over time come to offend the constitution. If counsel followed the second path, capital appeals, which are already deplorably prolonged, expensive, and resource intensive, would grow even more so. Forcing such a choice would be both unwise and unjust.

Rather, we believe that appellate counsel in the present appeal made a prudent and appropriate decision to raise, and thereby preserve, the constitutional claim; to submit thoughtful and informative supplemental briefing to address those novel questions and key developments for which we concluded that additional briefing would be helpful; and, with respect to paths already traveled, simply to direct our attention to prior cases in which potentially relevant factors have been more fully vetted. Under the particular circumstances of this capital appeal, nothing more was required.

Although it might have been helpful for the defendant himself to review the additional historical information that has come to light over the past several years, his failure to do so does not preclude our consideration of information revealed from our own independent research. See part IV A 3 of this opinion.

For the same reasons, it would be inappropriate to arbitrarily restrict our analysis of the constitutionality of capital punishment to those facts and circumstances that have been identified expressly by the parties. In fact, although we generally do not consider claims or issues that the parties themselves have not raised; see, e.g., Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d 840 (2014) ; in cases too numerous to mention, we have considered arguments or factors pertaining to those claims or issues that were not expressly identified by the parties. See id., at 148, 84 A.3d 840 ("when [a case] is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law” [internal quotation marks omitted] ); cf. Rowe v. Superior Court, 289 Conn. 649, 661–63, 960 A.2d 256 (2008) (concluding that defendant had preserved issue for appeal because theories related to single legal claim even though defendant had not raised each theory at trial); Vine v. Zoning Board of Appeals, 281 Conn. 553, 569, 916 A.2d 5 (2007) (addressing alternative ground for affirmance that was not raised at trial because, inter alia, issue was "closely intertwined” with certified question); Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 322–23, 714 A.2d 1230 (1998) (considering argument that defendants raised because court already was obliged to perform full and thorough review of trial court's decision on contested issue of insurance coverage and defendants' argument did not raise entirely new issue). This is especially so when plenary consideration is necessary to thoroughly address and accurately decide constitutional claims and other matters of substantial public importance, our resolution of which will surely redound to the benefit or detriment of parties not presently before the court.

Furthermore, the critiques that Chief Justice Rogers levels are particularly ill suited to the present case. As Chief Justice Rogers herself acknowledges, it is well established that, before ruling on the constitutionality of a challenged mode of punishment, a court must conduct its own independent review to determine whether that punishment remains suitable to the crime and continues to serve any legitimate penological objective. ] See, e.g., State v. Rizzo, supra, 303 Conn. at 197, 31 A.3d 1094 ; see also Graham v. Florida, supra, 560 U.S. at 80, 130 S.Ct. 2011 ; Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242. It would be difficult, if not impossible, for us to fulfill our constitutional duty in this regard if we were barred from considering basic factual questions such as how frequently the punishment is imposed or whether its ongoing use retains the approval of our sister states, legal scholars, and other sources of persuasive authority. We routinely look to such sources when deciding legal questions of first impression—often with regrettably sparse assistance from the parties' briefing—and we see no reason why the scope of our review should be more fettered when deciding significant constitutional questions. This is especially true in capital cases, in which courts routinely, and quite properly, provide accommodations not always afforded in other, less compelling circumstances. See State v. Cobb, 234 Conn. 735, 763, 663 A.2d 948 (1995) ( "the nature of the defendant's claim of systemic racial bias, and the seriousness and finality of the death penalty, counsel against raising any undue procedural barriers to review of such a claim”).

See part IV C of this opinion.

2

Opportunity for Briefing

Chief Justice Rogers next contends that it was improper for the court to consider the issues that we have decided without first affording the parties a full opportunity to brief them. We disagree. The truth is that the parties did have the opportunity to brief the issue of whether the death penalty now violates the state constitution. As we have explained, each party made what we presume to be a calculated and reasonable decision to focus its argument on the legal consequences of the enactment of P.A. 12–5 and the novel questions presented thereby, and, in essence, to incorporate by reference our prior decisions, both majority and dissenting opinions, that address, in the context of either per se or as applied challenges, other constitutionally relevant factors. The purpose of our preservation requirements—"to ensure fair notice of a party's claims to both the trial court and opposing parties”—was thereby satisfied. White v. Mazda Motor of America, Inc., 313 Conn. 610, 620, 99 A.3d 1079 (2014).

Nor do we believe that, in so doing, the parties deprived this court of the opportunity to perform its constitutionally mandated independent review of the death penalty in a fully informed manner. These are matters about which courts, historians, legal scholars, and social scientists have written extensively, both in Connecticut and nationally. The relevant legislative history and constitutional facts are properly subject to judicial notice. The legal arguments are well trodden and not unfamiliar to us. After a decade of appeals in this case, and several previous rounds of supplemental briefing, our priority now must be to provide the parties, the victims' families, and the people of Connecticut with some measure of clarity and resolution.

3

Extra–Record Materials

Chief Justice Rogers also maintains that we have relied on extra-record materials that, she argues, are not properly the subject of judicial notice. Again, we disagree.

Although finding the adjudicative facts that concern the parties and events of a particular case is largely the province of the jury—or the trial court in cases tried to the court—appellate courts tasked with determining the content of law and policy may take notice of constitutional and legislative facts, such as historical sources and scientific and sociological studies. See footnote 44 of this opinion. It is well established that "[t]he intellectual legitimacy of [judicial decisions in which the court takes notice of legislative facts to ascertain constitutional norms] turns [on] the actual truth-content of the legislative facts taken into account by the judges who propound the decision. While not necessarily indisputably true, it would appear that these legislative facts must at least appear to be more likely than not true if the opinion is going to have the requisite intellectual legitimacy [on] which the authority of judge-made rules is ultimately founded.” (Emphasis added.) 2 K. Broun, McCormick on Evidence (7th Ed.2013) § 331, pp. 612–13. Although Chief Justice Rogers accuses the majority of relying on "cherry picked,” extra-record materials; footnote 30 of Chief Justice Rogers' dissenting opinion; she never specifically explains why she thinks the sources on which the majority relies, taken together, fail to satisfy this "more likely than not true” standard. 2 K. Broun, supra, § 331, at p. 613. She is unable to point to any methodological flaws in the social science and other research studies cited in this opinion, to challenge the authors' qualifications, or to direct our attention to any conflicting research of equal quality and breadth. She fails to cite to any sources that undermine the meticulous historical research provided by Collier, Connecticut's state historian, or Holdsworth's voluminous review of early Connecticut legal history, or Professor Goodheart's award winning treatise. Nor is there any suggestion that the death penalty statistics that we have presented are inaccurate or misleading. In reality, the sociological research and historical facts on which we rely far exceed the governing more likely than not true standard, and they are not subject to reasonable dispute.

It is also noteworthy that the authorities on which Chief Justice Rogers relies for the proposition that legislative fact-finding by appellate courts is improper include a law review article that begins by lamenting that "[m]any of the [United States] Supreme Court's most significant decisions turn on questions of [legislative] fact.” A. Larsen, " Confronting Supreme Court Fact Finding,” 98 Va. L.Rev. 1255, 1255 (2012). To be clear, then, Chief Justice Rogers' complaint is not that the majority uses social science research in a manner that appellate courts ordinarily do not but merely that she and a handful of law professors personally disapprove of this common practice.

The sources on which Chief Justice Rogers relies contend that legislative fact-finding by appellate tribunals is subject to bias and error, and that it deprives the parties of the opportunity to participate fully in the adversarial truth seeking process. There is no doubt that appellate review of legislative facts, as with virtually every other form of truth seeking in which human beings engage, can be an imperfect process. Ultimately, however, the practice has been approved and adopted because there simply is no better alternative. Appellate courts frequently are called on to make quasi-legislative policy judgments, whether in crafting state common law, construing open-ended constitutional and statutory mandates, or simply determining whether a particular interpretation of a statute would "lead to absurd consequences or bizarre results.” (Internal quotation marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 703, 12 A.3d 783 (2011). These policy judgments often hinge on facts about the world in which we live, facts the study of which is the domain of natural and social scientists. See 2 K. Broun, supra, § 331, at pp. 610–15. If we were to follow the counsel of Chief Justice Rogers, and submit every such question to the crucible of adversarial fact-finding in a trial court, the wheels of justice would quickly grind to a halt.

To respond that appellate courts simply should refuse to consider or address any questions of legislative fact that have not already been fully vetted by the parties at the trial level is to miss the point. When a court considers a legislative fact, it typically is because that fact is central to a question of policy the necessary determination of which will broadly impact persons who are not parties to the immediate dispute. To turn a blind eye to relevant and well established scientific or sociological knowledge that the parties may have overlooked or decided to leave unearthed, whether for strategic or financial reasons, would unjustly and unwisely subject the public at large to the results of an ill-informed decision.

Ultimately, and most importantly, Chief Justice Rogers, having criticized our consideration of extra-record materials, fails to identify so much as a single statistic or historical fact cited in this opinion that she believes is subject to reasonable dispute. Accordingly, having carefully considered Chief Justice Rogers' arguments, we continue to have every confidence that the constitutional and legislative facts on which we rely are a proper subject of judicial notice, are more likely than not true, and paint an accurate picture of the historical and contemporary record of capital punishment in Connecticut and the United States.

B

Connecticut's Historical Acceptance of Capital Punishment

We next address the argument of the dissenting justices that capital punishment cannot now offend the constitution of Connecticut because (1) there are references to capital punishment in the text of both the 1818 and 1965 state constitutions, (2) the framers of the 1818 constitution believed that the death penalty was an appropriate punishment for the most serious crimes, and (3) in 1965, the constitutional convention declined to adopt a constitutional provision that would have prohibited capital punishment. The premises of the dissents' argument are undoubtedly true. The conclusion is not.

It is certainly the case that, although Connecticut has steadily reduced the number of crimes subject to capital punishment over the past four centuries, the death penalty has continued during that period to be authorized by statute, and it is referenced in our state constitution. There also is little doubt that the framers of the state constitution considered the death penalty to be an acceptable form of punishment, under certain circumstances and if properly applied. Although the dissenting justices reiterate these facts throughout their opinions, they fail to explain exactly how our state's historical acceptance of the death penalty answers the primary question presented by this appeal, namely, whether, following the enactment of P.A. 12–5, capital punishment now constitutes excessive and disproportionate punishment when viewed through the lens of our state's contemporary standards of decency.

As we have explained, the constitutionally relevant inquiry is whether the death penalty, as currently administered in Connecticut, and following the enactment of P.A. 12–5, offends our state's evolving standards of decency, and whether that punishment continues to satisfy any legitimate penological objective. Although the fact that the death penalty was considered acceptable 50 or 200 years ago might be relevant to a challenge contending that capital punishment is inherently unconstitutional; see State v. Ross, supra, 230 Conn. at 249–50, 646 A.2d 1318 ; it says little about whether capital punishment is constitutional today, in light of our legislature's most recent pronouncement on the issue, and given what we now understand and what our elected officials have determined regarding capital punishment's lack of deterrent value, the potential for irredeemable error, a pattern of persistently arbitrary and discriminatory application, and our state's inability to administer the death penalty in a way that affords closure and solace to the families of the victims.

As the Supreme Court of California has recognized, incidental references to the death penalty in a state constitution merely acknowledge that the penalty was in use at the time of drafting; they do not forever enshrine the death penalty's constitutional status as standards of decency continue to evolve: "It has been suggested that we are ... restrained from considering whether capital punishment is proscribed by [the state constitutional prohibition against cruel and unusual punishment] since the death penalty is expressly or impliedly recognized in several other provisions of the California constitution. We perceive no possible conflict or repugnance between those provisions ... however, for none of the incidental references to the death penalty purport to give its existence constitutional stature. They do no more than recognize its existence at the time of their adoption. Thus, the bail clause of [the California constitution] restricts the right to bail in capital cases ... [and] the due process clause ... ensures that life will not be taken without due process.... None of these provisions can be construed as an affirmative exemption of capital punishment from the compass of the cruel or unusual punishment clause of [the California constitution].” (Footnote omitted.) People v. Anderson, supra, 6 Cal.3d at 637–38, 100 Cal.Rptr. 152, 493 P.2d 880. The United States Supreme Court likewise has indicated that the mere fact that the federal constitution makes reference to capital crimes does not mean that contemporary standards of decency may not evolve to the point that the death penalty is no longer constitutionally permissible. See Gregg v. Georgia, supra, 428 U.S. at 176–82, 96 S.Ct. 2909 (opinion announcing judgment).

It may well be that, at bottom, the opposition of the dissenting justices reflects their disapproval of the evolving standards of decency test itself, a legal standard according to which a penalty that once passed constitutional muster may, within a relatively brief span of time, come to be deemed cruel and unusual. See, e.g., Roper v. Simmons, supra, 543 U.S. at 574–75, 578, 125 S.Ct. 1183 (overruling Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 [ (1989) ], in prohibiting execution of individuals who were under eighteen years old when they committed capital crime); Atkins v. Virginia, supra, 536 U.S. at 321, 122 S.Ct. 2242 (overruling Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 [ (1989) ], in holding that execution of intellectually disabled individuals is unconstitutional). But that is the law of the land, both federally and in Connecticut. In the case of the death penalty, the past several years have witnessed dramatic changes in the legal landscape, most significant of which was the decision by the elected branches to abolish capital punishment for all future offenses. Whatever role the death penalty may once have played in our system of justice, it is clear that our elected representatives, acting on behalf of the people of this state, have repudiated the death penalty as a sentencing option unworthy of continued support.

Of course, if the citizens of Connecticut wish to reinstate the death penalty, they may always amend the state constitution, as the citizens of California and Massachusetts did, to clarify that the punishment is and will remain constitutional notwithstanding any evolution in the state's standards of decency.

C

Whether Deference to the Legislature Requires That We Uphold P.A. 12–5

We next address the argument of the dissenting justices that, in holding that the death penalty now violates the constitution of Connecticut, we have failed to pay adequate deference to the will of the legislature. Each of the dissenting justices argues, in essence, that a reviewing court is bound to accept what the dissenting justices maintain to be the judgment of the legislature—that the death penalty comports with contemporary standards of decency and serves legitimate penological interests—and that to do otherwise is to usurp the proper role of the legislature in order to advance judges' personal moral agendas. We already have rejected this argument in State v. Ross, supra, 230 Conn. at 248–49, 646 A.2d 1318, however, recognizing that it fundamentally misunderstands the well established function and role of judicial review in the capital sentencing context.

See footnote 89 of this opinion.

We begin by reiterating that, although the legislature voted to abolish capital punishment on a solely prospective basis, this by no means reflects or embodies a determination that the death penalty remains consonant with contemporary standards of decency and continues to serve the goal of deterrence or retribution. The prospective nature of P.A. 12–5 instead appears to reflect a belief on the part of some legislators that prior commitments the state has made to relatives of murder victims justify the retention of capital punishment for use in those cases. Capital punishment may, in other words, simply be the lesser of two evils. Public Act 12–5 also likely reflects a purely political decision to placate the public's desire to exact vengeance on certain notorious inmates, while passing along to this court the task of finally decommissioning the state's machinery of death. There is abundant evidence in the legislative history to support both of these interpretations. See parts II B and III C of this opinion.

If we assume, for the sake of argument, however, that a majority of the legislature has in fact determined that capital punishment remains a morally acceptable punishment that serves legitimate penological interests, the question arises as to the proper scope of this court's review. It is well established that, under both the federal and state constitutions, a criminal sentence challenged as unconstitutionally excessive or disproportionate must undergo two stages of judicial review. First, the reviewing court determines whether the punishment offends contemporary standards of decency, as evidenced by the various factors discussed in part II of this opinion. Legislative enactments are one of those considerations, but certainly not the only one. Second, the court is required to exercise its own independent judgment as to whether the punishment remains suitable to the crime and continues to serve any legitimate penological purpose. As the United States Supreme Court explained in Atkins v. Virginia, supra, 536 U.S. at 304, 122 S.Ct. 2242 although the current legislative judgment is of great importance, "the [c]onstitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the [e]ighth [a]mendment.” (Internal quotation marks omitted.) Id., at 312, 122 S.Ct. 2242. A punishment, therefore, must satisfy both levels of review to survive constitutional scrutiny. Such scrutiny is especially critical in the present case because, to our knowledge, we are the first court in the modern era to comprehensively address the issue of whether the death penalty can remain consonant with society's evolving standards of decency and serve legitimate penological interests following a prospective only repeal.

Although Chief Justice Rogers concedes, as she must, that a challenged punishment is subject to this type of close judicial scrutiny, she nevertheless maintains that, because the constitutional authority to define crimes and to fix the degree and method of punishment belongs to the legislature, once the legislature has determined that a particular punishment is appropriate and morally acceptable, that determination is, essentially, dispositive. If that were the case, then judicial review would be a weak tea indeed. When an appellate court is asked to pass on the constitutionality of a mode of punishment, it is, almost invariably, after a defendant has been found guilty of a crime and sentenced in accordance with a duly enacted penal statute. If the fact that an elected legislature had authorized and enacted the punishment in question were enough to insulate it from judicial scrutiny, then the freedom from cruel and unusual punishment would be a hollow one. See People v. Anderson, supra, 6 Cal.3d at 640, 100 Cal.Rptr. 152, 493 P.2d 880 ("[w]ere it otherwise, the [l]egislature would ever be the sole judge of the permissible means and extent of punishment and ... the [c]onstitution would be superfluous” [citation omitted] ). "We know that the [f]ramers did not envision so narrow a role for this basic guaranty of human rights.” (Internal quotation marks omitted.) District Attorney v. Watson, supra, 381 Mass. at 662, 411 N.E.2d 1274.

In dismissing the United States Supreme Court's repeated statements as to the importance of this independent judicial review process, Chief Justice Rogers fails to explain why the high court would continue to emphasize that "[t]he [c]onstitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty”; (internal quotation marks omitted) Hall v. Florida, supra, 134 S.Ct. at 1999 ; and that "[t]hat exercise of independent judgment is the [c]ourt's judicial duty”; id., at 2000 ; if that were not the law. Instead, Chief Justice Rogers merely queries how truly independent judicial review of an allegedly cruel and unusual punishment can be reconciled with the observation by that court, in a 1989 decision, that, " '[i]n determining what standards have "evolved” ... [the court has] looked not to [its] own conceptions of decency, but to those of modern American society as a whole.’ ” Footnote 33 of Chief Justice Rogers' dissenting opinion, quoting Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969. Of course, we do not disagree with the cited language from Stanford insofar as independent judicial review must stand on the court's principled consideration of the available evidence regarding a punishment's penological merits, rather than the personal predilections of individual judges. The short answer to Chief Justice Rogers' question, however, is that Stanford, which was an outlier at the time it was decided, subsequently was overruled by Roper v. Simmons, supra, 543 U.S. at 574–75, 578, 125 S.Ct. 1183 and is no longer good law. See id., at 574, 125 S.Ct. 1183 (overruling holding of Stanford that persons under eighteen years of age at time of capital offense may be executed and explaining that, "to the extent Stanford was based on a rejection of the idea that [the] [c]ourt is required to bring its independent judgment to bear on the proportionality of the death penalty for a particular class of crimes or offenders ... it suffices to note that this rejection was inconsistent with prior [e]ighth [a]mendment decisions” [citations omitted] ). In fact, in Roper, the court took pains to reiterate that "[t]he beginning point is a review of objective indicia of consensus, as expressed in particular by the enactments of legislatures that have addressed the question. These data give us essential instruction. We then must determine, in the exercise of our own independent judgment, whether the death penalty is a disproportionate punishment....” (Emphasis added.) Id., at 564, 125 S.Ct. 1183.

In reality, the United States Supreme Court has, on multiple occasions, held that punishments that were duly enacted by democratically elected legislatures were nevertheless unconstitutionally excessive and disproportionate under this standard. See, e.g., Hall v. Florida, supra, 134 S.Ct. at 1990, 2001 (holding that Florida law foreclosing further exploration of capital defendant's intellectual disability if his IQ score is more than seventy violated eighth amendment); Thompson v. Oklahoma, supra, 487 U.S. at 838, 108 S.Ct. 2687 (declaring as unconstitutional death penalty for offender who was under sixteen years old when he committed capital offense). Indeed, there are numerous cases in which that court and other federal and state courts have held democratically enacted criminal sanctions to be devoid of penological value, and thus unconstitutionally excessive, without relying on any predicate finding that those sanctions had lost their popular support. See, e.g., Solem v. Helm, 463 U.S. 277, 281, 292–94, 303, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983) (concluding that courts are competent to apply "generally accepted criteria” to assess independently relative severity of criminal offenses and sentences for purposes of eighth amendment proportionality analysis, and holding that sentence of life imprisonment for writing $100 check with intent to defraud was unconstitutionally excessive); Furman v. Georgia, supra, 408 U.S. at 239–40, 92 S.Ct. 2726 (holding death penalty unconstitutional as then applied in Georgia and Texas, even though forty-one state legislatures had approved of its use and polling data was mixed); Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962) (holding that California statute authorizing jail sentence for narcotics addiction inflicted cruel and unusual punishment in violation of eighth and fourteenth amendments); Weems v. United States, supra, 217 U.S. at 357–58, 367, 377, 30 S.Ct. 544 (concluding that traditional Philippine punishment of years of hard and painful labor was unconstitutionally excessive punishment for crime of falsifying public document, even if punishment conformed to customs, habits, and prejudices of resident population, and that punishment would have been excessive even if authorized by federal law); People v. Anderson, supra, 6 Cal.3d at 641, 100 Cal.Rptr. 152, 493 P.2d 880 (holding that capital punishment violated state constitution and explaining that court "would abdicate [its] responsibility to examine independently the question were [its] inquiry to begin and end with the fact that statutory provisions authorizing [the] imposition of the death penalty have been recently enacted”); see also Kennedy v. Louisiana, supra, 554 U.S. at 461, 128 S.Ct. 2641 (Alito, J., dissenting) (indicating that court had exercised its own independent judgment in holding that death penalty was excessive and disproportionate penalty for rape of child); Kennedy v. Louisiana, 554 U.S. 945, 129 S.Ct. 1, 171 L.Ed.2d 932 (2008) (Scalia, J., respecting the denial of rehearing) (observing that court in Kennedy had exercised its own judgment while noting that parties had failed to call court's attention to fact that Congress and the president recently had reauthorized death penalty for military personnel convicted of child rape). Despite her attempt to distinguish each of these cases, Chief Justice Rogers simply cannot wipe away a century of eighth amendment jurisprudence.

Nor has the United States Supreme Court ever reviewed an eighth amendment challenge under the highly deferential rational basis standard that Chief Justice Rogers would apparently have this court apply. As Justice White explained in Furman, "[j]udicial review, by definition, often involves a conflict between judicial and legislative judgment as to what the [c]onstitution means or requires.... It seems conceded by all that ... there are punishments that the [eighth] [a]mendment would bar whether legislatively approved or not. Inevitably, then, there will be occasions when [the court] will differ with Congress or state legislatures with respect to the validity of punishment.” Furman v. Georgia, supra, 408 U.S. at 313–14, 92 S.Ct. 2726 (White, J., concurring). Chief Justice Rogers may not agree that courts should play such a critical role in securing the people's freedom from cruel and unusual punishment, but that is the law of the land. See Glossip v. Gross, supra, 135 S.Ct. at 2776 (Breyer, J., dissenting) (court, not legislature, ultimately must determine whether capital punishment comports with evolving standards of decency because "[these] are quintessentially judicial matters ... [that] concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment [on] an individual”).

Finally, it would be difficult to imagine a case in which the argument for legislative deference is weaker than in the present case. The death penalty is a punishment that Connecticut has imposed on fewer than two dozen occasions over the past one-half century, and it has been carried out only once during that time frame. The penalty has been abolished by most of our neighboring states, and, after years of repeal efforts, our legislature and governor have now followed suit, abolishing it for all future crimes. Capital punishment has been preserved, then, only on a provisional basis, and only for a handful of current death row inmates. Moreover, the legislative history suggests that many legislators would have supported a full repeal and that those who voted to retain the death penalty on a retroactive basis may well have done so in the belief that this court would not permit any further executions to be carried out, as this state's chief prosecutor himself predicted. See part II B of this opinion; see also footnotes 1, 59 and 60 of this opinion and accompanying text. In short, the legislature could not have come any closer to fully abolishing capital punishment without actually doing so. We perceive no ringing legislative endorsement of the death penalty in Connecticut.

V

CONCLUSION

In prospectively abolishing the death penalty, the legislature did not simply express the will of the people that it no longer makes sense to maintain the costly and unsatisfying charade of a capital punishment scheme in which no one ever receives the ultimate punishment. Public Act 12–5 also held a mirror up to Connecticut's long, troubled history with capital punishment: the steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate penological purposes; the freakishness with which the sentence of death is imposed; the rarity with which it is carried out; and the racial, ethnic, and socio-economic with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently applied, violates the constitution of Connecticut.

The judgment is reversed with respect to the imposition of a sentence of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release; the judgment is affirmed in all other respects.

In this opinion NORCOTT, EVELEIGH and McDONALD, Js., concurred.

NORCOTT and McDONALD, Js., concurring.

Although we fully agree with and join the majority opinion, we write separately to express our profound concerns regarding an issue of substantial public importance that will never be resolved by this court in light of the majority's determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment. Specifically, we cannot end our state's nearly 400 year struggle with the macabre muck of capital punishment litigation without speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of this state's experience with capital charging and sentencing decisions. We recognize that this particular challenge to our state's capital punishment regime has not been raised or briefed in the present case and, therefore, cannot serve as the basis for the majority's holding today. Nor do we purport to resolve conclusively these allegations. Because they have been a powerful undercurrent running through virtually all of our death penalty jurisprudence, however, we feel compelled to analyze them.

See part II B of this concurring opinion.

The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The cruel and unusual punishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See State v. Taylor G., 315 Conn. 734, 737 n. 4, 110 A.3d 338 (2015).

Article first, § 8, of the constitution of Connecticut provides in relevant part that in all criminal prosecutions: "No person shall ... be deprived of life, liberty or property without due process of law....” Article first, § 9, of the constitution of Connecticut provides in relevant part: "No person shall be ... punished, except in cases clearly warranted by law.” This court has previously held that these provisions of our state constitution "impliedly prohibit punishment that is cruel and unusual.” State v. Rizzo, 303 Conn. 71, 130 n. 52, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012); see also State v. Ross, 230 Conn. 183, 246–47, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995).



For example, in attempting to explain the "pronounced geographic disparities in the legality and use of the death penalty” among the various states, the majority cites to " 'broad scholarly literature ... point[ing] to the fact that executions are overwhelmingly confined to the South [and states bordering the South], the very same jurisdictions that were last to abandon slavery and segregation, and that were most resistant to the federal enforcement of civil right norms.’ ” See footnote 86 of the majority opinion. Because the majority points to no evidence that the citizens of this state support slavery or resist civil rights, I can only conclude that the majority has cited these sources as part of its general strategy of creating an aura of disrespectability around the death penalty that is in no manner derived from the contemporary moral values of this state's legislature or its citizens.

Unless otherwise noted, all future references in this opinion to the constitutionality of capital punishment in Connecticut are to its constitutionality under the state constitution.

All references to the concurring justices in this dissenting opinion are to Justices Norcott and McDonald only, and references to the concurrence or the concurring opinion are to the opinion coauthored by Justices Norcott and McDonald.

I

ALLEGED RACIAL DISPARITIES IN CAPITAL CHARGING AND SENTENCING

The possibility that the death penalty is sought or imposed in a racially discriminatory manner emerged as a matter of scholarly interest beginning in the 1930s, and the first related legal challenges were brought during the civil rights movement of the 1960s. See D. Baldus et al., " Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia,” 83 Cornell L.Rev. 1638, 1643 (1998). In Connecticut, the issue came to the attention of this court twenty years ago in State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995). As the majority today explains, both supporters and opponents of the death penalty have recognized that: (1) there is an inherent tension in the United States Supreme Court's death penalty jurisprudence; and (2) that court's determination that the eighth amendment precludes the states from restricting the discretion of capital juries necessarily means that juries can—and will—choose whether to impose the ultimate sentence or exercise their mercy in seemingly arbitrary ways. In Cobb, the defendant, Sedrick Cobb, sought to present for this court's review data purporting to demonstrate that a capital punishment system that leaves so much to the unlimited discretion of jurors and prosecutors inevitably results in charging and sentencing decisions that are not merely arbitrary and capricious, but also impermissibly discriminatory. Id., at 737–40, 663 A.2d 948.A divided three to three panel of this court concluded that Cobb's claims should be decided in the context of a habeas corpus proceeding; id., at 762–63, 663 A.2d 948 ; although the dissenting justices concluded that, by statute, Cobb's claim that systemic racial disparities rendered his death sentence disproportionate fell within this court's original jurisdiction and could have been resolved by this court in the first instance with the assistance of a special master. Id., at 777–78, 663 A.2d 948 (Berdon, J., with whom Norcott and Katz, Js., join). With respect to the inevitable delays that would result from submitting the question to a habeas trial, the dissenting justices argued that, "if our capital sentencing system is infected with racism, we must expose that ugly truth as soon as possible. The public and other branches of state government, as well as other defendants who face the death penalty, must know the answer now.” Id., at 776, 663 A.2d 948. "When a capital defendant marshals a compelling argument that the death penalty as it is administered in our state is incurably racist,” Justice Berdon later cautioned, "we should stop dead in our tracks until we have given the argument our most serious attention.” (Internal quotation marks omitted.) State v. Cobb, 251 Conn. 285, 537, 743 A.2d 1 (1999) (Berdon, J., dissenting), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000).

History has confirmed that the concerns expressed by the dissenting justices in State v. Cobb, supra, 234 Conn. at 776, 663 A.2d 948, were well founded. Eight years later, when Richard Reynolds presented similar evidence of systemic racial disparities in the imposition of the death penalty as a challenge to the constitutionality of his sentence, the parties to Cobb's habeas case still had not finished analyzing the data. See State v. Reynolds, 264 Conn. 1, 232–33, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004). At that time, this court consolidated Reynolds' racial disparity claims, along with those of other death row inmates, with Cobb's habeas action. See id., at 233, 836 A.2d 224. Ten more years passed, during which the state spent millions of dollars on legal fees and expert statistical reports; see J. Lender, "A Big Bill in Death Row Case,” Hartford Courant, September 14, 2014, p. B1; before the habeas court finally issued its decision in 2013. See In re Death Penalty Disparity Claims, Superior Court, judicial district of Tolland, Docket No. TSR–CV–05–4000632–S, 2013 WL 5879422 (October 11, 2013) (unpublished opinion). During that time, a number of members of this court voiced their concern that our state's capital punishment system appeared to be incurably tainted by racial and ethnic bias. See, e.g., State v. Santiago, 305 Conn. 101, 324–25, 49 A.3d 566 (2012) (Harper, J., concurring and dissenting); State v. Peeler, 271 Conn. 338, 466, 857 A.2d 808 (2004) (Katz, J., dissenting), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005) ; State v. Breton, 264 Conn. 327, 447, 824 A.2d 778 (2003) (Norcott, J., dissenting), cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003) ; State v. Webb, 238 Conn. 389, 557, 680 A.2d 147 (1996) (Berdon, J., dissenting), aff'd after remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000). This court reserved judgment on the question, however, pending the resolution of the habeas case.

Ultimately, though, the habeas court denied the petitioners' claims on purely legal grounds, without ever clearly stating whether it had credited the petitioners' evidence of systemic racial disparities. In

re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S. That decision is currently on appeal to this court. See In re Death Penalty Disparity Claims, Connecticut Supreme Court, Docket No. SC 19252 (filed November 6, 2013). Today, a majority of this court has concluded that our state constitution no longer permits the execution of capital felons. As a result, we anticipate that those individuals who have been sentenced to death in Connecticut will withdraw any pending penalty phase appeals and habeas claims, and move for a correction of their sentences. See Practice Book § 43–22. In any event, today's majority decision seemingly renders the habeas action moot. Accordingly, although that case would have been the more probable opportunity to address the long-standing racial disparity claims, that avenue is no longer available. If the impressive efforts and substantial expenses invested by the state in that case are not to be all for naught, then the issue should be examined now.

We have been reluctant to accept the conclusion that our capital punishment system is incurably infected with racial and ethnic bias, believing—as we still do—that the vast majority of Connecticut's law enforcement officers, prosecutors, judges, and jurors are decent, fair-minded, and dedicated individuals who strive to see that justice is carried out impartially. Abundant historical and statistical evidence, however, now strongly suggests that racial disparities in the capital punishment system exist in Connecticut—as elsewhere—that cannot be accounted for by benign, nonracial factors. Specifically, there is a substantial and growing body of evidence suggesting that decisions as to: (1) which defendants will be charged with capital crimes, (2) whether to seek the death penalty for those defendants, and (3) whether to impose that ultimate punishment, are heavily influenced by the constitutionally impermissible factors of racial and ethnic bias.

We begin our review with the historical evidence. See Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 172 n. 22, 957 A.2d 407 (2008) ( "the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste” [internal quotation marks omitted] ). As the majority notes, a central theme running through Professor Lawrence B. Goodheart's recently published book is that the long history of the death penalty in Connecticut has exhibited "an unmistakable racial dimension.” L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) p. 50. Capital punishment, Goodheart suggests, invariably has been imposed disproportionately on marginalized and unpopular groups, and in particular on members of ethnic and racial minorities. See id., at p. 39. During the colonial period, this meant African–Americans and Native Americans. See id. From the founding of the colonies in the 1630s through the early 1770s, two thirds of those hanged for homicide, infanticide, and rape were people of color, notwithstanding that nonwhites accounted for only 5 percent of the state population. See id., at pp. 17, 50, 57, 61. Native Americans in particular were singled out, not only in the frequency with which they were executed, but also in the barbarity of the procedures deployed. Although hanging was the standard practice, for example, New Haven authorities opted instead for decapitation so as to "racially set apart Nepaupuck and Busheage,” two Native American participants in the early tribal skirmishes with European settlers. Id., at pp. 17–18. A contemporary account of Busheage's execution describes how the "executioner would strike off his head with a falchion [a sword with a curved blade], but he had eight blows at it before he could effect it....” (Internal quotation marks omitted.) Id., at p. 18.

Other historians who have studied this time period have reached the same conclusion as Goodheart. Connecticut's former state historian, for instance, has described how "[w]ell established practice saw ... white men escaping punishment for rape while black men hanged....” C. Collier, " The Common Law and Individual Rights in Connecticut before the Federal Bill of Rights,” 76 Conn. B.J. 1, 18 n.40 (2002). Such "discriminations were so deep and pervasive in the culture,” Collier explains, "that the variable nature of justice was seldom called into question.” Id. William Holdsworth likewise opines that "white prejudice [was likely among the reasons that] Indians bore a disproportionate share of the severest civil and criminal penalties meted out at this time.” W. Holdsworth, Law and Society in Colonial Connecticut, 1636–1672 (1974) p. 315 (unpublished doctoral dissertation, Claremont Graduate School).

This "apartheid in the larger society” continued to infect the capital sentencing system in the nineteenth century. L. Goodheart, supra, at p. 92. More than one half of those hanged for rape or murder between 1773 and 1827, for example, were Native American, African–American, or of mixed race. See id., at pp. 81, 91. Although the complexion of capital punishment shifted during the mid-nineteenth century, the pattern remained the same. Goodheart identifies this period as the "height of ethnocentricism,” an era in which a heavy influx of Irish immigrants resulted in widespread "antipapist and xenophobic sentiment” directed toward the new ethnic underclass. Id., at p. 110. Of the men executed in Connecticut between 1828 and 1879, only one half were members of what Goodheart characterizes as the "white, Protestant majority....” Id. The remainder were recent Irish immigrants and, in a few cases, people of color. See id., at p. 111.

Recent arrivals to America continued to figure prominently among those executed during the decades bracketing the turn of the twentieth century. See id., at p. 133. Remarkably, of the sixty men who were hanged in Connecticut between 1880 and 1929, only fifteen were of domestic nativity, and one quarter of those were of African or Asian descent. See id., at pp. 136–38. Following a new wave of immigration from Southern Europe, fully one third of those executed during this period had been born in Italy. See id.Although the racial and ethnic disparities that Goodheart records were not quite as pronounced in the twentieth century, he indicates that those "executed were, like those before them, on the margins of society.” Id., at p. 169. For the first time in centuries, the majority of those executed in Connecticut since 1940 have been native born whites. See id., at pp. 174, 187. Still, over one half of the men on death row as of 2005, including the present defendant, Eduardo Santiago, were African–American or Hispanic. See id., at p. 219.

In total, of the nearly 160 documented executions in Connecticut history, more than one half of those put to death have been either members of racial minorities or low status first generation Americans. See id., at pp. 4, 17, 22, 33, 50, 57, 61, 66, 81, 91, 111, 136–38, 170, 174, 187. Since 1693, only black men have been executed for rape in Connecticut, and each for the rape of a white woman. See id., at p. 65. Perhaps more telling is that, in almost 400 years, no white person has ever been executed in Connecticut for the murder of a black person. See id., at p. 55. Goodheart quotes one abolitionist as commenting that "[a]ny white person of financial means and with friends ... has little need to fear the imposition of the death penalty.” (Internal quotation marks omitted.) Id., at p. 183.

Although Goodheart notes that "low-income black men convicted of murdering whites are particularly vulnerable to capital punishment”; id., at pp. 4–5; the enduring lesson from his scholarly chronicle is that looking solely at racial disparities actually significantly understates the extent to which prejudice may have tainted Connecticut's capital punishment regime. Many, if not most, of the whites executed in this state have been "untouchables” of another sort, whether unpopular recent immigrants or the marginalized, low status, older women who filled the ranks of those executed for witchcraft. See id., at pp. 32–33; W. Holdsworth, supra, at pp. 393–97 . Only one person executed in Connecticut, Michael Ross, ever graduated from college; L. Goodheart, supra, at p. 221; and his execution would not have occurred had Ross not insisted that it proceed by forgoing additional appeal options. On the basis of this undisputed history, Goodheart ultimately concludes that "documentation of bias in the criminal justice system is clear....” Id., at p. 4.

We should not, perhaps, be surprised by the results of this new research. As Justice Brennan recounted in his dissent in McCleskey v. Kemp, 481 U.S. 279, 330, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), Gunnar Myrdal's "epochal study of American race relations,” conducted before the end of the second World War, had already revealed the deep taint of race on our nation's criminal justice system. "As long as only Negroes are concerned and no whites are disturbed,” Myrdal wrote, "great leniency will be shown in most cases.... The sentences for even major crimes are ordinarily reduced when the victim is another Negro.... For offenses which involve any actual or potential danger to whites, however, Negroes are punished more severely than whites.... On the other hand, it is quite common for a white criminal to be set free if his crime was against a Negro.” (Internal quotation marks omitted.) Id., quoting G. Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (Harper & Brothers 1944) pp. 551–53. More than two decades later, a presidential commission likewise concluded that the "death sentence is disproportionately imposed and carried out on the poor, the Negro, and the members of unpopular groups.” The Challenge of Crime in a Free Society, A Report by the President's Commission on Law Enforcement and Administration of Justice (1967) p. 143.

These historical accounts of persistent racial disparities in capital sentencing have been borne out, repeatedly, by contemporary statistical evidence both in Connecticut and throughout the United States. In Connecticut, as we have discussed, the issue first reached this court when Cobb proffered government data, derived from both the Criminal Justice Information Services Division of the Federal Bureau of Investigation and the Uniform Crime Reporting Program of the state of Connecticut, evidencing substantial facial disparities in our state's capital sentencing system. See State v. Cobb, supra, 234 Conn. at 766 n. 6, 663 A.2d 948 (Berdon, J., dissenting). The data indicated that: "(1) since 1973, prosecutors have charged a capital felony pursuant to General Statutes § 53a–54b in seventy-four cases, of which only eleven, or 15 percent, have involved the murder of a victim who was black, even though 40 percent of all murder victims in the state during that same time period were black; (2) since 1973, although there have been eighteen capital prosecutions for murder committed during the course of kidnapping, none was prosecuted where the victim was black; (3) during the same period, there have been twelve capital prosecutions for murder committed in the course of a sexual assault, and only one involved the murder of a black victim; (4) since 1973, twenty-eight cases have resulted in a conviction of capital felony, by verdict or plea, and eighteen of those twenty-eight have proceeded to a hearing on the imposition of the death penalty. Of the twenty-eight capital felony convictions, only four, or 14 percent, have involved the murder of a victim who was black, and of the eighteen that have gone to a penalty phase hearing, only one, or 5.5 percent, has involved the murder of a black victim; (5) of the sixty-six capital convictions in which the guilt phase has been concluded, twenty-one involved black defendants and forty-five involved nonblack defendants. Of the black defendants, thirteen of twenty-one, or 62 percent, were convicted of capital felonies and fifteen of forty-five, or 33 percent, [nonblack] defendants were so convicted.” Id., at 738–39 n. 4, 663 A.2d 948. In that case, however, both parties, the three prevailing justices, and the three dissenting justices all agreed that Cobb's data were preliminary and that further research and analysis were required before this court could rule on the constitutional import of any systemic racial or ethnic disparities. See id., at 739–40 n. 4, 663 A.2d 948 ; id., at 768, 663 A.2d 948 (Berdon, J., dissenting); State v. Breton, 235 Conn. 206, 264, 663 A.2d 1026 (1995) (Berdon, J., dissenting).

Since that time, substantial new information has become available that provides further support for Cobb's allegations of systemic racial bias. In 2001, the Connecticut legislature created a Commission on the Death Penalty (commission) "to study the imposition of the death penalty in this state.” Public Acts 2001, No. 01–151, § 4(a) (P.A. 01–151). Public Act 01–151 mandated that the new commission examine and report on fourteen aspects of Connecticut's capital punishment scheme. See P.A. 01–151, § 4(c) and (d). One requirement was that the commission study whether "there is any disparity in the decision to charge, prosecute and sentence a person for a capital felony based on the race, ethnicity, gender, religion, sexual orientation, age or socioeconomic status of the defendant or the victim....” P.A. 01–151, § 4(c)(3).

The commission issued its final report in January, 2003, in which it indicated that it had performed a comprehensive review of all 166 capital felony prosecutions in Connecticut since 1973. See State of Connecticut, Commission on the Death Penalty, Study Pursuant to Public Act No. 01–151 of the Imposition of the Death Penalty in Connecticut (January 8, 2003) pp. 17, 21 (Commission Report). The Commission Report found, among other things, that murders involving non-Hispanic white victims represented just over one half of the capital prosecutions in the state, but accounted for 86 percent of the death sentences imposed. See id., at pp. 21, 25. By contrast, the thirty-eight offenders accused of murdering African–American victims accounted for nearly one fourth of all capital felony prosecutions, but not one of the offenders was sentenced to death. See id., at pp. 22, 24. Taken together, crimes involving African–American or Hispanic victims accounted for 40 percent of all convictions, but just 14 percent of death sentences. See id., at p. 25. Because of these disparities, the commission recommended that "Connecticut should adopt legislation explicitly providing that no person shall be put to death in accordance with any death sentence sought or imposed based on the race ... of the defendant. To enforce such a law, Connecticut should permit defendants to establish prima facie cases of discrimination based upon proof that their sentence is part of an established discriminatory pattern.” Id., at p. 28. The commission further recognized that numerous studies conducted in other jurisdictions, after subjecting similar findings to multivariate statistical analysis, have concluded that "race is a factor that influences the outcome of capital cases.” Id., at p. 18.

It is well established that this court may take notice of statistical reports compiled pursuant to legislative mandate. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 769 n. 28, 12 A.3d 817 (2011) ; Sheff v. O'Neill, 238 Conn. 1, 38 n. 42, 678 A.2d 1267 (1996).

Connecticut has previously acted ahead of the United States Supreme Court and other states in this nation in prohibiting the execution of mentally handicapped individuals; see Public Acts 2001, No. 01–151, § 2; minors; see Public Acts 1973, No. 73–137, § 4(f); and perpetrators of nonhomicide offenses. See Public Act 73–137, § 3; Public Acts 2001, No. 01–151, § 3; see also State v. Rizzo, 303 Conn. 71, 189, 31 A.3d 1094 (2011) (noting that Connecticut had acted to ban these practices ahead of United States Supreme Court, and stating, "over time, the national landscape has become more closely aligned with Connecticut”), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012).

The defendant claimed that: the court was barred by General Statutes § 53a–46b (b)(1) from affirming the death sentence after the passage of P.A. 12–5 because the death penalty is now arbitrary; P.A. 12–5 represented a fundamental change in contemporary standards of decency in this state, rendering the death penalty cruel and unusual punishment under the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the state constitution; P.A. 12–5 created an arbitrary basis for selecting defendants who would be subject to the death penalty in violation of the federal and state constitutions; because P.A. 12–5 bars the death penalty for persons who committed crimes identical to the defendant's after the effective date of the act, that punishment is disproportionate to crimes committed before the effective date in violation of the federal and state constitutions; the effective date provision of P.A. 12–5 violates the equal protection guarantees of the fourteenth amendment to the federal constitution and article first, §§ 1 and 20, of the state constitution; the effective date provision of P.A.12–5 violates the substantive due process guarantees of the federal and state constitutions; the death penalty is not " 'clearly warranted by law’ ” under article first, § 9, of the state constitution; P.A. 12–5 is a bill of attainder forbidden by article I, § 10, of the federal constitution and article first, § 13, of the state constitution; and P.A. 12–5 is ameliorative legislation that should benefit the defendant.

In Ross, the court stated that, in reviewing a death penalty statute, "the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated in [prior] cases.... These principles require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to [ensure] that the death penalty is being imposed consistently and reliably and, on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant's character or record as well as the circumstances of the particular offense.” (Citations omitted.) State v. Ross, supra, 230 Conn. at 252, 646 A.2d 1318.

General Statutes § 51–198(c) provides: "A judge of the Supreme Court who has attained the age of seventy years may continue to deliberate and participate in all matters concerning the disposition of any case which the judge heard prior to attaining said age, until such time as the decision in any such case is officially released. The judge may also participate in the deliberation of a motion for reconsideration in such case if such motion is filed within ten days of the official release of such decision.”

Accordingly, data from three authoritative governmental sources—the Criminal Justice Information Services Division of the Federal Bureau of Investigation, the Uniform Crime Reporting Program of the state of Connecticut, and the Commission Report—all suggest that the death penalty in Connecticut continues to be imposed disproportionately based on the race and ethnicity of the offender and the victim. The alleged disparities are significant, and hold across hundreds of cases. We are not aware of any study or report to have reached a contrary conclusion. In fact, the chief state's attorney, who represents the state in this matter, now concedes that there are "obvious” facial disparities in Connecticut's capital punishment system. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2650–51, remarks of Chief State's Attorney Kevin Kane (When Kane was asked about raw data indicating that minority defendants who commit capital eligible murders of white victims are far more likely to receive the death sentence than those who murder minority victims, he responded: "We've seen disparity. It's obvious.”).

Given the context of the question to which Kane was responding, Chief Justice Rogers' suggestion that Kane was referring not to disparities in capital punishment, but only in the general prison population, is patently implausible. If that was all Kane intended to say, his response would have been a complete non sequitur to the question posed. It is true, however, that Kane rejected the contention that these disparities are the result of systemic racial bias on the part of prosecutors or juries. See Conn. Joint Standing Committee Hearings, supra, at p. 2652.

I note that neither the majority nor the dissents in Atkins focused their analysis on the legislative history of the repeal statutes referenced therein. See Atkins v. Virginia, supra, 536 U.S. at 313–17, 122 S.Ct. 2242 ; id., at 321–23, 122 S.Ct. 2242 (Rehnquist, C.J., dissenting); id., at 342–45, 122 S.Ct. 2242 (Scalia, J., dissenting). Thus, it appears that when examining whether a national consensus against a particular sentencing practice has emerged for eighth amendment purposes, the relevant inquiry does not appear to focus on why a statute repealing a particular sentencing practice was passed, but whether such legislation was passed at all. Further, the fact that the issue in Atkins was whether it was considered cruel and unusual to sentence a particular subset of criminal defendants who were less culpable than a typical capital defendant does not affect the relevance of that analysis to the present case. The majority in Atkins provided courts with a rosetta stone for use in deciphering whether a national consensus exists against a particular sentencing practice—whatever it may be. Using Atkins and its sister cases as an indicator of the sources that the United States Supreme Court has looked to when it has sought to determine whether a national consensus against a particular sentencing practice exists is entirely relevant to the present case. In this respect, the present case is indistinguishable from Atkins. In Atkins, it was no mere oversight or accident that the majority's approach to determining the existence of a national consensus differed from the approach adopted in Justice Scalia's dissent. Indeed, Justice Scalia spent paragraphs castigating the majority in Atkins for its approach, some of which I quote here: "The [c]ourt pays lipservice to these precedents as it miraculously extracts a 'national consensus' forbidding execution of the mentally retarded ... from the fact that [eighteen] [s]tates—less than half (47 [percent] ) of the [thirty-eight] [s]tates that permit capital punishment (for whom the issue exists)—have very recently enacted legislation barring execution of the mentally retarded. Even that 47 [percent] figure is a distorted one. If one is to say, as the [c]ourt does today, that all executions of the mentally retarded are so morally repugnant as to violate our national 'standards of decency,’ surely the 'consensus' it points to must be one that has set its righteous face against all such executions. Not [eighteen] [s]tates, but only [seven]—18 [percent] of death penalty jurisdictions—have legislation of that scope. Eleven of those that the [c]ourt counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date of the legislation; those already on death row, or consigned there before the statute's effective date, or even (in those [s]tates using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement of absolute moral repugnance, but one of current preference between two tolerable approaches. Two of these [s]tates permit execution of the mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; New York permits execution of the mentally retarded who commit murder in a correctional facility.” (Citation omitted; emphasis altered; footnotes omitted.) Id., at 342–43, 122 S.Ct. 2242.

Six justices read those words by Justice Scalia and disagreed, finding that a national consensus against the sentencing practice at issue in Atkins and making that conclusion in part because of those states that had instituted prospective only repeals. An examination of subsequent cases decided by the United States Supreme Court on similar issues only serves to reinforce this point. See, e.g., Graham v. Florida, supra, 560 U.S. at 62–63, 130 S.Ct. 2011 (examining legislation to determine whether national consensus against sentencing practice exists, no indication that whether repeal is prospective or total is relevant to analysis).



The majority may argue that it is relying on these factors only to the extent that they shed light on the reasons for the legislature's enactment of P.A. 12–5. The question that the defendant has asked this court to consider, however, is whether a majority of legislators actually concluded that the death penalty is inconsistent with the contemporary societal mores of this state when they abolished the death penalty prospectively. As I discuss more fully later in this dissenting opinion, the evidence on this question is simply ambiguous, and it is at least as plausible that a majority of legislators concluded that the death penalty is unworkable as it is that they concluded that it is immoral. Thus, it is both misleading and inappropriate for the majority to devote the bulk of its opinion to critiquing our previous decisions holding that these factors do not support the conclusion that the death penalty is inconsistent with contemporary societal mores and effectively to overrule those cases. The fact that the majority now concludes that, contrary to our previous decisions, these factors support the conclusion that the death penalty is inconsistent with societal mores certainly does not compel the conclusion that the legislature made that determination. To the contrary, it would be just as reasonable to conclude that the legislature considered these factors and a majority of them concluded that the death penalty is consistent with contemporary mores, just as they have always done, and just as this court has done in numerous cases, including the present one. The question of whether those decisions were correct is not before us on reconsideration.

Although I am not convinced that the Geisler test is the proper standard for assessing state constitutional claims in the first instance; see footnote 7 of this opinion; this court consistently has applied that framework in prior cases, and there is no reason to depart from that framework in the present case.

With respect to the gratuitous legal advice offered by the concurring justices to the prisoners on death row, transparently couched in a speculation that the prisoners "will likely withdraw any pending penalty phase appeals and habeas claims, and move for a correction of their sentences,” I merely observe that today's decision does not prevent this court from revisiting this issue in other appeals that raise the issue of the validity of the death penalty under our state constitution, including the appeal in State v. Peeler, Connecticut Supreme Court, Docket No. SC 18125 (filed February 26, 2008), in which this very issue is raised and briefed.

We are not aware of any innocuous, nonracial factors that would plausibly account for these undisputed disparities in capital charging and sentencing rates. Rather, the available evidence supports the conclusion that, when members of minority groups who offend against whites are charged with capital crimes and subjected to execution at far greater rates than other defendants who commit comparable crimes, those disparities are a result of racial biases and cannot be explained away by other, innocuous factors.

Goodheart has reviewed, from a historical standpoint, four centuries of commentaries, death day sermons, press reports, and public records regarding the imposition of the death penalty in Connecticut. On the basis of that review, he concludes that persistent racial disparities in our state's capital punishment system are the product of "ethnocentricism” "xenophobic sentiment”; L. Goodheart, supra, p. 110; and racial "apartheid....” Id., p. 92. To put it most plainly, Goodheart reports, "Yankee observers regularly characterized executed immigrants as subhuman.” Id., at p. 162.

Significantly, this court has long taken judicial notice of the fact that disparate sentencing outcomes can be the result of subtle racial biases: "We cannot be blind to the fact that there may still be some who are biased against the Negro race and would be more easily convinced of a Negro's guilt of the crime of rape than they would of a white man's guilt. Especially would they be unlikely to approach in a detached and objective manner the decision of the guilt or innocence of a Negro charged with raping a white woman.” State v. Higgs, 143 Conn. 138, 143, 120 A.2d 152 (1956).

During the legislative hearings on No. 12–5 of the 2012 Public Acts (P.A. 12–5), multiple witnesses testified that, one-half century later, Connecticut's capital punishment system remains far from color-blind. Their testimony finds support in abundant sociological research from other jurisdictions, much of it published subsequent to our decision in State v. Cobb, supra, 234 Conn. at 735, 663 A.2d 948, linking current racial disparities in the administration of the death penalty to our country's history of racism. "[N]umerous studies conducted in the United States since the [United States] Supreme Court decided Furman v. Georgia [408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] ... suggest that, when significant non-racial factors are accounted for, race is a factor that influences the outcome of capital cases.” Commission Report, supra, at pp. 17–18. In 1990, for example, the United States General Accounting Office "reported to the Senate and House Committees on the Judiciary that its synthesis of [twenty-eight] studies on the subject disclosed a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty after the Furman decision.... In 82 percent of the studies, [the] race of [the] victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.” (Footnote omitted; internal quotation marks omitted.) Id., at p. 18, citing United States General Accounting Office, Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (February 1990) p. 5. "This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques.” United States General Accounting Office, supra, at p. 5.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 812–13, remarks of Senator Donald E. Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2687, remarks of Khalilah Brown Dean, associate professor of political science; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2791, remarks of John J. Donohue III, professor of law; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2691, remarks of Representative Charlie L. Stallworth.

See generally Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015); Death Penalty Information Center, "States With and Without the Death Penalty,” (2015), available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited August 10, 2015); footnotes 16 through 28 of this opinion.

"In State v. Geisler, [supra, 222 Conn. at 684–86, 610 A.2d 1225 ], we enumerated the following six factors to be considered in determining [whether the state constitution provides broader protection than the federal constitution]: (1) persuasive relevant federal precedents; (2) the text of the operative constitutional provisions; (3) historical insights into the intent of our constitutional forebears; (4) related Connecticut precedents; (5) persuasive precedents of other state courts; and (6) contemporary understandings of applicable economic and sociological norms, or as otherwise described, relevant public policies.” (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 136, 31 A.3d 1094.

This court has traditionally numbered the Geisler factors in this order. For the sake of consistency, I maintain the traditional order.



I agree with Chief Justice Rogers' discussion of whether the death penalty serves any legitimate penological goals and with parts IV through XIV of her dissenting opinion, in which she addresses the analysis in the concurring opinion of Justices Norcott and McDonald of whether the death penalty is arbitrary and discriminatory, as well as the defendant's other claims. I also generally agree with Justice Espinosa's dissenting opinion.

See State v. Webb, Conn. Supreme Court Records & Briefs, October/November Term, 1995, Pt. 8A, Record p. 9.

The conclusion of the United States General Accounting Office, which was based on various types of statistical analysis, has since been confirmed in fifteen additional studies conducted during the 1990s, and many more published since 2000. Evans v. State, 396 Md. 256, 314, 914 A.2d 25 (2006), cert. denied, 552 U.S. 835, 128 S.Ct. 65, 169 L.Ed.2d 53 (2007) ; see, e.g., C. Steiker & J. Steiker, Report to the American Law Institute Concerning Capital Punishment, in A.L.I., Report of the Council to the Membership of The American Law Institute On the Matter of the Death Penalty (April 15, 2009) annex B, p. 14 (reporting that many researchers in many different jurisdictions continue to find "strong racial effects”); D. Baldus et al., supra, at 83 Cornell L.Rev. 1661 (finding evidence of race of victim disparities in 90 percent of states studied and of race of defendant disparities in 55 percent); K. Barnes et al., "

Place Matters (Most): An Empirical Study of Prosecutorial Decision–Making in Death–Eligible Cases,” 51 Ariz. L.Rev. 305, 338 (2009) (finding large racial disparity in conviction rate in Missouri); K. Beckett & H. Evans, The Role of Race in Washington State Capital Sentencing, 1981–2012 (January 27, 2014) p. 2 ("regression analyses indicate that juries were three times more likely to impose a sentence of death when the defendant was black than in cases involving similarly situated white defendants” [emphasis omitted] ), available at http://www.deathpenaltyinfo.org/documents/WashRaceStudy2014.pdf (last visited July 8, 2015); J. Blume et al., "Explaining Death Row's Population and Racial Composition,” 1 J. Empirical Legal Stud. 165, 167, 169 (2004) (comprehensive regression analysis of death row populations in thirty-one states over two decades revealed that prosecutorial decision to seek death sentence more aggressively for black defendants who murder white victims results in clear "racial hierarchy”); S. Johnson et al., "The Delaware Death Penalty: An Empirical Study,” 97 Iowa L.Rev.1925, 1939 (2012) (finding "dramatic” racial disparities); J. Levinson et al., " Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury–Eligible Citizens in Six Death Penalty States,” 89 N.Y.U. L.Rev. 513, 521 (2014) (finding that death qualified jurors harbor stronger implicit racial biases than excluded jurors); Maryland Commission on Capital Punishment, Final Report to the General Assembly (December 12, 2008) pp. 9–10 (recommending abolition of capital punishment based in part on nearly unanimous finding by commissioners that "the troublesome factor of race plays a dominant role in the administration of the death penalty in Maryland”), available at http://www.goccp.maryland.gov/capital-punishment/documents/death-penalty-commission-final-report.pdf (last visited July 8, 2015); G. Pierce & M. Radelet, " The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999,” 46 Santa Clara L.Rev. 1, 19 (2005) (finding "glaring differences in the rate of death sentences across categories of victim race/ethnicity”); C. Slobogin, " The Death Penalty in Florida,” 1 Elon L.Rev. 17, 54 (2009) ("[n]umerous studies of the Florida capital punishment process, spanning the past thirty-five years, have confirmed a correlation between the imposition of a death sentence and the race of the murder victim”); M. Wilson, " The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis,” 38 N.M. L.Rev. 255, 260 (2008) ("data strongly suggest that the race and ethnicity of the victims and the defendants affected the determination of who would live and who would die”); see generally D. Baldus & G. Woodworth, "Race Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post–1990 Research,” 39 Crim. L. Bull. 194, 196, 207–208 (2003) (finding consistent pattern of race of victim disparities, even after adjusting for culpability of offenders and aggravation level of crimes); J. Sorensen et al., "Empirical Studies on Race and Death Penalty Sentencing: A Decade After the GAO Report,” 37 Crim. L. Bull. 395, 403–404 (2001) (in meta-analysis of "high quality” statistical studies, race of victim disparities in capital charging decision found in 90 percent of studies after adjusting for control variables).

All of the meta-analyses cited herein, and all of the major, multijurisdictional primary studies, have concluded, after subjecting evidence of racial disparities to advanced multivariate statistical analysis, that offenders who murder non-Hispanic white victims are more likely to be charged with a capital offense and/ or sentenced to death than those who victimize members of racial minorities. See D. Baldus et al., supra, 83 Cornell L.Rev. at 1659 ; D. Baldus & G. Woodworth, supra, 39 Crim. L. Bull. at 214; J. Blume et al., supra, 1 J. Empirical Legal Stud. at 167; J. Sorensen et al., supra, 37 Crim. L. Bull. at 403; United States General Accounting Office, supra, at p. 5. Some of the studies also have identified a race of offender bias. The report by the United States General Accounting Office was the result of a significant and nonpartisan research effort on the part of the federal government. The other cited studies are authored by respected and, in some cases, nationally renowned experts in the field. We are not aware of any high quality meta-analysis or multijurisdictional study to have reached a contrary conclusion. We have no reason to gainsay such overwhelming evidence of racial bias.

A meta-analysis is a study that reviews all of the available primary research that has been conducted on a subject and evaluates the aggregated findings. See part II A of this concurring opinion.

See 1957 Hw. Sess. Laws 314; 2010 Ill. Laws 7778; 1965 Iowa Acts 827; 1887 Me. Laws 104; 2013 Md. Laws 2298; 1911 Minn. Laws 572; 2007 N.J. Laws 1427; 2009 N.M. Laws 141; 1965 Vt. Acts & Resolves 28; 1853 Wis. Sess. Laws 100; Death Penalty Information Center, "Michigan,” (2015), available at http://www.deathpenaltyinfo.org/michigan–0 (last visited August 10, 2015).

The majority carefully avoids suggesting in its Geisler analysis that our previous cases upholding the constitutionality of the death penalty under our state constitution, including our decision a mere four years ago in State v. Rizzo, supra, 303 Conn. at 71, 31 A.3d 1094 were wrongly decided. It is clear from part II of the majority opinion, however, in which the majority applies the evolving standards of decency rubric, that the majority believes that those cases did not adequately address many of the societal factors that the majority now concludes require the invalidation of the death penalty. See part I of this dissenting opinion.

The majority claims that the defendant raised a general challenge to the constitutionality of capital punishment because one of the stated grounds for reconsideration in his motion was that P.A. 12–5 "represents a fundamental change in the contemporary standard[s] of decency in Connecticut and a rejection of the penological justifications for the death penalty, rendering the death penalty now cruel and unusual punishment....” (Internal quotation marks omitted.) To the extent the defendant relied on the contemporary standards of decency in Connecticut as a basis for that argument, however, he did so in the context of his challenge to capital punishment under the eighth amendment to the federal constitution and not under the Connecticut constitution.

The defendant devoted only four pages in his brief to a claim that, "even if an execution following passage of [P.A. 12–5] did not violate the eighth amendment, it would clearly violate ... the constitution of Connecticut.” In this argument, the defendant relied primarily on cases from other jurisdictions in which the court considered whether the enactment of a statutory provision prohibiting the imposition of capital punishment on a certain category of offenders applied retroactively to similar offenders who were sentenced to death before the statute's enactment. See Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) (intellectually disabled offender); Saylor v. State, 808 N.E.2d 646, 647–48 (Ind.2004) (offender convicted and sentenced to death under procedure subsequently revised so that offender would no longer be eligible for capital punishment); Cooper v. State, 540 N.E.2d 1216, 1219–20 (Ind.1989) (offender who committed crime when she was under sixteen); State v. Bey, 112 N.J. 45, 101–102, 548 A.2d 846 (1988) (juvenile offender); Van Tran v. State, 66 S.W.3d 790, 792 (Tenn.2001) (intellectually disabled offender). In a similar vein, the defendant's reference to the views of prior dissenting justices of this court was not in support of a claim that the death penalty is generally unconstitutional but was intended to show that "the concerns expressed in those opinions are increased exponentially here, where any death sentence would rest on [the] wholly arbitrary factor” of the date of the offense following the passage of P.A. 12–5. (Emphasis added.) The defendant's discussion of policy considerations also focused on the unfairness of retaining capital punishment for a small number of offenders while repealing the punishment for future offenders.


During oral argument on the motion for reconsideration, the defendant continued to argue that P.A. 12–5 was unconstitutional when he contended that the provision to implement the prospective repeal by the date of the offense was arbitrary under the state constitution and a violation of eighth amendment principles. Indeed, Justice Palmer, in particular, queried the defendant's appellate counsel repeatedly as to why the distinction in P.A. 12–5 between two classes of people, namely, future offenders who otherwise might be subject to capital punishment and current death row inmates, did not require an equal protection analysis. He also asked numerous questions regarding the severability of the retention provision from the remainder of the act if this court should deem the retention provision unconstitutional. Accordingly, a fair reading of the defendant's brief and oral argument does not support the majority's conclusion that the defendant raised a general challenge to the constitutionality of capital punishment, which, in the past, has always been treated as a per se challenge.



Because the pending appeals of Jessie Campbell; State v. Campbell, Connecticut Supreme Court, Docket No. SC 18072 (filed November 26, 2007); Russell Peeler; State v. Peeler, Connecticut Supreme Court, Docket No. SC 18125 (filed February 26, 2008); Lazale Ashby; State v. Ashby, Connecticut Supreme Court, Docket No. SC 18190 (filed July 14, 2008); Steven Hayes; State v. Hayes, Connecticut Supreme Court, Docket No. SC 18782 (filed April 15, 2011); Joshua Komisarjevsky; State v. Komisarjevsky, Connecticut Supreme Court, Docket No. SC 18973 (filed May 22, 2012); and Richard Roszkowski; State v. Roszkowski, Connecticut Supreme Court, Docket No. SC 19370 (filed August 26, 2014); have not yet been heard and/or decided by this court, I do not recite the facts of those cases.

Finally, since this court last considered the constitutionality of the death penalty, new empirical evidence has emerged that not only supports the allegation of substantial and statistically significant racial disparities in the imposition of the death penalty in Connecticut, but also suggests that such disparities are unlikely to be the product of innocuous, nonracial factors. During the hearings on P.A. 12–5, legislators heard extensive testimony from Stanford (and former Yale) Law School Professor John J. Donohue III, a nationally recognized expert in criminal law and econometrics. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2786–96, remarks of Professor Donohue. In 2006, the petitioners in the habeas case, In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S, hired Donohue to evaluate data that the Office of the Chief Public Defender had collected relating to every potential capital murder conviction in the state between 1973 and 2007. Employing sophisticated multivariate regression techniques to control for an array of legitimate factors relevant to the capital charging and sentencing decisions, Donohue found substantial racial disparities, especially in prosecutors' decisions to charge particular offenders as capital felons. See J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?,” 11 J. Empirical Legal Stud. 637 (2014).

At the legislative hearings, Donohue supplied legislators with a lengthy executive summary of his research, which concluded that "arbitrariness and discrimination are defining features of the state's capital punishment regime.” Conn. Joint Standing Committee Hearings, supra, at p. 3001. Specifically, the data revealed that Connecticut's prosecutors have not pursued capital charges solely based on the egregiousness of the crime, but, instead, that racial minorities who kill white victims are charged at a rate sharply higher than for other racial configurations. See id., at pp. 3003, 3005–3006. "An essential message from the regression analysis across an array of murder categories [was] that the likelihood that a death-eligible murder will result in a death sentence is at least an order of magnitude higher for minority on white murders....” (Citation omitted.) Id., at p. 3006. During the ensuing legislative debates, a number of supporters of P.A. 12–5 expressed that Donohue's research was an important factor in their decision to vote to abolish the death penalty.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 750–51, remarks of Senator Edwin A. Gomes; id., at p. 813, remarks of Senator Donald E. Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2649–55, remarks of Representative Bruce V. Morris; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2516, remarks of Senator Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2691, remarks of Representative Charlie L. Stallworth.

New Mexico prospectively repealed the death penalty for crimes committed on or after July 1, 2009. See 2009 N.M. Laws 141. Governor Bill Richardson declined to commute the death sentences of the two prerepeal defendants. The New Mexico Supreme Court also allowed a death penalty trial for another defendant charged with a capital felony to go forward after the prospective repeal took effect, but that court specifically acknowledged that its decision had not reached the issue of the legality of the prospective repeal: "With regard to the issue addressed in briefing and in argument but not raised in the [p]etition, whether [the prospective repeal of the death penalty] prohibits the imposition of the death penalty in this case as a matter of law because [the defendant] was not sentenced prior to the effective date of [the repeal], this [c]ourt determines it inappropriate to decide the issue in this writ proceeding and expressly does not do so ....” (Emphasis added.) Astorga v. Candelaria, Supreme Court of New Mexico, Docket No. 33, 152 (September 1, 2011). Notably, however, the New Mexico Supreme Court did allow that defendant to make an argument at his sentencing regarding "what consideration, if any, jurors may deem appropriate to give to the fact that New Mexico has repealed the death penalty for offenses committed after July 1, 2009,” in making their determination whether to sentence the defendant to death or life imprisonment. Id. The defendant's penalty phase of the trial ended in a jury deadlock, and the judge therefore sentenced the defendant to life imprisonment in accordance with New Mexico law. See State v. Astorga, 343 P.3d 1245, 1249 (N.M.2015).

The majority contends that, because this state's representatives to the federal constitutional convention argued against a bill of rights on the ground that it would imply the absence of protection for unenumerated rights, the silence of our state constitution on cruel and unusual punishment does not imply a lesser concern with that problem. As the majority recognizes, however, both the 1818 and 1965 state constitutions set forth at length and with great specificity the rights that are enjoyed by the people of this state. See Conn. Const., art. I; Conn. Const. (1818), art. I. Thus, whatever concerns the state's representatives may have had about enumerating constitutional rights during the federal constitutional convention, they clearly were not shared by the framers of the state constitution. See Cologne v. Westfarms Associates, 192 Conn. 48, 60, 469 A.2d 1201 (1984) ("[t]he history of the adoption of our Connecticut [B]ill of [R]ights indicates that it was a response to the prevailing political sentiment of that time that the basic liberties of the people should be enshrined in a written constitution to ensure their protection from governmental infringement” [footnote omitted] ).

Of course, contrary to the majority's suggestion, I do not dispute that the due process provisions of the state constitution guarantee the unenumerated right to be free from cruel and unusual punishment, which was well established under the common law in 1818. See State v. Ross, 230 Conn. 183, 246–47, 646 A.2d 1318 (1994) ("[p]rior to the adoption of the state constitution in 1818, the common law in Connecticut recognized that the state did not have unlimited authority to inflict punishment for the commission of a crime”), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). Indeed, I agree with our precedent holding that, "in determining whether unenumerated rights were incorporated into the constitution, we must focus on the framers' understanding of whether a particular right was part of the natural law, i.e., on the framers' understanding of whether the particular right was so fundamental to an ordered society that it did not require explicit enumeration.” (Emphasis omitted.) Moore v. Ganim, 233 Conn. 557, 601, 660 A.2d 742 (1995). I conclude only that, if the framers of the state constitution had believed not just that, under the common law, "the state did not have unlimited authority to inflict punishment for the commission of a crime”; State v. Ross, supra, at 246–47, 646 A.2d 1318 ; and that this right to be free from cruel and unusual punishments was guaranteed by the constitutional due process provisions, but also that that right was uniquely important or expansive in this state, they would have manifested that belief in some way in the text of the state constitution. The eighth amendment to the federal constitution clearly provided them with a model for doing so. To conclude otherwise is to conclude that the text of the state constitution sheds no light on the scope of the rights that it protects. In any event, even assuming that the common law governing cruel and unusual punishments was, in some respects, more expansive in this state than in other states before 1818, there is no evidence that the framers ever remotely contemplated that the due process provisions of the state constitution would bar the death penalty for the most heinous murders as a cruel and unusual punishment.



This contrasts with Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which Justice Brennan suggested in his concurring opinion that there are four principles by which the United States Supreme Court should determine whether a particular punishment is cruel and unusual under the federal constitution. See id., at 271–80, 92 S.Ct. 2726 (Brennan, J., concurring). These are whether the punishment is "so severe as to be degrading to the dignity of human beings”; id., at 271, 92 S.Ct. 2726 ; is inflicted in an arbitrary fashion; id., at 274, 92 S.Ct. 2726 ; is "unacceptable to contemporary society”; id., at 277, 92 S.Ct. 2726 ; and is clearly unnecessary because it is excessive. Id., at 279, 92 S.Ct. 2726.

Since the time of those legislative hearings, Donohue's research has been published in a well respected peer reviewed academic journal. See J. Donohue, supra, 11 J. Empirical Legal Stud. at 637. The article describes how the "overwhelming” racial disparities in capital charging in Connecticut became even more pronounced after controlling for numerous legally relevant variables; id.; including the egregiousness of the crime, "geographic and time indicators, various measures reflecting the aggravating and mitigating aspects of the crime, the nature of the crime that established it as a capital felony, measures of the culpability of the defendant, the suffering of the victim, the number of victims and aspects of the victim's circumstances, indic[a]tors of whether the defendant had killed a stranger or had prior prison sentences, and various measures of the strength of the evidence....” Id., at 682 n. 80. Perhaps the most striking finding was that minority defendants who committed capital eligible felonies against white victims in Connecticut were charged with capital crimes in 85 percent of cases, whereas prosecutors only sought a capital conviction approximately 60 percent of the time for crimes with minority victims. See id., at 648. Donohue also concluded that there is compelling, statistically significant evidence that minority defendants who kill whites are substantially more likely to receive a sentence of death than white defendants who commit equally egregious crimes. See id., at 640, 672–73. A thorough and fair-minded review of the available historical and sociological data thus strongly suggests that systemic racial bias continues to infect the capital punishment system in Connecticut in the post-Furman era.

Because the 141 capital felonies charged in Connecticut since 1973 far exceeds the number of death sentences imposed, the former provides a more reliable basis for measuring any systemic racial disparities in the state's capital punishment system. See J. Donohue, supra, 11 J. Empirical Legal Stud. at 651.

It is true that this court has previously refused to apply retroactively other amendments to the statutory capital sentencing scheme then in effect. See Dortch v. State, 142 Conn. 18, 28–30, 110 A.2d 471 (1954) (finding that legislature clearly intended for savings statute to apply to legislation changing punishment for first degree murder conviction from mandatory death sentence to sentence of either life imprisonment without possibility of release or death depending on recommendation of jury, no violation of equal protection to do so); Simborski v. Wheeler, 121 Conn. 195, 198–201, 183 A. 688 (1936) (finding that legislature clearly intended for savings statute to apply to legislation altering mode of execution from hanging to electrocution, rendering alteration prospective only in nature). Neither of these cases, however, involved a challenge to the prospective only nature of the legislation at issue based on the eighth amendment to the constitution of the United States. Indeed, both Dortch and Simborski were decided well before the United States Supreme Court issued its opinions in Furman v. Georgia, supra, 408 U.S. at 238, 92 S.Ct. 2726 and Gregg v. Georgia, supra, 428 U.S. at 153, 96 S.Ct. 2909 the two cases which serve as the foundation of modern death penalty jurisprudence. I seriously doubt that our decision in either Dortch or Simborski would comport with our modern understanding of the cruel and unusual punishment clause of the eighth amendment and, thus, I do not consider these opinions to hold any precedential value on this point.

As I discuss more fully later in this dissenting opinion, the majority carefully avoids concluding that the right to be free from cruel and unusual punishments is broader under the state constitution than under the eighth amendment. The obvious purpose of the majority's extended Geisler analysis, however, is to create the illusion that this state's ancient history and this court's precedents have some mystical quality that now renders the death penalty for the most heinous murders unconstitutional in this state under the state constitution, even if, under similar circumstances, it would be constitutional elsewhere under the eighth amendment.

Although I have expressed reservations in recent years regarding the propriety of applying Geisler in its current form to state constitutional claims; see, e.g., Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 442, 119 A.3d 462 (2015) (Zarella, J., concurring); State v. Rizzo, supra, 303 Conn. at 202, 31 A.3d 1094 (Zarella, J., concurring); Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 400–401 n. 2, 990 A.2d 206 (2010) (Zarella, J., dissenting); I review the defendant's constitutional claim in the present case under Geisler because it was the legal framework this court adopted in Ross and applied in Rizzo.

We strongly emphasize that the fact that a charging or sentencing decision may be based in part on impermissible racial factors does not imply that the prosecutor, judge, or juror making that decision is "racist,” as that term is typically used. Statistical studies from other jurisdictions have demonstrated that the most likely explanation for such disparities is the tendency of members of the majority race to be more empathetic to majority victims, who resemble themselves, and less sympathetic to minority perpetrators, with whom they are less able to identify. See, e.g., M. Lynch & C. Haney, " Looking across the Empathic Divide: Racialized Decision Making on the Capital Jury,” 2011 Mich. St. L.Rev. 573 (2011) (and sources cited therein); see generally The Sentencing Project, "Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies” (2014) pp. 3, 18 (whites' implicit association of people of color with criminality linked to more punitive attitudes). This conclusion is bolstered by recent scientific studies that now document what has long been recognized: most, if not all, of us exhibit unconscious or implicit bias. See, e.g., J. Kang & K. Lane, " Seeing Through Colorblindness: Implicit Bias and the Law,” 58 UCLA L.Rev. 465, 473 (2010) ("Implicit biases—by which we mean implicit attitudes and stereotypes—are both pervasive [most individuals show evidence of some biases], and large in magnitude, statistically speaking. In other words, we are not, on average or generally, cognitively colorblind.”).

It likely is the case that many, if not most, of the documented disparities in capital charging and sentencing arise not from purposeful, hateful racism or racial animus, but rather from these sorts of subtle, imperceptible biases on the part of generally well-meaning decision makers. Historically, though, it is difficult to refute what Goodheart and others have noted: that, at varying times throughout our history, the lives of Native Americans, African–Americans, Asians, Irish, Italians, Jews, Roman Catholics, and Hispanics simply have not been considered to be as innately valuable as those of the cultural majority. See L. Goodheart, supra, at p. 162; see also Furman v. Georgia, supra, 408 U.S. at 245, 92 S.Ct. 2726 (Douglas, J., concurring) (it is cruel and unusual to apply death penalty "selectively to minorities whose numbers are few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it would not countenance general application of the same penalty across the board”); State v. Cobb, supra, 234 Conn. at 768, 663 A.2d 948 (Berdon, J., dissenting) ("the inevitable conclusion is that the state places a higher value on the life of a white person than on the life of an African–American”); District Attorney v. Watson, 381 Mass. 648, 669, 411 N.E.2d 1274 (1980) ( "[t]he conclusion is inescapable that the death penalty is reserved for those who kill whites, because the criminal justice system in these states simply does not put the same value on the life of a black person as it does on the life of a white” [internal quotation marks omitted] ).

In light of this historical and statistical record, we would be hard-pressed to dismiss or explain away the abundant evidence that suggests the death penalty in Connecticut, as elsewhere, has been and continues to be imposed disproportionately on racial and ethnic minorities, and particularly on those whose victims are members of the white majority. It also appears that such disparities are not primarily the result of benign, nonracial factors. We recognize that, in McCleskey v. Kemp, supra, 481 U.S. at 296–97, 107 S.Ct. 1756 the United States Supreme Court concluded that this sort of evidence of systemic racial disparities, taken alone, is insufficient to render the death penalty unconstitutionally arbitrary and discriminatory under the eighth amendment of the federal constitution. We have serious, indeed, grave doubts, however, whether a capital punishment system so tainted by racial and ethnic bias could ever pass muster under our state constitution.

McCleskey was a federal habeas case in which the petitioner proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski and George Woodworth, that purported to show a disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant. See id., at 286, 107 S.Ct. 1756. After subjecting their data to an extensive regression analysis, taking account of 230 variables that could have explained these disparities on nonracial grounds, the professors concluded, among other things, that defendants in Georgia charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. See id., at 287, 107 S.Ct. 1756.On a five to four vote, a narrow majority of the United States Supreme Court rejected the petitioner's claim. The majority assumed the validity of the petitioner's statistical study, but held that such evidence of persistent racial disparities in capital charging and sentencing is insufficient to invalidate a death sentence under the federal eighth amendment; id., at 308, 107 S.Ct. 1756 ; or equal protection clause. Id., at 297–99, 107 S.Ct. 1756. Rather, the majority indicated, to demonstrate a constitutional violation the petitioner would have to prove that purposeful, "invidious” discrimination played a role in his particular sentencing decision. See id., at 312–13, 107 S.Ct. 1756.

That requirement places upon each individual seeking to demonstrate a constitutional violation a Herculean task. As Justice Harper explained in his dissent in State v. Santiago, supra, 305 Conn. at 327, 49 A.3d 566 : "It is incredibly difficult—bordering on impossible—to demonstrate prohibited animus behind the decision to charge an individual with capital felony, behind the refusal to accept a plea to a lesser penalty, behind the jury's decision to convict or behind the jury's decision to select one of its fellow human beings for death.... It is not, however, the rare case, where at least one of these decisions—even if unconsciously—is influenced by considerations of the race of the defendant, the victim, or both.” (Footnote omitted.) See also J. Sullivan, " The Abyss of Racism,” 13 J.App. Prac. & Process 91, 97 (2012) ( "proving discrimination in the individual case is virtually impossible unless the prosecutor is prepared to admit bias”).

Perhaps unsurprisingly, the holding in McCleskey has been roundly criticized. See K. Williams, " Deregulation of the Death Penalty,” 40 Santa Clara L.Rev. 677, 708 and n.219 (2000) (collecting sources). The court itself in McCleskey was in strong disagreement, and Justice Brennan, with whom Justices Blackmun, Marshall, and Stevens joined, argued in his dissent that the operative constitutional question ought to be whether "sentencing procedures ... create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” (Emphasis added.) McCleskey v. Kemp, supra, 481 U.S. at 322, 107 S.Ct. 1756. "This emphasis on risk,” Justice Brennan further explained in his dissent, "acknowledges the difficulty of divining the jury's motivation in an individual case. In addition, it reflects the fact that concern for arbitrariness focuses on the rationality of the system as a whole, and that a system that features a significant probability that sentencing decisions are influenced by impermissible considerations cannot be regarded as rational.” Id., at 323, 107 S.Ct. 1756.

Especially noteworthy is the fact that the author of the majority opinion in McCleskey, Justice Powell, later confided to his biographer that if he could change his vote in any one case, it would be McCleskey. See J. Jeffries, Justice Lewis F. Powell, Jr. (2001 Ed.) p. 451; see also State v. Ross, 230 Conn. 183, 315–16, 646 A.2d 1318 (1994) (Berdon, J., dissenting in part), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995). One legal scholar explained Justice Powell's renunciation of his pivotal role in the McCleskey decision this way: "If one is known by the company that one keeps, Justice Powell no doubt wished for far better company for one of his final decisions, McCleskey v. Kemp [supra, 481 U.S. at 279, 107 S.Ct. 1756 ]. After the opinion's release, legal and lay commentators quickly compared McCleskey to infamous decisions like Dred Scott, Korematsu, and Plessy. And a quarter of a century later, McCleskey has become firmly entrenched as a resident in the exclusive but not so desirable neighborhood of Notorious Cases.... Especially in the criminal law area, a legal scholar can invoke McCleskey confident that the reader will understand that the case is being used as shorthand for 'cases in which the Supreme Court failed the [c]onstitution's most basic values.’ ” (Footnotes altered.) S. Sundby, " The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure,” 10 Ohio St. J.Crim. L. 5 (2012).

Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857).

Cooper was decided prior to the United States Supreme Court's decision in Roper v. Simmons, supra, 543 U.S. at 551, 125 S.Ct. 1183 which concluded that it violates the federal constitution to execute defendants who had committed their crime prior to the age of eighteen. Id., at 568–71, 125 S.Ct. 1183.

I generally agree with Justice Zarella's analysis of the text of the state constitution, his discussion of the history of the death penalty in this state and his discussion of the societal mores revealed by the legislature's passage of P.A. 12–5.

Article first, § 1, of the Connecticut constitution provides in relevant part: "All men when they form a social compact, are equal in rights....”

Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944).

Van Tran v. State, supra, 66 S.W.3d at 790, and Fleming v. Zant, supra, 259 Ga. at 687, 386 S.E.2d 339, were decided prior to Atkins v. Virginia, supra, 536 U.S. at 321, 122 S.Ct. 2242 wherein the United States Supreme Court concluded that executing mentally disabled individuals constitutes cruel and unusual punishment in violation of the eighth amendment to the United States constitution.

Although the number of capital felonies was reduced in the 1821 revision of the statutes, treason, murder, perjury with intent "to take away the life of any person,” arson endangering the life of any person, certain types of disfigurement and rape were still punishable by death. See General Statutes (1821 Rev.) tit. 20, §§ 1, 3, 5, 6, 7, 8 and 10. The preface to the 1821 revision of the General Statutes, which was authored by Zephaniah Swift, Lemuel Whitman and Thomas Day, provides that the revision was undertaken as the result of the adoption of the 1818 constitution, and its purpose was "to recommend such alterations and provisions as should be necessary and expedient to render the statutes conformable to the constitution.” General Statutes (1821 Rev.) preface, pp. vii, x.

The majority relies on People v. Anderson, 6 Cal.3d 628, 637–39, 493 P.2d 880, 100 Cal.Rptr. 152, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), in which the Supreme Court of California determined that the death penalty was per se unconstitutional under the state constitution, for the proposition that "incidental references to [the] death penalty in [a] state constitution merely acknowledge that [the] penalty was in use at [the] time of drafting and do not enshrine its constitutional status as standards of decency evolve....” The court in Anderson, however, adopted a far more nuanced position than the majority portrays. Although the court stated that references in the California constitution to capital punishment "do no more than recognize [the] existence [of capital punishment] at the time of their adoption”; People v. Anderson, supra, at 638, 100 Cal.Rptr. 152, 493 P.2d 880 ; the court also explained that the references to capital punishment were contained in the original state constitution in 1849, carried over into the constitution of 1879, and merely shifted into a different section of the constitution in 1966. Id., at 638–39, 100 Cal.Rptr. 152, 493 P.2d 880. The court then added: "Nothing in the legislative counsel's analysis, in the arguments for and against the revisions, or in the Secretary of State's official description of the ballot measure suggested to the voter that approval of [p]roposition 1–a [amending and revising various provisions of the state constitution] in the election of November 8, 1966, would affirm the continuance of capital punishment.” Id., at 639, 100 Cal.Rptr. 152, 493 P.2d 880. The court thereby indicated that, if the ballot measure had included such a suggestion, it would not have regarded the constitutional references to capital punishment as merely incidental. In contrast, Connecticut's constitutional history contains recent evidence of public support for capital punishment. As discussed in part II B of this opinion, delegates to the 1965 constitutional convention expressly rejected a constitutional amendment to abolish capital punishment, thus indicating continued approval of capital punishment almost 150 years following the adoption of the 1818 constitution. Anderson thus fails to support the majority's contention that the text of the Connecticut constitution is irrelevant because it does not reflect contemporary values. See Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2747, 192 L.Ed.2d 761 (2015) (Scalia, J., concurring) ("[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates ” [emphasis in original] ).

Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896).

Furthermore, to the extent that these decisions from our sister states do support the proposition that legislation prospectively repealing the death penalty for defendants with specific characteristics that reduce culpability must also apply to that class of offenders who committed their crimes prior to the effective date of the legislation, this proposition supports the principle that similarly culpable defendants deserve similar punishment. See part I A 2 and part I A 3 of this concurring opinion.

In addition, as Justice Zarella has aptly pointed out in his dissenting opinion, far from supporting the majority's position, the circumstances surrounding Lung's case show that there was contemporary public support for the death penalty.

In the colony of Connecticut, capital punishment applied to twelve crimes in 1642 and seventeen crimes in 1650. L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 10–11. In the colony of New Haven, capital punishment applied to twenty-three crimes in 1656. Id., at p. 12. After the two colonies merged in 1665, the punishment applied to eighteen crimes. Id., at p. 13.

In light of these criticisms, the Massachusetts Supreme Judicial Court declined to adopt the standard set forth in McCleskey and instead held that the death penalty offends that state's constitution insofar as pervasive racial disparities in capital charging or sentencing can be documented. See District Attorney v. Watson, supra, 381 Mass. at 665, 411 N.E.2d 1274. Because "experience has shown that the death penalty will fall discriminatorily upon minorities, particularly blacks,” that court concluded that the death penalty is unconstitutionally cruel under article twenty-six of the Massachusetts Declaration of Rights. Id.

Although the standard set forth in McCleskey may be appropriate for challenges to noncapital sentencing determinations, we question whether it provides adequate protection when the ultimate punishment of death is involved. Cf. Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986, 1993, 188 L.Ed.2d 1007 (2014) (intellectually disabled defendants are subject to ordinary criminal responsibility but may not receive "law's most severe sentence”). The types of subtle biases that influence members of the majority to make decisions favoring their own race may well be inevitable, albeit regrettable. When unconsciously made, they do not inherently impugn the diligent and good faith work of our prosecutors, police, judges, and jurors. Nor do they mean that the outcomes of a criminal justice system, writ large, are manifestly unjust. See District Attorney v. Watson, supra, 381 Mass. at 668, 411 N.E.2d 1274. But both this court and the United States Supreme Court repeatedly have made clear that "[d]eath is different.” Because a sentence of death is uniquely irreversible and deprives the condemned of the ability to exercise any of his inalienable rights; see Furman v. Georgia, supra, 408 U.S. at 290, 92 S.Ct. 2726 (Brennan, J., concurring); it ought not be imposed unless we are assured that the selection between a sentence of death or life imprisonment is based solely on objective, morally defensible criteria. The fact that a white prosecutor or a white juror may be more troubled by the death of a white victim than of a black or Hispanic victim may be psychologically explicable, but it is not morally defensible. It should not be the basis on which we decide who lives and who dies. See District Attorney v. Watson, supra, at 668, 411 N.E.2d 1274.

State v. Rizzo, 266 Conn. 171, 226, 833 A.2d 363 (2003) ; see also California v. Ramos, 463 U.S. 992, 998–99, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983) ("the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination”); State v. Rizzo, supra, at 226, 833 A.2d 363 ("[d]eath, in its finality, differs more from life imprisonment than a 100–year prison term differs from one of only a year or two” [internal quotation marks omitted] ); District Attorney v. Watson, supra, 381 Mass. at 670, 411 N.E.2d 1274 ("[w]hile other forms of punishment may also be arbitrary in some measure, the death penalty requires special scrutiny for constitutionality”).

The United States Supreme Court has stated that the eighth amendment demands reliability and consistency in the imposition of the death penalty in order for a capital sentencing scheme to pass constitutional muster. See Furman v. Georgia, supra, 408 U.S. at 309–10, 92 S.Ct. 2726 (Stewart J., concurring). The question is not one involving rational basis review. The United States Supreme Court has invalidated modern capital sentencing schemes even though one could argue that the schemes were rationally related to a valid legislative purpose. For example, in Woodson v. North Carolina, 428 U.S. 280, 286, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) (plurality opinion), the court invalidated a statutory scheme that imposed a mandatory death sentence if an offender were convicted of first degree murder. The court made this ruling in part because the statute's "failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.... A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.” (Citations omitted.) Id., at 303–304, 96 S.Ct. 2978. The court continued: "While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the [e]ighth [a]mendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.” (Citation omitted.) Id., at 304, 96 S.Ct. 2978 ; cf. Callins v. Collins, 510 U.S. 1141, 1144, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) ("[r]easonable consistency [in imposing the death penalty] requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim” [emphasis added] ).

It is not entirely clear to me that this attempt by the majority to insulate itself from further review by the United States Supreme Court would necessarily be successful. When a state court has "felt compelled by what it understood to be federal constitutional considerations to construe ... its own law in the manner it did,” the Supreme Court has held that it has jurisdiction to review the decision. (Internal quotation marks omitted.) Michigan v. Long, 463 U.S. 1032, 1044, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

In Connecticut, capital punishment applied to nineteen crimes in 1702 and to twelve crimes in 1750. L. Goodheart, supra, at pp. 45, 49.

The death penalty is fundamentally different from other punishments for which we may, reluctantly, have to tolerate some degree of unintentional systemic disparity or imperfection. Execution represents a complete and utter rejection of the personhood and humanity of the condemned, an irreversible banishment from the moral community. "The death sentence itself is a declaration that society deems the prisoner a nullity, less than human and unworthy to live.” Id., at 683, 411 N.E.2d 1274 (Liacos, J., concurring). Execution cuts off any possibility of rehabilitation, or redemption, or hope. As Justice Douglas observed in his concurrence in Furman, in a nation "committed to equal protection of the laws there is no permissible caste aspect of law enforcement.... In ancient Hindu law a Brahman was exempt from capital punishment, and ... punishment increased in severity as social status diminished. We have, I fear, taken in practice the same position....” (Footnotes omitted; internal quotation marks omitted.) Furman v. Georgia, supra, 408 U.S. at 255, 92 S.Ct. 2726. We doubt that our state constitution would permit us, however inadvertently, to tip the scales of death toward those whom society values less.

For the same reasons, we are not persuaded by the argument that there is neither a legal nor a moral problem so long as all those sentenced to death in Connecticut over the past one-half century have been legitimately charged with and convicted of heinous capital crimes. If this is the case, the argument goes, then the fact that the racial statistics appear to be skewed in favor of whites is immaterial, because each man on death row has been found guilty by a jury of his peers, as provided by law. Any such argument entirely misses the point.

It may be that every black man ever executed for raping a white woman and every Native American ever executed for murdering a white man in Connecticut was guilty as charged, and received his due process and his proper punishment under the laws then in effect. But white men in Connecticut have also killed Native Americans over the past 400 years, and raped black women. None has ever hanged for it. To the extent that a criminal justice system operates such that only racial minorities are subject to execution for their participation in interracial crimes, the fact that those executed are guilty as charged is of little succor. To the extent that such biases, however subconscious, invariably continue to influence who is charged with and sentenced to the ultimate punishment, the death penalty likely would be hard put to survive constitutional scrutiny.

Numerous courts and commentators have recognized that the improper exercise of discretion by government officials tasked with investigating, charging, plea bargaining, and prosecuting crimes is no less offensive to the constitution than discrimination by judges or juries at the fact-finding and sentencing stages of the criminal justice process. See, e.g., State v. Cobb, supra, 234 Conn. at 781, 663 A.2d 948 (Berdon, J., dissenting); see also District Attorney v. Watson, supra, 381 Mass. at 667–68, 411 N.E.2d 1274 (noting that most life or death decisions in capital punishment process are made prior to trial).

I extend my thanks to the amicus curiae Legal Historians and Scholars for bringing much of the following information to my attention.

The majority repeatedly expresses its admiration for social "progress” and for "progressive,” "forward thinking” and "forward-looking” social views. I do not in any way disparage such views, which, indeed, are held by many reasonable people and may in fact be consistent with my own personally held views. I am aware of no authority, however, for the proposition that our state constitution requires this court or the people of this state to hold such views. To the contrary, there is absolutely no reason why the people of this state may not hold and enact legislation embodying the very same views that the framers of our constitution held in 1818 and 1965.

Capital punishment applied to eleven crimes in 1784 and to six crimes in 1821. L. Goodheart, supra, at pp. 75, 79.

The offense committed by the defendant was, like all murders, a terrible and tragic crime. But some could rightly question whether it was among the "worst of the worst” for which the ultimate punishment must be reserved. The defendant shot the victim in his sleep, for limited pecuniary gain; if he had killed the victim in precisely the same manner, but merely as a favor to his friend, he would not be eligible for the death penalty. The defendant is Hispanic, and his victim was white. In light of the available data, we simply cannot be assured that, had their races been reversed, the outcome would have been the same. Nor do we have much confidence that, despite significant social progress, we are close to the day when capital punishment may be imposed in a color-blind and ethnically neutral manner. Lacking such assurances, we would find the prospect of any future executions in this state deeply troubling and suspect.

We find noteworthy the fact that the coders whom Donohue employed to objectively assess the egregiousness of the 205 death eligible crimes committed in Connecticut since 1973 determined that 117, or 60 percent, of the offenders who were not sentenced to death committed crimes that were as egregious or more egregious than the crime committed by the defendant. See J. Donohue, supra, 11 J. Empirical Legal Stud. at 679. Coders ranked the defendant's crime as the least egregious of those committed by our state's death row inmates. See id.

North Dakota's repeal was enacted in 1915, while West Virginia's repeal was enacted in 1965. See 1915 N.D. Laws 76; 1965 W. Va. Acts 207; J. Galliher et al., "Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century,” 83 J.Crim. L. & Criminology 538, 555–56 (1992); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” pp. 210, 402, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

In some other states, although the legislation did not contain language expressly applying the repeal retroactively, the legislation was arguably retroactive in that the statutes provided, generally, that "the punishment of death is hereby abolished.” 1852 R.I. Pub. Laws 12; see also 1957 Alaska Sess. Laws 262.



The majority suggests that it may be that "the opposition of the dissenting justices reflects their disapproval of the evolving standards of decency test itself, a legal standard according to which a penalty that once passed constitutional muster may, within a relatively brief span of time, come to be deemed cruel and unusual.” To the contrary, I conclude only that, even if the evolving standards of decency test applies to a claim that the death penalty is categorically unconstitutional for all crimes, the majority has failed to properly apply that test.

Each treatise consisted of two volumes published in successive years. Swift's first treatise was published in 1795 (volume I) and 1796 (volume II). His second treatise was published in 1822 (volume I) and 1823 (volume II).

II

RESPONSE TO THE DISSENTING OPINION OF CHIEF JUSTICE ROGERS

A

The Chief Justice's Concerns with the Objectivity of This Concurrence

In her dissenting opinion, Chief Justice Rogers contends that we have "cherry picked” the research on which we rely herein. This is a bold assertion, and one to which we feel compelled to respond. The Chief Justice challenges both the general objectivity of our review and, specifically, our reliance on Professor Donohue as a source. We consider each volley in turn.

With respect to our review of the social science research governing racial and ethnic disparities in capital charging and sentencing, the Chief Justice contends that we have ignored contrary research by Attorney Kent S. Scheidegger, who has also submitted a brief in this appeal on behalf of the amicus Criminal Justice Legal Foundation, purporting to show that " 'claimed racial disparities would shrink to insignificance if legitimate factors, including jurisdiction, could properly be taken into account....’ ” Chief Justice Rogers also contends that the science underlying this type of research is too complex for a member of this court to understand or assess. See footnote 44 of Chief Justice Rogers' dissenting opinion.

Although much could be said in response, the crux of the problem, we suspect, is that the Chief Justice simply fails to understand the nature or purpose of a meta-analysis. Whether the topic of research is the environmental impacts of a certain contaminant or the health benefits of a morning jog, there will, invariably, be conflicting studies, the results of which may point in different directions. It is true that a layperson, faced with two or more conflicting scientific research studies, may be ill equipped to judge between them. When a meta-analysis has been completed, the simple fact is that we don't have to; someone who does understand the underlying science and statistical methodologies has done it for us. In a meta-analysis, an expert in the field reviews all of the available research on a topic. He or she assesses that research both quantitatively (counting up the number of data points and the number of studies pointing in each direction) and qualitatively (assessing the methodological soundness of each study). After assessing the entire field of study, the author of the meta-analysis then determines whether any firm conclusions can be drawn from all of the research. See generally J. Blumenthal, " Meta–Analysis: A Primer for Legal Scholars,” 80 Temp. L.Rev. 201, 202–14 (2007).

In the present case, Chief Justice Rogers, in highlighting a handful of studies that obtained conflicting results, simply ignores the fact that multiple meta-analyses and multijurisdictional studies conducted by respected scholars and government agencies all have concluded, after reviewing both those primary studies purporting to find a racial effect and those that did not, that it is more likely than not that there are racial disparities in capital charging or sentencing. See, e.g., J. Sorensen, supra, 37 Crim. L. Bull. at 403–404 (in meta-analysis of "high quality” statistical studies, race of victim disparities in capital charging decision found in 90 percent of studies after adjusting for control variables); United States General Accounting Office, supra, at p. 5 finding race of victim effect on capital charging in 82 percent of studies, and across all methodologies). If there has been any cherry picking, then, it has been on the part of the Chief Justice. We invite her to reach at random into the bag of meta-analyses on racial disparity research and see if she does not draw forth the bounty of fruit that we have found therein.

We next consider Chief Justice Rogers' concerns with our analysis of Donohue's recent report in the Journal of Empirical Legal Studies. See J. Donohue, supra, 11 J. Empirical Legal Stud. at 637. We emphasize at the outset that we have not relied herein on the legal analysis that Donohue presents in part VI of that article, in which he takes issue with the decision of the habeas court in In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S. See J. Donohue, supra, at pp. 679–93. Rather, our focus and concern have been exclusively with the first five parts of the article, in which Donohue documents how, after accounting for dozens of potential explanatory variables, there continue to be racial disparities in Connecticut's capital punishment system that cannot be attributed to innocuous, nonracial factors. See id., at pp. 641–79.

The Chief Justice remains unpersuaded, apparently because the opposing party in the habeas case—the state, via its expert—has, not surprisingly, contested Donohue's findings. Once again, we reject the Chief Justice's view that this court must be paralyzed by a lack of scientific unanimity, and that we can take notice only of empirical research that is either undisputed or "self-evidently true....” There is no such requirement. The legislative facts on which appellate judges necessarily rely are, in practice, rarely indisputable; see 2 K. Broun, McCormick on Evidence (7th Ed.2013) § 331, p. 614; and "the fact that we must always act without the illumination of complete knowledge cannot induce paralysis when we confront what is literally an issue of life and death.” (Internal quotation marks omitted.) State v. Cobb, supra, 234 Conn. at 780, 663 A.2d 948 (Berdon, J., dissenting).

Lastly, just as the Chief Justice has failed to recognize the significance of meta-analysis research, there is no indication that she has accounted for the truth filtering value of the peer review process. "[Peer review] is the process of subjecting an author's scholarly work to the examination of academic experts (scholarly or scientific peers) in the same field.” Columbia University Libraries, "What is Peer Review?,” available at http://library.columbia.edu/help/faq/workshops/peerreview.html (last visited July 22, 2015). Also known as "refereeing,” peer_review "is a well-accepted indicator of quality scholarship.” Id. Donohue's research, unlike that on which the Chief Justice relies, has been published in a well respected peer reviewed journal and, therefore, has withstood the scrutiny of experts in the field of empirical legal research. Ultimately, then, the Chief Justice is simply incorrect in assuming that we can place no credence in Donohue's conclusions merely because they have been questioned by opposing litigants and amici. Rather, as this court recognized in State v. Porter, 241 Conn. 57, 91–92, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S.Ct. 1384, 140 L.Ed.2d 645 (1998), lay judges are routinely called upon to evaluate the admissibility of complex and arcane research such as this, with the aid of objective indicia of reliability. See id. ("nonscientists can understand the fundamental characteristics that separate valid science from pale imitations” [internal quotation marks omitted] ).

Meta-analysis and peer review are precisely the sorts of objective indicia of scholarship quality and methodological validity upon which judges can and should rely in separating the scientific wheat from the biased chaff. Although we reach no firm conclusions herein as to the existence of racial disparities in Connecticut's capital punishment system, we remain confident that we have identified the best available scholarship in that regard.

B

The Chief Justice's Concerns with the Propriety of This Concurrence

We find it curious that the Chief Justice, despite our clear statements to the contrary, persists in proclaiming that we have concluded that our state's death penalty is imposed in an unconstitutionally discriminatory fashion. We have not. Our goals in this concurring opinion, rather, have been modest and few. First, we would gather, all in one place, the various charges of death penalty racial and ethnic disparity that have been made over the years, and inter with them the most recent and respectable research as to the history, scope, and origin of those alleged disparities. Second, we would express to our sister courts, for whom the issue is not yet a dead letter, our suggestion that they consider closely whether the legal standard articulated in McCleskey v. Kemp, supra, 481 U.S. at 296–97, 107 S.Ct. 1756 affords adequate protection to members of minority populations who may face the ultimate punishment. Third, and finally, we would make known to those who, for four centuries, have protested against these alleged disparities that their voices have not gone unheard. We seek to accomplish no more.

We also find curious the suggestion by the Chief Justice that, merely by discussing an issue that today's majority opinion has rendered moot, we somehow have "undermine[d] the institutional integrity of this court....” Those are strong words indeed, particularly in light of the fact that the Chief Justice herself has in the past authored concurring opinions to address issues not before the court. See, e.g., State v. Johnson, 312 Conn. 687, 706–707, 94 A.3d 1173 (2014) (Rogers, C.J., concurring) (expressing hope that, when appropriate case presents itself, court will abandon evidentiary rule adopted in State v. Holliman, 214 Conn. 38, 46, 570 A.2d 680 [ (1990) ] ). We are aware of no authority, from this court or any other, supporting the Chief Justice's novel rule that the author(s) of a concurring opinion may freely address issues that are likely to arise in future cases, but that we are categorically barred from discussing issues that will not. As we have explained, one of our goals in authoring this concurring opinion has been to highlight the racial disparity issue for consideration by other courts and legislative bodies. That has long been considered a legitimate function of a concurring opinion. See generally R. Blomquist, " Concurrence, Posner–Style: Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner,” 71 Alb. L.Rev. 37, 46, 56–64 (2008). The Chief Justice offers no reason why it should be otherwise.

EVELEIGH, J., concurring.

Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as the justification for the death penalty in today's world. My review of the text and legislative history of the public act under consideration, No. 12–5 of the 2012 Public Acts (P.A. 12–5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12–5 that allow the men on death row to be executed are violative of the federal and state constitutional bans against cruel and unusual punishment. See U.S. Const., amend. VIII; Conn. Const., art. I, §§ 8, 9.1 I therefore join the majority's analysis in all respects, and join in remanding the case with direction to sentence the defendant, Eduardo Santiago, to a term of life imprisonment without the possibility of release. I write separately to express my view that, although our state constitution provides separate and distinct protections to the citizens of Connecticut and appropriately prohibits capital punishment, the protections afforded by the eighth amendment to the United States constitution and existing federal case law would have been sufficient to prohibit capital punishment in the state of Connecticut. Moreover, although I agree with the majority that capital punishment is unconstitutional and that the majority properly reached the issue of unconstitutionality, in view of the dissents' claims about the appropriateness of the majority's reaching the issue, I conclude that the unconstitutional aspects of the act could have been severed in order to effectuate the legislature's clear intent to repeal the death penalty.Historically, Connecticut has been a leader in recognizing limits to the application of the death penalty.2 The death penalty is an especially brutal, archaic punishment, and one that has been kept alive only because of our society's acceptance of the traditional theories of punishment, namely, retribution and deterrence. Because the concept of retributive justice inextricably links the severity of a punishment with the culpability of the offender, the death penalty must be available for similarly culpable offenders in order for a capital sentencing scheme to fulfill a valid retributive purpose. By maintaining the death penalty for those who have committed a capital offense before the act's arbitrary effective date while eliminating the death penalty for any crime committed thereafter, no matter how heinous that crime may be, P.A. 12–5 severs the tie between the imposition of the death penalty and the culpability of the individual offender.

I

P.A. 12–5 RENDERS CONNECTICUT'S CAPITAL PUNISHMENT STATUTORY SCHEME UNCONSTITUTIONAL UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION

The eighth amendment to the constitution of the United States bans the infliction of all cruel and unusual punishments. See footnote 1 of this concurring opinion. In assessing the contours of the eighth amendment in the context of the death penalty, the United States Supreme Court has recognized that "the penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” (Internal quotation marks omitted.) Solem v. Helm, 463 U.S. 277, 289, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (Stewart, J., concurring).

When a particular type of punishment is challenged categorically or, in other words, when it is argued that a given penalty is never appropriate for a specific category of offender, "[t]he [c]ourt first considers objective indicia of society's standards, as expressed in legislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue.... Next, guided by the standards elaborated by controlling precedents and by the [c]ourt's own understanding and interpretation of the [e]ighth [a]mendment's text, history, meaning, and purpose ... the [c]ourt must determine in the exercise of its own independent judgment whether the punishment in question violates the [c]onstitution.” (Citations omitted; internal quotation marks omitted.) Graham v. Florida, 560 U.S. 48, 61, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010).

The Supreme Court also has recognized that, because of its ultimate and irrevocable effect, the death penalty cannot be imposed under procedures that create a substantial risk of its infliction in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Simply put, "[t]he [e]ighth and [f]ourteenth [a]mendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be ... wantonly and ... freakishly imposed.” (Internal quotation marks omitted.) Id., quoting Furman v. Georgia, supra, 408 U.S. at 310, 92 S.Ct. 2726 (Stewart, J., concurring).

Following our legislature's prospective repeal of the death penalty, the single most determinative factor in whether a death penalty is imposed or carried out under our capital sentencing scheme is the date on which a defendant commits his or her crime—specifically, whether a defendant has committed his or her crime before April 25, 2012. As I explain in part I A of this concurring opinion, I conclude that, as amended by P.A. 12–5, Connecticut's capital sentencing scheme is contrary to the consensus against executions postrepeal of the death penalty. In addition, as I explain in part I B of this concurring opinion, to allow such an arbitrary factor, which lacks any connection to the purported purposes of the death penalty and the nature of the offenses committed, to have such an extreme impact on the ultimate fate of a limited class of individual defendants is the paradigm of capriciousness that the eighth amendment will not tolerate.

A

Executing the Defendant Following the Repeal of the Death Penalty Is Inconsistent with Contemporary Standards of Decency

Under the test reserved for categorical challenges to the death penalty for a particular class of offender, the first step is to consider objective indicia of society's standards. Graham v. Florida, supra, 560 U.S. at 61–62, 130 S.Ct. 2011. In the present case, this step requires the court to examine the standards expressed by legislatures and courts regarding the imposition of the death penalty following a prospective repeal. Although "[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures”; (internal quotation marks omitted) id., at 62, 130 S.Ct. 2011 quoting Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; "[t]here are measures of consensus other than legislation.... Actual sentencing practices are an important part of the [c]ourt's inquiry into consensus.” (Citation omitted; internal quotation marks omitted.) Graham v. Florida, supra, at 62, 130 S.Ct. 2011 ; accord Kennedy v. Louisiana, 554 U.S. 407, 433–34, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ; Roper v. Simmons, 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; Atkins v. Virginia, supra, at 316, 122 S.Ct. 2242 ; Thompson v. Oklahoma, 487 U.S. 815, 821–29, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) ; Enmund v. Florida, 458 U.S. 782, 794–96, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). On the basis of not only the actions of legislative and executive branches worldwide regarding prospective repeals of the death penalty, but also the actual sentencing practices of other jurisdictions during periods of time in which the death penalty has been repealed, I would conclude that current societal standards unequivocally indicate an unwillingness to impose the death penalty on defendants who committed their crimes prior to the repeal.

1

Federal and State Case Law

Although the United States Supreme Court has repeatedly upheld the facial validity of the death penalty; see Gregg v. Georgia, supra, 428 U.S. at 187, 96 S.Ct. 2909 ; in recent years, that court has limited the situations in which capital punishment is permissible. See Kennedy v. Louisiana, supra, 554 U.S. at 413, 128 S.Ct. 2641 (death penalty impermissible for nonhomicide crimes against individuals); Roper v. Simmons, supra, 543 U.S. at 568, 125 S.Ct. 1183 (death penalty impermissible for defendants who committed their crimes prior to age of eighteen); Atkins v. Virginia, supra, 536 U.S. at 321, 122 S.Ct. 2242 (death penalty impermissible for defendants whose intellectual functioning is in low range). That court, however, has never decided whether a state may carry out executions while a prospective repeal of the death penalty is in effect.

Nonetheless, this nation's highest court has considered the significance of a prospective repeal of the death penalty for purposes of eighth amendment analysis. In Atkins v. Virginia, supra, 536 U.S. at 314–15, 122 S.Ct. 2242 the United States Supreme Court determined that a national consensus existed against the execution of mentally disabled defendants, relying in part on the fact that eighteen of the thirty-eight states that permitted capital punishment had enacted legislation forbidding the execution of such individuals. See id., at 342, 122 S.Ct. 2242 (Scalia, J., dissenting). The court was well aware that, of those eighteen states, only seven had prohibited all such executions, while eleven had enacted statutes prospectively prohibiting the execution of mentally disabled individuals, thus maintaining death sentences for mentally disabled individuals who had committed capital offenses prior to the enactment of the repeals. See id., at 342–43, 122 S.Ct. 2242 (Scalia, J., dissenting) (arguing against inclusion of prospective repeal states). The court declined, however, to draw any analytic distinction between states that had completely abolished the execution of mentally disabled individuals and states that had only had prospectively prohibited it in determining whether a national consensus against the practice had emerged. Id., at 314–16, 122 S.Ct. 2242. Under Atkins, therefore, a prospective appeal of the death penalty signals a jurisdiction's own consensus against the death penalty.3

Applying the proper standard, I turn now to the practices of our sister states, as articulated by their legislatures and courts. As I explain in further detail subsequently in this opinion, twenty-seven other states and the District of Columbia have, at least at some point in history, eliminated their death penalty, and no executions have been carried out by those states as long as the repeal or invalidation remained in effect.4 Eleven states other than Connecticut, namely, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Vermont, and Wisconsin, have enacted repeals of the death penalty that are prospective only in nature.5 Only one state other than Connecticut, New Mexico, continues to have individuals sentenced to death despite the enactment of a prospective repeal. See 2009 N.M. Laws 141. The appellate courts of that state have not yet ruled on the constitutionality of the prospective only nature of their repeal, and no executions have been carried out since its enactment.6 Significantly, however, a small number of states have enacted prospective repeals of the death penalty for certain classes of offenders or prospective repeals of procedures that had made a death sentence more likely. In these states, courts consistently have concluded that the repeal must be applied to persons previously sentenced to death.7

I begin with the case law from those states that have addressed the question that is before this court in the context of a partial repeal of the death penalty or death penalty provisions. This case law shows that, like the view taken by the United States Supreme Court, a prospective repeal of the death penalty is deemed to signify consensus that the execution of individuals who fall within the category of offender affected by the prospective repeal, including those individuals sentenced to death prior to the repeal, would violate contemporary standards of decency. See Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989), superseded by statute as stated in Turpin v. Hill, 269 Ga. 302, 303–304, 498 S.E.2d 52 (1998) ; Saylor v. Indiana, 808 N.E.2d 646, 650 (Ind.2004) ; Cooper v. State, 540 N.E.2d 1216, 1220–21 (Ind.1989) ; State v. Bey, 112 N.J. 45, 51, 548 A.2d 846 (1988) ; Van Tran v. State, 66 S.W.3d 790, 801–804 (Tenn.2001). Thus, courts have vacated a defendant's death sentence when, due to prospective changes in that state's capital punishment scheme, the defendant would not have been eligible for the death penalty had he been sentenced after the statutory changes were made.

In Cooper v. State, supra, 540 N.E.2d at 1220, the Indiana Supreme Court concluded that a prospective repeal of the death penalty for offenders under the age of sixteen rendered the prerepeal death sentence of a fifteen year old defendant unconstitutional under that state's constitution. In considering the Indiana legislature's decision to apply the repeal prospectively despite the fifteen year old defendant's pending death sentence, the court noted: "The bill's sponsors declared openly that this exclusion was purposeful. Although the exclusion [of the defendant] was assaulted on the [h]ouse floor during consideration of the bill as being unjust, it was apparent that the authors wished to enact a general policy without the passion that legislating on a particular case would arouse.” (Footnotes omitted.) Id., at 1219. The Indiana Supreme Court reasoned as follows in holding that executing the defendant would violate the state constitution:8 "While this case has been pending on appeal, the legal landscape surrounding it has changed dramatically in ways that reflect on the appropriateness of this death penalty 'in light of other death penalty cases.’ ” Id. Although the legislature purposefully had crafted the repeal so as not to affect the defendant's death sentence, the court did not find the effective date provision of the act dispositive of the issue of whether it was constitutional to execute the defendant. Id. Rather, the court stated: "Now that Indiana law establishes [sixteen] as the minimum age for the imposition of the death penalty, [the defendant] would be both the first and the last person ever to be executed in Indiana for a crime committed at the age of [fifteen]. This makes her sentence unique and disproportionate to any other sentence for the same crime.” Id., at 1219–20. This language, in my view, suggests that the court determined that the prospective repeal signified a societal consensus against the execution of any offender who was younger than sixteen years of age at the time of his or her crime, regardless of whether the crime was committed prior to the effective date of the repeal.

More recently, in Saylor v. Indiana, supra, 808 N.E.2d at 651, the Indiana Supreme Court reduced a death sentence after a change in the law altered the way that the death penalty could be imposed in future cases. The defendant in Saylor had been sentenced to death in 1992, despite a unanimous jury recommendation to the contrary, under a law that allowed the trial judge to override a jury recommendation against death if the trial judge found that the statutory aggravating circumstances outweighed any mitigating circumstances. Id., at 647–48. After the defendant's sentence was affirmed, the Indiana legislature enacted legislation that eliminated the trial judge's authority to impose a death sentence in contravention of a jury's recommendation. Id., at 648. The defendant thereafter sought rehearing on the judgment affirming his sentence, claiming, inter alia, that his death sentence should be invalidated because, if his sentencing had occurred after the amendments to the capital sentencing statute took effect, he would not have been eligible for the death penalty. Id. On rehearing, the Indiana Supreme Court agreed with the defendant and reduced his sentence from death to a term of years. Id., at 651. As it did in Cooper, the court reaffirmed its goal of ensuring " 'evenhanded operation of the death penalty statute’ by reviewing death sentences 'in light of other death penalty cases.’ ” Id., at 650. Although the court noted that it had previously affirmed the defendant's death sentence, it explained: "Since that time the legal landscape has significantly changed.... [A]s a matter of Indiana state law [the defendant], if tried today, could not be sentenced to death without a jury recommendation that death be imposed. Under these circumstances we conclude that his death sentence is inappropriate and should be revised.” Id. The court compared the case before it with its previous decision in Cooper, and stated that both cases presented "situations in which the legislature, after [the defendants'] sentences were imposed, enacted significant changes in the requirements for the death penalty that would render [the defendants] ineligible for a death sentence in a trial conducted today.... [W]e conclude it is not appropriate to carry out a death sentence that was the product of a procedure that has since been revised in an important aspect that renders the defendant ineligible for the death penalty. ” (Emphasis added.) Id., at 650–51. Accordingly, the Indiana Supreme Court converted the sentence of death to a term of imprisonment.

Similarly, in Van Tran v. State, supra, 66 S.W.3d at 792, the Tennessee Supreme Court concluded that it would violate that state's constitutional ban on cruel and unusual punishment to execute a mentally disabled defendant after the enactment of laws prospectively banning such executions. That court concluded that, although the legislature did not intend for the repeal to apply retroactively to those mentally disabled defendants who had been sentenced to death prior to the effective date of the repeal; id., at 798–99 ; the prospective ban nevertheless reflected an "evolving societal view” in that state that executing a mentally disabled individual would violate "contemporary standards of decency.” Id., at 801–805.

The Georgia Supreme Court reached the same conclusion when faced with a challenge to a statute prospectively repealing the death penalty for mentally disabled individuals. See Fleming v. Zant, supra, 259 Ga. at 690, 386 S.E.2d 339. That court concluded that the prospective repeal signified that the contemporary " 'standard[s] of decency’ ” in that state no longer supported the execution of those individuals, including those who were on death row prior to the effective date of the repeal. Id. In analyzing the significance of the prospective repeal, the court stated: "The legislative enactment reflects a decision by the people of Georgia that the execution of mentally [disabled] offenders makes no measurable contribution to acceptable goals of punishment. Thus, although there may be no 'national consensus' against executing the mentally [disabled], this state's consensus is clear.”9 (Footnote omitted.) Id.

Likewise, in State v. Bey, supra, 112 N.J. at 51, 548 A.2d 846, the New Jersey Supreme Court gave retroactive effect to a statute prospectively repealing the death penalty for crimes committed by minors. Although in that case the court premised its decision to apply the statute retroactively on rules of statutory construction; id., at 100–105, 548 A.2d 846 ; it noted that, apart from the legislature's intent concerning retroactivity, "notions of fundamental fairness ... would likewise demand retroactive application of the juvenile-offender exemption in this case.... Indeed, the [state] ... concedes that sound public policy and fundamental fairness dictate that [the] defendant not be singled out to be the only juvenile ever executed or even eligible for execution under our current death penalty law.” (Citation omitted; internal quotation marks omitted.) Id., at 104–105, 548 A.2d 846.

It is all but a certainty that at least some future offenders protected by the prospective repeal will have the same characteristics as the prerepeal defendants, and that their crimes will be similar to—if not worse than—those committed by the prerepeal defendants, yet only the prerepeal defendants would face the possibility of dying at the hands of the state. As I explain more fully in part I A 3 of this concurring opinion, first, it would be irrational to conclude that the prerepeal defendants may be executed when the legislature has determined that the death penalty should not be available for all future offenders, irrespective of whether their moral culpability is similar to, or greater than, that of the prerepeal defendants. Second, these decisions from our sister states were not all solely grounded on the fact that the legislative enactments addressed offenders who, in general, are less culpable than the average adult offender, and that this diminished culpability rendered imposition of the death penalty unconstitutional. Rather, these decisions aptly highlighted the fundamental unfairness inherent in executing a defendant when, due to a legislative enactment either prospectively repealing the death penalty or substantially altering the way in which the death penalty may be imposed in the future, that defendant would not have been eligible for the death penalty if he or she had been sentenced after the enactment took effect.10 Thus, these courts were also concerned with ensuring the evenhanded operation of their capital sentencing statutes, and viewed the date of an offense as an arbitrary eligibility factor for the death penalty.11 See Saylor

v. Indiana, supra, 808 N.E.2d at 650 ; Cooper v. State, supra, 540 N.E.2d at 1219 ; State v. Bey, supra, 112 N.J. at 104–105, 548 A.2d 846. Thus, the precedents of our sister states, in my view, weigh strongly against carrying out an execution after the legislature has prospectively repealed the death penalty.

2

Actual Practices in Other Jurisdictions

Moreover, in assessing whether a punishment is constitutionally sound, "it also is appropriate for us to consider what is occurring in actual practice.” State v. Rizzo, 303 Conn. 71, 191, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). Thus, in determining whether there is a national consensus against conducting executions while a death penalty repeal is in place, it is proper to look to the number of executions that have occurred in other states while a repeal of the death penalty has been in effect. See Graham v. Florida, supra, 560 U.S. at 63–64, 130 S.Ct. 2011 (reviewing statistics concerning number of juvenile nonhomicide offenders serving sentences of life imprisonment without possibility of parole); Kennedy v. Louisiana, supra, 554 U.S. at 433–34, 128 S.Ct. 2641 (reviewing statistics about number of executions of child rapists to determine if such punishment is socially unacceptable); State v. Rizzo, supra, at 191–93, 833 A.2d 363 (reviewing number of people on death row and number of executions carried out nationally to constitutionality of death penalty).

Upon review, it does not appear that any state has ever executed an inmate while a death penalty repeal has been in force.12 Aside from the two states with expressly prospective death penalty repeals, Connecticut and New Mexico; see footnote 6 of this concurring opinion; seventeen states, as well as the District of Columbia, do not have statutes that currently authorize the death penalty. See Death Penalty Information Center, "States With and Without the Death Penalty,” (2015), available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited August 10, 2015). In two of these states—North Dakota and West Virginia—the legislation repealing the death penalty expressly stated that the repeal applied retroactively.13 In six of these states—Hawaii, Illinois, Iowa, Maryland, Minnesota and New Jersey—the death sentences of the remaining inmates on death row were commuted by the executive branch, either before or after the legislature repealed the death penalty. In two other states—Massachusetts and New York—as well as the District of Columbia, a court invalidated the existing death penalty statutory scheme, which effectively banned future executions in the absence of a statutory change. No such changes have been made. Thus, no postrepeal executions have taken place in the nineteen other jurisdictions which currently prohibit the death penalty.

See Editorial, "Quinn Will Commute Death Term,” Honolulu Advertiser, March 26, 1958, p. A1; Editorial, "Justice Advances in Illinois,” N.Y. Times, March 10, 2011, p. A30; G. Mills, "Death Order Is Commuted to Life Term,” Des Moines Register, January 10, 1965, p. 1L; J. Wagner, "On last full day, O'Malley issues orders commuting four death-row sentences,” Washington Post, January 20, 2015, available at http://www.washingtonpost.com/local/md-politics/on-last-full-day-omalley-issues-orders-commuting-four-death-row-sentences/2015/01/20/0d22c2f4-a10f-11e4-b146-577832eafcb4_story.html (last visited August 10, 2015); J. Bessler, Legacy of Violence: Lynch Mobs and Executions in Minnesota (2003) p. 179; J. Peters, "Corzine Signs Bill Ending Executions, Then Commutes Sentences of 8,” N.Y. Times, December 18, 2007, p. B3; see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” pp. 103, 105, 166, 168, 221, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

Justice Zarella contends that evolving standards of decency in this state should be considered under the sixth prong of Geisler and, pursuant to State v. Ross, 230 Conn. 183, 251, 646 A.2d 1218 (1994), those standards of decency cannot be considered in a vacuum, but must be considered in light of "our constitutional document ... our history and ... the teachings of the jurisprudence of our sister states as well as that of the federal courts.” (Internal quotation marks omitted.) In contrast, the majority appears to conclude that, if Geisler does not yield an interpretation of our state constitution's due process provisions that is more protective than the eighth amendment in this context, Geisler falls out of the picture and federal standards delineate the scope of the state constitutional provisions. See State v. Jenkins, 298 Conn. 209, 261, 3 A.3d 806 (2010) ("we often rely on the United States Supreme Court's interpretation of the amendments to the constitution of the United States to delineate the boundaries of the protections provided by the constitution of Connecticut” [internal quotation marks omitted] ). I take no position on the Geisler question, but assume for purposes of this opinion only that, even if the majority is correct that contemporary standards of decency, standing alone, are dispositive of the question of whether the death penalty is constitutional in this state, the majority has failed to establish that this state has categorically rejected the death penalty.

In the preface to the updated treatise, Swift noted that his earlier treatise was "imperfect” because it had been written at the beginning of his career, and he had wanted to revise it since the time of its publication. 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 4. He explained that he thus had devoted his retirement years to "revis[ing] and enlarg[ing] the work of [his] early age, with the hope to render it more useful, by the knowledge acquired by long experience.” Id. He added: "So great have been the changes and improvements in our jurisprudence since the former work was written, that I have retained little more than the plan, and this may be considered as a new work.” Id.

United States v. Lee, 489 F.2d 1242, 1246–47 (D.C.Cir.1973) ; Commonwealth v. Colon–Cruz, 393 Mass. 150, 163–72, 470 N.E.2d 116 (1984) ; People v. Taylor, 9 N.Y.3d 129, 155, 878 N.E.2d 969, 848 N.Y.S.2d 554 (2007) ; see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” pp. 65, 158, 255, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

See Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) ( "[t]he 'standard of decency’ that is relevant to the interpretation of the prohibition against cruel and unusual punishment found in the Georgia [c]onstitution is the standard of the people of Georgia, not the national standard”); Van Tran v. State, 66 S.W.3d 790, 805 (Tenn.2001) (in determining whether capital sentencing scheme violated Tennessee constitution, court considered societal consensus in Tennessee).

The majority's rejection of the views expressed in Swift's updated treatise as being "of little moment” is another example of the majority's refusal to acknowledge the historical facts when they are inconsistent with its reasoning. Footnote 29 of the majority opinion. Swift's declaration in the preface of his updated treatise that he sought to revise his earlier work in accordance with his "long experience” dispels any notion that Swift changed his views in the three or four years following the constitutional convention, especially when one considers that he also served during those years as the chairman of the committee to revise the General Statutes; see State v. Ellis, 197 Conn. 436, 451 n. 13, 497 A.2d 974 (1985) ; to ensure conformance with the new constitution. See General Statutes (1821 Rev.) preface, p. viii.

The majority also ignores this court's repeated recognition that "Swift's writings are particularly significant to our state constitutional jurisprudence. He was instrumental in encouraging the public and the legislature to convene the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader is significant.... [S]ince ... Swift was the chief [justice] and the state's leading judicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language of the constitution.” (Citation omitted; internal quotation marks omitted.) State v. Ross, supra, 230 Conn. at 291, 646 A.2d 1318 (Berdon, J., dissenting in part); accord State v. Joyner, supra, 225 Conn. at 490, 625 A.2d 791 (Berdon, J., dissenting).


Finally, Justice Palmer himself has quoted extensively from Swift's treatises and has characterized Swift as an important legal authority of his day. See, e.g., State v. Courchesne, 296 Conn. 622, 676–77, 684–85 n. 41, 998 A.2d 1 (2010) (relying on Swift's writings, describing Swift as authoritative commentator and stating that " 'Swift led the development of an American [as distinct from an English] common law’ ” and that "this court repeatedly and consistently has relied on Swift for the purpose of ascertaining this state's common law in a wide variety of contexts”). Accordingly, for all of these reasons, the majority's dismissal of Swift's updated treatise as "of little moment” is incomprehensible. Footnote 29 of the majority opinion.



In addition, the following thirteen states have, at various times in our nation's history, temporarily repealed and later reinstated the death penalty, yet none of these states ever executed a person previously sentenced to death while the temporary repeal remained in effect: Arizona, Colorado, Delaware, Iowa, Kansas, Maine, Missouri, New Mexico, New York, Oregon—twice, South Dakota, Tennessee, and Washington. No state has executed an inmate while a repeal was in effect. Rather, any executions occurred after the death penalty was reinstated and a new death sentence was imposed under the new capital sentencing statute. On several occasions, the sentences of prerepeal death row inmates were commuted to life imprisonment through applicable procedures. In other instances, the repeal legislation either expressly or impliedly applied retroactively. The utter absence of postrepeal executions leads me inexorably to the conclusion that there is a national consensus against the practice. In fact, the statistics in this case are far more convincing than some of the statistics relied upon by the United States Supreme Court in determining that a national consensus exists against a given sentencing practice. See Graham v. Florida, supra, 560 U.S. at 64–65, 130 S.Ct. 2011 (concluding that there was national consensus against sentencing juvenile nonhomicide offenders to life imprisonment without possibility of parole when only 123 such people were serving that sentence in eleven jurisdictions); Atkins v. Virginia, supra, 536 U.S. at 316, 122 S.Ct. 2242 (concluding national consensus against executing intellectually disabled defendants existed where five such offenders had been executed in thirteen year period); Enmund v. Florida, supra, 458 U.S. at 794, 102 S.Ct. 3368 (concluding that society had rejected death penalty for nontriggerman felony murderers where only six such offenders had been executed between 1954 and 1982). Thus, although the United States Supreme Court has determined that a national consensus exists against the sentencing practices in those cases, despite the fact that those sentences had actually been imposed, there cannot be a clearer indicator of consensus than that demonstrated by the statistics in the present case, namely, a complete unwillingness on the part of this nation to impose or carry out a death sentence while a death penalty repeal—either prospectively or in toto—is in effect. The actual practice of these states is the controlling factor, and the practice of these states is, clearly, not to execute. See Atkins v. Virginia, supra, at 316, 122 S.Ct. 2242 (national consensus exists against executing mentally disabled individuals when, among others things, even states that authorized practice had not actually carried out such executions).

1917 Ariz. Sess. Laws 4 (repeal); 1919 Ariz. Sess. Laws 18 (reinstatement); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 35 (indicating no executions took place during period of repeal), available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

As I have explained, in the present case, the defendant has relied exclusively on the action of our state legislature in passing P.A. 12–5 in support of his claim that the death penalty no longer comports with the contemporary societal mores of this state.

Insofar as the majority suggests that this is not true because "[t]he deciding vote in favor of a retrial [in the case] was cast by a member of the governing council who 'was not willing that a man should be [hanged as a result of] his vote’ ”; text accompanying footnote 30 of the majority opinion, quoting J. Zeldes, "Connecticut's Most Memorable 'Good for Nothing Rascal’ in This 'Land of Steady Habits,’ ” 80 Conn. B.J. 367, 394 (2006) ; the majority simply misunderstands the circumstances. The council member who cast the deciding vote to retry the case did not do so because he believed the verdict in the prior trial had been wrong or because he was against the imposition of capital punishment. Rather, he wanted to give Lung another opportunity to present his case unclouded by the prior alleged procedural irregularities stemming from the severity of the punishment.

1897 Colo. Sess. Laws 135 (repeal); 1901 Colo. Sess. Laws 153 (reinstatement); Office of the Colorado State Public Defender, "Catalog of Colorado Executions,” (2009), available at http://pdweb.coloradodefenders.us/index.php?option=com_content&view=article&id=152&itemid=108 (last visited August 10, 2015) (indicating no executions between repeal of the death penalty on March 29, 1897, and reinstatement of death penalty on May 2, 1901); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 57, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

By suggesting that the legislature has found that the death penalty is "unbecoming to a civilized modern state,” the majority seems to suggest that the legislature believes that, even if the death penalty actually enjoys public support, such support should be ignored. If the public actually supports the death penalty, however, the fact that the legislature disagrees with its constituents' moral sensibilities would not constitute evidence that the death penalty is inconsistent with contemporary societal mores. The United States Supreme Court has never suggested that a legislative determination that is contrary to the public will provides evidence of evolving standards of decency. Rather, that court has looked to legislative enactments on the commonsense assumption that they are consistent with contemporary societal mores. See Atkins v. Virginia, supra, 536 U.S. at 315–16, 122 S.Ct. 2242 ("the large number of [s]tates prohibiting the execution of mentally retarded persons [and the complete absence of states passing legislation reinstating the power to conduct such executions] provides powerful evidence that today our society views mentally retarded offenders as categorically less culpable than the average criminal” [emphasis added] ).

The majority contends that the statement of the United States Supreme Court that "public sentiment expressed in ... [public opinion] polls and resolutions may ultimately find expression in legislation, which is an objective indicator of contemporary values upon which we can rely”; Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; supports its contention that only legislation, and not public opinion, can establish societal mores. See footnote 47 of the majority opinion. I disagree. The court in Penry simply observed that, public opinion polls showing opposition to the execution of mentally impaired defendants did not constitute sufficient evidence that there was an emerging national consensus that was inconsistent with existing legislation. Penry v. Lynaugh, supra, at 335, 109 S.Ct. 2934 ("there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses”); see also State v. Ross, supra, 230 Conn. at 296, 646 A.2d 1318 (Berdon, J., dissenting) ("[a]lthough public opinion is relevant, it cannot appropriately be measured by abstract polls” [emphasis added] ). I would agree that, in such a situation, it might be prudent for the courts to take a wait and see attitude before assuming that an emerging consensus, as indicated by public opinion polls, is stable. That does not mean that public consensus is irrelevant. In this state, the stable, centuries old societal consensus, as reflected in our statutes, has been that the death penalty is morally acceptable. Accordingly, I believe there should be a presumption that that continues to be the public consensus in the absence of evidence to the contrary. I also believe that this court should give great weight to that presumption.



Swift was chosen by the legislature in 1820 to chair the committee directed to perform this task. State v. Ellis, supra, 197 Conn. at 451 n. 13, 497 A.2d 974.

51 Del. Laws 742 (1957) (repeal); 53 Del. Laws 801 (1961) (reinstatement); Delaware Dept. of Corrections, "Death Row,” (2015), available at http://www.doc.delaware.gov/deathrow/history.shtml (last visited August 10, 2015) (indicating no executions between repeal of death penalty on April 2, 1958, and reinstatement of death penalty on December 18, 1961); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 66, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

A number of legislators expressly recognized that there simply were not enough votes in the legislature to pass a retroactive repeal of the death penalty. See 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1306, remarks of Representative Ernest Hewett ("If you are serious about innocent people being put to death, then wait until you have the votes for a total repeal.... You will not have my vote, but at least you would have done it the right way.”); 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator John A. Kissel ("Every argument that you make against the death penalty equally could be applied to the [eleven] folks on death row right now. But there [are] not the votes to do that.”); 55 S. Proc., supra, at p. 795, remarks of Senator Leonard A. Fasano (Senator Fasano stated that any person who wants the death penalty to "be repealed period, with nobody subject to the death penalty clause knows that that can't make it through this [c]hamber. They know that that's an impossibility.”).

The court nonetheless recognized that its conclusion that the death penalty is not cruel and unusual punishment did not mean that the penalty may be imposed without any constitutional constraints. See State v. Ross, supra, 230 Conn. at 251–52, 646 A.2d 1318 ; see also footnote 2 of this opinion.

1872 Iowa Acts 139 (repeal); 1878 Iowa Acts 150–51 (reinstatement); D. Haws, Iowa and the Death Penalty: A Troubled Relationship (2010) pp. 289, 298 (indicating no executions following repeal); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 104, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 594, remarks of Senator Eric D. Coleman ("The other concerns that I have about the death penalty as it works in the [s]tate of Connecticut or doesn't work in the [s]tate of Connecticut is the cost of it. The public defenders indicate that they spend about $4 million a year in defense of people who are accused of capital felony offenses and I think with respect to [one case] ... they spent nearly, in the trial alone, close to $1 million in defense of those individuals.... That money could certainly have been better allocated.”); 55 S. Proc., Pt. 3, 2012 Sess., p. 772, remarks of Senator Carlo Leone ("Emotionally [I believe that] people [who] commit heinous crimes, crazy crimes they should be ... executed, but we can't seem to do it. We can't seem to make it workable.”); 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1292–93, remarks of Representative Auden C. Grogins ("I am personally, morally opposed to the death penalty, but today's vote is not just about whether capital punishment is morally wrong. Today's vote is about the fact that this law is broken and just does not work for the [s]tate of Connecticut. This law doesn't work for defendants and their families. This law doesn't work for victims and their families. The victims wait years for the resolution of these cases that rarely result in what they want, executions. Instead, these cases involve long and complex litigation, including years and years of postconviction appeals, and this is at the tremendous expense of the taxpayers and at the high price and emotional price of all the parties involved.”); 55 H.R. Proc., supra, at p. 1295, remarks of Representative John F. Hennessy (death penalty "does not work, with its endless and costly appeals”); 55 H.R. Proc., supra, at p. 1313, remarks of Representative Patricia B. Miller ("Between 2010 and 2011, the [s]tate of Connecticut spent $3.8 million on defending capital cases for the Division of Public Defenders Services. That's over 7 percent of their budget. According to ... the 2012 [budget] estimate ... Connecticut spends ... $5 million annually on death penalty related costs including the separate sentencing phase, postconviction appeals, and higher costs for death row facilities.”); 55 H.R. Proc., supra, at p. 1318, remarks of Representative Lile R. Gibbons ("[i]f we retain the death penalty, we will continue a very lengthy appeal process that is expensive for the [s]tate, does not bring closure for the families and ... also becomes a media circus for the criminals, which in some perverse way provides entertainment for them, at best, and a change in their dreary solitary lives, at [worst]”); 55 H.R. Proc., supra, at pp. 1373–74, remarks of Representative Juan R. Candelaria ("I think all crimes of murder deserve capital punishment” but delays caused by appeals remove deterrent value); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2765–66, remarks of Kevin Barry ("[g]iven the ongoing state budget shortfalls and the fact that noneconomic concerns were not enough to achieve repeal in the past, there [are] simply insufficient grounds to conclude that the prospective repeal signals a statewide consensus that the death penalty is contrary to an evolved standard of decency as opposed to a desire to eliminate the costs of death penalty litigation”).

Prosecutors, in particular, and sentencing juries in capital cases, are not randomly selected representatives of the people of Connecticut.

1907 Kan. Sess. Laws 299 (repeal); 1935 Kan. Sess. Laws 234 (reinstatement); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 119, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015). We note that the United States government carried out an execution in 1930 at the federal penitentiary located in Leavenworth, Kansas. See Federal Bureau of Prisons, "Capital Punishment,” (2015), available at http://www.bop.gov/about/history/federal_executions.jsp (last visited August 10, 2015); see also Death Penalty Information Center, "Federal Executions 1927–2003,” (2014), available at http://www.deathpenaltyinfo.org/federal-executions-1927-2003 (last visited August 10, 2015). Obviously, this execution was for a violation of federal law.

Not all of the remarks by legislators that are cited by the majority reflect opposition to the death penalty on moral grounds. For example, although Senator Edith Prague stated that the death penalty was a "moral issue” and that she intended to vote for P.A. 12–5 because she was concerned about the risk of erroneous death sentences, she expressed no concern that any of the defendants currently on death row had been erroneously sentenced. 55 S. Proc., Pt. 3, 2012 Sess., p. 781. As the majority acknowledges, Senator Prague elsewhere had expressed in no uncertain terms her support for executing defendants who had been properly sentenced to death. With respect to the remaining legislators cited by the majority, almost all of them opposed the death penalty under any circumstances and, therefore, would have voted to repeal it retroactively. Accordingly, their explanations for their votes say nothing about the motives of the legislators who were willing to vote only for prospective repeal.

The majority's reliance on Governor Dannel Malloy's statement that there was a " 'moral component’ ” to his opposition to the death penalty is also misplaced. In fact, Governor Malloy made it very clear before P.A. 12–5 was enacted that he was in favor of abolishing the death penalty only for future cases and implied that he would veto any attempt at retroactive repeal. See C. Keating, "The Gloves Come Off: Foley, Malloy Verbally Spar About Overall Truthfulness,” Hartford Courant, October 6, 2010, pp. A1, A9 (quoting Malloy as stating that he wanted to be "very, very, very clear” that he supported repeal only for future cases and implying that he would veto any attempt to repeal death penalty retroactively [internal quotation marks omitted] ).



Although the California Supreme Court also declared its state's death penalty statute unconstitutional under the California constitution; see People v. Anderson, 6 Cal.3d 628, 651, 656–57, 493 P.2d 880, 100 Cal.Rptr. 152, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), the California constitution subsequently was amended to reinstate capital punishment. See People v. Frierson, 25 Cal.3d 142, 173, 599 P.2d 587, 158 Cal.Rptr. 281 (1979).

1876 Me. Laws 81 (repeal); 1883 Me. Laws 169 (reinstatement); D. Hearn, Legal Executions in New England: A Comprehensive Reference, 1623–1960 (1999), pp. 255–57 (listing executions, indicating none occurring in Maine following repeal); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 166, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority states that "the legislature could not have come any closer to fully abolishing capital punishment without actually doing so. We perceive no ringing legislative endorsement of the death penalty in Connecticut.” These statements are off the mark for several reasons. First, I am aware of no authority for the proposition that legislation that was almost enacted provides better evidence of prevailing societal norms than the legislation that was actually enacted. Second, even if that were the case, I see no evidence that the legislature came close to fully abolishing the death penalty. Rather, a large majority of legislators expressed no moral qualms about retaining it for crimes committed before the effective date of P.A. 12–5. Third, I am aware of no authority for the proposition that a statute authorizing a particular punishment for a particular crime does not constitute evidence that the punishment is consistent with prevailing societal norms unless there is an additional "ringing legislative endorsement” of the punishment, as phrased by the majority, whatever that might be.

The majority also states that, if the legislature believed that the death penalty has become unworkable, it would have enacted legislation to remove the impediments to its enforcement instead of abolishing it prospectively. Neither the majority opinion nor the portion of the legislative history on which the majority relies contains any specific suggestions, however, as to how this could be accomplished.



1917 Mo. Laws 246 (repeal); 1919 Mo. Laws 778 (reinstatement); H. Frazier, Death Sentences in Missouri, 1803–2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations (2006), p. 209 (indicating no executions during period of repeal); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 174, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority denies that it would be morally incoherent for a legislator who believed that killing is wrong and who also believed that breaking a promise is wrong to conclude that, having made a promise to the families of the victims to execute the defendants who are on death row, it is better to wrongfully execute the defendants than to wrongfully break the promise. Yet the majority ultimately concludes that, having done its poor best to balance the weighty but conflicting moral principles of honoring life and honoring a promise, the legislature ultimately came up short and made a choice that is inconsistent with contemporary standards of decency. Thus, it is inescapable that it is the majority that has taken the position that, if a legislator believed that the death penalty violates contemporary mores, his or her vote to retain the death penalty retroactively would be morally incoherent.

1969 N.M. Laws 415 (repeal); 1979 N.M. Laws 522 (reinstatement); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 223 (indicating no executions during period of repeal), available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

Cf. Contractor's Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071 (2007) ("In determining whether the challenged classification is rationally related to a legitimate public interest ... [t]he test ... is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted [on] that basis.... Further, the [constitution] does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.... Rational basis review is satisfied [as] long as there is a plausible policy reason for the classification.... [I]t is irrelevant whether the conceivable basis for the challenged distinction actually motivated the legislature.... To succeed, the party challenging the legislation must negative every conceivable basis which might support it....” [Citation omitted; emphasis omitted; internal quotation marks omitted.] ).

1965 N.Y. Laws vol. I, 1021–22 (partial repeal of death penalty); 1995 N.Y. Laws vol. I, 1 (reinstatement); D. Hearn, Legal Executions in New York State A Comprehensive Reference, 1639–1963 (1997) p. 281–82 (indicating no executions during period of repeal); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 255, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

Indeed, this court should not scour the legislative record for evidence of improper legislative motivation when the meaning of the legislation is clear. Rather, when, as in the present case, the constitutionality of a statute turns, at least in part, on the legislature's motive for enacting it, this court should generally presume that, if there was any conceivable legitimate reason for a legislator to support the statute, it is constitutional. See footnote 23 of this dissenting opinion.

The majority contends that "[u]nder the eighth amendment and the corresponding provisions of the state constitution, the issue is not whether there is any legitimate justification for a statutory classification, but, rather, what a penal statute actually indicates about contemporary social mores. It is no more improper for a court to consider the legislative calculations involved in the crafting of such a statute than in any other situation in which we look to legislative history to help discern the meaning of a statute.” (Emphasis in original.) See footnote 62 of the majority opinion. In the present case, however, the justification for the statute and what the statute "actually indicates about contemporary social mores” are one and the same. In other words, if, as I contend, the justification for the prospective repeal of the death penalty was that it has become unworkable, that would indicate something very different about social mores than if the justification was the belief that the death penalty is immoral. This court has repeatedly recognized that the death penalty is presumptively constitutional. State v. Colon, 272 Conn. 106, 371, 864 A.2d 666 (2004) (defendant is required to prove that death penalty statute violates eighth amendment beyond reasonable doubt), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) ; see also Gregg v. Georgia, supra, 428 U.S. at 175, 96 S.Ct. 2909 ("in assessing a punishment selected by a democratically elected legislature against the constitutional measure, we presume its validity”). Thus, when the constitutionality of the death penalty turns on its justification, and there is evidence that the legislature had a legitimate justification, the court should presume that that was the justification. The majority's reliance on Griswold Inn, Inc. v. State, 183 Conn. 552, 561–62, 441 A.2d 16 (1981), in support of its claim to the contrary is misplaced. In that case, the court held that it was not bound to accept the most constitutionally favorable interpretation of a law barring the sale of liquor in restaurants on Good Friday because, under the first amendment, a law that, on its face, is not "neutral in matters of religious theory, doctrine, and practice”; Epperson v. Arkansas, 393 U.S. 97, 103–104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968) ; cannot stand unless the state establishes that it has "a clearly secular legislative purpose....” (Internal quotation marks omitted.) Griswold Inn, Inc. v. State, supra, at 559, 441 A.2d 16. The majority has pointed to no comparable eighth amendment principle requiring the state to prove that a facially legitimate law imposing a particular punishment did not have an improper motivation. Rather, there is a presumption that the punishment is consistent with contemporary societal mores unless the defendant proves otherwise.


The majority complains that I am applying a "highly deferential rational basis standard” to the defendant's claim that the death penalty is cruel and unusual. To the contrary, I am applying the same evolving standards of decency rubric that the United States Supreme Court has always applied to claims that a punishment is cruel and unusual, under which legislation supplies the clearest evidence of contemporary societal mores. Unlike the majority, however, I am unwilling to simply assume that the legislature was motivated to enact P.A. 12–5, which expressly retains the death penalty for crimes committed before its effective date, for political reasons rather than by a sincere belief in the morality and the enduring penological value of the death penalty. The majority also states that there is "nothing improper about a legislator acting on the basis of political considerations.” The majority is invalidating the death penalty, however, on the basis of its assumption that a majority of legislators believe that the death penalty violates contemporary mores and that they retained the death penalty retroactively either for purely political reasons or to wreak vengeance against particular defendants. Thus, it is the majority that has taken the position that, in this context, it is improper for a legislator to act on the basis of political considerations rather than on the basis of his or her moral beliefs.



1915 Or. Laws 12 (repeal); 1920 Or. Laws 46 (reinstatement); 1965 Or. Laws 6 (repeal); 1978 Or. Laws 4 (reinstatement); Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 275 (indicating no executions during period of repeals), available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority states that "not a single legislator has publicly indicated that the decision to repeal the death penalty prospectively while retaining it for those who offended prior to April 25, 2012, embodied ... [a] financial and pragmatic agreement” rather than a moral judgment. The majority, however, has not identified a single legislator who has publicly stated that a majority of legislators believed that the death penalty is immoral. See footnote 22 of this dissenting opinion. Indeed, numerous legislators who opposed the death penalty on moral grounds argued that those legislators who were unwilling to vote for retroactive repeal—and who, therefore, presumably did not have moral qualms about the death penalty—should vote for prospective repeal on practical grounds. See footnote 19 of this dissenting opinion. This suggests that these legislators were concerned that the bill would not pass without such votes.

1915 S.D. Sess. Laws 335 (repeal); 1939 S.D. Sess. Laws 166 (reinstatement); South Dakota Dept. of Corrections, "Frequent Questions: Capital Punishment,” (2014), available at http://doc.sd.gov/about/faq/capitolpunish ment.aspx (last visited August 10, 2015) (indicating no executions between repeal in 1915 and reinstatement in 1939); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 321, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority's reliance on Senator John A. Kissel's prediction that this court would conclude that P.A. 12–5 is unconstitutional because its prospective repeal provision provides "the best and most recent indication of evolving standards in our society of human decency” is similarly misplaced. See 55 S. Proc., Pt. 2, 2012 Sess., p. 574. Ironically, Kissel is a strong supporter of the death penalty for heinous murders. See "Senator Kissel: State Death Penalty Repeal Bill Appears to be Dead,” (May 12, 2011), available at http://ctsenaterepublicans.com/2011/05/senator-kissel-state-death-penalty-repeal-bill-appears-to-be-dead/ (last visited July 30, 2015). Moreover, although the majority states that Kissel's remarks indicated that he believed that "the vast majority of those legislators who voted for P.A. 12–5 would have supported a full repeal,” the majority does not explain how Kissel could have known that. The legislators certainly did not say so during the legislative debate on P.A. 12–5. Accordingly, I find persuasive the state's argument in its supplemental brief that these remarks most likely reflect Kissel's concern "that if this court decided not to be bound by 145 years of precedent and instead evaluated [P.A. 12–5] pursuant to the court's view of Connecticut's evolving standard of decency, there was no reliable way to predict the outcome.” Indeed, if Kissel thought that a majority of legislators who intended to vote for P.A. 12–5 believed that the death penalty is immoral, it would hardly have made sense for him to argue that they should vote against P.A. 12–5 lest their vote in favor of it be interpreted as an indication of their belief that the death penalty is immoral.

In any event, even if it were true that "the vast majority of those legislators who voted for P.A. 12–5 would have supported a full repeal”—for which I see no evidence—it would still be the case that a majority of legislators did not support full repeal. Accordingly, we would still be required to answer the question of what motivated the minority of legislators who voted for P.A. 12–5 but who did not support a full repeal in order to determine the legislative consensus. If those legislators believed that the death penalty is consistent with contemporary standards of decency, then there would be no legislative consensus to the contrary.



1915 Tenn. Pub. Acts 181 (repealing capital punishment for crime of murder); 1919 Tenn. Pub. Acts 5 (reinstating capital punishment for crime of murder); Tennessee Dept. of Corrections, "Tennessee Executions,” (2014), available at http://www.tennessee.gov/correction/article/tdoc-tennessee-executions (last visited August 10, 2015) (indicating no executions of offenders convicted of murder between repeal date of March 27, 1915, and reinstatement date of January 30, 1919); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 327, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority points to testimony by family members of murder victims in committee hearings on P.A. 12–5 to the effect that the death penalty retraumatizes them. As the majority recognizes, however, other evidence that was presented at the hearings showed that the families of some victims support the death penalty as an appropriate punishment for certain crimes. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2699–2700, remarks of Representative Al Adinolfi (noting that family member of victims in Cheshire case believed that death penalty is appropriate punishment for certain crimes); id., at p. 2870, remarks of Kimberly Sundquist (Sundquist, whose uncle had been murdered, argued in favor of death penalty and noted that not one person who testified that "our current system is very traumatic on victims” had stated that capital punishment is immoral).

See also 1913 Wash. Sess. Laws 581 (repeal); 1919 Wash. Sess. Laws 273 (reinstatement); Washington Dept. of Corrections, "Persons Executed Since 1904 in Washington State,” (2014), available at http://www.doc.wa.gov/offenderinfo/capitalpunishment/executedlist.asp (last visited August 10, 2015) (indicating no executions between repeal date of March 22, 1913, and date of reinstitution on March 14, 1919); see also Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” p. 397, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

The majority relies on testimony of Chief State's Attorney Kevin Kane before the Judiciary Committee, both in 2009 and in 2012, to support its conclusion that the death penalty is inconsistent with contemporary societal mores. I fail to perceive, however, how Kane's unexplained prediction that, if the legislature repealed the death penalty prospectively, "the Connecticut Supreme Court would decide that in effect ... the community standard is such that [the death penalty] is now cruel and unusual punishment”; (emphasis added) Conn. Join Standing Committee Hearings, Judiciary, Pt. 8, 2009 Sess., p. 2412; sheds any light on the contemporary societal mores of this state's citizens. Indeed, Kane ultimately admitted that his statement did not reflect his personal assessment of contemporary societal mores (which, in any event, would not be binding on this court), but was merely "a prediction just like a prediction of whether or not a jury's going to find somebody guilty.” Id. Accordingly, as with the testimony of Senator John A. Kissel; see footnote 26 of this dissenting opinion; I find persuasive the state's argument in its supplemental brief that Kane's testimony likely reflected his concern "that if this [c]ourt decided not to be bound by 145 years of precedent and instead evaluated [P.A. 12–5] pursuant to the [c]ourt's view of Connecticut's evolving standard of decency, there was no reliable way to predict the outcome.” It is ironic indeed that the majority, in an apparent attempt to direct attention from its unsupported conclusion that the death penalty is somehow inconsistent with contemporary societal mores in this state to someone else, now uses Kane's concerns about what this court might do in the event of a prospective repeal to justify doing the very thing that he was concerned about. Moreover, when pressed for an explanation of his remark, Kane stated that he believed that prosecutors would be reluctant to seek the death penalty for crimes committed before the effective date of a prospective repeal because to treat crimes differently based on the date that they were committed would be "not fair.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2009 Sess., p. 2413. Thus, the most reasonable explanation of his remark is that he believed that this court might conclude that it is inconsistent with contemporary society mores to treat two criminals who committed the same crime differently on the basis of this arbitrary factor—an issue that the majority does not address—not that he believed the prospective repeal would reflect a categorical rejection of the death penalty as an appropriate punishment for all crimes. See also Conn. Joint Standing Committee Hearings, Pt. 9, 2012 Sess., pp. 2601–2602, remarks of Chief State's Attorney Kane (arguing that state's attorneys would be unlikely to charge defendants who committed crimes before effective date of prospective repeal with capital crime). Similarly, the written testimony of the Division of Criminal Justice reveals that the division argued against prospective repeal and in favor of retaining the death penalty for all heinous murders in 2009 because it believed that "it would be untenable as a matter of constitutional law or public policy for the state to execute someone today who could not be executed for committing the same conduct after a date in the future. ” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2009 Sess., p. 2716. The majority conveniently fails to quote the emphasized language or to acknowledge the Division of Criminal Justice's arguments in favor of retaining the death penalty for all crimes, which clearly indicate a belief that the death penalty is not categorically unconstitutional. Finally, to the extent that the majority suggests throughout its opinion that Kane's views about P.A. 12–5 carry particular weight because he was representing the state in this case, I disagree. The fact that Kane represents the state in criminal cases does not mean that his remarks to the legislature represent the official views of the state with regard to legislation. Rather, the official views of the state as to the constitutionality of the death penalty are embodied in the language of P.A. 12–5, which expressly permits the imposition of the death penalty for those who committed their crimes before the passage of the act. Kane's remarks before the legislature also do not represent the official position of the prosecutor in the present case, who has expressly argued that P.A. 12–5 does not evince a newly emerged standard of decency that rejects the death penalty as immoral and that it is not arbitrary. The prosecutor's views on many of the other issues that the majority has addressed are unknown because the issues were not raised by the defendant and the state has not had an opportunity to brief them.

This list includes earlier, temporary repeals in Iowa, Maine, New Mexico, and New York, states that currently have legislation repealing the death penalty. See supra footnotes at 19, 21, 23, and 24 of this concurring opinion. Similarly, it includes Tennessee and New York, which temporarily repealed the death penalty only for certain crimes. See footnotes 24 and 27 of this concurring opinion.

The majority accuses me of ignoring "the fundamental principle that [t]he right to be free [from] cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote.... The very purpose of a [b]ill of [r]ights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.... Furman v. Georgia, [408 U.S. 238, 268–69, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] (Brennan, J., concurring).” (Internal quotation marks omitted.) See footnote 87 of the majority opinion. Of course, if a particular death penalty scheme permitted standardless sentencing or if a particular death sentence was the result of an arbitrary factor, such as the race of the defendant, majority support for the legislation or the sentence would not render them constitutional. To put it mildly, however, there is a tension between Justice Brennan's statement in his concurring opinion in Furman and the evolving standards of decency rubric that the United States Supreme Court has repeatedly applied to claims pursuant to the eighth amendment. In my view, the very purpose of the evolving standards of decency test was to allow the scope of the protection provided by the constitutional bar on cruel and unusual punishments to evolve along with the societal mores of the majority of citizens, as long as those societal standards are no less protective than the standards that existed when the constitution was adopted. See Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (declining to find imposition of death penalty on mentally impaired individuals unconstitutional because "there is insufficient evidence of a national consensus against executing mentally retarded people convicted of capital offenses”), overruled on other grounds by Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ; see also W. Berry III, "Following the Yellow Brick Road of Evolving Standards of Decency: The Ironic Consequences of 'Death–Is–Different’ Jurisprudence,” 28 Pace L.Rev. 15, 25–26 (2007) (criticizing evolving standards of decency rubric because it "assumes that the meaning of cruel and unusual punishment rests on public opinion ... not on constitutional principle”). Its purpose was not to allow a minority of citizens, legislators or judges to impose their personal standards of decency in the form of a permanent constitutional rule. Although the majority in the present case disagrees with my conclusion that standards of decency are established by the majority of citizens, it never clearly articulates the level of societal consensus that it believes is sufficient to evince established societal mores.

The amicus curiae Legal Historians and Scholars note that this occurred in Oregon in 1914; Arizona in 1917; Missouri in 1918; and again in Oregon in 1964. See footnotes 16, 22 and 25 of this concurring opinion.

Lacking an adequate record to review this claim, the majority relies heavily on cherry picked extra-record sources that provide slanted and untested explanations for the history of the death penalty in this state. I recognize that this court has previously held that, on appeal to this court, a party may rely on "extra-record reference materials as evidence of contemporary societal norms to advocate for a new constitutional rule....” State v. Rizzo, supra, 303 Conn. at 184 n. 81, 31 A.3d 1094, citing Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 310 n. 56, 990 A.2d 206 (2010) (considering scientific studies in context of sixth Geisler factor, although not "part of the trial court record”); Moore v. Moore, 173 Conn. 120, 122, 376 A.2d 1085 (1977) (legislative facts, that is facts that "help determine the content of law and policy,” are subject to judicial notice); E. Margolis, "Beyond Brandeis: Exploring the Uses of Non–Legal Materials in Appellate Briefs,” 34 U.S.F.L.Rev. 197, 214 (2000) (opining that it is "appropriate ... to introduce [nonlegal] material in support of policy arguments at the appellate stage of [litigation]”). Nothing requires this court, however, to give credence to such materials when they are slanted or contain untested factual assertions, especially when the issue is a controversial one. It is particularly inappropriate to assume the truth and accuracy of extra-record materials when the parties have not even had an opportunity to review the materials or to respond to them.

New Mexico's earlier repeal stated: "Any person currently under penalty of death shall have such penalty revoked, and a penalty of life imprisonment substituted.” 1969 N.M. Laws 415.

See Quinnipiac University, Release Detail (March 12, 2013), question 29, available at http://www.quinnipiac.edu/institutes-and-centers/polling-institute/connecticut/release-detail?ReleaseID=1864 (last visited July 30, 2015). In addition, only 45 percent of registered voters approved of the repeal of the death penalty by the enactment of P.A. 12–5, while 51 percent of voters disapproved. Id., question 30. The same poll indicates that, as of April 25, 2012, the effective date of P.A. 12–5, 62 percent of voters favored the death penalty for murder while 30 percent of voters opposed it. Id., question 29.

In a March, 2011 poll, "10 percent [of voters] favor[ed] the death penalty for all people convicted of murder; 16 percent [said] no one should be executed and 73 percent [said] the death penalty depends on the circumstances of each case.” Quinnipiac University, Release Detail (March 10, 2011), question 43, available at http://www.quinnipiac.edu/institutes-and-centers/polling-institute/connecticut/release-detail?ReleaseID=1566 (last visited July 30, 2015). Thus, 83 percent of voters favored the death penalty under some circumstances.


Contrary to the majority's statement in footnote 87 of its opinion, I have not engaged in "a stark about-face” from my position in State v. Rizzo, supra, 303 Conn. at 195, 31 A.3d 1094 in which I recognized "the weaknesses inherent in public opinion polls as objective measures of the popular psyche....” Rather, I continue to believe that public opinion polls cannot trump legislation as evidence of societal mores. Because these public opinion polls evince a societal consensus in this state that is consistent with legislation that has been in place for centuries, however, I believe that they provide more reliable evidence of established societal mores than would polls that evinced an emerging societal trend. See footnote 33 of this dissenting opinion. In any event, these polls certainly do not demonstrate the absence of such public support, which the defendant has the burden of proving. Finally, I am compelled to observe that it is ironic indeed that these public opinion polls, on which the state expressly relied in its supplemental brief to this court and the accuracy of which the defendant did not dispute, appear to be the only form of extra-record materials that are beneath the notice of the majority.



In Iowa and Maine, for example, the applicable legislation stated that the death penalty was "hereby abolished.” 1872 Iowa Acts 139; 1876 Me. Laws 81. Although the legislation did not expressly apply to prerepeal death row inmates, neither state conducted an execution while the repeal was in effect.

The defendant has relied only on the practices of those states that have repealed the death penalty prospectively for certain persons in support of his claim that a prospective repeal evinces a general societal consensus against the death penalty in all cases. The majority has gone far beyond that claim by considering general sentencing practices and abolition trends in all states.

I also note that the amicus curiae Experts on International Human Rights and Comparative Law contends that no country has carried out a death sentence while a death penalty repeal was in effect. This information was extracted from reports issued every five years by the United Nations concerning global developments in the law and practice of the death penalty. This court has recognized that the practices of the international community are constitutionally relevant, particularly when international practices do not run counter to relevant case law and practices in this country. See State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008). I explore this area further subsequently in part I A 3 of this concurring opinion, but I reiterate here that the lack of postrepeal executions on a global level, coupled with the absence of such executions in this nation, lends further support to my conclusion that there is a consensus against the practice.

Perhaps in recognition of the weakness of its argument that the citizenry of this state and their representatives in the General Assembly have rejected the death penalty as immoral, the majority contends that, even if the death penalty continues to enjoy public support, this court's "own judgment will be brought to bear on the question of the acceptability of the death penalty under the [e]ighth [a]mendment.” (Internal quotation marks omitted.) Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242. The majority has not cited a single case, however, in which the United States Supreme Court or any other court applying the evolving standards of decency rubric has concluded that, although an established and previously constitutional punishment for a particular crime or for a particular class of defendants continued to be consistent with contemporary societal mores, it still violated a constitutional prohibition on cruel and unusual punishments. Nor has the majority adequately explained how its view that it may substitute its judgment for the judgment of the legislature and the people of this state can be reconciled with the United States Supreme Court's statement that, "[i]n determining what standards have 'evolved’ ... we have looked not to our own conceptions of decency, but to those of modern American society as a whole.” Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969.

The majority contends that the courts in Hall v. Florida, ––– U.S. ––––, 134 S.Ct. 1986, 188 L.Ed.2d 1007 (2014), Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), and People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152, cert. denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972), found that specific punishments were unconstitutional even though they were consistent with contemporary societal mores. I disagree. In Hall, the United States Supreme Court considered the constitutionality of Florida's procedure for determining the intellectual ability of defendants accused of capital crimes. The court concluded that, because "the vast majority” of states had rejected Florida's procedure, and because there was a consistent trend toward recognizing a more flexible procedure, there was "strong evidence of consensus that our society does not regard [Florida's] strict [intelligence quotient] cutoff as proper or humane.” Hall v. Florida, supra, at 1998. In Solem v. Helm, supra, at 299, 103 S.Ct. 3001 although the court was not applying the evolving standards of decency test, it noted that the defendant was the only defendant in the state of South Dakota who had ever been sentenced to death without the possibility of parole for passing a bad check. Thus, it is arguable that the court found that the punishment violated contemporary standards of decency on the basis of actual sentencing practices in the state. In Furman, the court concluded that the death penalty statutes in many states were unconstitutional because of procedural deficiencies that permitted arbitrary sentencing, not because the death penalty was inherently inconsistent with contemporary societal mores. See Gregg v. Georgia, supra, 428 U.S. at 195, 96 S.Ct. 2909 ("the concerns expressed in Furman that the penalty of death not be imposed in an arbitrary and capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance”). In Robinson v. California, supra, at 666, 82 S.Ct. 1417 the court concluded that a California statute that criminalized the status of being a drug addict would be in the same category as a statute that criminalized suffering from a disease, which "would doubtless be universally thought to be an infliction of cruel and unusual punishment....” Thus, the court held that the state statute was inconsistent with broader societal mores. Weems was decided before the full development of the evolving standards of decency standard, and the standard that the court applied is unclear. See Weems v. United States, supra, at 381, 30 S.Ct. 544 (fact that punishment for falsifying single item of public account and punishment for forgery or counterfeiting were same "exhibits a difference between unrestrained power and that which is exercised under the spirit of constitutional limitations formed to establish justice”). In People v. Anderson, supra, at 649, 100 Cal.Rptr. 152, 493 P.2d 880, the court concluded that the sentencing practices of the state belied what the California death penalty scheme and public opinion polls showed about public support of the death penalty. The majority states that my attempt to show that the courts in these cases did not rely exclusively on their own judgment in determining that a punishment is consistent with contemporary societal mores is unsuccessful and that I "simply cannot wipe away a century of eighth amendment jurisprudence.” The majority does not even attempt, however, to explain why my analysis of these cases is wrong. In any event, if the majority truly believes that these cases support the notion that courts no longer are required to consider contemporary societal mores, but only their own judgment, it should admit forthrightly that it sees no need to consider the views of this state's citizens and the legislature on the morality of the death penalty and is relying solely on its own views.


The majority also contends that the statement of the United States Supreme Court in Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969 that the court must look to the moral standards of society to determine what standards have evolved, has been overruled by Roper v. Simmons, supra, 543 U.S. 551, 125 S.Ct. 1183. In Roper, however, the court concluded that "the objective indicia of consensus in this case—the rejection of the juvenile death penalty in the majority of [s]tates; the infrequency of its use even where it remains on the books; and the consistency in the trend toward abolition of the practice—provide sufficient evidence that today our society views juveniles ... as categorically less culpable than the average criminal.” (Internal quotation marks omitted.) Id., at 567, 125 S.Ct. 1183. Far from concluding that this evidence of a popular consensus was extraneous to its ultimate conclusion that the juvenile death penalty is unconstitutional, the court in Roper stated that these "objective indicia” provided the court with "essential instruction.” (Emphasis added.) Id., at 564, 125 S.Ct. 1183. To be sure, it is arguable that the court in Roper implied that there might be cases in which, although an established and previously constitutional punishment continued to enjoy public support, the court still could find the punishment to be disproportionate in the exercise of its independent judgment. Id. Roper was not such a case, however, nor has the majority cited any other case in which a court has invalidated a punishment solely on the basis of its own concepts of decency.



3

International Considerations

Finally, I would point out that, not only is there a national consensus against the imposition of the death penalty while a repeal is in effect, there is a demonstrable global consensus that postrepeal executions are impermissible. According to a recent report by the United Nations, as of 2008, ninety-five countries have abolished the death penalty for all crimes. U.N. Secretary–General, "Capital Punishment and Implementation of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty; Report of the Secretary–General,” (2009), p. 7, available at http://www.crin.org/docs/UN_CP.pdf (last visited August 10, 2015). According to available data, none of these countries have ever executed an individual after the death penalty was repealed, regardless of whether the repeal was accomplished via legislation, executive action, or a determination by a court of law. Id., at pp. 60–62; see also Death Penalty Information Center, "Abolitionist and Retentionist Countries,” (2015), available at http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last visited August 10, 2015).Thus, if Connecticut were to execute the defendant after the enactment of P.A. 12–5, it would apparently earn the dubious distinction of becoming the first sovereign entity to execute one of its citizens while a repeal of the death penalty remains in force. In doing so, our state would distinguish itself from a host of countries that have refused to tread the path on which our state now travels, including countries as varied as Argentina, Belgium, Cambodia, Djibouti, France, Haiti, Ireland, Kyrgyzstan, Mexico, Mozambique, the Philippines, Romania, Rwanda, Samoa, Senegal, Serbia, South Africa, Turkey, and the United Kingdom. U.N. Secretary–General, supra, at pp. 60–62.In light of the foregoing, I am persuaded that there are clear objective indicia of societal standards supporting the proposition that there is a consensus that the imposition of a sentence of death following a legislative repeal of the death penalty violates contemporary standards of decency.

The Death Penalty Information Center indicates that, currently, ninety-eight countries have abolished the death penalty for all crimes, while an additional thirty-five countries have either not executed anyone for more than ten years or "have made an international commitment not to use the death penalty.” Death Penalty Information Center, "Abolitionist and Retentionist Countries,” (2015), available at http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last visited August 10, 2015). Another seven countries have abolished the use of the death penalty for ordinary crimes. Id.

The majority also concludes that delays in the execution of defendants who have been sentenced to death, racial disparities in the imposition of the death penalty and the danger of erroneous executions diminish the retributive value of the penalty. Although the defendant made a passing reference in his brief to the fact that several legislators who voted for P.A. 12–5 argued that, because of the long delays occasioned by appellate review of death sentences, the prisoners on death row were more likely to die of old age than to be executed, the defendant did not contend that these delays rendered the death penalty unconstitutional. Nor did he raise the issues of racial disparity; see part IV of this dissenting opinion; or the possibility of erroneous executions. As I have explained; see part I of this dissenting opinion; because the defendant did not raise these issues, the parties have not briefed them and the record is inadequate for their review, they are not properly before the court.

B

Enactment of P.A. 12–5 Eliminates Any Valid Penological Objective for Maintaining the Death Penalty for Prerepeal Offenders for Reasons Unrelated to Their Culpability

"Community consensus, while entitled to great weight, is not itself determinative of whether a punishment is cruel and unusual.” (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. at 67, 130 S.Ct. 2011. "In accordance with the constitutional design, the task of interpreting the [e]ighth [a]mendment remains our responsibility.... The judicial exercise of independent judgment requires consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.... In this inquiry the [c]ourt also considers whether the challenged sentencing practice serves legitimate penological goals.” (Citations omitted; internal quotation marks omitted.) Id.

In Roper v. Simmons, supra, 543 U.S. at 568–71, 125 S.Ct. 1183, Graham v. Florida, supra, 560 U.S. at 67–71, 130 S.Ct. 2011 and Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 2465–69, 183 L.Ed.2d 407 (2012), the United States Supreme Court contrasted the characteristics of juveniles and adults who committed the same criminal behavior, and concluded that juveniles were less culpable than adults who commit the same crime and, therefore, the punishment at issue—whether it was life without parole or the death penalty—would be cruel and unusual if imposed on a juvenile even though the same sentence would not violate the eighth amendment when imposed on an adult. In Atkins v. Virginia, supra, 536 U.S. at 317–18, 122 S.Ct. 2242 the court engaged in a similar analysis regarding adults with intellectual disabilities.

In cases such as Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (plurality opinion), Enmund v. Florida, supra, 458 U.S. at 787, 102 S.Ct. 3368 and Kennedy v. Louisiana, supra, 554 U.S. at 438–39, 128 S.Ct. 2641 the Supreme Court examined whether imposition of the death penalty for a nonhomicide crime violated the eighth amendment. In each case, the court concluded that the imposition of the death penalty would be unconstitutionally disproportionate to the culpability of the offender. See, e.g., Kennedy v. Louisiana, supra, at 438, 128 S.Ct. 2641. In reaching its conclusion, the court examined not only societal consensus regarding the punishment faced by the defendant and the underlying penological justifications, but also the characteristics of the crime and the offender.

The present case raises an issue that has not been answered by any of the previously cited cases. The defendant asks us to decide whether the imposition of the death penalty would be disproportionate in relation to the particular type of homicide of which he was convicted as to violate the eighth amendment now that our legislature has determined that, moving forward, the death penalty is an impermissible punishment for any offender who commits the same type of homicide. This is fundamentally a different question than the ones posed by Enmund, Kennedy, Coker, Simmons, Atkins, Graham, and Miller. In each of those cases, the court was essentially being asked to make an exception—to spare a group of offenders from an otherwise acceptable penalty. By contrast, in the present case, we are faced with the situation in which Connecticut has determined that the death penalty is no longer an acceptable punishment for any crime committed today. Thus, the question is not whether Connecticut may create an exception to an otherwise acceptable punishment, but whether Connecticut may inflict an otherwise unacceptable punishment on the defendant.

An exploration of P.A. 12–5 and how it would impact offenders such as the defendant helps put the question before us in proper context. Public Act 12–5, § 2, amended General Statutes § 53a–35a, effective April 25, 2012. That statute presently provides in relevant part: "For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and, unless the section of the general statutes that defines or provides the penalty for the crime specifically provides otherwise, the term shall be fixed by the court as follows: (1)(A) For a capital felony committed prior to April 25, 2012, under the provisions of section 53a–54b in effect prior to April 25, 2012, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a–46a, or (B) for the class A felony of murder with special circumstances committed on or after April 25, 2012, under the provisions of section 53a–54b in effect on or after April 25, 2012, a term of life imprisonment without the possibility of release....” General Statutes § 53a–35a. The most significant feature of this scheme for purposes of this part of my analysis is that the conduct classified as a "capital felony” or a "murder with special circumstances” is exactly the same. The legislature simply substituted the term "murder with special circumstances” for "capital felony” in the provision setting forth the eight offenses that were previously eligible for capital punishment. Compare General Statutes (Rev. to 1999) § 53a–54b ("[a] person is guilty of a capital felony who is convicted of ... [2] murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain”), with General Statutes (Rev. to 2013) § 53a–54b ("[a] person is guilty of murder with special circumstances who is convicted of any of the following ... [2] murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain”). Only the former version of the statute, however, permits punishment by death. Thus, the precise conduct which gave rise to the defendant's capital felony conviction is now defined as "murder with special circumstances....” If the defendant had engaged in identical conduct after April 25, 2012, the death penalty simply would not have been an available punishment. Therefore, the date of the offense, rather than the particular culpability of the offender, is determinative of whether the death penalty is available. With this perspective in mind, I turn to the question of whether such a dichotomy can be justified.

Under the eighth amendment, in order for a punishment to pass constitutional muster, it must fulfill a valid penological objective. "Criminal punishment can have different goals, and choosing among them is within a legislature's discretion.” Graham v. Florida, supra, 560 U.S. at 71, 130 S.Ct. 2011. The two penological justifications traditionally and consistently articulated in support of the death penalty are deterrence of capital crimes and retribution. See Kennedy v. Louisiana, supra, 554 U.S. at 441, 128 S.Ct. 2641. Unless the imposition of the death penalty "measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” (Emphasis added; internal quotation marks omitted.) Atkins v. Virginia, supra, 536 U.S. at 319, 122 S.Ct. 2242. Although this court has previously concluded that the death penalty validly serves one or both of these objectives; see State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094 ; it is plain to me that, in light of the prospective repeal, the execution of prerepeal death row inmates no longer measurably contributes to a valid penological objective.

There has been a long running debate as to whether the death penalty actually functions as a deterrent to those crimes deemed capital offenses. See, e.g., J. Acker, " Be Careful What You Ask For: Lessons From New York's Recent Experience With Capital Punishment,” 32 Vt. L.Rev. 683, 702–11 (2008). Courts have concluded that "[t]he value of capital punishment as a deterrent of crime is a complex factual issue the resolution of which properly rests with the legislatures, which can evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts.” Gregg v. Georgia, supra, 428 U.S. at 186, 96 S.Ct. 2909 ; see also State v. Rizzo, supra, 303 Conn. at 197, 31 A.3d 1094. Thus, courts have deferred to a legislative judgment that "the possible penalty of death may well enter into the cold calculus that precedes the decision to act.” Gregg v. Georgia, supra, at 186, 96 S.Ct. 2909.

Deferring to our legislature is not proper in the present case. Public Act 12–5 eliminates the possibility that any future murderer will be sentenced to death. The potential infliction of the penalty of death, therefore, will no longer enter into an individual's decision of whether to commit murder with special circumstances. Thus, "[f]ollowing the abolition of the death penalty for all future offenses committed in Connecticut ... it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.” (Emphasis in original.) State v. Santiago, 305 Conn. 101, 321, 49 A.3d 566 (2012) (Harper, J., concurring in part and dissenting in part). Accordingly, the execution of the defendant, as well as the executions of the other inmates who remain on death row, cannot be justified by its deterrent effect. See Atkins v. Virginia, supra, 536 U.S. at 319–20, 122 S.Ct. 2242 (concluding that executing mentally retarded will not further goal of deterrence).Courts have always treated death differently from other types of punishments in determining what is constitutionally permissible. See Solem v. Helm, supra, 463 U.S. at 289, 103 S.Ct. 3001 ; Bullington v. Missouri, 451 U.S. 430, 445–46, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) ; Beck v. Alabama, 447 U.S. 625, 637–38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) ; Gardner v. Florida, 430 U.S. 349, 358–60, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). No court has ever justified the continued imposition of the death penalty on minors or the mentally disabled following repeal because doing so would have promoted stability in the law. The prospective repeal of the death penalty in this statute has eliminated the traditionally articulated rationale of deterring those particularly heinous crimes deemed to justify the punishment of death.

I question whether, even before the prospective repeal, a sentence of death continued to have any deterrent effect. In his concurring opinion in Furman, Justice White concluded that the death penalty was cruel and unusual as it was then being imposed, but only because the death penalty was imposed so infrequently. See Furman v. Georgia, supra, 408 U.S. at 311, 92 S.Ct. 2726 ("I begin with what I consider a near truism: that the death penalty could so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system”). Justice White went on to explain: "Most important, a major goal of the criminal law—to deter others by punishing the convicted criminal—would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct of others.... [C]ommon sense and experience tell us that seldom-enforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.” Id., at 312, 92 S.Ct. 2726. This state has executed one person in the last fifty-five years. See Connecticut State Library, "Executions in Connecticut Since 1894,” (last modified May 30, 2013), available at http://www.cslib.org/executions.htm (last visited August 10, 2015). That particular defendant, Michael Ross, withdrew his pending appeals and wrote a letter to Governor M. Jodi Rell requesting that she not intervene. See L. Tuohy, "Ross to Rell: Keep Out of It,” Hartford Courant, December 4, 2004, p. B1; L. Tuohy, "Execution Set for May 11,” Hartford Courant, February 11, 2005, p. A1. Given the infrequency with which the state carried out executions prior to the repeal of the death penalty, I am not convinced that the carrying out of the executions of the defendants who committed their offenses prior to April 25, 2012, will have any general deterrent effect.

See State v. Rizzo, supra, 303 Conn. at 147–50, 31 A.3d 1094 (defendant encountered thirteen year old victim as victim rode bicycle in front of defendant's home and asked victim if anyone knew where he was; when victim replied in negative, defendant decided to kill him; defendant then told victim that there were snakes in backyard, and asked victim if he wanted to see them; when victim agreed, defendant went to car and retrieved flashlight and three pound sledgehammer, which he concealed in his pants; after giving flashlight to victim, defendant approached victim from behind, raised sledgehammer over his head, and hit victim on side of head with flat surface of sledgehammer; victim rolled over and implored defendant to stop hitting him, but defendant hit him repeatedly in head, back and shoulders, one of which blows punched out large fragment of victim's skull, creating a gaping hole; defendant later told police that he just wanted to know what it was like to kill somebody); State v. Breton, supra, 264 Conn. at 345–48, 824 A.2d 778 (in early morning hours, defendant went to home of former wife, " 'strapped on’ ” knife, let himself in with key, and went upstairs to former wife's bedroom; when former wife yelled for their son to call police, defendant sat on top of her and hit her; former wife continued to scream and, when defendant saw son appear in doorway, he took knife in hand and went to son, who said, " 'Dad, I love you,’ ” at which point defendant hit him, saw "something” gushing out of his neck and heard gasping and gurgling; defendant returned to former wife, grabbed her hair, hit her and again heard gurgling, and loud crash; as defendant was leaving house, he saw son lying at bottom of stairs, shaking; defendant then went back to former wife, told her that he just wanted to talk and hit her again; defendant then returned to son, said " '[t]hank you for the birthday card,’ ” and stabbed him in neck); State v. Reynolds, supra, 264 Conn. at 18–21, 836 A.2d 224 (defendant, who was convicted drug dealer and member of cocaine trafficking organization, was on errand to sell cocaine when victim, who was police officer, pulled over police cruiser, exited vehicle and ordered defendant to " '[g]et up against’ ” cruiser; defendant put left hand on cruiser, but kept right hand in coat pocket; victim repeatedly ordered defendant to remove hand from pocket and finally took hold of defendant's right arm in attempt to force him do so; when he was unable to remove defendant's hand from pocket and released his grip on defendant, defendant took left hand off cruiser, bumped left elbow against victim's chest to ascertain whether he was wearing bulletproof vest, and, upon determining that he was, withdrew pistol from pocket with right hand and shot victim behind left ear); State v. Cobb, supra, 251 Conn. at 302–304, 743 A.2d 1 (after asking victim for ride, defendant forced victim to drive to secluded area, forced her into back seat of car, robbed her, raped her, put glove in her mouth, covered victim's mouth and nose with several layers of tape, taped her hands together and feet together, carried her to nearby dam, pushed her off dam onto concrete apron approximately twenty-three feet below; when victim survived fall and was able to remove some bindings and to crawl out of freezing water, injuring herself in attempt, defendant, who had been watching victim from top of dam, went down to victim and forced her, facedown, back into water and strangled or drowned her); State v. Webb, supra, 238 Conn. at 397–98, 680 A.2d 147 (defendant abducted victim in parking garage, forced her into car, drove her four miles to public park, forcibly removed or forced victim to remove shoes, pantyhose and panties and attempted to assault victim sexually; when victim, after struggle, was able to break free and tried to escape, defendant shot her twice in back, causing hemorrhaging and excruciating pain; victim then began crawling away from defendant, screaming repeatedly for help; defendant returned to car, drove it to victim's location, exited car and shot victim once in chest, once in ear and once point blank in face, finally killing her). I cite these five cases because, in all of them, the mandatory appeal process for capital cases has been completed. The facts alleged in the other cases in which the defendants have been sentenced to death, including the present case, are also horrific, but because those facts have not been subject to final appellate review, it would be inappropriate for me to assume that they have been proved beyond a reasonable doubt or to discuss them here.

Therefore, I turn to the other claimed justification for capital punishment, namely, retribution. Although not a forbidden penological objective, "[r]etribution is no longer the dominant objective of the criminal law....” (Citations omitted; internal quotation marks omitted.) Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. 2909 ; see also State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183 (1986). The United States Supreme Court has recognized that, of the valid justifications for punishment, "retribution ... most often can contradict the law's own ends. This is of particular concern when the [c]ourt interprets the meaning of the [e]ighth [a]mendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” Kennedy v. Louisiana, supra, 554 U.S. at 420, 128 S.Ct. 2641.

"[T]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.” (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. at 71, 130 S.Ct. 2011 ; see also Atkins v. Virginia, supra, 536 U.S. at 319, 122 S.Ct. 2242 ("[w]ith respect to retribution ... the severity of the appropriate punishment necessarily depends on the culpability of the offender”). Retribution is committed to general principles mandating similar punishment in similar circumstances. See R. Nozick, Philosophical Explanations (1981) p. 367. Thus, retribution "sets an internal limit to the amount of punishment, according to the seriousness of the wrong....” Id. Retributive justice, therefore, is concerned with imposing a sentence proportionate to the crime, so that the "interest in seeing that the offender gets his 'just deserts' ” is satisfied. Atkins v. Virginia, supra, at 319, 122 S.Ct. 2242 ; see also Kennedy v. Louisiana, supra, 554 U.S. at 442, 128 S.Ct. 2641 ("[t]he goal of retribution ... reflects society's and the victim's interests in seeing that the offender is repaid for the hurt he caused”).

Under this theory, it is unjust to create a system that purposefully imposes, or encourages the imposition of, wholly disproportionate punishment on equally culpable defendants. Rather, to fulfill a valid retributive purpose, sentences must be handed out evenhandedly; legislatures and courts cannot simply dole out different punishments, varying not merely in degrees of severity, but in kind, for similar crimes. Indeed, the notion that the death penalty should be reserved for only the most deserving of offenders and, thus, work to produce evenhanded justice, is embedded in this nation's capital punishment jurisprudence. To ensure that only the most culpable of offenders are sentenced to death, the United States Supreme Court has "consistently confined the imposition of the death penalty to a narrow category of the most serious crimes.” Atkins v. Virginia, supra, 536 U.S. at 319, 122 S.Ct. 2242 ; see also Kennedy v. Louisiana, supra, 554 U.S. at 442, 128 S.Ct. 2641 ("[i]n considering whether retribution is served ... we have looked to whether ... the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed” [internal quotation marks omitted] ). The death penalty, therefore, has been reserved for certain crimes "so grievous an affront to humanity that the only adequate response may be the penalty of death. ” (Emphasis added.) Gregg v. Georgia, supra, 428 U.S. at 184, 96 S.Ct. 2909.

In written testimony to the Judiciary Committee, Chief State's Attorney Kevin Kane acknowledged that "[p]rospective repeal of the death penalty will create two classes of people: one will be subject to execution and the other will not, not because of the nature of the crime or the existence or absence of any aggravating or mitigating factor, but because of the date on which the crime was committed.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2937. In so doing, however, our legislature's prospective repeal necessarily establishes that the death penalty is not the only adequate response to those crimes previously deemed capital felonies.

What, then, is the real purpose behind executing the men currently on death row, when the legislature has completely taken death off of the table for all crimes committed after April 25, 2012? Although P.A. 12–5 contains no statement of policy or underlying findings, the legislative history establishes two factors that indicate that maintaining the death penalty on the basis of an arbitrary date does not measurably contribute to a valid retributive purpose. First, the various rationales articulated in support of the death penalty's repeal applied to all cases regardless of the date of offense: (1) the death penalty operates in an incurably arbitrary and discriminatory manner; (2) the risk of executing an innocent person cannot be eliminated; (3) the length of time required for effective appellate and postconviction review would make it more likely that the men on death row would die of old age rather than be executed; (4) the death penalty fails to provide closure for victims' families; and, of course, (5) moral objections to the state's taking of a life. Second, although the legislative debate articulated serious concerns as to the legal and moral propriety of prospective repeal, no lawmaker articulated a legitimate or moral rationale for conditioning death upon the date of the offense. The lone comment expressing anything close to such a justification was a suggestion that the state should not upset the expectations of victims' families, a point that I address subsequently in this concurring opinion. See 55 S. Proc., Pt. 3, 2012 Sess., p. 720, remarks of Senator Andrew Roraback. No other legislator indicated that he or she shared that particular view. Rather, it was broadly acknowledged that the decision to repeal the death penalty only on a prospective basis was driven by a desire to exact revenge on certain notorious death row inmates and the fear of the political consequences that could have accompanied an absolute prohibition. For example, Representative Lawrence Cafero, an opponent of the prospective nature of the repeal and the abolition of the death penalty generally, stated: "It is no secret that what is weighing over all of us is the [murder of Jennifer Hawke–Petit, Hayley Petit, and Michaela Petit in Cheshire]. In fact, it was widely reported that one of the reasons this General Assembly didn't take this bill up earlier was because of the freshness of those awful crimes.” 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1043; see also 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1063, remarks of Representative Al Adinolfi ("[t]here are many people in this room that have changed in their mind their vote to abolish the death penalty rather than vote against abolishing the death penalty based on these [eleven] who are on death row being executed, especially [Joshua] Komisarjevsky and [Steven] Hayes [who were convicted of capital felonies in connection with the murders in Cheshire]”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1305, remarks of Representative Ernest Hewett ("for the members who are voting for a prospective bill so they can make sure that Hayes and Komisarjevsky get the death penalty, it's not going to happen”). Representative Cafero later added that, if the legislature intended to have a debate about the propriety of the death penalty, "let's have that debate. Let's not have this one. Let's not mislead the public.... If it is the will of this [c]hamber that this [s]tate is no longer in the business of executing people, then let's say it and do it. You cannot have it both ways.” 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1047. Likewise, Representative Themis Klarides, herself a supporter of the death penalty, remarked about the inconsistency inherent in the legislative determination that a select few individuals may be executed, but that execution is unjustified in any circumstance going forward: "I do not get how anybody can say, I believe killing is wrong.... What I don't get is, how killing can be wrong for someone else, but [the men currently on death row], they are bad, so we can kill them.... You either support the death penalty and taking somebody's life or you don't.” Id., at p. 1210. These are, obviously, statements selected from an extremely extensive legislative history. Nevertheless, these statements, in my view, accurately reflect the primary reasons behind the prospective nature of the repeal: the desire to see the men currently on death row die, or at least certain of them, as well as the avoidance of the political consequences that would have accompanied the abolishment of existing death sentences.

See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 533, remarks of Senator Eric Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 751–52, remarks of Senator Edwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1257–64, remarks of Representative Gary Holder–Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74, remarks of Representative Juan Candelaria; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1374–76, remarks of Representative Patricia Dillon.

The majority contends that these remarks do not establish that a majority of legislators believed that the death penalty is the appropriate punishment for all of the defendants who have been sentenced to death because all of these legislators voted against P.A. 12–5. Thus, the majority apparently believes that, although those who voted against P.A. 12–5 were not motivated by a desire to wreak vengeance against the Cheshire defendants but by a principled belief in the appropriateness of the death penalty for heinous murder, many of those who voted for P.A. 12–5 but who were unwilling to vote for retroactive repeal must have been motivated by the desire to see those particular defendants executed. Again, however, this is nothing more than an unsupported assumption. There is absolutely no reason why those legislators could not have shared the principled beliefs of the legislators who voted against P.A. 12–5.

I emphasize that I express no view as to the guilt of the defendants who have been convicted of committing the Cheshire murders and the other crimes referred to during the legislative debates on P.A. 12–5 that have not yet been subject to final review by this court, or whether those defendants were properly sentenced to death. I also express no personal view as to whether the death penalty is warranted for any crime. I conclude only that the publicly reported facts of the Cheshire case and other cases in which the defendants have been sentenced to death reasonably could provide the basis for a legislative determination that there are crimes that deserve the death penalty.



See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator Edwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith Prague; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1279–82, remarks of Representative Richard Smith.

See also Baker v. State, 170 Vt. 194, 228, 744 A.2d 864 (1999) ( "[I]t cannot be doubted that judicial authority is not ultimate authority. It is certainly not the only repository of wisdom. When a democracy is in moral flux, courts may not have the best or the final answers. Judicial answers may be wrong. They may be counter productive even if they are right. Courts do best by proceeding in a way that is catalytic rather than preclusive....” [Internal quotation marks omitted.] ).

See Death Penalty Information Center, "Recent Legislation: Governor's Signature Makes Connecticut Fifth State in Five Years to End Death Penalty,” (2015), available at http://www.deathpenaltyinfo.org/recent-legislation-governors-signature-makes-connecticut-fifth-state-five-years-end-death-penalty (last visited August 10, 2015).

The preamble to the Connecticut constitution provides: "The People of Connecticut acknowledging with gratitude, the good providence of God, in having permitted them to enjoy a free government; do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors; hereby, after a careful consideration and revision, ordain and establish the following constitution and form of civil government.”

The constitution of Connecticut, article first, § 2, provides in relevant part: "All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit....”



See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 673, remarks of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry Gerrantana; 55 S. Proc., Pt. 3, 2012 Sess., p. 751, remarks of Senator Edwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., pp. 772–73, remarks of Senator Carlo Leone; 55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91, remarks of Senator Joseph Crisco; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1255–57, remarks of Representative Michael Molgano.

As the majority observes, the United States Supreme Court has repeatedly recognized that tension between the requirement that the discretion of the sentencing authority to impose the death penalty must be limited by statute and the requirement that the sentencing authority must be afforded unlimited discretion to consider any mitigating factor before imposing the death penalty.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 662, remarks of Senator Eric Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks of Senator Anthony Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1282–86, remarks of Representative Daniel Rovero; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1340–41, remarks of Representative Philip Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1352, remarks of Representative John Thompson; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1384–89, remarks of Representative J. Brendan Sharkey.

Justices Norcott and McDonald state that they do not "purport to resolve conclusively these allegations” but merely "feel compelled to analyze them.” Thus, they, like the majority, attempt to have their cake (make factual findings on the issue of racial disparities in the imposition of the death penalty in this state) and eat it, too (deny that they are doing any such thing). Justices Norcott and McDonald further state that they are aware of "no authority, from this court or any other, supporting [my] novel rule that the author(s) of a concurring opinion may freely address issues that are likely to arise in future cases, but that we are categorically barred from discussing issues that will not.” I am aware, however, of no case in which the concurring justices have addressed an issue that can never come before or be of any concrete interest to the court. In support of their claim that they are entitled to issue an opinion that is pure dicta and that has no possible bearing on future claims that might come before the court if the issue may be of interest to other courts or legislatures, Justices Norcott and McDonald rely on a law review article written by Robert Blomquist. See R. Blomquist, "Concurrence, Posner–Style: Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner,” 71 Alb. L.Rev. 37, 46, 56–64 (2008). I see nothing in the portion of Blomquist's article on which Justices Norcott and McDonald rely, however, that would suggest that concurring justices may freely render dicta on issues that are of no current or future interest to this court.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 725, remarks of Senator Robert Kane ("I'm a bit confused by how we are able to make it okay for the existing [eleven] people on death row to be executed but not the future individuals who may commit some of those very same crimes”); Id., at p. 747, remarks of Senator Len Suzio ("[i]f you're going to say that taking human life in the form of a legal execution is wrong going forward, then it's wrong going backwards”); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1040, remarks of Representative Lawrence Cafero ("How can you say in your heart and with your vote that it should no longer be the policy of the state of Connecticut to commit anyone to death? And yet, at the same time, say except for these [eleven] guys. How could you say that? How do you justify that?”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1054, remarks of Representative John Hetherington ("It says that, prospectively, it operates to spare killers in the future but not a certain [eleven] who currently occupy death row. So it is a very curious moral position; that is, the morality changes depend upon when it's applied.”); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1307 remarks of Representative Hetherington ("It condemns death going forward, but accepts it in the past. It's illogical; it is arguably immoral.”); see also footnote 43 of this opinion.

Another commentator points out that "the intellectual legitimacy of [decisions relying on legislative facts to ascertain constitutional norms] turns upon the actual truth-content of the legislative facts taken into account by the judges who propound the decision.” 2 K. Broun, McCormick on Evidence (7th Ed.2013) § 331, pp. 612–13; see also J. Jackson, "The Brandeis Brief—Too Little, Too Late: The Trial Court as a Superior Forum for Presenting Legislative Facts,” 17 Am. J. Trial Advoc. 1, 2 (1993–1994) ("This [a]rticle ... argues that the superior forum in which to present legislative evidence is not through the traditional Brandeis-type brief, but through the trial process. A Brandeis brief is a document implemented at the appellate level that seeks to persuade the court by including ... legislative evidence in the form of economic and social surveys, copious legal citations, reports of public investigative committees, or scientific discussions by experts.” [Footnote omitted.] ). Jackson argues in his article that the trial court is the best forum to introduce legislative facts because "[a] trial gives the litigants as well as the fact-finders the opportunity to personally experience testimony and view the demeanor of witnesses. Furthermore, fact-finders can test evidence by observing cross-examination, another step in purifying facts. Once the flaws in a [witness'] testimony are brought to the surface, the fact-finder can skim away the dross and more effectively evaluate the refined testimony.” J. Jackson, supra, at 40. "The Brandeis brief cannot accomplish the same level of testing facts as can a trial, and the Brandeis brief presents, at best, an opportunity to get information into the judicial process after the fact.” Id., at 41.

See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 748, remarks of Senator Len Suzio ("I suspect that one reason why there's this big gaping hole, moral hole in this law is because of the political consequences of making it an absolute both prospectively, as well as retrospectively. And again, that to me is a moral failure. The end does not justify the means, but if [your] position is absolute, if you believe the death penalty is always morally offensive under any and all circumstances going forward then you really have to honor your commitment even to those on death row today.”).

See also A. Larsen, supra, 98 Va. L.Rev. at 1291 (judicial finding of legislative facts without participation of parties has "troubling effects,” including "the systematic introduction of bias, the possibility of mistake, and concerns about notice and legitimacy”); id., at 1294 (computerized research of legislative facts by court may cause "filter bubble,” result of which is "worse than a [j]ustice purposely finding something to cite that supports what she wants to argue; it is that she will only find factual authorities to support what it is she wants to argue” [emphasis omitted] ); id., at 1300 ("Justices—like all of us—have a tendency to engage in 'motivated reasoning’ and to look for facts that support the argument they are building, wherever those facts may come from and despite what other opposing authority is out there. This tendency may encourage the ad hoc and potentially mistaken evaluation of scientific findings—looking for what one wants to see—particularly if the studies to be used as authorities were never tested by the adversarial method or addressed by experts below.” [Footnote omitted.] ); B. Gorod, "The Adversarial Myth: Appellate Court Extra–Record Factfinding,” 61 Duke L.J. 1, 11 (2011) ("[i]f courts will ultimately turn to nonparties to provide them with the legislative facts they need to decide the case, those [nonparties] should be brought into the process at the trial court level, so that the legislative facts they offer can be thoroughly tested”); B. Gorod, supra, at 12 (courts' reliance on extra-record materials to establish legislative facts is problematic because of: "[a] the courts' reliance on unfounded assumptions, rather than tested facts; [b] the lack of established guidelines for the development and testing of legislative facts; [c] the lack of transparency about courts' rationales in judicial opinions; and [d] the entrenchment in law of factual claims that should be subject to reconsideration as the world—and one's means of understanding it—changes”).

I note that, while P.A. 12–5 was being considered by the legislature, eleven people were on death row. On May 22, 2015, Richard Roszkowski was sentenced to death for crimes committed prior to April 25, 2012. See footnote 102 of the majority opinion.

Donohue's article containing the statistical information that he presented on behalf of the petitioners in the consolidated habeas proceeding has the hallmarks of an appellate brief. For example, Donohue argues that, "[d]espite the fact that [this court] had mandated the statistical study and a motions judge had rejected the state's pretrial motion to dismiss [on racial disparity] grounds, the [habeas court in the consolidated proceeding] ruled that the Connecticut constitutional claims of race discrimination were barred”; J. Donohue, supra, 11 J. Empirical Legal Stud. at 639–40; the analysis submitted by the state's expert purporting to show the absence of racial disparities was "problematic” and "flawed”; id., at 640 ; the habeas court improperly failed to make a finding on the impact of race on capital charging; id., at 683 ; the habeas court improperly criticized Donohue's analysis of racial discrimination in the sentencing of capital defendants, as distinct from charging decisions; id., at 686 ; the habeas court improperly failed to recognize that "[t]reating someone differently because of their race is disparate treatment discrimination, regardless of whether one is aware of one's bias”; (emphasis in original) id., at 688 ; the habeas court "struggled in dealing with statistical evidence”; id.; and the habeas court was "clearly erroneous” when it found that the high number of capital cases in the judicial district of Waterbury could be the result of "random distribution.” Id., at 689. Justices Norcott and McDonald apparently agree with all of these contentions. In my view, it is improper for those to sanction this attempted end run on the process of appellate review in the consolidated habeas case, without providing an opportunity for the state to respond.

The animus directed toward the two defendants responsible for the high profile crimes in Cheshire, the last of whom was sentenced to death less than three months before the legislature took up P.A. 12–5, is evidenced in a public statement made by Senator Edith Prague: that "[t]hey should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street....” B. Connors, "Prague: 'Hang the Animal By His....' ” NBC Connecticut (May 12, 2011), available at http://www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-by-His-121670559.html (last visited August 10, 2015). In State v. Komisarjevsky, 302 Conn. 162, 179–80, 25 A.3d 613 (2011), this court acknowledged the notoriety of the cases against the two defendants, which aroused such public antipathy as to result in threats against both defense counsel and intimidation of witnesses that had been or might be interviewed by the defense team.

Just one example illustrates Donohue's point. Donohue concluded in his study that the "logit” measure revealed that "minorities who kill whites are sentenced to death at a substantially higher rate than white defendants who commit similar crimes” and that this disparity was "highly statistically significant.” J. Donohue, supra, 11 J. Empirical Legal Stud. at 662. In a footnote, Donohue explained that the "logit” measure was superior to other measures because, according to "[t]he distinguished quantitative methodologist and University Professor at Harvard Gary King ... using a linear model to analyze binary dependent variables is 'conceptually incorrect’ and 'can yield predicted probabilities greater than one or less than zero, heteroskedasticity, inefficient estimates, biased standard errors, and useless test statistics.’ ” Id., at 662 n. 51. Donohue then argued that his use of the "logit” measure was preferable to the methods used by the Commissioner of Correction's expert, who had "purported to show there was no evidence of racial discrimination in capital sentencing....” Id., at 666. Perhaps Justices Norcott and McDonald find this information useful without further elucidation, but I do not.

I recognize that Donohue's statements concerning the difficulties faced by nonexpert judges when attempting to find facts in cases involving complex scientific or mathematical issues was directed at the habeas court in the consolidated habeas proceeding. Even if Donohue were correct, however, that the consolidated habeas proceeding was doomed to failure because, even with the assistance of the parties and their experts, the racial disparity issue was simply too complex for a judge with no scientific or statistical training to understand, it would be no solution for the equally unqualified justices of this court to make factual findings on the issue. Rather, the solution would be for the habeas court to retain a special master to assist it.



Therefore, I can only conclude that the purpose of limiting the repeal of the death penalty prospectively is private vengeance. Private vengeance differs markedly from retribution, and is an impermissible justification for punishment. Whereas retribution is concerned with ensuring that an offender gets his " 'just deserts' ”; Atkins v. Virginia, supra, 536 U.S. at 319, 122 S.Ct. 2242 ; revenge, on the other hand, is personal, or private. A person or society seeking revenge has a personal tie to the victim, or is personally affected by the harm done to the victim. Those seeking revenge are motivated by emotion, and take personal pleasure in the suffering of the offender. See R. Nozick, supra, at p. 367. Most significantly, revenge, by its nature, carries no limits on the harm that may be imposed on the offender, whereas retribution sets an internal limit on punishment according to an offender's culpability. See id. Thus, revenge cares not with what comes of other offenders who commit similar crimes, but is concerned only with harming a specific offender.

I use the terms "private vengeance” and "revenge” interchangeably throughout this concurrence.

The fact that Donohue strongly disagreed with the claims of these scholars only supports my position that the issue is strongly contested and that, while members of this court should not be fact-finding under any circumstances, that is particularly true when they are relying on contested studies outside the record.

The stark differences between retribution and revenge were not lost on the legislature during the debate of P.A. 12–5. For example, Representative Cafero, a self-proclaimed supporter of capital punishment, aptly outlined the differences between the two, and additionally recognized that only retribution is a valid penological justification for punishment: "A lot of people say that people are for the death penalty because of revenge. If you look up 'revenge’ in the dictionary, you'll see it has an emotional component. It is for vengeance. It's within the word vengeance. Vengeance is an emotion. Government does not have the luxury of having emotions, whether that be compassion or vengeance. Government has to seek justice. Justice is the core definition behind retribution.” 55 H.R. Proc., Pt. 3, 2012 Sess., pp. 1040–41.

See K. Scheidegger, supra, 10 Ohio St. J.Crim. L. at 163 n.93, citing S. Klein et al., "Race and the Decision to Seek the Death Penalty in Federal Cases,” Technical Report of the RAND Corporation, Infrastructure, Safety, and Environment (2006), p. xvii (effect of race on decisions to seek death penalty in federal system disappear when data is adjusted for heinousness of crime); id., at 161, quoting R. Berk et al., "Statistical Difficulties in Determining the Role of Race in Capital Cases: A Re-analysis of Data from the State of Maryland,” 21 J. of Quantitative Criminology 365, 386 (2005) ("[f]or both capital charges and death sentences, race either played no role or a small one that is very difficult to specify” [internal quotation marks omitted] ); K. Scheidegger, supra, at 158 and n. 68, citing D. Baime, "Report to the New Jersey Supreme Court, Systemic Proportionality Review Project, 2000–2001 Term” (2001) (referencing series of annual reports by special master appointed by New Jersey Supreme Court that found that statistical evidence did not support claim of bias on either race of defendant or race of victim); D. Baime, "Report to the New Jersey Supreme Court, Systemic Proportionality Review Project, 2001–2002 Term” (2002), p. 3 (analysis by special master "disclose[d] no statistically reliable evidence that the race or ethnicity of the defendant affects whether ... the case proceeds to the penalty phase or whether ... the death is imposed ... [or] that the race of the victim affects whether ... the death penalty is imposed”); see also State of New Jersey, "New Jersey Death Penalty Study Commission Report” (2007), p. 1. ("[t]he available data do not support a finding of invidious racial bias in the application of the death penalty in New Jersey”).

The state contends, however, that executing prerepeal death row inmates does serve a valid retributive purpose because, by carrying out existing death sentences, the state will fulfill promises it has made to the victims of these crimes and, particularly, their families. I cannot agree. Although the office of the state's attorney may have the ability to promise a victim's family that it will seek a sentence of death, it cannot legitimately promise that the offender will be put to death for numerous reasons. The jury may decide not to convict or not to impose a sentence of death. Should the jury vote to impose that punishment, the defendant's death sentence may be vacated on direct appeal, as in the present case, or in collateral proceedings even years later. The board of parole and pardons could commute the death sentence. See General Statutes § 54–124a (d). More fundamentally, selectively executing the men currently on death row in order to fulfill such promises would amount to nothing more than exacting revenge on behalf of the families of the victims.

Simply because society demands a certain punishment does not mean that the state is authorized to carry it out. "The mere fact that the community demands the murderer's life in return for the evil he has done cannot sustain the death penalty, for ... 'the [e]ighth [a]mendment demands more than that a challenged punishment be acceptable to contemporary society.’ ” Gregg v. Georgia, supra, 428 U.S. at 240, 96 S.Ct. 2971 (Marshall, J., dissenting). "It is undoubtedly correct that there is ad demand for vengeance on the part of many persons in a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality requires vengeance to evidence society's abhorrence of the act. But the [e]ighth [a]mendment is our insulation from our baser selves. The 'cruel and unusual’ language limits the avenues through which vengeance can be channeled. Were this not so, the language would be empty and a return to the rack and other tortures would be possible in a given case.” (Footnote omitted.) Furman v. Georgia, supra, 408 U.S. at 344–45, 92 S.Ct. 2726 (Marshall, J., concurring).

Thus, society's desire to see the men on death row executed cannot alone legitimize executing the prerepeal defendants in light of the death penalty repeal. See State v. Santiago, supra, 305 Conn. at 319, 49 A.3d 566 (Harper, J., concurring in part and dissenting in part) ("[i]f it is upon ... rage that the death penalty depends, then that penalty cannot stand”). Indeed, it is wholly inconsistent to justify an execution by our society's moral outrage at the offender's conduct when our state no longer sanctions a sentence of death for any crime committed today. I therefore conclude that the retention of the death penalty for the men currently on death row, after the legislature has declared that the death penalty is no longer a proper punishment for any murderer going forward, serves no valid penological purpose, and marks this state's "sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.” Kennedy v. Louisiana, supra, 554 U.S. at 420, 128 S.Ct. 2641.In light of the foregoing principles, I therefore conclude that the execution of prerepeal death row inmates while a death penalty repeal is in effect does not measurably contribute to a valid retributive purpose. Public Act 12–5 ensures that no murderer will be sentenced to death in the future, irrespective of his or her culpability. Thus, the act completely unravels the thread that links the imposition of the death penalty and the culpability of individual offenders. No longer can death be imposed for crimes virtually identical to, similar to, or even more heinous than the crimes committed by prerepeal death row inmates. By repealing the death penalty going forward, the legislature has made a determination that the internal limit of punishment, or the most appropriate penalty, for even the most egregious of crimes is life imprisonment without the possibility of parole. In other words, the legislature has rejected the notion that death is the only adequate response for even the most culpable of offenders; see Gregg v. Georgia, supra, 428 U.S. at 184, 96 S.Ct. 2909 ; and, instead, has determined that a sentence of life imprisonment without the possibility of parole will suffice to satisfy the interest in seeing that such an offender gets his just deserts.

The state also claims that executing prerepeal death row inmates serves a valid penological purpose simply because those defendants chose to murder at a time in which the death penalty was a constitutionally permissible penalty for their conduct, and were sentenced prior to the effective date of the act. I disagree. This claim is merely another reference to deterrence. Moreover, the state's view assumes that the full effect of the death penalty is felt by the defendant at the moment of sentencing. As a practical matter, this is a faulty presumption. In my view, a sentence of death carries two parts: the first is a term of years of imprisonment while the defendant is awaiting execution, and the second is the execution itself. Until a defendant walks into the death chamber to be executed, his sentence is, in all practical respects, life imprisonment without the possibility of parole. Thus, although the prerepeal defendants were sentenced to death under a constitutionally permissible capital sentencing statute, that, by itself, is not a basis to carry out the second aspect of a death sentence, execution.

In addition to Donohue's report, Justices Norcott and McDonald rely on government data derived from both the Criminal Justice Information Services Division of the Federal Bureau of Investigation and the Uniform Crime Reporting Program of the state of Connecticut to support their analysis of the racial disparity issue. As the justices acknowledge, however, this court already has concluded that it could not rely on this data because it was preliminary. They also rely on the 2003 study by the Commission on the Death Penalty, which was created by our legislature. See Public Acts 2001, No. 01–151, § 4. That study sets forth raw statistics concerning the race of defendants and victims in death penalty cases and makes no attempt to perform any more sophisticated statistical analysis to determine whether the apparent racial disparities might be explainable by other factors. State of Connecticut, Commission on the Death Penalty, "Study Pursuant to Public Act No. 01–151 of the Imposition of the Death Penalty in Connecticut” (January 8, 2003) pp. 17–28. Indeed, the commission itself stated that "the percentages are difficult to interpret and the [c]omission does not attempt to do so....” Id., at p. 25. Moreover, the commission stated in the study that the report of the petitioners' expert in the consolidated habeas proceeding, which was expected to be available later that year, was "expected to provide information regarding race, ethnicity, gender, age, and socioeconomic status of defendants and victims in capital felony cases, and will be available for review by the [l]egislature at that time.” Id., at pp. 20–21. Accordingly, the data from these studies clearly is not sufficient for this court to draw any definitive conclusions as to the existence of racial disparities in the imposition of the death sentence in this state. Contrary to the intimation of Justices Norcott and McDonald, however, I recognize that these studies were highly suggestive of a serious problem and that there was a clear need for further study to determine the extent to which the death penalty in this state has been infected by the arbitrary factor of race, as this court expressly held in State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995). Pursuant to Cobb, that further study was conducted by the experts in the consolidated habeas proceeding, in which, as Justices Norcott and McDonald acknowledge, the habeas court reached no definitive factual conclusions as to the existence of racial disparities in the imposition of the death penalty.

Justices Norcott and McDonald also state that they suspect that "the crux of [my] problem ... is that [I] simply [fail] to understand the nature or purpose of a meta-study.” They point to no "meta-study,” however, and I am aware of none, concerning the studies addressing racial disparities in the imposition of the death penalty in this state.



C

Applying the Death Penalty on the Basis of the Date of the Offense in Relation to the Effective Date of P.A. 12–5 is Unconstitutionally Arbitrary

It is also my view that, as amended by P.A. 12–5, Connecticut's statutory capital sentencing scheme is unconstitutional because, as currently structured, it suffers from the same inequities that plagued the capital sentencing schemes that were declared unconstitutional by the United States Supreme Court in Furman. See Furman v. Georgia, supra, 408 U.S. at 238–40, 92 S.Ct. 2726. In Furman, a majority of United States Supreme Court justices each came to the independent conclusion that the penalty of death, as it was then currently administered, was so cruel and unusual as to violate the eighth amendment. Id., at 240, 92 S.Ct. 2726. Although no justice's reasoning could command a clear majority, by examining the decision in Furman in light of two other cases decided in that time period by the United States Supreme Court, namely, McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), and Gregg v. Georgia, supra, 428 U.S. at 153, 96 S.Ct. 2909 one comes to understand that the death penalty is in accord with the eighth amendment only when it is imposed on the most culpable offenders for the commission of the most grave homicides and, importantly, only when this most extreme punishment is imposed fairly, consistently, and based solely on the individual and unique circumstances of each case. What Connecticut has done, by prospectively repealing the death penalty for all types of homicide that previously were defined as "capital felonies” by §§ 53a–35a and 53a–54b, is to remove any assurance that only the most deserving offenders will be selected by our statutory scheme to receive the death penalty on the basis of their individual circumstances.

The United States Supreme Court decision in McGautha reveals the problems that occurred under the older versions of our nation's capital sentencing schemes. In McGautha, two men who had been sentenced to death claimed that "the absence of standards to guide the jury's discretion on the punishment issue is constitutionally intolerable.... [The] petitioners contend that to leave the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawless and therefore violates the basic command of the [f]ourteenth [a]mendment that no [s]tate shall deprive a person of his life without due process of law.” McGautha v. California, supra, 402 U.S. at 196, 91 S.Ct. 1454. At that point in time, the United States Supreme Court was unwilling to recognize the unconstitutionality of the outdated sentencing schemes that permitted juries to exercise unchanneled discretion in determining a capital defendant's sentence. See id., at 203–208, 91 S.Ct. 1454.

The United States Supreme Court would reverse course only one year later in Furman. In that case, five justices separately concluded that the death penalty as currently administered was unconstitutional under the eighth and fourteenth amendments. Furman v. Georgia, supra, 408 U.S. at 238–40, 92 S.Ct. 2726. Justice Stewart's opinion, which focused on the random and arbitrary manner in which the death penalty was imposed, heavily influenced the development of modern capital sentencing schemes. Id., at 309–10, 92 S.Ct. 2726. More than anything else, Justice Stewart was concerned with the unprincipled manner in which the death penalty was being imposed at the time: "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of ... murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. ” (Emphasis added; footnote omitted.) Id. Thus, although Justice Stewart did not determine that the death penalty itself is a violation of the eighth amendment; see id., at 307–308, 92 S.Ct. 2726 ; one can only conclude that whenever randomness, arbitrariness, or capriciousness exert their influence on the imposition of the death penalty, the eighth and fourteenth amendments of the constitution of the United States have been violated.

The plurality opinion in Gregg serves as a guide to legislatures that wish to continue to constitutionally impose the death penalty. In Gregg, the United States Supreme Court approved of a Georgia capital sentencing statute passed in response to Furman: "The basic concern of Furman centered on those defendants who were being condemned to death capriciously and arbitrarily. Under the procedures before the [c]ourt in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant.... In this way the jury's discretion is channeled. No longer can a jury wantonly and freakishly impose the death sentence; it is always circumscribed by the legislative guidelines.” Gregg v. Georgia, supra, 428 U.S. at 206–207, 96 S.Ct. 2909. Public Act 12–5 amends Connecticut's statutory death penalty scheme in a manner that, in my view, runs afoul of the principles expressed in Furman. The United States Supreme Court has repeatedly found that death is different. "There is no question that death as a punishment is unique in its severity and irrevocability.” Id., at 187, 96 S.Ct. 2909 ; see also Furman v. Georgia, supra, 408 U.S. at 305, 92 S.Ct. 2726 (Brennan, J., concurring) ("death is an unusually severe and degrading punishment”); Furman v. Georgia, supra, at 346, 92 S.Ct. 2726 (Marshall, J., concurring) (death is "the ultimate sanction”). It cannot fairly be denied that "death is a punishment different from all other sanctions in kind rather than degree.” Woodson v. North Carolina, 428 U.S. 280, 303–304, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976). "When a defendant's life is at stake, the [United States Supreme Court] has been particularly sensitive to insure that every safeguard is observed.... It is an extreme sanction, suitable to the most extreme of crimes.” (Citations omitted; footnote omitted.) Gregg v. Georgia, supra, 428 U.S. at 187, 96 S.Ct. 2909.

Although Gregg and Furman focus on the need to channel the discretion of a sentence in individual cases to avoid arbitrary results, the United States Supreme Court's eighth amendment jurisprudence on arbitrariness in sentencing is not confined to arbitrariness by individual sentencing bodies. See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ("Death, in its finality, differs more from life imprisonment than a [100 year] prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment....”). Moreover, although in Furman, the United States Supreme Court's decision focused on the unchanneled discretion being wielded by juries in individual cases, the court concluded that the death penalty as it was then being imposed was unconstitutional not because in any particular instance, the jury's decision was arbitrary, but rather because the capital sentencing schemes of the states permitted arbitrary decision making in individual cases. See Gregg v. Georgia, supra, 428 U.S. at 188, 96 S.Ct. 2909 ("[b]ecause of the uniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner” [emphasis added] ); Callins v. Collins, 510 U.S. 1141, 1152–53, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) ("[i]t is the decision to sentence a defendant to death—not merely the decision to make a defendant eligible for death—that may not be arbitrary”).

As noted by this court in State v. Santiago, supra, 305 Conn. at 114 n. 1, 49 A.3d 566§ 53a–54b was amended twice between the date of the defendant's offenses and the date of this court's original decision in this case. Because those amendments had no bearing on the defendant's appeal, this court referred in Santiago to the then current revision of the statute. Id. Since that time, § 53a–54b was further amended. See P.A. 12–5, § 1. To avoid any confusion, I refer herein to the 1999 revision of § 53a–54b, the revision that was in effect at the time of the offense in the present case.

Instead of resulting from the unfettered discretion of a jury, as in Furman, the arbitrariness in the present case stems from the effective date provision of the act, which, in effect, renders the date on which a defendant commits his crime an eligibility factor for the death penalty. I fail to see how this scheme, which permits the imposition of the death penalty for a capital felony committed at any time prior to 11:59 p.m. on April 24, 2012, but rejects categorically the imposition of the death penalty for the same conduct or even substantially more heinous acts carried out two minutes later, is in any way distinct from the constitutionally infirm schemes rejected by the United States Supreme Court in Furman. The circumstances that I describe strike me as exactly the sort of wanton and freakish imposition of the death penalty that runs afoul of the eighth amendment of the United States constitution. See Furman v. Georgia, supra, 408 U.S. at 310, 92 S.Ct. 2726 (Stewart, J., concurring); Callins v. Collins, 510 U.S. 1141, 1152, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) ("[t]he demands of Furman are met by 'narrowing’ the class of death-eligible offenders according to objective, fact-bound characteristics of the defendant or the circumstances of the offense ” [emphasis added] ).

In my view, the understanding that, today, only this subset of criminal offenders—those defendants who committed capital felonies prior to the effective date of P.A. 12–5, regardless of individual culpability—will be subject to this punishment causes an arbitrary, anomalous impact on this subset of criminal offenders and therefore causes Connecticut's capital sentencing scheme as amended by P.A. 12–5 to violate the eighth amendment.

II

SEVERABILITY OF UNCONSTITUTIONAL PARTS OF P.A. 12–5

Having concluded that the execution of prerepeal death row inmates violates the constitutional ban on cruel and unusual punishment, and although the majority opinion decides today that capital punishment is unconstitutional, in view of the dissents' claims about the appropriateness of the majority's reaching the issue, I now examine the effect that this conclusion has on the continued viability of P.A. 12–5. My conclusion as to the constitutionality of the act relates solely to the effective date provision of the act, which is the mechanism by which the death penalty is retained for capital felonies committed before the act and abolished for all identical future crimes. The issue, therefore, is whether the unconstitutional provisions are severable from the remainder of the act. I would conclude that they are and, thus, would allow the constitutional portions of the act to stand—namely, those portions that effectuate the repeal of the death penalty.

The state claims that P.A. 12–5 contains no constitutionally invalid provisions because "[i]t is well established that the death penalty does not violate any provision of the federal constitution” and "[l]ikewise, a statute that repeals the death penalty also is constitutionally firm.” In my opinion, these arguments have no merit. While it is true that Gregg established that the death penalty is not, in and of itself, a violation of any provision of the federal constitution, modern death penalty jurisprudence has made it eminently clear that certain state statutory schemes which impose the death penalty can be unconstitutional either on their face or as applied in a given case. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 320–28, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989) (finding that, although capital sentencing scheme was facially valid, in specific case, scheme prevented jury from considering mitigation evidence presented by defendant), abrogated on other grounds by Atkins v. Virginia, supra, 536 U.S. at 321, 122 S.Ct. 2242 ; Woodson v. North Carolina, supra, 428 U.S. at 301, 96 S.Ct. 2978 (rejecting capital scheme that imposed mandatory death penalty for crime of first degree murder in part because statute "depart[ed] markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the [e]ighth and [f]ourteenth [a]mendments' requirement that the [s]tate's power to punish 'be exercised within the limits of civilized standards' ”).

General Statutes § 1–1(t) provides: "The repeal of an act shall not affect any punishment, penalty or forfeiture incurred before the repeal takes effect, or any suit, or prosecution, or proceeding pending at the time of the repeal, for an offense committed, or for the recovery of a penalty or forfeiture incurred under the act repealed.”

In determining the appropriate remedy when a portion of a statute has been found to be unconstitutional, "[w]e seek to determine what [the legislature] would have intended in light of the [c]ourt's constitutional holding.... Thus, [g]uiding the solution is the maxim that this court will strive to interpret a statute so as to sustain its validity ... and [to] give effect to the intention of the legislature.... [In enacting] General Statutes § 1–3 the legislature has shown its intention that there is to be a presumption of separability of the provisions and of the applications of statutes.... With regard to the separability of provisions, to overcome the presumption it must be shown that the portion declared invalid is so mutually connected and dependent on the remainder of the statute as to indicate an intent that they should stand or fall together ... and this interdependence would warrant a belief that the legislature would not have adopted the remainder of the statute independently of the invalid portion....

"[U]pon finding a portion of a statute to be unconstitutional, this court does not ask whether, if the legislature had known about the constitutional flaw at the time of enactment, it might have preferred some other form of legislation over the remaining constitutional portion of the statute, a question that might well engage the court in speculation. Rather, this court asks the much narrower question of whether the legislature, at the time that the statute is invalidated, would prefer the continued operation of the constitutional portion of the statute or the complete invalidation of the statute.” (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. Bell, 303 Conn. 246, 260–61, 33 A.3d 167 (2011). Moreover, I acknowledge that, "even with the presumption of divisibility, we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole especially where offending portions so affect the dominant aim of the whole statute as to carry [the whole statute] down with them.” (Internal quotation marks omitted.) In re Robert H., 199 Conn. 693, 704, 509 A.2d 475 (1986), quoting Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330, 362, 55 S.Ct. 758, 79 L.Ed. 1468 (1935).

In attempting to discern the legislature's intent regarding the severability of a statute, this court generally looks to the level of interdependence between the unoffending language and the unconstitutional language of the statute, and seeks to determine whether, if the unconstitutional portion is excised, the remainder still gives effect to the "dominant aim of the whole statute....” (Internal quotation marks omitted.) In re Robert H., supra, 199 Conn. at 704, 509 A.2d 475. Thus, the analysis does not involve speculation as to how the legislature would have voted had it been aware of the court's constitutional ruling, but rather whether the language chosen by the legislature renders the statute inseverable. For example, in State v. Menillo, 171 Conn. 141, 368 A.2d 136 (1976), this court examined the severability of language contained in General Statutes (Rev. to 1975) § 53–29, which criminalized behavior intended to induce a miscarriage or abortion of a pregnancy. In an earlier decision concerning the same statute, the court concluded that the entirety of the statute was unconstitutional in light of the decisions of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), which upheld a woman's right to an abortion by medically competent personnel. See State v. Menillo, 168 Conn. 266, 269, 362 A.2d 962 (1975). The United States Supreme Court subsequently vacated this court's decision holding the statute unconstitutional in its entirety, and concluded that neither its decision in Roe nor Doe mandated the total invalidation of the statute. See Connecticut v. Menillo, 423 U.S. 9, 96 S.Ct. 170, 46 L.Ed.2d 152 (1975). On remand, this court reconsidered its earlier decision, and sought to determine whether the language of § 53–29 could be limited to exclude physicians from its operation, and thus ensure a woman's right to an abortion by medically competent personnel. State v. Menillo, supra, 171 Conn. at 145, 368 A.2d 136. With the foregoing principles on severability in mind, this court concluded that "[t]he exclusion of physicians from the prohibitions of the statute would in no way destroy its effectiveness as to other classes of persons. The invalid inclusion of physicians is not so mutually related to and intrinsically connected with the remainder of the statute as to indicate that the statute would never have been adopted without the inclusion of physicians.” Id., at 146, 368 A.2d 136. Thus, the court concluded that the presumption of severability was not overcome, and that the legislature intended to criminalize the covered behavior when engaged in by a person who was not a physician.

Similarly, in In re Robert H., supra, 199 Conn. at 693, 509 A.2d 475, this court examined statutory language to discern the legislature's dominant purpose in enacting the statute. The defendants in that case had been adjudicated delinquents and committed to state custody after being charged with sexual assault. Id., at 695, 509 A.2d 475. At trial, the defendants sought to introduce records from the rape crisis center visited by the victim, but the court granted a motion to quash the subpoena because of General Statutes (Rev. to 1985) § 52–146k, which, inter alia, created a testimonial privilege for communications between a sexual assault counselor and a sexual assault victim. Id., at 698, 509 A.2d 475. The defendants appealed an order by the trial court quashing a subpoena for records from the rape crisis center visited by the victim based on a determination that information contained therein was privileged. Id., at 694–701, 509 A.2d 475. Specifically, the defendants claimed that the statutory privilege created by § 52–146k was improperly invoked because other language prevented the identity of the sexual assault counselor from being disclosed in a civil or criminal proceeding; General Statutes (Rev. to 1985) § 52–146k (b); and, thus, the definitional elements necessary to qualify an individual as a "sexual assault counselor,” which determine whether the privilege applied under the statute, could not be established because the counselor could not be called to testify at trial. Id., at 698–701, 509 A.2d 475 ; General Statutes (Rev. to 1985) § 52–146k (a)(5).

On appeal, this court agreed that the statute contained conflicting language, stating, "if the identity of the sexual assault counselor cannot be disclosed under ... § 52–146k (b), then it would always be impossible to determine whether the statutory criteria set out in § 52–146k (a)(5) were satisfied with respect to that sexual assault counselor.” In re Robert H., supra, 199 Conn. at 701, 509 A.2d 475. After analyzing the language of the statute, the court concluded that "[t]he obvious intent and the dominant purpose of this statute is to grant a privilege to confidential communications between a sexual assault counselor ... and a victim.” Id., at 703, 509 A.2d 475. Then, instead of striking down the entire statute, the court determined that the "portion of § 52–146k (b) which prohibits the disclosure of the identity of a sexual assault counselor is separable and independent from the balance of the statute given [the statute's] dominant purpose of creating the privilege....” Id., at 704, 509 A.2d 475. Accordingly, the court remanded the case to the trial court for a determination of whether the sexual assault counselor who treated the victim satisfied the necessary criteria to claim the testimonial privilege. Id., at 704–705, 509 A.2d 475. The court similarly directed that the counselor's identity be disclosed to the defendants for purposes of cross-examination concerning her statutory qualifications. Id., at 705, 509 A.2d 475.

Similarly, in State v. Bell, 283 Conn. 748, 784–86, 931 A.2d 198 (2007), this court was tasked with determining whether General Statutes (Rev. to 2007) § 53a–40 (h), violated the sixth amendment. The statutory subsection at issue authorized the trial court to impose a substantially harsher sentence on a defendant if: (1) a jury had determined he qualified as a persistent dangerous felony offender and; (2) the trial court concluded that the public interest would be best served by subjecting the defendant to a harsher sentence. See id., at 796, 931 A.2d 198. Although in that case, the court did look to the legislative history to determine the actual intent of the legislature in amending the statute at issue; see id., at 802–803, 812, 931 A.2d 198 ; the court ultimately concluded that, as worded, the statute did violate the sixth amendment because it authorized a sentence enhancement greater than the maximum sentence authorized by the jury verdict. Id., at 803–804, 931 A.2d 198. Instead of striking the statute in its entirety, however, the court noted that if a phrase were excised from the statute, it would be rendered constitutional while still keeping with the legislature's dominant purpose behind enacting the statute. See id., at 811–12, 931 A.2d 198. The court did so even though its separation had the effect of altering the legislature's chosen process required for a persistent dangerous felony offender to receive an enhanced sentence. See id., at 811–13, 931 A.2d 198.

With the foregoing principles in mind, I would conclude that the statute in the present case is separable. As in In re

The state relies on Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), and Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030 (1912), in its argument that the unconstitutional portion of P.A. 12–5 is not severable from the remaining language. I find these cases inapposite to the circumstances in the case at hand.Seals, for example, involved a statute which permitted a trial court to deduct from a jury's award of damages any money received by a plaintiff pursuant to a covenant not to sue or release of liability agreement. Seals v. Hickey, supra, at 341 n. 6, 441 A.2d 604. The court noted that the statute, when the unconstitutional language was excised, "offer[ed] absolutely no direction to the court concerning what steps it may take after the verdict has been returned.” Id., at 355, 441 A.2d 604. In the present case, as I discuss in detail in footnote 52 of this concurring opinion, language can be excised from P.A. 12–5 in such a way so as to render the constitutional remainder entirely workable. Similarly, at issue in Beach was the constitutionality of a statute which sought to provide $30 annually to every "resident in the [s]tate who served in the army, navy, marine corps, or revenue marine service of the United States during the Civil War ... and received an honorable discharge therefrom” or their close family. Beach v. Bradstreet, supra, at 351, 82 A. 1030. The court noted that, as drafted, the law would provide funds not only to those persons who served Connecticut in the Civil War, but also those who had served other states and now happened to reside in Connecticut. Id., at 351–52, 82 A. 1030. The court found that it could not sever the statute, in part because the act could not be made constitutional either "by the exclusion or addition of a word or words ... but only by rewriting the statute.” Id., at 353, 82 A. 1030. In the statute at hand, the constitutional remainder of the statute can be severed from the unconstitutional portion, solely through the excision of certain language, as I demonstrate in footnote 52 of this concurring opinion. Thus, the circumstances at issue in Beach have little bearing on the present case.

General Statutes § 54–194 provides: "The repeal of any statute defining or prescribing the punishment for any crime shall not affect any pending prosecution or any existing liability to prosecution and punishment therefor, unless expressly provided in the repealing statute that such repeal shall have that effect.”

Robert H., the statutory language in the present case evinces two separate legislative goals: the prohibition of the death penalty for all crimes committed after the effective date of P.A. 12–5; and the retention of the death sentences of the prerepeal defendants. It would be anomalous and alarming to conclude that, in enacting a statute repealing the death penalty, the legislature was primarily concerned with seeing a handful of men executed. Thus, it is clear to me that the dominant purpose of P.A. 12–5 was to prohibit the death penalty for future crimes. The retention of existing death sentences was incidental to the primary purpose of abolition. Indeed, if the obvious intent of the legislature was to retain the death penalty for prerepeal defendants, then why would the legislature have enacted the statute? Connecticut, after all, already authorized the death penalty prior to P.A. 12–5 and, therefore, legislative inaction would have ensured the retention of existing death sentences. Likewise, it is noteworthy that the abolition of the death penalty will affect all future defendants, an unquantifiable and obviously large number, whereas the portion of P.A. 12–5 retaining the death penalty for crimes committed prior to the effective date will affect only those defendants who have committed capital felonies prior to the effective date. Thus, striking down P.A. 12–5 in its entirety would thwart its primary purpose—the abolition of the death penalty.

It is my position that this court does not examine the legislative history to determine legislative intent if the dominant purpose of the act can be gleaned from its plain meaning. See, e.g., Cruz v. Montanez, 294 Conn. 357, 370, 984 A.2d 705 (2009) ("[t]he intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say”); see also State v. Watson, 165 Conn. 577, 597, 345 A.2d 532 (1973) ("[i]t is not necessary to find the entire statute invalid since the presumption and the balance of the statute are not so mutually connected and dependent as to indicate a legislative intent that they should stand or fall together”). Reading the plain text of the act, its dominant purpose is, unassailably, to eliminate the death penalty. If the legislature's dominant purpose was to ensure that the death penalty was to remain in place for capital offenders who committed their crimes prior to April 25, 2012, no change to our old capital scheme was necessary. In footnote 52 of this concurring opinion, I explain in greater detail precisely how to sever the offending portion of P.A. 12–5 from the constitutional remainder.

Public Act 12–5, § 38, provides: "The provisions of subsection (t) of section 1–1 of the general statutes and section 54–194 of the general statutes shall apply and be given full force and effect with respect to a capital felony committed prior to the effective date of this section under the provisions of section 53a–54b of the general statutes in effect prior to the effective date of this section.”

My conclusion that P.A. 12–5 is severable would not, as the state claims, result in an impermissible rewriting of the act. I would simply read out of the act any references to the effective date of the act, and any references to "capital felonies,” which relate solely to capital crimes committed prior to the effective date of the act. For example, § 53a–35a would read as follows: "For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and, unless the section of the general statutes that defines or provides the penalty for the crime specifically provides otherwise, the term shall be fixed by the court as follows:

"(1) For the class A felony of murder with special circumstances a term of life imprisonment without the possibility of release;


"(2) For the class A felony of murder, a term not less than twenty-five years nor more than life;


"(3) For the class A felony of aggravated sexual assault of a minor under section 53a–70c, a term not less than twenty-five years or more than fifty years;


"(4) For a class A felony other than an offense specified in subdivision (2) or (3) of this section, a term not less than ten years nor more than twenty-five years;


"(5) For the class B felony of manslaughter in the first degree with a firearm under section 53a–55a, a term not less than five years nor more than forty years;


"(6) For a class B felony other than manslaughter in the first degree with a firearm under section 53a–55a, a term not less than one year nor more than twenty years;


"(7) For a class C felony, a term not less than one year nor more than ten years;


"(8) For a class D felony, a term not more than five years;


"(9) For a class E felony, a term not more than three years; and


"(10) For an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines or provides the penalty for the crime.”


This approach to severance would not leave a statutory void, as the state claims. The statutory definitions of "capital felony” and "murder with special circumstances” are identical. By severing the language dealing only with "capital felony,” the act continues to make illegal the conduct which constituted the definition of "capital felony” but now carries a mandatory sentence of life imprisonment without the possibility of release. See P.A. 12–5, §§ 1, 2. Read in this way, the act applies to all felonies committed after 1981 and, because this revision essentially constitutes a relabeling of the offense of "capital felony” as "murder with special circumstances”; see P.A. 12–5, § 1; no offender currently sentenced to death could claim that he should be released as a result of the elimination of "capital felony”—all such conduct would fall under the umbrella of the definition of "murder with special circumstances,” which differs from "capital felony” only with regard to the sentence that might be imposed. See P.A. 12–5, § 2. The only relief that an offender currently sentenced to death could hope for, if the statute were severed according to this approach, would be to be resentenced to life imprisonment without the possibility of release. As in Bell, the defendant and other prerepeal death row inmates would have no claim that the offense of "murder with special circumstances” does not apply to them through the workings of the ex post facto clause, because it does not disadvantage the defendant in any way—the effect of this revision would solely be ameliorative from a defendant's perspective, in that it prevents the imposition of a sentence of death. Cf. State v. Bell, supra, 303 Conn. at 256–58, 33 A.3d 167 (noting that ex post facto clause applies to judicial gloss applied to statutes when such law [1] would have retroactive effect and [2] would operate in such way that would be unforeseeable and disadvantageous to criminal defendant; finding change to be ameliorative and procedural and, thus, not in violation of ex post facto clause). There would also be no need to retry the defendant, as all the predicate factual findings for convicting the defendant of "murder with special circumstances” would be satisfied by the jury's verdict in the guilt phase of the defendant's earlier capital trial. See P.A. 12–5, § 1.


Further, this approach would not require further action in amending any other statutes—by striking all references to the effective date provision and "capital felony” in the act itself, the change would affect all relevant statutes. This method of revision would not strike any reference to "murder with special circumstances” and thus would have no impact on the function of the legislature's chosen sentencing scheme for serious felonies committed today or in the future.



General Statutes § 53a–46b provides in relevant part: "(a) Any sentence of death imposed in accordance with the provisions of section 53a–46a shall be reviewed by the Supreme Court pursuant to its rules. In addition to its authority to correct errors at trial, the Supreme Court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subparagraph (A) of subdivision (1) of section 53a–35a.

"(b) The Supreme Court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; or (2) the evidence fails to support the finding of an aggravating factor specified in subsection (i) of section 53a–46a....”



Section 53a–46b was amended by P.A. 12–5 for purposes that have no bearing on this appeal. For convenience, unless otherwise indicated, I refer in this dissenting opinion to the current revision of the statute instead of the revision that was in place when the defendant committed the capital offense.



The state claims, however, that an examination of the legislative history of P.A. 12–5 shows that the legislature would not have repealed the death penalty without retaining preexisting death sentences and, therefore, that the statute is not severable. I disagree. In certain instances, when legislative intent is not readily apparent from the plain language of the statute, this court has examined the legislative history of a statute when determining whether a statute is severable. See State v. Bell, supra, 303 Conn. at 261–63, 33 A.3d 167 ; State v. Bell, supra, 283 Conn. at 802–803, 931 A.2d 198. Even if one examines the legislative history of the act, the state's argument lacks merit. This court does not seek to determine whether, if the legislature had known about the constitutional flaw at the time of enactment, it would have enacted the remaining constitutional portion of the statute, an exercise that would engage this court in speculation. See State v. Bell, supra, 303 Conn. at 261, 33 A.3d 167. Rather, the question this court must answer is whether the legislature, at the time that a portion of the statute is declared unconstitutional, would prefer the continued operation of the constitutional portion of the statute or the complete invalidation of the statute. Id. In answering this question, the court must keep in mind that there is a presumption in favor of severability. See General Statutes § 1–3. Moreover, this court should keep in mind that, if only a portion of a statute is found to be constitutional, it should be severed from the offending remainder "unless this court determines that the legislature would have enacted it in precisely the same form if it had known of the constitutional flaw at the time of enactment.” (Emphasis in original.) State v. Bell, supra, 303 Conn. at 261 n. 12, 33 A.3d 167. As this court explained in Bell, this means that this court would have to find that the legislature would not have repealed the death penalty if it had been aware of the constitutional flaw in P.A. 12–5. See id.

Although I consider the dominant purpose of the statute to be evident from its plain language, an examination of the relevant legislative history bolsters my conclusion that the offending portion of the statute is, in fact, severable from the constitutional remainder. Although the state points to select portions of the legislative history that highlight an insistence that the repeal be prospective, there is also evidence that many legislators were in favor of a complete repeal of the death penalty. More importantly, the legislature was warned, in no uncertain terms, that an attempt to repeal the death penalty only prospectively was likely to run afoul of both the federal and state constitutions. Consider, for example, a portion of Chief State's Attorney Kevin Kane's testimony before the Judiciary Committee: "If it is passed in this form and it's prospective and a crime occurs the day before it becomes effective my feeling is [that] there's—I know I wouldn't, I know I won't seek the death penalty for a crime that occurs the day before it becomes effective. I think that would be arbitrary. And I wouldn't—just wouldn't plain feel right doing it. That's my opinion.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2633. Asked point-blank by a legislator "does this law, this bill stop [offenders who committed capital felonies prior to the effective date] from receiving the death penalty?” Id., at p. 2646. Chief State's Attorney Kane responded: "the wording of the bill itself does not but my prediction is ... that as a result of ... this bill passing people won't be executed whether [they have] been sentenced or not. ”(Emphasis added.) Id.

Specifically, the state points to comments of several representatives and senators who suggested that, politically speaking, P.A. 12–5 could be passed only if the repeal were prospective in nature. I observe first that, for purposes of a severability analysis, this court does not immediately look to the legislative history for guidance. See footnote 51 of this concurring opinion. Second, as I describe in detail, these selected statements do not come close to telling the whole story about the nature of this debate and the actions of the legislature. Both the House and Senate voted down proposed amendments that would have expressly required the act to be struck down in its entirety if this court were to conclude that the prospective only nature of the repeal violated either the federal or state constitution. See 55 S. Proc., Pt. 3, 2012 Sess., p. 669; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1066. The legislature decided against these proposed amendments in the face of testimony that warned of the likelihood that the prospective only nature of the repeal was likely to be found unconstitutional. See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635, remarks of Chief State's Attorney Kevin Kane.

General Statutes § 1–2z provides: "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

Pressed further on the issue, Chief State's Attorney Kane stated: "My prediction is that the arguments that I have so far, that we have discussed in thought I don't think are likely to prevail in the Supreme Court given ... the prior language and several prior opinions about the death penalty. And I don't think anybody should be deluding themselves that it's likely that this can be prospective. I think that would be—prospective only. I think that would be a big mistake.” (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635.

The eighth amendment to the United States constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

Similarly, another legislator urged the House of Representatives to adopt an amendment to the bill that became P.A. 12–5 that would have reinstated the death penalty for all offenders if this court were to determine that the repeal of the death penalty was constitutionally required to apply to those currently sentenced to death: "This amendment, Madam Speaker ... now is very appropriate. There are many people in this room that have changed in their mind their vote to abolish the death penalty rather than vote against abolishing the death penalty based on these [eleven] who are on death row being executed, especially, Komisarjevsky and Hayes.... And what I'm saying is that we will be misleading the people in this room that have changed their decision because the death penalty will still stay in place for those that are on death row if we do not pass this ... amendment ... we would be doing them a wrong. And I think those people would ... have been misled by this coming out, because I believe that those who put in this bill, with the prospective in there, know that eventually this is going to go away, and they're misleading the rest of the [r]epresentatives that will be voting here today; therefore, I urge all my colleagues in this room to support this amendment.” 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1063, remarks of Representative Adinolfi. The amendment, which was described by its sponsor, Representative John Hetherington, as "the opposite of a severability clause ... think of it that way”; id., at p. 1061; failed by a vote of fifty-four to eighty-eight, with nine votes not present or abstaining. Id., at p. 1066.

A matching amendment failed in the Senate. The amendment's sponsor explained the need for it as follows: "[T]he intent is—Senator [Eric] Coleman had indicated that the bill he believes not to be unconstitutional. Therefore this amendment does not have to go forward. And I guess I look at it as a spare tire in your trunk. You may not need it. But if it is unconstitutional, you have it. And you've protected the intent of the [l]egislature, which is not, clearly not to let the [eleven] currently on death row to get a different sentence. And if that's clearly what we want to do this amendment will ensure that takes place. And there's many of us around the [c]ircle who, at least I understand, were debating whether to vote in favor of getting rid of the death penalty or not. But clearly an effort to change their mind was the relief or satisfaction that the [eleven] who are currently on death row would continue to be on death row absent—even with this legislation. All this does is say absolutely true. And if your wishes are not upheld, and if those [eleven] end up with a lesser sentence, which was not our intent, we will do away with getting rid of the death penalty. It's just protection that gets what we all wanted. And if that's a major factor, this is how you protect it.” (Emphasis added.) 55 S. Proc., Pt. 3, 2012 Sess., p. 668, remarks of Senator Leonard Fasano. This proposed amendment also failed to pass, receiving fifteen votes in favor and twenty against, with one vote not present or abstaining. Id., at p. 669. All of the legislators who voted against this amendment were presumably aware of the statutory presumption codified at § 1–3 in favor of severing invalid provisions from the remaining inoffensive language of a statute at the time that they rejected these amendments. See, e.g., State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009) ("the General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them” [internal quotation marks omitted] ).

Further, other legislators plainly believed that there might be constitutional issues associated with a purely prospective repeal: for example, Senator John Kissel stated the following in response to testimony that sought to assure the legislature that a prospective only repeal could be accomplished: "[T]his is Connecticut, this is New England, this is a debate that's not going away any time soon and I really do believe once this step is made, the other shoe's going to fall, inevitably, if not sooner than we all think. And whether it's driven by a Supreme Court decision, appeals, or whether a future legislature a few years from now says, wow, we can't have [eleven] people on death row and have everybody else—or some horrible, horrific criminal commits a crime and because it's a few days after this goes into effect then the argument is we've got this individual here who can only face life without [the] possibility of release, that is fundamentally unfair to these other individuals and that's—that becomes much more difficult for folks such as myself who are advocates and proponents of the death penalty.” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2768.

Accordingly, I conclude that the portions of P.A. 12–5 that render it unconstitutional are not so mutually connected to the constitutional remainder so as to indicate a legislative intent that the entire act should fall and that, therefore, the provision of P.A. 12–5 requiring prospective application is severable.

III

CONCLUSION

The effective date provision of P.A. 12–5 is patently unconstitutional under the federal constitutional ban on cruel and unusual punishment. Moreover, our state constitution's prohibition of excessive and disproportionate punishment renders capital punishment unconstitutional. If our state had executed one person while the prospective repeal is in effect, it would have separated itself from not only all of the states in our own country, but from all of the countries in the modern world. Instead of continuing its tradition as a paradigm for the elimination of the death penalty for certain classes of individuals, Connecticut would have descended into the murky depths of the uncharted waters of death penalty executions postrepeal of the death penalty statute. The majority's decision today derives from the strength of our collective moral ethos. Our laws should never succumb to the inherent indecency associated with a vengeful purpose directed toward a few isolated individuals. I do not believe that this is the legacy which Connecticut wishes to leave to its future generations.

Therefore, I respectfully join in the majority opinion and issue this concurring opinion.ROGERS, C.J., dissenting.

The majority concludes that the death penalty is unconstitutional under the state constitution. Every step of its analysis, however, is fundamentally flawed. First, the majority engages in an extensive discussion of the ancient history of the death penalty in this state pursuant to State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), and concludes that these "constitutional facts” are "unique and expansive.” The majority identifies absolutely nothing in our state's distant past, however, that would remotely support the conclusion that there has ever been a societal consensus in this state that the death penalty is an inappropriate punishment for the most heinous murders. Thus, this history is entirely irrelevant to the question before the court. Indeed, in apparent acknowledgment of the complete absence of any historical support for the conclusion that the state constitution provides materially different protections from cruel and unusual punishments than does the eighth amendment to the federal constitution in this context, the majority ultimately concludes that the proper framework for evaluating the defendant's claim is the same as "the framework that the federal courts have used to evaluate eighth amendment challenges.” See part I F of the majority opinion. Under that framework, the court is required to determine whether the death penalty is consistent with contemporary standards of decency. Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) ("an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the [e]ighth [a]mendment”); see also Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (eighth amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”). Even assuming that the federal contemporary standards of decency rubric is the proper standard for evaluating a claim that the death penalty is categorically unconstitutional under the state constitution, however, this court rejected a claim that the death penalty is inconsistent with the contemporary societal mores of this state a mere four years ago, concluding that, as of 2011, "there remains powerful evidence of strong public support for the death penalty” in this state. State v. Rizzo, 303 Conn. 71, 198, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). Nevertheless, the majority concludes that, as the result of the enactment of No. 12–5 of the 2012 Public Acts (P.A. 12–5), in which the legislature abolished the death penalty for crimes committed after the effective date of the act, April 25, 2012, the death penalty is somehow now unconstitutional. In making this determination, the majority disregards the obvious: the legislature, which represents the people of the state and is the best indicator of contemporary societal mores, expressly retained the death penalty for crimes committed before the effective date of P.A. 12–5. The majority's reasoning also contains a glaring contradiction that cannot be reconciled: at the same time that the majority concludes that the prospective repeal of the death penalty demonstrates that the people of this state have rejected the death penalty as an appropriate punishment for the most egregious murders, it concludes that the retention of the death penalty for capital offenses committed before April 25, 2012, evinces a constitutionally impermissible societal desire to wreak vengeance against the perpetrators of such crimes.1 Moreover, in making its determination that the death penalty violates contemporary standards of decency in this state, the majority: (1) addresses societal factors affecting the constitutionality of the death penalty that the defendant, Eduardo Santiago, has not raised and that neither party has had an opportunity to address; (2) relies on contested and slanted extra-record materials that neither party has had an opportunity to review or respond to; and (3) improperly applies the governing legal standard. Thus, the majority's determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.

I

Before addressing the merits of the majority's decision, it is important to clarify the procedural context in which these issues arose, in order to demonstrate the extent to which the majority has exceeded its authority as a court whose function it is to act as a "neutral arbiter of matters the parties present.” (Internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 146, 84 A.3d 840 (2014). While the defendant's appeal in the present case was pending, the defendant filed a motion for permission to file a supplemental brief and for oral argument to address the impact of the passage of P.A. 12–5 on his appeal. Specifically, the defendant claimed that the passage of P.A. 12–5 raised serious questions about the continued constitutional validity of the death penalty.2 On June 12, 2012, we issued our decision in the defendant's appeal. See State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012). In that decision, we "denied the defendant's motion [to file a supplemental brief and for oral argument] because ... these constitutional issues would be more appropriately addressed in the context of post-judgment motions.” Id., at 308 n. 167, 49 A.3d 566. We also rejected in Santiago the defendant's claim that the "the death penalty is per se unconstitutional under the Connecticut constitution, and that we should overrule our decisions holding to the contrary.” Id., at 306, 49 A.3d 566. The defendant then filed a motion for reconsideration and a renewed motion to file a supplemental brief on the same issues that he had identified in his original motion, "as well as any others relating to the impact of [P.A.] 12–5 on the validity of [the defendant's] continued prosecution seeking a death sentence that are revealed by additional research. ” (Emphasis added.) This court granted both motions.

Thereafter, the defendant filed a supplemental brief in which he raised the following six claims for the court's consideration: (1) P.A. 12–5 renders the defendant's death sentence arbitrary under General Statutes § 53a–46b (b) ; (2) executing the defendant when P.A. 12–5 had abolished the death penalty for future offenses would be cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution because, among other reasons, the act evinces a societal consensus against the death penalty; (3) carrying out an execution after the passage of P.A. 12–5 would violate the equal protection and substantive due process guarantees of the fourteenth amendment to the United States constitution and article first, §§ 1, 8, 9 and 20, of the state constitution; (4) the effective date provision of P.A. 12–5 violates the prohibition on bills of attainder and ex post facto laws contained in article one, § 10, of the federal constitution; (5) executing the defendant after the enactment of P.A. 12–5 would violate article first, § 9, of the state constitution because the death sentence is not " 'clearly warranted by law’ ”; and (6) the unconstitutional portion of P.A. 12–5 is severable under state law.

Thus, it is perfectly clear that the sole issue that is before this court is the effect of the passage of P.A. 12–5 on the continued constitutional validity of the state's death penalty statute, specifically, the defendant's claim that the death penalty became unconstitutional after the passage of P.A. 12–5, because the act reflects a legislative determination that the death penalty no longer comports with contemporary societal mores and it rendered the death penalty arbitrary. The defendant has not contested, for purposes of this appeal, the correctness of this court's previous decisions holding that the death penalty is not prohibited by the due process clauses of our state constitution, including our decision in State v. Rizzo, supra, 303 Conn. at 201, 31 A.3d 1094 and has asked us only to determine whether P.A. 12–5 reflects a recently emerged societal consensus that the death penalty is cruel and unusual. Thus, the defendant has made no claim that the death penalty is unconstitutional on the basis of the historical development of the death penalty in this state, the rarity of its imposition in this state in recent decades, the sentencing practices of other states in recent decades (other than the sentencing practices of states that have prospectively repealed the death penalty), the opinions and recommendations of professional associations, delays in executions in recent decades, racial disparities in the imposition of the death penalty, the possibility of erroneous death sentences, or the "inherent conflict” between the requirement that the discretion of the jury to impose the death penalty must be cabined and the requirement that its discretion to accord mercy may not be constrained in any way. Because all of these factors relate to societal conditions and practices that existed before the passage of P.A. 12–5, the defendant has effectively conceded that they carry no weight here.3

II

With this procedural history in mind, I turn to the merits of the majority's opinion. I begin with the majority's Geisler analysis.4 After reviewing the Geisler factors, the majority concludes that: (1) the United States Supreme Court's repeated holdings that the death penalty "comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner” carry no weight because that court has never considered whether the death penalty may be constitutionally imposed after a prospective repeal; (2) the silence of our state constitution on the question of cruel and unusual punishment reveals nothing about the intent of the constitutional framers; (3) the preconstitutional roots of the freedom from cruel and unusual punishment establish that "Connecticut citizens enjoyed a quasi-constitutional freedom from cruel punishment, one that reflected our unique social and political traditions and that far exceeded the protections recognized in England at the time” because, during the 1600s, 1700s and early 1800s, this state's (or the predecessor colony's) courts and public leaders were more "progressive” and less tolerant of harsh punishment than their English contemporaries and forebearers; and (4) this court's previous holdings that the due process provisions of the state constitution do not bar the imposition of the death penalty for the most heinous murders are now questionable because they have been overtaken by "new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to abolish the death penalty prospectively” ;5 and (5) precedents from other states support the conclusion that, in determining whether the death penalty comports with contemporary societal mores, the relevant societal mores are those of this state.

With respect to the first, fourth and fifth Geisler factors, relating to federal precedents, the precedents of this court and the precedents of other states, the majority appears to concede that these factors do not support the conclusion that the death penalty is now unconstitutional under the state constitution, and I would agree with that conclusion. I also agree with the majority that these precedents support the conclusion that a new look at the constitutionality of the death penalty in this state under the state constitution is warranted in light of the legislature's enactment of P.A. 12–5 and I am willing to assume for purposes of this opinion that, in determining whether the death penalty is still constitutional under the state constitution, we must consider the current societal mores of this state. As I discuss in part III of this dissenting opinion, however, I believe that the majority misapplies the evolving standards of decency rubric and, under a proper application of that standard, the death penalty does not violate the state constitution. For the reasons that I have discussed in part I of this dissenting opinion, I also believe that the validity of this court's previous holdings that the death penalty is constitutional under the state constitution is not properly before the court here because the sole claim that the defendant has raised is that P.A. 12–5 evinces a new societal consensus that the death penalty is unconstitutional.

With respect to the second Geisler factor, the text of the respective constitutional provisions, the majority concludes that despite the fact that, unlike the eighth amendment to the federal constitution, article first, §§ 8 and 9, of our state constitution are silent with respect to the imposition of cruel and unusual punishments, this factor does not weigh in favor of the constitutionality of the death penalty under the state constitution. Surely, however, the fact that the framers of the state constitution, both in 1818 and in 1965, declined to adopt the "cruel and unusual” language of the eighth amendment as part of our state constitution suggests that they were less, or, at a minimum, that they were not more, concerned with this problem than the framers of the eighth amendment.6 I fail to understand how the lesser or coextensive concern of the framers of the state constitution could possibly imply the existence of a broader right.7 Moreover, there are, as Justice Zarella points out in his dissenting opinion, repeated textual references to capital offenses in the state constitution.8 See Conn. Const., art. I, §§ 8 and 19, as amended by article four of the amendments. The 1818 constitution also expressly referred to the death penalty and capital offenses; see Conn. Const. (1818), art. I, §§ 9 and 14 ; and the death penalty was authorized by statute for numerous offenses, including nonhomicide offenses, when that constitution was adopted.9 See General Statutes (1796 Rev.) p. 182; General Statutes (1808 Rev.) tit. LXVI, c. I. Thus, there can be no doubt that the framers of both the 1818 and 1965 constitutions believed that the death penalty for the most heinous crimes was entirely compatible with this state's fundamental law. See State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094 ("[W]e remain cognizant that our constitution contains explicit references to capital punishment ... and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.... The defendant's claim must be evaluated against this clear textual backdrop.” [Citations omitted; internal quotation marks omitted.] ). Indeed, the majority concedes as much.

With respect to the third prong of Geisler, historical insights into the intent of our constitutional forebearers, the majority undertakes an extensive review of the attitudesof this state's citizenry and public leaders toward criminal punishments before the adoption of the 1818 and 1965 state constitutions. It contends that, during the 1600s and 1700s, this state was increasingly intolerant of certain brutal forms of corporal punishment and "came to believe that the death penalty should be reserved for only the most heinous and universally condemned offenses.” See part I B 1 of the majority opinion. I fail to perceive, however, why the fact that this state rejected brutal forms of corporal punishment and believed that the death penalty should be reserved for only the most heinous crimes supports the conclusion that imposing the death penalty for the most heinous crimes may now be inconsistent with the state constitutional prohibition on cruel and unusual punishments. Indeed, the majority's analysis is riddled with non sequiturs. Although to enumerate all of them would greatly and unnecessarily increase the length of this dissenting opinion, I offer the following glaring examples. First, the majority appears to suggest that the execution of Peter Lung in 1816 shows that this state had developed a broader conception of cruel and unusual punishment than that of the federal framers because the execution was not met with public celebration.10 Second, the majority concludes in footnote 31 of its opinion that the fact that the state opened a new prison in 1964 that was " 'primarily devoted to preparing inmates for adjusting to community living and responsibility when they are released’ ” shows that "our state's understanding of the permissible nature and purposes of punishment had undergone a thorough transformation” from 1818 to 1965. The question that the majority is addressing, however, is not whether the underlying theory of punishment for noncapital crimes has changed in this state over the years, but whether our state constitution now bars capital punishment for the most heinous murders. Neither the opening of the Somers prison in 1964 nor anything else in the majority's review of the history of this state remotely supports the conclusion that it does. Indeed, in yet another glaring inconsistency, the majority itself concedes that the ancient history of this state and the historical attitudes of its citizens toward criminal punishment say "little about [the] legal status [of the death penalty] two centuries later.”

Finally, although the majority refers to our "unique and expansive constitutional and preconstitutional history”; see part I F of the majority opinion; it makes no attempt to compare the history of this state with the history of the other states that were in existence when the eighth amendment was proposed in 1789 and ratified in 1791. Accordingly, any suggestion that the "rapid evolution in penology” that had occurred in this country and its predecessor colonies from the early colonial days to the late 1700s was "especially pronounced in Connecticut” is pure speculation. For the same reason, the majority's reference to "our state's unique and expansive constitutional and preconstitutional history” is devoid of any substantive content. Finally, even if it were true that this state has a history that supports a unique and expansive interpretation of the protections afforded by the due process provisions of the state constitution, I must reiterate that there is absolutely nothing in the history of this state that supports the conclusion that its citizens have ever rejected capital punishment as an inappropriate punishment for the most heinous murders.

After reviewing these Geisler factors, the majority states that its review has led it to conclude that it should "broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges.” See part I F of the majority opinion. At the same time, the majority makes it clear that it may "conclude that practices and punishments that the United States Supreme Court has expressly approved are nevertheless unconstitutionally cruel and unusual in Connecticut ... either because our state's contemporary standards of decency differ from those of the nation as a whole, or because this court simply reaches a different conclusion when applying to the relevant constitutional facts, as a matter of state constitutional law, standards similar or even identical to those that the United States Supreme Court has articulated. ” (Citation omitted; emphasis added.) See footnote 17 of the majority opinion. Thus, the majority again tries to have its cake and eat it too. First, the majority declines to conclude that the due process provisions of the state constitution provide broader protection from the death penalty for the most heinous murders than the eighth amendment does, presumably because it knows that any such conclusion would be simply unsupportable; then the majority declines to be bound by the Supreme Court's understanding of eighth amendment jurisprudence, presumably because it wants to ensure that its decision is insulated from any further review.11

In light of the majority's failure to reach any definitive conclusions as to the relative scopes of the right to be free from cruel and unusual punishments under the state and federal constitutions, I can only conclude that the majority has undertaken this extended analysis of the state's ancient history in the misguided belief that, if it can somehow imply that the attitude of this state's citizens toward any form of criminal punishment was ever ahead of the curve of broader societal attitudes, it must follow as the night follows the day that societal attitudes have been, are now and always will be "progressive” for all forms of punishment, including the death penalty for the most heinous murders.12 The reality, however, is that neither the text of the state constitution nor our state's history in any way supports the view that Connecticut citizens were ever against the penalty of death for the most heinous crimes. Moreover, the majority's belief is entirely inconsistent with its ultimate conclusion that the constitutional standard for determining whether the death penalty is cruel and unusual under the state constitution is whether it comports with the contemporary societal mores of this state —not whether the death penalty comports with societal mores that existed hundreds of years ago, not whether the existing societal mores of this state continue to be ahead of the curve, and not whether the death penalty comports with the contemporary mores of certain members of this court.13 Because they shed no light on the broad issue that the majority has taken upon itself to address, the second and third Geisler factors are irrelevant to its analysis. Indeed, the majority concedes as much when it concludes that it should apply the evolving standards of decency rubric that applies to eighth amendment claims, which requires the courts to consider contemporary standards of decency. Although those factors may be relevant to the extent that they shed light on the question of whether the death penalty was considered cruel and unusual punishment when the 1818 and 1965 constitutions were adopted, there is no dispute that it was not considered as such.

III

I next address the majority's conclusion that the death penalty is incompatible with the current societal mores of this state. In making its determination that the death penalty violates the state constitution, the majority applies the "evolving standards of decency” rubric that is applied under the federal constitution. See Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. 590 (eighth amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”). I would note that, although the United States Supreme Court has applied this rubric to determine the constitutionality of the death penalty for certain crimes and for certain classes of defendants, it is unclear whether that court would ever find that societal rejection of the death penalty rendered the death penalty categorically unconstitutional, despite the language of federal constitution expressly contemplating the death penalty and this country's historical acceptance of the death penalty as the appropriate punishment for the most heinous crimes. See Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2747, 192 L.Ed.2d 761 (2015) (Scalia, J., concurring) ("[N]ot once in the history of the American Republic has this [c]ourt ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates. The [f]ifth [a]mendment provides that '[n]o person shall be held to answer for a capital ... crime, unless on a presentment or indictment of a [g]rand [j]ury,’ and that no person shall be 'deprived of life ... without due process of law.’ ” [Emphasis in original.] ). Even assuming, however, that evolving standards of decency could render the death penalty unconstitutional in this state under the Trop standard, despite the language of our constitution expressly contemplating the death penalty; see part II of this dissenting opinion; the majority has failed to establish that the death penalty for the most heinous murders is inconsistent with contemporary standards of decency in this state.14

In analyzing this issue, it is important to distinguish between the applicable standard for determining whether there has been a violation of the constitution and the scope of the right at issue. Specifically, it is clear to me that the standard applied under the state constitution is the same as under the eighth amendment: a punishment is unconstitutionally cruel and unusual under the state constitution if it violates contemporary standards of decency in this state. Obviously, however, the societal mores of this state may be less (or more) tolerant of particular types of punishment than the societal mores of the nation as a whole and, accordingly, a punishment that is cruel and unusual under our state constitution will not necessarily violate the eighth amendment. Thus, to the extent that the societal mores of this state are less tolerant of harsh punishment than national mores, the scope of the right may be considered "broader” in this state, although the fundamental nature of the right is the same. Cf. State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094 ("[T]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” [Emphasis added; internal quotation marks omitted.] ).15 The majority identifies "five objective indicia of society's evolving standards of decency: (1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations. See, e.g., Graham v. Florida, [560 U.S. 48, 61–67, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ]; Atkins v. Virginia, [536 U.S. 304, 311–16, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ]; Thompson v. Oklahoma, [487 U.S. 815, 830, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) ]; Enmund v. Florida, [458 U.S. 782, 788–89, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) ]; State v. Rizzo, supra, 303 Conn. at 187–96 .” (Footnote omitted.) In my view, this methodology misstates both the eighth amendment jurisprudence of the United State Supreme Court and the state constitutional jurisprudence of this court. In the four United States Supreme Court cases that the majority cites, the court relied primarily on two objective factors to guide its determination as to whether a particular punishment violated contemporary standards of decency: (1) "legislation enacted by the country's legislatures,” which provides the "clearest and most reliable objective evidence of contemporary values”; (internal quotation marks omitted) Atkins v. Virginia, supra, at 312, 122 S.Ct. 2242 ; Graham v. Florida, supra, at 62, 130 S.Ct. 2011 ; see also Thompson v. Oklahoma, supra, at 822, 108 S.Ct. 2687 ; and (2) "[a]ctual sentencing practices” in this country. Graham v. Florida, supra, at 62, 130 S.Ct. 2011 ; see also Thompson v. Oklahoma, supra, at 822, 108 S.Ct. 2687. The Supreme Court has also on occasion considered whether its determination "is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo–American heritage, and by the leading members of the Western European community.” Thompson v. Oklahoma, supra, at 830, 108 S.Ct. 2687. The court, however, does not consider views of other nations and, by extension, professional organizations, to determine the contemporary societal consensus in this nation regarding a particular punishment. See Graham v. Florida, supra, at 80, 130 S.Ct. 2011 ("[t]he [c]ourt has looked beyond our [n]ation's borders for support for its independent conclusion that a particular punishment is cruel and unusual,” but practices in other nations do "not control our decision”); Stanford v. Kentucky, 492 U.S. 361, 369 n. 1, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) ("We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of [the] petitioners and their various amici ... that the sentencing practices of other countries are relevant. While [t]he practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores, but, text permitting, in our [c]onstitution as well ... they cannot serve to establish the first [e]ighth [a]mendment prerequisite, that the practice is accepted among our people.” [Citations omitted; emphasis in original; internal quotation marks omitted.] ), overruled on other grounds by Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ; State v. Rizzo, supra, 303 Conn. at 195, 31 A.3d 1094 ("the United States Supreme Court at times has referenced international norms as support for its own determinations, while at the same time making clear that the opinions prevalent in other nations could never control over a domestic legislative climate running decidedly counter to such opinions”). After determining the contemporary societal consensus, the United States Supreme Court has then exercised its independent judgment to consider "the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment.... In this inquiry the [c]ourt also considers whether the challenged sentencing practice serves legitimate penological goals.” (Citations omitted.) Graham v. Florida, supra, at 67, 130 S.Ct. 2011 ; see also Atkins v. Virginia, supra, at 312–13, 122 S.Ct. 2242 ; Thompson v. Oklahoma, supra, at 833, 108 S.Ct. 2687.

I would conclude that, in determining whether the death penalty comports with contemporary societal mores in this state, this court, as a general matter, should follow the United States Supreme Court's methodology for determining national societal mores, but on a state level. Thus, the primary factors that this court should consider are the actions of our state legislature, which provide the "clearest and most reliable objective evidence of contemporary values”; (internal quotation marks omitted) Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242 ; and the actual sentencing practices of Connecticut juries.16 Graham v. Florida, supra, 560 U.S. at 62, 130 S.Ct. 2011 ; see also Atkins v. Virginia, supra, at 312, 122 S.Ct. 2242 (judgments regarding evolving standards of decency "should be informed by objective factors to the maximum possible extent” [internal quotation marks omitted] ); Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969 (same). After making a determination on the basis of these objective factors, the court may test its conclusions by looking at the views expressed by respected professional associations and the practices in other jurisdictions, but it may not use those views and practices as evidence of this state's societal mores. Stanford v. Kentucky, supra, at 369 n. 1, 109 S.Ct. 2969. Finally, the court may exercise its independent judgment to consider whether "the challenged sentencing practice serves legitimate penological goals.” Graham v. Florida, supra, at 67, 130 S.Ct. 2011.

With respect to the enactments of our legislature, which provide the clearest evidence of contemporary societal mores, the majority contends that the enactment of P.A. 12–5 reveals that "[o]ur elected representatives have determined that the machinery of death is irreparable or, at the least, unbecoming to a civilized modern state.... The prospective abolition of the death penalty thus provides strong support for the conclusion that capital punishment no longer comports with contemporary standards of decency and, therefore, constitutes cruel and unusual punishment.”17 (Citation omitted; footnotes omitted.) To the contrary, however, the legislature's enactment of P.A. 12–5 supports neither the conclusion that the legislature believes that support for the death penalty is uncivilized nor the conclusion that the death penalty does not actually enjoy public support. I start with the obvious. The legislature enacted legislation that still allows for the death penalty to be imposed, because the minority of legislators who opposed the death penalty in all cases were unable to convince a majority that it should be repealed retroactively.18 Moreover, the legislative history of P.A. 12–5 strongly supports the conclusion that the reason for the prospective repeal was not that a majority of legislators found the death penalty morally repugnant even for the worst crimes, or that they found life imprisonment an adequate substitute for the death penalty, but that they had determined that the death penalty simply had become impracticable.19 Cf. State v. Rizzo, supra, 303 Conn. at 190 n. 88, 31 A.3d 1094 (prospective repeal of death penalty does not establish that "legislature was convinced that the death penalty is intolerable under any and all circumstances”); id., at 199 n. 101, 31 A.3d 1094 (legislative history of prospective repeal by legislature that governor later vetoed showed that repeal "was motivated by practical rather than moral concerns”). I further note that the vote in the Senate was twenty in favor of passing the proposed legislation and sixteen against passage; 55 S. Proc., Pt. 3, 2012 Sess., p. 814; and the vote in the House of Representatives was eighty-six in favor of passage, sixty-two against passage and three not voting. 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1390. Thus, there was significant opposition to any form of repeal. Accordingly, it is simply untenable to conclude that the passage of P.A. 12–5 evinces a legislative determination or societal consensus that the death penalty is immoral in all cases. Rather, the evidence strongly supports the conclusion that, despite the legislature's belief that the death penalty is the appropriate punishment for certain crimes, after considering all of the societal costs of imposing the death penalty for future crimes of this type, the legislature's acceptance of a less severe form of punishment for those future crimes was a necessary and tolerable legislative compromise. This belief that the death penalty is appropriate for certain crimes is evinced by the fact that the legislature left the death penalty in place for all capital crimes committed before the effective date of P.A. 12–5, which provides the clearest evidence of contemporary societal mores in this state.

The majority states that, to the contrary, "[d]uring the legislative debates, of the three dozen senators and representatives who rose to speak in favor of P.A. 12–5, nearly every one stated that they had come to oppose capital punishment as a matter of conscience or principle.”20 Of course, there is no dispute that some legislators who were considering P.A. 12–5 believed that the death penalty is immoral under any circumstances and would have repealed it retroactively if they had been able to muster the votes to do so. The majority simply ignores the fact, however, that these legislators constituted a small minority. Even assuming that all of the "three dozen” legislators cited by the majority opposed the death penalty on moral grounds, that would mean that seventy legislators voted in favor of P.A. 12–5 without expressing any moral objections to the death penalty. In addition, seventy-eight legislators voted against P.A. 12–5, thereby indicating that they had no objections to the death penalty, moral or otherwise. See 55 S. Proc., supra, at p. 814; 55 H.R. Proc., supra, at p. 1390. Thus, for a large majority of legislators—148 out of 184, or 80 percent—there is no evidence that they had any moral qualms about the appropriateness of the death penalty for the most heinous murders.21 Indeed, it is the majority's improper and illogical assumption that those who opposed retroactive repeal but voted for prospective repeal had moral objections to the death penalty that creates the troubling specter of moral incoherence.22 In my view, this court should not lightly assume that our legislators voted to retain what they believed to be an immoral punishment for improper reasons. Rather, the constitutional principle that this court must presume that the legislature has acted for legitimate reasons23 compels the following conclusions: (1) The legislature voted to retain the death penalty for crimes occurring before the effective date of P.A. 12–5 for the simple reason that a majority of legislators had no moral objection to imposing the death penalty on defendants who committed heinous murders when such crimes were punishable by death; and (2) the legislature voted to repeal the death penalty prospectively for the simple reason that many of the legislators who found the death penalty morally unobjectionable had come to believe that it is simply unworkable in this state.24 Unlike the reasons proposed by the majority, these reasons are mutually consistent and they find ample support in the legislative history of P.A. 12–5.25 See footnote 19 of this opinion. Moreover, contrary to the majority's suggestion, these reasons are consistent with the statements by various legislators that P.A. 12–5 involved a matter of conscience.26 No moral principle would compel a legislator who believed that the death penalty is moral but unworkable to retain the death penalty going forward. Indeed, the state's commitment to the families of the victims who already had endured the agony of the lengthy litigation and appeal procedures required in death penalty cases would provide a perfectly legitimate reason to differentiate between defendants who already had been sentenced to death and those who will commit such crimes in the future for legislators who believed that the death penalty is the appropriate punishment for the worst crimes, but who wanted to avoid the societal costs of capital punishment in future cases.27

Finally, I would point out that the majority has chosen to remain deliberately vague on the question of whether a majority of this state's citizens oppose the death penalty on moral grounds. Although the majority attempts to point at purported evidence that the death penalty is inconsistent with the contemporary societal mores of this state's citizenry,28 it ultimately states that "[s]ome legislators ... may have seen a prospective repeal as an opportunity to retain the support of constituents committed to the execution of particular residents of death row, while leaving to this court the task of abolishing capital punishment retroactively.” Thus, the majority appears to acknowledge that the death penalty continues to enjoy strong public support. If that were the case, however—and I see no evidence to the contrary—then, even if the majority were correct that the legislature retained the death penalty for crimes committed before the effective date of P.A. 12–5 in the hope that this court would invalidate it, the legislature would have been attempting to delegate to this court a difficult legislative decision. 29 Any such attempt should be firmly rejected as a blatant violation of the constitutional principle of separation of powers.

With respect to the current sentencing practices of this state, the majority suggests that the death penalty is now so rarely imposed that it no longer comports with our state's evolving standards of decency. This is a fact bound issue, however, that the defendant did not raise, that the parties have not had an opportunity to brief and on which the trial court made no factual findings. Thus, the record is clearly inadequate for review.30 Accordingly, as I have explained in part I of this dissenting opinion, it is entirely inappropriate for the majority to consider that issue in this case.

Moreover, even if the majority were correct that juries in this state are reluctant to impose the death penalty, its conclusion that that reluctance is the result of a societal consensus that the death penalty is immoral is nothing more than an unsupported assumption. As this court recognized in State v. Rizzo, supra, 303 Conn. at 194 n. 94, 31 A.3d 1094"declining imposition of capital punishment may indicate that the death penalty is being employed precisely as was intended, to punish only the very worst of society's criminals, and only after a vigorous legal process has ensured that the defendant has been found guilty after a fair trial with demanding procedural safeguards. As the United States Supreme Court has observed, the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] ... may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. Gregg v. Georgia, supra, 428 U.S. at 182 .” (Internal quotation marks omitted.) In addition, although this court has recognized "the weaknesses inherent in public opinion polls as objective measures of the popular psyche”; State v. Rizzo, supra, at 195, 833 A.2d 363 ; public opinion polls certainly lend no support to the majority's conclusion that the infrequent imposition of the death penalty in this state reveals a moral repugnance against the death penalty in all cases. According to a Quinnipiac University poll released in March, 2013, 59 percent of Connecticut registered voters supported the death penalty for persons convicted of murder, while only 35 percent were opposed to it.31 Thus, there is no factual or legal support for a conclusion that the citizens of this state find the death penalty to be morally repugnant, even for the most horrific crimes.

The majority has cited no case in which the United States Supreme Court, or any other court, has concluded that there is no societal consensus against a particular punishment in a particular jurisdiction and then has gone on to determine that the punishment is unconstitutional on the basis of the views of other jurisdictions or professional organizations. Indeed, the majority itself has started with the premise that "the pertinent standards by which we judge the fairness, decency, and efficacy of a punishment are those of Connecticut. ” (Emphasis added.) See part I E of the majority opinion. Accordingly, having concluded on the basis of these objective factors that there is no consensus against the death penalty in this state, I would conclude that the views of other states and professional organizations have little if any relevance to the constitutional question. Even if those factors were relevant, however, the majority's analysis is still flawed. Again, the defendant has made no claims and presented no evidence regarding the general sentencing trends or societal mores of other jurisdictions.32 Accordingly, this issue is not properly before us. Moreover, in making its determination, the majority again relies on slanted and untested sources that neither party has had the opportunity to review or to respond to. See footnote 30 of this dissenting opinion. For similar reasons, the majority's reliance on the opinions and recommendations of professional associations is improper. Once again, the majority has addressed an issue that the defendant did not raise and, once again, neither party has had an opportunity to review or respond to the extra-record sources relied on by the majority or to test them in the trial court.

Finally, exercising its independent judgment to determine whether the death penalty serves any legitimate penological goals; see Graham v. Florida, supra, 560 U.S. at 67, 130 S.Ct. 2011 ; the majority concludes that it no longer has any deterrent or retributive value.33 As the majority recognizes, however, it is well established that "the value of [capital punishment], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures.... Kennedy v. Louisiana, [554 U.S. 407, 441, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ]; see also Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183 ( [i]n general we leave to the legislatures the assessment of the efficacy of various criminal penalty schemes); Gregg v. Georgia, supra, 428 U.S. at 175, 96 S.Ct. 2909 ( [i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people ...)....” (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094. Thus, courts "cannot invalidate a category of penalties because [they] deem less severe penalties adequate to serve the ends of penology,” although "the sanction imposed cannot be so "totally without penological justification that it results in the gratuitous infliction of suffering.” (Internal quotation marks omitted.) Gregg v. Georgia, supra, at 182–83, 96 S.Ct. 2909.

The United States Supreme Court has held that "punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, supra, 554 U.S. at 420, 128 S.Ct. 2641. With respect to deterrence, the majority in the present case relies on Justice Harper's conclusory statement in his concurring and dissenting opinion in State v. Santiago, supra, 305 Conn. at 321, 49 A.3d 566 that, "[f]ollowing the abolition of the death penalty for all future offenses committed in Connecticut ... it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.” (Emphasis in original.) No one, however, has revealed the source of this oracle. I believe that, to the contrary, the legislature reasonably could have concluded that its refusal to enforce the laws in effect when the crime was committed would send the message to potential offenders that the laws are unstable and that the state ultimately may be unwilling to enforce them, thereby weakening their force. People v. Floyd, 31 Cal.4th 179, 191, 72 P.3d 820, 1 Cal.Rptr.3d 885 (2003) ("penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written” [internal quotation marks omitted] ). Indeed, that very argument was made during the legislative debate on P.A. 12–5. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2781, remarks of Kevin Barry ("It is perfectly proper for the [l]egislature to create a new sentencing procedure which operates prospectively only despite the disparity created by rendering different sentences after an admittedly arbitrarily chosen date ... because of the legitimate public purpose of assuring that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written. You would be sending a message ... that you will carry out what you said you would do [and] there is deterrence in that....”). Thus, although I acknowledge that the prospective repeal of the death penalty has certainly diminished its deterrent value, imposing the punishment that was authorized at the time that the crime was committed still "serves an important purpose in promoting the stability of a society governed by law.” (Internal quotation marks omitted.) Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. 2909.

Even if the majority were correct that the enactment of P.A. 12–5 has eliminated the deterrent value of the death penalty, however, a penalty need not have both a deterrent and a retributive purpose to be penologically justified. "The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” Id., at 184 n. 30, 96 S.Ct. 2909. The majority concludes that the death penalty no longer serves a legitimate retributive purpose because, by enacting P.A. 12–5, "the legislature necessarily has made a determination ... that life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes; that we can express our moral outrage, mete out justice, bring some measure of solace to the victims, and purge the blemish of murder on our community whilst the offender yet lives. If this is true, then, although the death penalty still might serve some minimal retributive function in Connecticut, it lacks any retributive justification.34 (Emphasis in original.) Clearly, however, the premise that the legislature has determined that life imprisonment is an adequate punishment for the most horrific crimes is not true. Rather, as I have explained, the prospective repeal most reasonably is understood as representing a legislative compromise based on a determination that, although the death penalty is the appropriate punishment for the most egregious murders, it has become impracticable.

The majority also contends that the legislature left the death penalty in place for crimes committed before the effective date of P.A. 12–5 "primarily to maintain the possibility of executing two particular offenders—the much reviled perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire's Petit family” and, therefore, the legislature did not have a proper retributive purpose, but was improperly motivated by vengeance. I agree with the majority that a majority of legislators, as well as a majority of the citizens of this state, believe that the death penalty is the appropriate penalty for the defendants who committed the Cheshire crimes. The majority has failed to establish, however, that these legislators and citizens do not believe that the death penalty is also the appropriate punishment for the crimes committed by the other defendants who are on death row, which involved the beating to death of a thirteen year old boy in order to experience what it was like to kill someone; State v. Rizzo, supra, 303 Conn. at 147–49, 31 A.3d 1094 ; the heinous and cruel beating and stabbing to death of a teenaged son and former wife; State v. Breton, 264 Conn. 327, 345–48, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003) ; the shooting of a policeman by a convicted felon; State v. Reynolds, 264 Conn. 1, 18–21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004) ; the kidnapping, robbery, rape, binding and heinous and cruel murder of the victim by drowning or strangling; State v. Cobb, 251 Conn. 285, 302–304, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ; and the kidnapping, rape, and heinous and cruel murder of the victim by repeatedly shooting her as she tried to escape and screamed for help; State v. Webb, 238 Conn. 389, 397–99, 680 A.2d 147 (1996), aff'd on remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000) ; and for all particularly horrendous murders.35 Indeed, it is reasonable to conclude that the Cheshire case weighed particularly heavily on the minds of the public and of the legislators during the debates on P.A. 12–5, merely because it provided the most recent—and, admittedly, a most tragic and pointed—example of the type of crime for which the public and the legislature believed the death penalty to be an appropriate punishment. The conclusion that a majority of legislators believed that all heinous murders deserve the death penalty finds ample support in the legislative history of P.A. 12–5. See 55 H.R. Proc., supra, at pp. 1103–10, remarks of Representative Jeffrey J. Berger (discussing details of crimes committed by defendants in Breton, Cobb, Rizzo and Reynolds, and arguing that people of state "scream out for justice” in form of death penalty); id., at p. 1151, remarks of Representative Al Adinolfi (arguing that defendants who committed Cheshire murders deserve death penalty, "and so do many of the others”); id., at pp. 1178–80, remarks of Representative Christopher Davis (discussing details of crime committed by defendant in Reynolds and arguing that defendant deserves death penalty); id., at pp. 1183–86, remarks of Representative Anthony J. D'Amelio (same); id., at pp. 1190–92, remarks of Representative Selim G. Noujaim (same); id., at p. 1209, remarks of Representative Themis Klarides ("I feel terrible for the ... family [of the victims of the Cheshire murders] ... but there are nine other people on death row. And their families, the victims in those cases, I feel just as badly for.”); id., at pp. 1236–37, remarks of Representative Larry B. Butler (discussing details of crimes committed by defendants in State v. Peeler, 271 Conn. 338, 857 A.2d 808 [ (2004) ], Rizzo and Reynolds, and arguing that defendants deserve death penalty); 55 H.R. Proc., supra, at p. 1300, remarks of Representative Jason D. Perillo (discussing details of crime committed by defendant in Webb and arguing that defendant deserved death penalty); 55 H.R. Proc., supra, at p. 1304, remarks of Representative Ernest Hewett (discussing details of crime committed by defendant in Peeler and arguing that defendant deserved death penalty); 55 S. Proc., supra, at pp. 726–28, remarks of Senator Robert J. Kane (discussing details of crimes committed by defendants in Rizzo, State v. Colon, 272 Conn. 106, 864 A.2d 666 [ (2004) ], Peeler and Breton, and arguing that defendants deserved death penalty); Conn. Joint Standing Committee Hearings, supra, at pp. 2807–2809, remarks of Sergeant Richard Holton of the Hartford Police Department (referring to crime committed by defendant in Reynolds and arguing in favor of death penalty); Conn. Joint Standing Committee Hearings, supra, at p. 2823 (referring to crimes committed by defendants in Cheshire case, Webb and Rizzo ).36 Accordingly, I would conclude that a majority of legislators have determined that the death penalty has a legitimate retributive purpose in this state, and I would defer to that legislative determination.

In summary, the majority has not based its determination that the death penalty violates the state constitutional ban on cruel and unusual punishment on an objective determination that the death penalty is inconsistent with contemporary societal mores in this state or a properly deferential determination that it lacks any penological justification. Rather, because there is no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution, I can only conclude that the majority has improperly decided that the death penalty must be struck down because it offends the majority's subjective sense of morality. See Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969 ("In determining what standards have evolved ... we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said, [e]ighth [a]mendment judgments should not be, or appear to be, merely the subjective views of individual [j]ustices; judgment should be informed by objective factors to the maximum possible extent.” [Footnote omitted; internal quotation marks omitted.] ).37 This court repeatedly has recognized that the constitutional authority to define crimes and to fix the degree and method of punishment belongs to the legislature, not to this court, and "we leave to [the legislature] the assessment of the efficacy of various criminal penalty schemes” that it has enacted in achieving its chosen penological goals. (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094 quoting Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183. Indeed, the primary right that our state constitution guarantees is the right to self-government. See Conn. Const., preamble; Conn. Const., art. I, § 2.38 The majority's decision to strike down the death penalty in its entirety is a judicial invalidation, without constitutional basis, of the political will of the people. It is this usurpation of the legislative power—not the death penalty—that violates the societal mores of this state as expressed in its fundamental law.

Finally, I emphasize that, in reaching this conclusion, I do not in any way disparage the majority's personal views about the death penalty. Indeed, the lack of consistency in the way that it is sought and imposed in various jurisdictions around the state, the infrequency with which it is imposed, the interminable delays in its execution, legal standards that are designed simultaneously to limit and to remove limits on the jury' discretion in determining whether a particular defendant deserves death,39 and, perhaps most troubling, the growing concern that race and class have been and continue to be significant factors in charging and sentencing decisions, all point to the conclusion that the death penalty may very well have no place in a society that demands decency, fairness, consistency and efficiency from its system of criminal justice. These issues have not been raised, adjudicated or briefed, however, in the present case. Rather, the sole claims made by the defendant are that P.A. 12–5 evinces a rejection by the citizens of this state of the death penalty as the appropriate sentence for the most egregious murders and that the effective date provision of this legislation is arbitrary. Because I strongly disagree with both of these claims, I can reach no conclusion except that the death penalty is constitutional.IV

I next address the concurring opinion authored by Justice Norcott and Justice McDonald concluding that the death penalty is arbitrary and discriminatory in violation of article first, §§ 8 and 9, of the Connecticut constitution because it is imposed in a racially disparate manner. As those justices acknowledge, this is an issue that the majority cannot properly address because the defendant has not raised it and the parties have not briefed it. They further acknowledge that this issue has been litigated for more than ten years in a different case involving different parties that is currently pending on appeal to this court. See In re Death Penalty Disparity Claims, Connecticut Supreme Court, Docket No. SC 19252 (filed November 6, 2013). I recognize that this issue has been raised and discussed by various justices in dissenting and concurring opinions in the past. In my view, this was appropriate because it flagged the issue for future cases. As Justices Norcott and McDonald themselves point out, however, this "issue of substantial public importance ... will never be resolved by this court in light of the majority's determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment.” I believe that it undermines the institutional integrity of this court for Justices Norcott and McDonald to express their views on such an important issue when the court as a whole, which might well have agreed with those concurring justices' analysis if the court had been able to address the issue in the case in which it was actually litigated, is now barred from considering it.40 This is especially so when the dicta in the concurring opinion by Justices Norcott and McDonald is based almost entirely on legislative fact-finding that, in turn, is premised on extra-record scientific studies and scholarly articles that the parties did not cite and have had no opportunity to review. As one commentator has aptly stated, the "lack of party participation [in the identification and evaluation of scientific studies supporting legislative facts] is flatly inconsistent with the goals of the adversarial process.” A. Larsen, " Confronting Supreme Court Fact Finding,” 98 Va. L.Rev. 1255, 1302 (2012). Larsen further observed that "[o]ur system is designed so that the litigants have meaningfully participated in the adjudication of their disputes for another reason: this participation also infuses democratic legitimacy into court decisions.”41 Id., at 1303 ; see also Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. at 147, 84 A.3d 840 ("[t]he litigants' control of case presentation is thought to promote dignitary and participation values by affirm [ing] human individuality and showing respect for the opinions of each party, producing an outcome more satisfying to winners and losers alike” [internal quotation marks omitted] ). In the case of legislative fact-finding, these legitimacy concerns are heightened because the court's factual findings affect not only the parties to the case, but also the public at large. See A. Larsen, supra, at 1304 ("It is important to remember, of course, that the [United States] Supreme Court is more than just a court. Its explanatory obligations extend further than just to the litigants who bring the case and want their dispute resolved. When the Supreme Court relies on facts to issue a ruling—particularly a ruling with significant social implications for the entire country—it is speaking to the public at large and in particular to those people who care about the issue of fact under review.”); see also id., at 1292 ("[t]he safety net of the adversary system ... is useless when the parties do not see the factual sources before the [j]ustices rely upon them as authorities and enshrine them in the [official reports]”). In addition to undermining democratic legitimacy of judicial opinions, independent fact-finding by a reviewing court can lead to bias, mistakes and the permanent entrenchment of the current best understanding of an issue as a "fact,” when that understanding may well be subject to change.42 In the present case, any suggestion that the truth content of the studies on which Justices Norcott and McDonald rely is so noncontroversial that it is a proper subject of judicial notice is easily refuted by a single example. The petitioners' expert in the consolidated habeas proceeding, John J. Donohue III, has now published the findings that he submitted to the habeas court in a legal journal. See J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?,” 11 J. Empirical Legal Stud. 637 (2014).43 Justices Norcott and McDonald have relied on this study to support their determination that the death penalty is fatally infected with racial bias. The state has already indicated in this very case, however, that it disagrees with Donohue's study. After this court released its initial decision in the present case; see State v. Santiago, supra, 305 Conn. at 101, 49 A.3d 566 ; the state filed a motion to correct arguing that, in his concurring and dissenting opinion, Justice Harper had improperly relied on Donohue's statistical findings in the habeas proceeding to support Justice Harper's conclusion that the death penalty is imposed in a racially discriminatory manner. The state pointed out that the Commissioner of Correction's expert in the habeas proceeding, Stephan Michelson, "strongly disagrees with everything about the Donohue study, from its conception, to its execution, to its data, to its statistical analysis, and to its conclusions. Moreover, Michelson has concluded that Donohue's data, when investigated and analyzed thoroughly and correctly, provides no evidence that the system is biased or arbitrary.” (Footnote omitted.) In response to this motion, Justice Harper appropriately revised his concurring and dissenting opinion to make it clear that he was not assuming the validity of Donohue's study, but was pointing to it only "as a provocation to critical inquiry.” State v. Santiago, supra, at 325 n. 11, 49 A.3d 566 (Harper, J., concurring and dissenting). Justice Harper also recognized that it should be left "to the course of judicial process to pass definitive judgment on the soundness of the study's data and its ultimate conclusions regarding the impact of race on the death penalty in Connecticut.” Id. He obviously was referring to the ordinary judicial process of adversarial proceedings in the habeas court, with the assistance of qualified experts, and appellate review of the habeas court's conclusions. I strongly agree.

Justices Norcott and McDonald disregard this procedural history, and contend that Chief State's Attorney Kevin Kane conceded during the legislative debate on P.A. 12–5 "that there are 'obvious' facial disparities in Connecticut's capital punishment system.” See Conn. Joint Standing Committee, Judiciary, Pt. 8, 2012 Sess., p. 2651. This characterization of the legislative history of P.A. 12–5 is extremely misleading. Kane stated: "We've seen [racial] disparity. It's obvious. There's disparity in ... the percentages of people in prison.” Id. Thus, Kane said nothing about facial racial disparities in the imposition of the death penalty. Moreover, Kane denied that "the justice system consciously [is] discriminating or treating people differently because of their race or ethnicity or religion or any other reasons.” Id. In addition, Kane testified that the state had "hired another expert to do a study [that] ... eviscerates Donohue's study” purporting to show racial disparities in the imposition of the death penalty in this state, and pointed out that the validity of both studies "are going to be litigated” in court. Id., at p. 2612; see also id., at p. 2625 "As a matter of who's going to determine the validity of [Donohue's report] ... that is a decision that really ought to be made in court, in an adversary system where a court can focus on that report and the detail and the manner in which this legislature or the public could never focus on it.... [T]hat's why we have courts to decide that kind of issue and that's why we have lawyers on both sides of cases.”). Kane did not "believe that ... the petitioners ... can prove that ... there's disparity in the manner in which the death penalty process is carried out.” Id., at p. 2651. Rather, he was "confident that when the court looks at that [issue] it'll decide ... that the death penalty is not sought or ... obtained because of any inappropriate—and by inappropriate I mean going beyond ... the law—but for any inappropriate reasons.” Id. Kane further urged the legislators not to "draw conclusions from the Donohue report.... There's opposing evidence, strongly opposing evidence that I think if you were a judge my feeling is you'd agree with the evidence opposing the Donohue report if you really looked at it and heard the arguments on both sides. But that's for a court to decide....” Id., at p. 2655.

Finally, any suggestion that Justices Norcott and McDonald may rely on the truth content of these extra-record materials without any fact-finding by the trial court or assistance from the parties and their experts because they are self-evidently true is belied by Donohue himself. In the very study on which those justices rely, Donohue states that "a nonexpert's understanding of econometrics and capacity to differentiate between valid and flawed statistical findings is necessarily limited. These concerns regarding the effective use of empirical evidence by courts are not unique to the administration of the death penalty, but are broadly relevant to all domains of litigation involving complex quantitative issues.”44 J. Donohue, supra, 11 J. Empirical Legal Stud. at 640; see also id., at 689 ("judges involved in trials with statistical expert testimony should either have a special master to consult with them throughout or at least to review their opinions prior to publication”); id. (noting "the difficulty that nonexperts have in assessing statistical results”); see also A. Larsen, supra, 98 Va. L.Rev. at 1299 ("even though anyone can sort through [science] studies now with just a click of a mouse, we should not be confident that judges—or anyone without the relevant expertise—can sort through the data on their own without making a mistake”).

Unlike Justices Norcott and McDonald, Donohue also acknowledged that other scholars disagreed with his findings. J. Donohue, supra, at 639 ("[t]he state's expert contested my finding that cases in which minority defendants killed white victims were capitally charged and sentenced at substantially higher rates”); id., at 656 (noting that Kent Scheidegger submitted report to legislature in which he contended that there is "no reason to doubt that the situation in Connecticut is consistent with the overall national picture, i.e., that claimed racial disparities would shrink to insignificance if legitimate factors, including jurisdiction, could properly be taken into account” [emphasis omitted] );45 see also K. Scheidegger, " Rebutting the Myths About Race and the Death Penalty,” 10 Ohio St. J.Crim. L. 147, 154 (2012–2013) (noting that trial court in McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 95 L.Ed.2d 262 [ (1987) ], had found that study by David Baldus and others, which United States Supreme Court assumed to have established facial racial disparities for purposes of resolving issue on appeal, had produced "no statistically significant evidence that race plays a part in either [the prosecutor's or the jury's death penalty] decisions in the [s]tate of Georgia” [emphasis omitted; internal quotation marks omitted] ); K. Scheidegger, supra, at 147 (findings of racial disparities in death penalty are publicly "trumpeted” while "contrary indications from other studies, or sometimes even within the same study, are buried and never brought to the public's attention”); K. Scheidegger, supra, at 147 (although "[t]he subject of what these studies show and do not show is a complex one ... the truth, to the extent we can know it, is quite different from the common perception” that such disparities exist).46 Again, contrary to the suggestion by Justices Norcott and McDonald that I am somehow relying on or vouching for the validity of these studies, I must emphasize that I cite these studies not because I believe they are accurate, but only to point out that the opinion of Justices Norcott and McDonald on this question is based on unfounded assumptions and cherry picked opinions rather than facts found by the trial court after the two sides had a fair opportunity to present their cases. Although they point to evidence of racial disparities in this state—evidence that clearly would be sufficient to provide fodder for a legislative discussion about the continuing value of the death penalty in this state—such evidence, even if strong, simply does not amount to the type of factual findings by a trial court, where evidence is disputed, that this court has demanded for the last twenty years.47

I would also note that most of the materials on which Justices Norcott and McDonald rely do not speak to the question of whether racial disparities in the imposition of the death penalty exist in this state and at this time, which is the question that they purport to answer. Thus, not only has the truth content of the materials not been subject to the crucible of the adversarial process, many of the materials have nothing to do with the specific issue that they address. Accordingly, even if I believed that Justices Norcott and McDonald properly could address this issue in their concurring opinion—whichI do not—because they have made factual findings on the basis of extra-record and irrelevant evidence, their opinion unfortunately carries no weight.

V

Because I disagree with the majority's conclusion that the death penalty is unconstitutional under our state constitution on the ground that it is inconsistent with contemporary societal norms and the conclusion of Justices Norcott and McDonald that it is imposed in a racially disparate manner, and because Justice Eveleigh has addressed them in his separate concurrence, I must address the other claims that the defendant raised on appeal.

As the majority states, the defendant was charged with, inter alia, the capital felony of "murder committed by a defendant who is hired to commit the same for pecuniary gain” in violation of General Statutes (Rev. to 1999) § 53a–54b48 after he shot and killed the victim, Joseph Niwinski, in exchange for a snowmobile. State v. Santiago, supra, 305 Conn. at 114, 49 A.3d 566. The defendant committed the murder on December 13, 2000. Id., at 121–22, 49 A.3d 566. In his original appeal to this court, the defendant raised numerous claims challenging his conviction on the murder for hire charge and other charges, as well as his death sentence. Id., at 142–46, 49 A.3d 566. This court affirmed the defendant's convictions; id., at 118, 49 A.3d 566 ; but concluded that the trial court, Solomon, J., improperly had failed to disclose to the defendant certain confidential records in the possession of the Department of Children and Families that were mitigating in nature. Id., at 118–19, 49 A.3d 566. Accordingly, we reversed the sentence of death and remanded the case to the trial court for a new penalty phase hearing. Id., at 241, 49 A.3d 566.

While the defendant's appeal was pending in this court, the legislature passed P.A. 12–5, which, as I have discussed, repealed the death penalty effective from the date of passage, April 25, 2012. See generally P.A. 12–5. The act specified that the repeal was applicable only to crimes committed on or after its effective date. P.A. 12–5, § 1. In addition, the act expressly incorporated the savings provisions set forth in General Statutes §§ 1–1(t)49 and 54–194.50 P.A. 12–5, § 38.51

The defendant concedes in his supplemental brief to this court that the legislature clearly intended that P.A. 12–5 would abolish the death penalty prospectively. In addition, he does not dispute that the repeal of the death penalty was not intended to apply to him because he committed his crime before the effective date of P.A. 12–5. See In re Daniel H., 237 Conn. 364, 378, 678 A.2d 462 (1996) (to determine whether change in law is retroactive as applied to specific crime, court looks to date of crime). The defendant also does not dispute that the statutory savings provisions would operate to preserve eligibility for the death sentence for all persons who committed a capital felony before the enactment of P.A. 12–5 if the operation of the savings provisions were not otherwise barred. See State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215 ("[§] 1–1[t] preserves punishments incurred and prosecutions pending” at time that criminal statute is repealed), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977) ; id. (when criminal statute was repealed after defendants committed offense but before they were charged, "defendants were liable to prosecution at the date of the repeal [and] § 54–194 preserves that liability”). The defendant claims for a variety of reasons, however, that, as the result of the enactment of P.A. 12–5, the state is barred from imposing the death penalty on any person, regardless of the date of the crime. Specifically, as I noted in part I of this dissenting opinion, he claims that, in light of the prospective repeal, imposing the death penalty on a person who committed a capital felony before April 25, 2012, would: (1) be arbitrary in violation of § 53a–46b (b) ; (2) constitute cruel and unusual punishment in violation of the eighth amendment to the federal constitution and of article first, §§ 8 and 9, of the constitution of Connecticut; (3) violate the equal protection guarantees of the federal and state constitutions; (4) violate the substantive due process guarantees of the federal and state constitutions; (5) violate the federal constitutional prohibition against bills of attainder; (6) violate the federal constitutional prohibition against ex post facto laws; and (7) violate the provision of article first, § 9, of the constitution of Connecticut barring punishments unless "clearly warranted by law.” I would reject each of these claims.

VI

I first consider the defendant's claim that the imposition of the death penalty on him is barred by § 53a–46b (b).52 That statute provides for mandatory review by this court of every death sentence; see In re Application for Petition for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 685, 866 A.2d 554 (2005) ; and directs the court to affirm the sentence of death unless it determines that the sentence was "the product of passion, prejudice or any other arbitrary factor....” General Statutes § 53a–46b (b)(1). The defendant contends that it is inherently arbitrary, as that word is used in § 53a–46b (b)(1), to impose the death penalty on the basis of the date on which the defendant committed the crime, as provided by P.A. 12–5. I disagree.

The meaning of the word "arbitrary” as used in § 53a–46b and the applicability of that word to the sentence of death authorized by P.A. 12–5 are questions of statutory interpretation subject to plenary review. See State ex rel. Gregan v. Koczur, 287 Conn. 145, 152, 947 A.2d 282 (2008). "In making such determinations, we are guided by fundamental principles of statutory construction. See General Statutes § 1–2z ;53 Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ( [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ...).” (Footnote altered; internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010).

This court previously has recognized that " § 53a–46b can be properly understood only in light of its jurisprudential background.” State v. Webb, supra, 238 Conn. at 494, 680 A.2d 147. "In 1972, the [United States] Supreme Court invalidated all of the death penalty statutes of the states and the federal government because it determined that those statutes violated the eighth amendment's proscription against cruel and unusual punishment.54 Justice Stewart stated 'that the [e]ighth and [f]ourteenth [a]mendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. ’ ... Furman v. Georgia, [408 U.S. 238, 310, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] (Stewart, J., concurring).” (Footnote added; emphasis in original.) State v. Webb, supra, at 494, 680 A.2d 147.

The United States Supreme Court's constitutional concerns about arbitrariness in the imposition of the death sentence stemmed largely from the existence of "statutes that left juries with untrammeled discretion to impose or withhold the death penalty....” Gregg v. Georgia, supra, 428 U.S. at 196 n. 47, 96 S.Ct. 2909 ; see also State v. Webb, supra, 238 Conn. at 494–96, 680 A.2d 147. In State v. Ross, 230 Conn. 183, 231–32, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995), this court recognized that the state could overcome these constitutional concerns by "defin[ing] the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion.” (Internal quotation marks omitted.) In addition, "[a] statutory requirement that, before death may be imposed, the sentencer must find at least one statutorily mandated aggravating circumstance is a constitutionally permissible response to the need to avoid standardless sentencing discretion and to narrow the class of persons eligible for the death penalty. Blystone v. Pennsylvania, 494 U.S. 299, 302, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990) ; Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988) ; Jurek v. Texas, [428 U.S. 262, 270–71, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976) ]; Proffitt v. Florida, [428 U.S. 242, 251–53, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976) ]; Gregg v. Georgia, supra, at [198, 96 S.Ct. 2909 ].” State v. Ross, supra, at 232, 646 A.2d 1318. This court concluded in Ross that the provisions of this state's capital sentencing scheme defining specific capital crimes and requiring proof of an aggravating factor satisfied these constitutional requirements. Id., at 238–39, 646 A.2d 1318.

Once the constitutional requirement for a capital sentencing scheme that channels the sentencing authority's discretion has been satisfied, mandatory appellate review of death sentences provides an additional method of implementing the constitutional requirement that "each defendant [has received] an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime.” Clemons v. Mississippi, 494 U.S. 738, 749, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990) ; see also Parker v. Dugger, 498 U.S. 308, 321, 111 S.Ct. 731, 112 L.Ed.2d 812 (1991) ("meaningful appellate review [of a death sentence] requires that the appellate court consider the defendant's actual record”); Jurek v. Texas, supra, 428 U.S. at 276, 96 S.Ct. 2950 ("prompt judicial review of the jury's decision in a court with statewide jurisdiction ... provide[s] a means to promote the evenhanded, rational, and consistent imposition of death sentences under law”). This court previously has recognized that § 53a–46b was intended to implement this eighth amendment requirement. In re Application for Petition for Writ of Habeas Corpus by Dan Ross, supra, 272 Conn. at 689 n. 8, 866 A.2d 554 ; see also State v. Webb, supra, 238 Conn. at 497, 680 A.2d 147. Indeed, "the appellate review language of § 53a–46b [requiring the reviewing court to determine whether the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor] tracks almost precisely the ... language ... that the United States Supreme Court had declared constitutional in Gregg. State v. Webb, supra, at 503, 680 A.2d 147, citing Gregg v. Georgia, supra, 428 U.S. at 198, 96 S.Ct. 2909 ; Gregg v. Georgia, supra, at 198, 96 S.Ct. 2909 ("As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the [s]tate's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, [and] whether the evidence supports the jury's finding of a statutory aggravating circumstance....”).

In State v. Webb, supra, 238 Conn. at 494–505, 680 A.2d 147, this court focused primarily on the provision of General Statutes (Rev. to 1995) § 53a–46b (b)(3) that directed the court to affirm the sentence of death unless it determined that "the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.” When the legislature originally enacted § 53a–46b in 1980; see Public Acts 1980, No. 80–332, § 2; "it was widely believed that the [eighth amendment] required proportionality review.” State v. Webb, supra, at 504, 680 A.2d 147. The United States Supreme Court has since clarified that proportionality review is a constitutionally permissible method of minimizing "the risk of wholly arbitrary, capricious, or freakish sentences”; Pulley v. Harris, 465 U.S. 37, 45, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984) ; but is not constitutionally required. Id., at 50–51, 104 S.Ct. 871. In 1995, the legislature amended § 53a–46b to eliminate the requirement for proportionality review. See Public Acts 1995, No. 95–16, § 3(b). It is clear, however, that the provision of § 53a–46b (b)(1) requiring the court to determine whether the death sentence was "the product of passion, prejudice or any other arbitrary factor,” no less than the former statutory requirement for proportionality review, was enacted in response to United States Supreme Court decisions indicating that appellate review of a death sentence to "determine whether it was imposed under the influence of passion or prejudice”; (internal quotation marks omitted) State v. Webb, supra, at 503, 680 A.2d 147 ; is a permissible method of ensuring compliance with the eighth amendment prohibition on the arbitrary and capricious imposition of the death penalty.

This court has held that, after it has conducted an "independent and scrupulous examination of the entire record”; (internal quotation marks omitted) State v. Santiago, supra, 305 Conn. at 243, 49 A.3d 566 ; a determination that the evidence supports the imposition of the death penalty under our facially valid capital sentencing scheme ordinarily will be sufficient to support a conclusion that the sentence of death was not arbitrary in violation of the eighth amendment and § 53a–46b (b). See id., at 247–48 n. 124, 49 A.3d 566 (declining to engage in further review of defendant's claim that death sentence was arbitrary after determining that evidence supported jury's weighing of aggravating and mitigating factors); State v. Courchesne, 296 Conn. 622, 786 n. 105, 998 A.2d 1 (2010) (rejecting claim that death sentence was arbitrary for "the same essential reasons that we conclude that the evidence was sufficient to support the imposition of the death penalty under our capital sentencing scheme”); see also McCleskey v. Kemp, supra, 481 U.S. at 308, 107 S.Ct. 1756 (when death sentence was imposed under capital sentencing scheme that focuses "on the particularized nature of the crime and the particularized characteristics of the individual defendant ... [the reviewing court] lawfully may presume that [the defendant's] death sentence was not wantonly and freakishly imposed” [citation omitted; internal quotation marks omitted] ). This court also has recognized, however, that, if a defendant could show that a sentencing authority's decision to impose the death sentence was influenced by an improper consideration, such as the race of the defendant or the victim, the sentence might be vacated as arbitrary, in violation of § 53a–46b (b)(1) and the eighth amendment, notwithstanding the fact that the sentence was imposed pursuant to a facially constitutional capital sentencing scheme and was supported by the evidence. See State v. Cobb, supra, 234 Conn. at 761–62, 762 n. 20, 663 A.2d 948 ; see also McCleskey v. Kemp, supra, at 308–309, 107 S.Ct. 1756 (indicating that proof that race was factor in specific sentencing decision would invalidate sentence imposed pursuant to facially valid capital sentencing scheme); cf. McCleskey v. Kemp, supra, at 312–13, 107 S.Ct. 1756 (unexplained statistical discrepancy in imposition of death penalty that correlates with race does not render death penalty facially invalid).

As I have indicated, several defendants who have been sentenced to death in this state are currently participating in a proceeding on a petition for a writ of habeas corpus raising the claim of racial disparity in the imposition of the death sentence in violation of § 53a–46b (b)(1). The habeas court has rejected their claim; see In re Death Penalty Disparity Claims, Superior Court, judicial district of Tolland, geographical area number nineteen, Docket No. TSR–CV–05–4000632–S (2013); and that decision is currently pending on appeal to this court. See In re Death Penalty Disparity Claims, supra, at Docket No. SC 19252.

As the foregoing analysis shows, § 53a–46b was intended to implement the United States Supreme Court's eighth amendment jurisprudence, under which the word "arbitrary” refers to unprincipled and irrational decisions made by sentencing authorities, either because the state's capital sentencing scheme had given the sentencing authority "untrammeled discretion to impose or withhold the death penalty”; Gregg v. Georgia, supra, 428 U.S. at 196 n. 47, 96 S.Ct. 2909 ; or because, despite the existence of a statutory scheme that properly channeled the sentencing authority's discretion, the sentencing authority misapplied the law or based its decision on improper factors. In the present case, the legislature's enactment of P.A. 12–5 implicates neither of these eighth amendment concerns. Public Act 12–5 had no effect on the provisions of our capital sentencing scheme that are designed to ensure that the sentencing authority has given "each defendant an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime”; Clemons v. Mississippi, supra, 494 U.S. at 749, 110 S.Ct. 1441 ; and there is no claim that, as a result of the legislation, the sentencing authority will consider any factor other than those that it is statutorily and constitutionally authorized to consider. Indeed, the only effect of P.A. 12–5 is to reduce the class of defendants who may be subjected to a sentencing authority's discretion to impose the death penalty in the first instance. As I have explained, that effect cannot render the statutory scheme unconstitutional because the eighth amendment is concerned only with ensuring that the sentence that the defendant actually received is nonarbitrary, not with whether or in what manner other defendants will be spared the death penalty. In short, under this state's capital sentencing scheme as amended by P.A. 12–5, death sentences are simply not "cruel and unusual in the same way that being struck by lightning is cruel and unusual”; Furman v. Georgia, supra, 408 U.S. at 309, 92 S.Ct. 2726 (Stewart, J., concurring); because the scheme does not permit the sentencing authority to impose the death penalty on a class of "capriciously selected” defendants. Id., at 309–10, 92 S.Ct. 2726 (Stewart, J., concurring).

To the extent that the defendant believes that the legislature intended that § 53a–46b provides greater protection than that provided by the eighth amendment, I disagree. He has not expressly made any such argument in his appellate briefs and has pointed to no evidence of such an intent.

Instead, the defendant claims that the legislature, as opposed to the sentencing authority, has acted arbitrarily by "exposing a defendant who commits his crime on April 24, 2012, to a death sentence, while not exposing a defendant who commits the same crime on April 25, 2012, to a death sentence.” Claims involving arbitrary legislative classifications implicate constitutional equal protection principles, however, not the eighth amendment principles that § 53a–46b was intended to implement. See, e.g., State v. Higgins, 265 Conn. 35, 65, 826 A.2d 1126 (2003) (addressing claim that General Statutes [Rev. to 2003] § 53a–54b (8), providing that murder of person under age of sixteen years is capital felony, "violates constitutional equal protection principles because it treats the class of defendants who have murdered children under the age of sixteen differently than the class of defendants who have murdered adults”). Thus, the defendant is effectively invoking § 53a–46b, which was intended to implement eighth amendment principles, in an attempt to raise an equal protection claim. I would reject this attempt because, first, even if P.A. 12–5 violated equal protection principles, the United States Supreme Court has never "held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative.” (Emphasis in original.) Atkins v. Virginia, supra, 536 U.S. at 352, 122 S.Ct. 2242 (Scalia, J., dissenting). In other words, a statutory death penalty provision that violated equal protection principles would not, for that reason alone, violate the eighth amendment prohibition on arbitrary sentencing. Second, I conclude in part VIII of this dissenting opinion that P.A. 12–5 does not violate the equal protection provisions of the state or federal constitution, and the defendant has cited no authority for the proposition that a legislative classification that satisfies equal protection principles can violate the eighth amendment merely because the line drawn by the legislature, "[l]ooked at by itself without regard to the necessity behind it ... seems arbitrary.” (Internalquotation marks omitted.) State v. Higgins, supra, at 68, 826 A.2d 1126 ; see also id., at 68–69, 826 A.2d 1126 (rejecting claim that General Statutes [Rev. to 2003] § 53a–54b [8] is irrational merely because legislature could have drawn line between children and adults in any number of places). Accordingly, I would conclude that imposing the death sentence on the defendant would not be arbitrary in violation of § 53a–46b. VII

Indeed, § 53a–54b contains a number of legislative distinctions that could be characterized as "arbitrary” in the sense that the defendant uses that word. For example, under § 53a–54b (5), which makes murder during the course of a kidnapping a capital felony, a person who compelled a victim to move from the living room of a residence into the kitchen before murdering the victim would be eligible for the death penalty, while a person who chased a fleeing victim from the living room into the kitchen would not be.State v. Sanseverino, 291 Conn. 574, 584, 969 A.2d 710 (2009) (defendant cannot be convicted of kidnapping if restraint of victim was incidental and necessary to commission of underlying crime). Under § 53a–54b (7), which makes the murder of two or more persons in a single transaction a capital felony, a person who murdered a pregnant woman whose child was born alive but ultimately died as a result of the assault on the mother would be eligible for the death penalty, while a person who instantaneously killed both the mother and the fetus would not be. State v. Courchesne, supra, 296 Conn. at 705, 998 A.2d 1. Under § 53a–54b (8), which makes the murder of a person under sixteen years of age a capital felony, a person who murdered a victim one hour before the victim's sixteenth birthday would be eligible for the death penalty, while a person who murdered the victim one hour after his sixteenth birthday would not be. See State v. Higgins, supra, 265 Conn. at 65, 826 A.2d 1126. I am aware of no authority, however, for the proposition that such legislative distinctions violate the eighth amendment.

To the extent that the defendant relies on Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) (reversing death sentence imposed on mentally disabled defendant before legislature prospectively prohibited imposition of death sentence on such disabled defendants), Cooper v. State, 540 N.E.2d 1216, 1220 (Ind.1989) (reversing death sentence imposed on fifteen year old defendant before legislature prospectively repealed death penalty for defendants under age of sixteen years), State v. Bey, 112 N.J. 45, 98, 548 A.2d 846 (1988) (death sentence could not be imposed on defendant who was seventeen years old at time of offense when, after offense, legislature repealed death penalty for juvenile defendants), and Van Tran v. State, 66 S.W.3d 790, 811 (Tenn.2001) (reversing death sentence that was imposed before legislature prospectively prohibited imposition of death sentence on mentally retarded defendants, and remanding for determination as to whether defendant was mentally retarded), I conclude in part VII B of this dissenting opinion that these cases do not support his claim. See also footnote 84 of this dissenting opinion.



Justice Eveleigh contends in footnote 48 of his concurring opinion that, "[a]lthough Gregg and Furman focus on the need to channel the discretion of a sentence in individual cases to avoid arbitrary results, the United States Supreme Court's eighth amendment jurisprudence on arbitrariness in sentencing is not confined to arbitrariness by individual sentencing bodies.” In support of this contention he cites Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976) ( "Death, in its finality, differs more from life imprisonment than a [100 year] prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”). The court in Woodson held that the death penalty statute under review in that case was unconstitutional because it was mandatory, and "it is only reasonable to assume that many juries under mandatory statutes will continue to consider the grave consequence of a conviction in reaching a verdict. North Carolina's mandatory death penalty statute provides no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die.”Id., at 303, 96 S.Ct. 2978. In addition, the court in Woodson held that the mandatory death sentence statute prevented the sentencing authority from considering all the facts and circumstances of the particular offense, thereby undermining the reliability of the sentence. Id., at 303–305, 96 S.Ct. 2978. Thus Woodson, like the other cases that I have discussed, involved concerns about unprincipled and irrational decisions made by sentencing authorities. Justice Eveleigh has cited no authority for the proposition that, when a defendant has raised a colorable claim that a legislative classification treats similarly situated defendants differently, the claim implicates reliability concerns under the eighth amendment.

I next address the defendant's claim that imposing the death penalty against him when it cannot be imposed on defendants who committed their crimes after the effective date of P.A. 12–5 would be cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. I disagree.

A

I first address the defendant's claims under the eighth amendment. He claims that: (1) executing a person in a state that has prospectively repealed the death penalty is inconsistent with contemporary standards of decency; and (2) P.A. 12–5 eliminates any legitimate penological objective for the death penalty.

The defendant also claims that, under P.A. 12–5, this state can no longer impose the death penalty in a consistent, reliable and nonarbitrary manner, as required by the eighth amendment. My conclusion in part VI of this dissenting opinion that the imposition of the death penalty on the defendant would not violate § 53a–46b, which implements the eighth amendment requirement for a nonarbitrary capital sentencing scheme, is dispositive of this claim.

1

In support of his claim that executing a death sentence in a state that has prospectively repealed the death penalty is inconsistent with contemporary standards of decency and, therefore, violates the eighth amendment to the federal constitution, the defendant contends both that there is a societal consensus in this state against the imposition of the death penalty and that there is a national consensus against postrepeal executions. I have already concluded in part III of this dissenting opinion that there is no consensus in this state against the death penalty. See also part VII B of this dissenting opinion. For the following reasons, I would also reject the defendant's contention that imposing the death sentence on him would violate the eighth amendment because there is a national consensus against postrepeal executions.

The standard for determining whether a particular punishment violates the eighth amendment is set forth in part III of this dissenting opinion. To reiterate, the United States Supreme Court relies primarily on two objective factors to guide its determination as to whether a particular punishment violated contemporary standards of decency: (1) "legislation enacted by the country's legislatures,” which provides the "clearest and most reliable objective evidence of contemporary values”; (internal quotation marks omitted) Graham v. Florida, supra, 560 U.S. at 62, 130 S.Ct. 2011 ; Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242 ; and (2) "[a]ctual sentencing practices” in this country. Graham v. Florida, supra, at 62, 130 S.Ct. 2011. After determining the contemporary societal consensus, the United States Supreme Court has then exercised its independent judgment to consider "the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment.... In this inquiry the [c]ourt also considers whether the challenged sentencing practice serves legitimate penological goals.” (Citations omitted.) Id., at 67, 130 S.Ct. 2011.

The defendant has cited no authority for the proposition that the courts may consider only the societal consensus in a particular state to determine the constitutionality of that state's capital sentencing scheme under the eighth amendment. Because I conclude that there is no consensus against the death penalty in this state, I need not address that question.

"The [c]ruel and [u]nusual [p]unishments [c]lause prohibits the imposition of inherently barbaric punishments under all circumstances.” Graham v. Florida, supra, 560 U.S. at 59, 130 S.Ct. 2011. "For the most part, however, the [United States Supreme] Court's precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime.” Id. "The [c]ourt's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the [c]ourt implements the proportionality standard by certain categorical restrictions on the death penalty.” Id.

"The second classification of cases has used categorical rules to define [e]ighth [a]mendment standards. The previous cases in this classification involved the death penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender. With respect to the nature of the offense, the [c]ourt has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. Kennedy [v. Louisiana, supra, 554 U.S. at 437–38, 128 S.Ct. 2641 (death penalty for rape of child violates eighth amendment) ]; see also Enmund v. Florida, [supra, 458 U.S. at 782, 102 S.Ct. 3368 ] [death penalty for felony murder violates eighth amendment when defendant did not kill, attempt to kill or intend to kill victim]; Coker v. Georgia, 433 U.S. 584 [97 S.Ct. 2861, 53 L.Ed.2d 982 (1977) (death penalty for rape of adult woman violates eighth amendment) ]. In cases turning on the characteristics of the offender, the [c]ourt has adopted categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of [eighteen], Roper v. Simmons, [supra, 543 U.S. 551, 125 S.Ct. 1183 ], or whose intellectual functioning is in a low range, Atkins v. Virginia, [supra, 536 U.S. 304, 122 S.Ct. 2242 ]. See also Thompson v. Oklahoma, [supra, 487 U.S. 815, 108 S.Ct. 2687 ].” Graham v. Florida, supra, 560 U.S. at 60–61, 130 S.Ct. 2011.

Thus, in cases involving the death penalty, the United States Supreme Court has applied the " 'evolving’ standards of decency” rubric in two situations: (1) when the defendant claimed that the death penalty was categorically disproportionate for a particular crime; and (2) when the defendant claimed that the death penalty was categorically disproportionate for defendants with a particular characteristic that reduces their moral culpability, such as youth or mental disability. In other words, when society has reached a consensus that the death penalty for a particular crime or a particular class of defendants is cruel and unusual, no person who commits such a crime or falls within the protected class may be executed. In the present case, the defendant makes no claim that the death penalty is disproportionate for a particular crime or for a particular class of defendants whose moral culpability is reduced. Rather, he claims only that it violates contemporary standards of decency to impose the death penalty on him when the death penalty cannot be imposed on a defendant who commits a similar crime after the date of repeal. Thus, his claim under the evolving standards of decency rubric is essentially a reiteration of his claim that imposing the death sentence on him would be the result of an arbitrary legislative classification based on the date of the crime, which, as I have explained, is the type of claim that this court historically has subjected to an equal protection analysis, not to an eighth amendment analysis. See part VI of this dissenting opinion.

Moreover, even if I were to assume that the " 'evolving’ standards of decency” rubric may be applied to this type of claim, it is unclear to me how a national consensus against imposing the death penalty after it has been prospectively repealed could emerge when only a small minority of states have repealed the death penalty prospectively. As of the date of this opinion, of the states that have no death penalty, the twelve states that have prospectively repealed it are: Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Vermont and Wisconsin. In states where there has been no prospective repeal, which constitute the great majority, the practices of the state can reveal nothing about their citizens' beliefs on this issue and, indeed, there is little call for those citizens to have an opinion one way or the other. Accordingly, there is no discernible "national” consensus on this question.

As of the date of this opinion, Alaska, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin and the District of Columbia do not have an operative capital sentencing scheme, either because the scheme has been legislatively repealed or because it has been judicially invalidated. Death Penalty Information Center, "States With and Without the Death Penalty,” available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited July 30, 2015).

See Death Penalty Information Center, "Hawaii,” (2015), available at http://www.deathpenaltyinfo.org/hawaii-0 (last visited July 30, 2015).

See Death Penalty Information Center, "Illinois,” (2015), available at http://www.deathpenaltyinfo.org/illinois-1 (last visited July 30, 2015).

See Death Penalty Information Center, "Iowa,” (2015), available at http://www.deathpenaltyinfo.org/iowa-0 (last visited July 30, 2015).

See Death Penalty Information Center, "Maine,” (2015), available at http://www.deathpenaltyinfo.org/maine-0 (last visited July 30, 2015).

See 2013 Md. Laws c. 156.

See Death Penalty Information Center, "Michigan,” (2015), available at http://www.deathpenaltyinfo.org/michigan-0 (last visited July 30, 2015).

See Death Penalty Information Center, "Minnesota,” (2015), available at http://www.deathpenaltyinfo.org/minnesota-0 (last visited July 30, 2015).

Section 2C:11–3b of the New Jersey Revised Statutes Annotated (West 2012 Cum. Pocket Part) provides: "An inmate sentenced to death prior to the date of the enactment of this act [repealing the death penalty], upon motion to the sentencing court and waiver of any further appeals related to sentencing, shall be resentenced to a term of life imprisonment during which the defendant shall not be eligible for parole. Such sentence shall be served in a maximum security prison.

"Any such motion to the sentencing court shall be made within 60 days of the enactment of this act. If the motion is not made within 60 days the inmate shall remain under the sentence of death previously imposed by the sentencing court.”



The defendant apparently believes that this statute prospectively repeals the death penalty because it does not, by its own operation, convert sentences of death to life sentences, but requires defendants sentenced to death to take action. I assume for purposes of this dissenting opinion, without necessarily agreeing with the defendant, that the statute may be characterized as a prospective repeal.



Chapter 141 of the New Mexico Laws (2009), 2009 N.M. Laws c. 11, § 6, provides: "The provisions of this act [repealing the death penalty] apply to crimes committed on or after July 1, 2009.”

See Death Penalty Information Center, "Vermont,” (2015), available at http://www.deathpenaltyinfo.org/vermont-0 (last visited July 30, 2015).

See Death Penalty Information Center, "Wisconsin,” (2015), available at http://www.deathpenaltyinfo.org/wisconsin-0 (last visited July 30, 2015).

Finally, even if I were to assume that we may determine a societal consensus based on the practices of the small minority of states that have enacted a prospective repeal of the death penalty, I am not persuaded that the practices of those states reveal any societal trend. I acknowledge that there has not been an execution in a state where the death penalty had been prospectively repealed and not reinstated. This fact does not establish convincingly, however, that there is a societal consensus among those states against the postrepeal imposition of the death penalty for crimes committed prior to the repeal. In Illinois and New Jersey, the governor granted clemency to every defendant who had been sentenced to death before the prospective repeal. In addition, according to the amicus, group of legal historians and scholars, the governor of Hawaii commuted the death sentences of two death row inmates when the Hawaii legislature prospectively repealed the death penalty in 1957 and, when the death penalty was prospectively repealed in Minnesota in 1911, the Minnesota Board of Pardons commuted the death sentences of the two remaining inmates on death row. While this appeal was pending, the governor of Maryland also commuted the sentences of that state's death row inmates. Thus, although a governor's response to legislation may reflect societal standards of decency; State v. Rizzo, supra, 303 Conn. at 199–201, 31 A.3d 1094 ; in only five out of the twelve states that have prospectively repealed the death penalty did the governor or the board of pardons grant clemency to the inmates who were on death row when the death penalty was prospectively repealed. In New Mexico, there were two prisoners on death row at the time of repeal and the governor declined to grant clemency. See id., at 190 n. 88, 31 A.3d 1094 ("the New Mexico ban is prospective only and no clemency has been granted to convicted capital offenders”). While those defendants have not yet been executed, they remain on death row. Similarly, there are eleven prisoners on death row in this state, and, while there have been no executions since the death penalty's prospective repeal, the prisoners also have not had their sentences commuted. Thus, in these states, societal approval of postrepeal executions can be inferred from the legislature's choice of prospective repeal and the failure of the authorized governmental entity to commute the death sentences of those on death row. See id., at 191, 31 A.3d 1094 ("the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures” [internal quotation marks omitted] ). For four of the twelve states that have prospectively repealed the death penalty—Maine, Michigan, Vermont and Wisconsin—neither the defendant nor the amicus group of legal historians and scholars has provided any explanation for the fact that no prisoners were executed after the effective date of the repeal. Thus, I can only speculate whether there were no prisoners on death row in those states at the time of the repeal, or whether some or all of the prisoners pursued successful appeals of their death sentences. Accordingly, I am unable to derive any particular societal consensus from the practices of those states beyond the approval implicit in the prospective repeal itself.

For a list of all executions in the United States by state and by date, see Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File Executions by State,” available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited July 30, 2015).

The defendant acknowledges that, in a number of preFurman cases, various courts concluded that the death penalty may be imposed on a defendant who committed a capital felony before the effective date of abolition. See In re Faltin, 31 Ariz. 465, 477, 254 P. 477 (1927) ; In re Stewart, 78 Kan. 885, 886, 96 P. 45 (1908) ; In re Schneck, 78 Kan. 207, 210, 96 P. 43 (1908) ; State v. Lewis, 273 Mo. 518, 536–37, 201 S.W. 80 (1918). The defendant represents, however, that none of these defendants was ultimately executed. See Arizona Dept. of Corrections, "Historical Prison Register,” (2015), available at http://corrections.az.gov/historical-prison-register-e-i (last visited July 30, 2015) (William Faltin died in prison in 1953); M. Church, "Capital Punishment, 1870–1907,” Kansas Memory Blog (January 24, 2008), available at http://www.kansasmemory.org/blog/post/28195390 (last visited July 30, 2015) (Kansas governors refused to execute death warrants from 1872 through 1909); H. Frazier, Death Sentences in Missouri, 1803–2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations (2006), pp. 170–71 (Missouri governor commuted Ora Lewis' death sentence in 1918).



See Death Penalty Information Center, "Clemency,” (2015), available at http://www.deathpenaltyinfo.org/clemency (last visited July 30, 2015).

See Death Penalty Information Center, "Clemency,” (2015), available at http://www.deathpenaltyinfo.org/clemency (last visited July 30, 2015).

Moreover, there is no way of knowing whether the governors and the board of pardons commuted the death sentences because they discerned a societal consensus against postrepeal executions or because they perceived serious flaws in the repealed statutes pursuant to which the death row inmates had been sentenced.

See Death Penalty Information Center, "New Mexico,” (2015), available at http://www.deathpenaltyinfo.org/new-mexico-1(last visited July 30, 2015). In addition, a third defendant who had been accused of committing a capital felony before the New Mexico legislature abolished the death penalty was tried after the effective date of the abolition. See Astorga v. Candelaria, Supreme Court of New Mexico, Docket No. 33,152 (order dated September 1, 2011). The trial ended in a jury deadlock on the death sentence, which resulted in the imposition of a life sentence. See O. Uyttebrouck, "Life in Prison,” Albuquerque J., May 19, 2012, available at http://www.abqjournal.com/main/2012/05/19/news/life-in-prison.html (last visited July 30, 2015).

See Death Penalty Information Center, "New Mexico,” (2015), available at http://www.deathpenaltyinfo.org/new-mexico-1 (last visited July 30, 2015).

See Death Penalty Information Center, "Connecticut,” (2015), available at http://www.deathpenaltyinfo.org/connecticut-1 (last visited July 30, 2015).

In Connecticut, only the Board of Pardons and Paroles has the authority to commute death sentences. See General Statutes § 54–130a. In Maryland, the governor has the power to change a sentence of death to a sentence of life without the possibility of parole. See 2013 Md. Laws c. 156, § 3. In New Mexico, the governor has the power to grant reprieves and pardons for all cases except treason and cases involving impeachment. See N.M. Const., art. V, § 6.

According to the amicus group of legal historians and scholars, there were no inmates on death row in Iowa when the legislature repealed the death penalty.

The amicus curiae group of experts on international human rights and comparative law represents that no other country has executed a prisoner after the prospective repeal of the death penalty. Again, however, there is no way of knowing the reason for this fact. In any event, this court has held that "international norms cannot take precedence over a domestic legal climate in which capital punishment retains strong legislative and judicial support.” State v. Rizzo, supra, 303 Conn. at 196, 31 A.3d 1094. Although I am unable to discern any strong societal support in favor of imposing the death penalty after a prospective repeal, I also am unable to find strong support against that practice in this country, and the practices of other countries, standing alone and unexplained, cannot constitute sufficient proof that the practice is unconstitutional.



To the extent that the defendant contends that the four cases he cites in his appellate briefs support his claim that there is a national consensus against imposing the death penalty after a prospective appeal; see Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) (reversing death sentence on mentally retarded defendant that was imposed before legislature prospectively prohibited imposition of death sentence on such disabled defendants); Cooper v. State, 540 N.E.2d 1216, 1220 (Ind.1989) (reversing death sentence on defendant who was fifteen years old at time of offense when sentence was imposed before legislature prospectively repealed death penalty for defendants under age of sixteen years); State v. Bey, 112 N.J. 45, 98, 548 A.2d 846 (1988) (death sentence could not be imposed on defendant who was seventeen years old at time of offense when, after offense, legislature repealed death penalty for juvenile defendants); and Van Tran v. State, 66 S.W.3d 790, 811 (Tenn.2001) (reversing death sentence on mentally retarded defendant that was imposed before legislature prospectively prohibited imposition of death sentence on such disabled defendants); I am not persuaded. In each of those cases, the court was confronted with a legislative determination that imposing the death penalty on defendants with a particular characteristic that reduced their moral culpability was categorically inappropriate. See Fleming v. Zant, supra, at 690, 386 S.E.2d 339 ("the objective evidence indicates that a consensus against execution of the mentally retarded does exist among Georgians” and, therefore, "under the Georgia [c]onstitution, the execution of the mentally retarded constitutes cruel and unusual punishment”); Cooper v. State, supra, at 1220 (Indiana legislature made "policy decision that no one should be executed for a crime committed at age [fifteen]”); Van Tran v. State, supra, at 805 ("the execution of mentally retarded individuals violates evolving standards of decency that mark the progress of a maturing society both nationally and in the [s]tate of Tennessee”). In State v. Bey, supra, at 98, 548 A.2d 846, the New Jersey Supreme Court concluded that "the [l]egislature never had intended to subject juvenile offenders to capital punishment, and did intend that its ameliorative amendment would apply retroactively to [the] defendant's case.” Although the court also conclusorily stated that "notions of fundamental fairness” would require retroactive application of the statute even if the legislature had no such intent; id., at 104, 548 A.2d 846 ; it did not explain why. Presumably, however, the court believed that the legislature had determined that the imposition of the death penalty on juveniles violated contemporary standards of decency. As I discuss in part III of this opinion, our legislature has made no determination that the death penalty is immoral.

The amicus group of legal historians and scholars also points out that a number of states have repealed the death penalty and then reinstated it, and claims that no death row inmate convicted under a statute that was repealed was executed after the repeal. With respect to these states, although it appears from the information provided by the amicus that no prisoner was executed in any of these states during the period after repeal and before reinstatement, I am unable to discern from the information provided whether any prisoner was executed pursuant to a repealed statute after reinstatement. Nevertheless, even if the amicus group of legal historians and scholars is correct that no defendant who had been sentenced to death at the time of a temporary repeal was ever executed, I am not persuaded that that fact would establish that there is a societal consensus against the postrepeal imposition of the death penalty for crimes committed prior to the repeal. I can perceive no reason why the citizenry of a state would be in favor of the death penalty for an offense that was committed after reinstatement but, at the same time, would believe that executing a prisoner who committed a similarly egregious offense before a prospective repeal would be beyond the pale of decency, unless there were procedural flaws in the repealed statute that cast doubt on the fairness of the prisoner's conviction. In that case, however, societal reluctance to impose the death penalty pursuant to the repealed statute would not be the result of any qualms about the morality of doing so. Moreover, the fact that the death penalty was reinstated in these states suggests that repeal does not necessarily reveal an emergent societal consensus that the death penalty is immoral or disproportionate. Accordingly, I would conclude that the fact that no state has executed a prisoner after repealing the death penalty prospectively does not establish that there is a national societal consensus that it would be immoral or disproportionate to do so.

See Arizona Dept. of Corrections, "Arizona Death Penalty History,” (2013), available at https://corrections.az.gov/public-resources/death-row/Arizona-death-penalty-history (last visited July 30, 2015) (Arizona repealed death penalty in 1916; after reinstatement in 1918, multiple executions took place); Death Penalty Information Center, "Colorado,” (2015), available at http://www.deathpenaltyinfo.org/colorado-1 (last visited July 30, 2015) (Colorado abolished death penalty in 1897 and reinstated it in 1901); D. Wilson, Office of Colorado State Public Defender, "Cataloge of Colorado Executions,” (2009), available at http://pdweb.coloradodefenders.us/index.php?option=com_content&view=article&id=152&Itemid=108 (last visited July 30, 2015) (listing executions in Colorado before repeal and after reinstatement); Death Penalty Information Center, "Delaware,” (2015), available at http://www.deathpenaltyinfo.org/delaware-1 (last visited July 30, 2015) (Delaware repealed death penalty in 1958; after reinstatement in 1961, multiple executions took place); Death Penalty Information Center, "Iowa,” (2015), available at http://www.deathpenaltyinfo.org/iowa-0 (last visited July 30, 2015) (Iowa repealed death penalty in 1872; after reinstatement in 1878, multiple executions took place; death penalty once again repealed in 1965); Death Penalty Information Center, "Kansas,” (2015), available at http://www.deathpenaltyinfo.org/kansas-1 (last visited July 30, 2015) (Kansas repealed death penalty in 1907 and reinstated it in 1935; death penalty struck down by United States Supreme Court, death penalty statute enacted again in 1994); Death Penalty Information Center, "Maine,” (2015), available at http://www.deathpenaltyinfo.org/maine-0 (last visited July 30, 2015) (Maine abolished death penalty in 1876 and reinstated it in 1883; abolished again in 1887); ProCon.org, "Death Penalty: Maine–Abolishment of the Death Penalty,” (2015), available at http://deathpenalty.procon.org/view.resource.php?resourceID=4925 (last visited July 30, 2015) (referring to "botched executions” in Maine after 1883 reinstatement); E. Guillot, "Abolition and Restoration of the Death Penalty in Missouri,” 284 Annals of Am. Acad. of Pol. & Soc. Sci. 105 (November 1952) (Missouri repealed death penalty in 1917 and reinstated it in 1919); Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” pp. 174–77, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited July 30, 2015) (listing dates of Missouri executions); 1969 N.M. Laws 415 (abolishing death penalty for certain offenses); 1979 N.M. Laws 522–29 (reinstating death penalty for capital offenses); Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” supra, at pp. 221–23 (listing dates of New Mexico executions); Death Penalty Information Center, "New York,” (2015), available at http://www.deathpenaltyinfo.org/new-york-1 (last visited July 30, 2015) (New York limited death penalty in 1967, abolished by United States Supreme Court in 1972; since reinstating it in 1995, no executions took place; abolished again in 2007); Death Penalty Information Center, "Oregon,” (2015), available at http://www.deathpenaltyinfo.org/oregon-1 (last visited July 30, 2015) (Oregon repealed death penalty in 1914, reinstated in it 1920, repealed it again in 1964, and reinstated it again in 1978); Death Penalty Information Center, "Executions in the U.S. 1608–2002: The ESPY File, Executions by State,” supra, at pp. 271–74 (listing dates of Oregon executions); Death Penalty Information Center, "South Dakota,” (2015), available at http://www.deathpenaltyinfo.org/south-dakota-0 (last visited July 30, 2015) (South Dakota repealed death penalty in 1915; after reinstating it in 1939, one prisoner was executed; after abolished by United States Supreme Court, reinstated in 1984, and one person has been executed since); Tennessee Dept. of Correction, "Tennessee Executions,” (2015), available at http://www.tennessee.gov/correction/article/tdoc-tennessee-executions (last visited July 30, 2015) (Tennessee repealed death penalty in 1913; after reinstating it in 1915, multiple prisoners were executed); Death Penalty Information Center, "Washington,” (2015), available at http://www.deathpenaltyinfo.org/washington-1 (last visited July 30, 2015) (Washington repealed death penalty in 1913 and reinstated it in 1919; abolished again in 1975, reinstated in 1981); Washington State Dept. of Corrections, "Persons Executed Since 1904 in Washington State,” (2015), available at http://www.doc.wa.gov/offenderinfo/capitalpunishment/executedlist.asp (last visited July 30, 2015) (listing dates of Washington executions).

The amicus group of legal historians and scholars points out that, in a number of states where the death penalty was temporarily repealed, the death sentences of inmates on death row were commuted at the time of the initial repeal or the repeal was retroactive. While it seems clear that the reinstatement of the death penalty for defendants whose death sentences had previously been commuted by executive action or operation of law would be unlawful as beyond the pale of decency and entirely inconsistent with the fair and orderly administration of justice, among other reasons, in states where there was no commutation and where the repeal was prospective, defendants who had been sentenced to death before repeal could have no reasonable expectation that their death sentences would not be carried out.

2

The defendant also claims that imposing the death penalty on him would violate the eighth amendment because the enactment of P.A. 12–5 eliminated any penological objective for the death penalty. Specifically, he claims that the death penalty no longer has any deterrent effect because the punishment can no longer be imposed and retribution justifies a punishment only if the punishment is imposed uniformly on all defendants who commit a specific type of crime. I would reject this claim for the reasons that I have already discussed in part III of this dissenting opinion.

B

I next address the defendant's claim that imposing the death penalty on him after the enactment of P.A. 12–5 violates article first, §§ 8(a) and 9, of the Connecticut constitution. As I have indicated, the majority has addressed this question, but on broader grounds than the sole ground raised by the defendant. Specifically, the defendant contends that "the basic mores of society in Connecticut today, as evidenced by passage of [P.A. 12–5 ], should be this court's primary consideration when determining whether an execution in the state today” would violate the state constitution. (Emphasis added; internal quotation marks omitted.) For all of the reasons that I disagree with the majority's broader conclusion that the death penalty violates these provisions of the state constitution, however; see part III of this dissenting opinion; I would also reject this narrower claim.

I note, however, that, in addition to the arguments that I have previously addressed, the defendant also points out that the legislative history of P.A. 12–5 reveals that, when the legislators "had the opportunity to vote for an amendment that would 'send a message’ that carrying out existing death sentences took priority over abolishing capital punishment, a majority of them chose instead to send the message that abolition was their paramount goal.” Specifically, he points out that legislators in both the House of Representatives and in the Senate introduced unsuccessful amendments to the proposed legislation that would have rescinded the repeal if the death sentence of any of the eleven prisoners then on death row were invalidated by the courts as the result of the passage of the proposed legislation. See Substitute Senate Bill No. 280, House Amendment, Schedule A, LCO No. 3120, 2012 Sess., offered by Representatives Lawrence F. Cafero, Jr., and John W. Hetherington; id., Senate Schedule D, LCO No. 3058, offered by Senators John McKinney and Leonard A. Fasano. The amendment was voted down in both chambers. See 55 H.R. Proc., supra, at p. 1066; 55 S. Proc., supra, at pp. 669–70. The defendant contends that the failure to adopt this amendment shows that the legislature's primary purpose in enacting P.A. 12–5 was to eliminate a penalty that it no longer believes comports with contemporary standards of decency.

The defendant, however, has cherry picked the portions of the legislative history that support his position and simply ignores the portion of the legislative history that shows that a number of legislators believed that, if a death sentence were found to be unconstitutional as the result of the passage of P.A. 12–5, the death penalty would be reinstated for all defendants. In the House of Representatives, one legislator argued that the amendment would not affect the substance of the bill, but simply would make the legislature's intent abundantly clear to the courts and prevent them from "making law.” 55 H.R. Proc., supra, at p. 1064, remarks of Representative Pamela Z. Sawyer; id. ("When we look at the courts and the expectations that we have of them, it is to evaluate a question of law. We ... particularly get rankled if we think that they are making law.... That's why this amendment is very important because it's very clear to the courts when they make their determination what will happen.”). Thus, Representative Sawyer contended that the amendment should be adopted under a "belt and suspenders” rationale, and that, even without it, the intent of the legislature was that the death penalty would be reinstated if the proposed legislation were invalidated. Similarly, in the Senate, a legislator who opposed the death penalty argued against adopting the amendment on the ground that it was unnecessary because, if the courts found any portion of the proposed legislation to be unconstitutional, the entire act would be voided, resulting in the reinstatement of the death penalty. See 55 S. Proc., supra, at p. 667, remarks of Senator Eric D. Coleman ("[E]ven assuming that [the proposed legislation would be found unconstitutional], I don't know what else would happen except that the people that are on death row would remain on death row and the bill as amended, if it were to become law, would be voided. And consequently ... I just don't think that it's something that's necessary to adopt.”); see also id., at p. 668, remarks of Senator Fasano ("I guess I look at [the amendment] as a spare tire in your trunk. You may not need it. But if it is unconstitutional, you have it. And you've protected the intent of the [l]egislature, which is not, clearly not to let the [eleven prisoners] currently on death row to get a different sentence.”).

In any event, as the defendant concedes, the legislature clearly intended that the repeal of the death penalty would be prospective only and that the statutory savings clauses would operate to preserve the death penalty for defendants who committed their crimes before the repeal. Accordingly, even if I were to assume that the legislature preferred that, if the different treatment of defendants who committed their crimes before the repeal were found to be unconstitutional, the death penalty would be struck down in its entirety—a preference for which there is no evidence in the legislative history—that would not reflect a belief that the death penalty is immoral. Rather, in light of the fact that there were not enough votes in the legislature to repeal the death penalty retroactively, it would be just as reasonable to conclude that the legislature believed only that, if prospective repeal were not an option, the practical costs of imposing the death penalty on future defendants would outweigh the penologically legitimate benefitsof imposing the death penalty on those already on death row. Accordingly, I would reject the defendant's claim that the enactment of P.A. 12–5 and the legislative history of the act reflect a societal consensus against the death penalty.

In support of his conclusion that P.A. 12–5 violates the constitutional prohibition on cruel and unusual punishment, Justice Eveleigh, in his concurring opinion, relies on Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989), Cooper v. State, 540 N.E.2d 1216, 1220 (Ind.1989), State v. Bey, 112 N.J. 45, 98, 548 A.2d 846 (1988), and Van Tran v. State, 66 S.W.3d 790, 811 (Tenn.2001). Justice Eveleigh states conclusorily that, contrary to my conclusion, these cases "were not all solely grounded on the fact that the legislative enactments addressed offenders who, in general, are less culpable than the average adult offender.... Rather, these decisions aptly highlighted the fundamental unfairness inherent in executing a defendant when, due to a legislative enactment either prospectively repealing the death penalty or substantially altering the way in which the death penalty may be imposed in the future, that defendant would not have been eligible for the death penalty if he or she had been sentenced after the enactment took effect.” Justice Eveleigh has not cited a single case, however, in which a court has concluded that a legislative classification that is based on the date of the offense alone, and that does not implicate the culpability of a class of offenders or the seriousness of a class of offenses, violates any constitutional provision. Moreover, even if the cases relied on by Justice Eveleigh supported the proposition that a classification based on the date of the offense in and of itself violates the eighth amendment, I would disagree with them. It would necessarily follow from such a conclusion that: (1) although the death penalty was constitutional when imposed on the defendants who are on death row in this state, it became unconstitutional upon the enactment of P.A. 12–5; and (2) if the legislature decided to repeal P.A. 12–5 and to reinstate the death penalty, the death sentences for those defendants would no longer be cruel and unusual punishment. I fail to see how a death sentence that was constitutional when imposed on a class of offenders could become cruel and unusual punishment merely because the legislature has determined for legitimate reasons that it will not seek the death penalty for another class of defendants who also may constitutionally be subject to the death penalty. None of the concerns underlying traditional eighth amendment jurisprudence are implicated under these circumstances. Moreover, it would be absurd to conclude that it is unconstitutional to impose the death penalty on offenders who committed their offenses before the effective date of P.A. 12–5, but that imposing the death penalty on those offenders could be rendered constitutional by repealing the act and imposing the death penalty on another class of offenders, namely, those who commit crimes after April 25, 2012.

In the cases relied on by Justice Eveleigh, the defendants challenging the prospective repeals were in different classes for equal protection purposes, i.e., those who committed crimes before repeal and those who committed crimes after repeal, and in the same class for eighth amendment purposes, i.e., defendants whose reduced culpability makes the death penalty inappropriate. Under such circumstances, eighth amendment concerns trump equal protection principles. In the present case, the same analysis applies, with the difference that, for eighth amendment purposes, all defendants are in the class for whom the death penalty constitutionally may be imposed. Accordingly, equal protection principles, not eighth amendment principles, apply.

Implicitly recognizing the weakness of the defendant's argument that the legislative classification created by P.A. 12–5, in and of itself, renders the act unconstitutional, Justice Eveleigh ultimately is required to rely on the proposition that the legislature has declared "that the death penalty is no longer an acceptable punishment for any crime committed today.” (Emphasis in original.) Accordingly, he concludes that "the question is not whether Connecticut may create an exception to an otherwise acceptable punishment, but whether Connecticut may inflict an otherwise unacceptable punishment on the defendant.” (Emphasis added.) It is clear, therefore, that Justice Eveleigh does not believe that the different treatment of defendants who commit similar crimes renders P.A. 12–5 unconstitutional; rather, his entire analysis is driven by his newfound belief that the death penalty is unconstitutional in this state because it no longer comports with contemporary standards of decency—a view that is hard to reconcile with the view that Justice Eveleigh previously has taken in this very case. See State v. Santiago, supra, 305 Conn. at 307, 49 A.3d 566 (rejecting defendant's claim that death penalty is unconstitutional under state constitution). As I have indicated repeatedly, however, the legislative history of P.A. 12–5 supports the conclusion that the legislature has not determined that the death penalty is an unacceptable punishment. Rather, the legislature has determined only that, even though defendants who commit murder with special circumstances after the effective date of the act are equally as culpable as those who committed capital offenses before the effective date, and are equally deserving of the death penalty, the costs of seeking the death penalty are no longer tolerable. Accordingly, contrary to Justice Eveleigh's opinion, the question that this court must answer is precisely whether our legislature "may create an exception to an otherwise acceptable punishment” for defendants who committed their crimes after the effective date of the act on the ground that the death penalty is no longer workable, and not "whether [it] may inflict an otherwise unacceptable punishment on the defendant.” As long as the exception satisfies equal protection principles—which I conclude in part VIII of this dissenting opinion that it does—I would conclude that the answer to that question is "yes.”

Justice Eveleigh's contention that "no lawmaker articulated a legitimate or moral rationale for conditioning death upon the date of the offense” is simply incorrect. The legislative history of P.A. 12–5 is replete with evidence that many of the legislators who voted for prospective repeal had concluded that the death penalty has simply become unworkable, which is clearly a legitimate rationale. See footnote 19 of this dissenting opinion.

VIII

I next address the defendant's claim that imposing the death penalty on him would violate the equal protection clauses of the state and federal constitutions. I disagree.

A

I first address the defendant's claim under the federal constitution. "To prevail on an equal protection claim, a plaintiff first must establish that the state is affording different treatment to similarly situated groups of individuals.... [I]t is only after this threshold requirement is met that the court will consider whether the statute survives scrutiny under the equal protection clause.” (Citation omitted; internal quotation marks omitted.) Keane v. Fischetti, 300 Conn. 395, 403, 13 A.3d 1089 (2011) ; see also State v. Higgins, supra, 265 Conn. at 65 n. 27, 826 A.2d 1126 ("[t]he analytical predicate [for consideration of an equal protection claim] is a determination of whether the allegedly disparately treated groups are similarly situated” [internal quotation marks omitted] ).

The equal protection clause of the fourteenth amendment to the United States constitution provides in relevant part: "No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., amend. XIV, § 1.

In Dortch v. State, 142 Conn. 18, 27–28, 110 A.2d 471 (1954), the defendant, who had been convicted of first degree murder and sentenced to death, claimed that an amendment to the state's capital sentencing scheme that was enacted after he committed his crime and that, for the first time, allowed the jury to recommend "imprisonment for life without pardon” as a punishment for first degree murder, must apply to him under constitutional equal protection principles. This court concluded that, as a matter of statutory interpretation, the statute was not retroactive because of the operation of the statutory savings provisions set forth in General Statutes (1949 Rev.) §§ 8872 and 8890, now codified as, respectively, General Statutes §§ 54–194 and 1–1(t). Id., at 29, 110 A.2d 471. The court then concluded that, "[a]s the law now stands, the penalty for all first degree murders committed prior to October 1, 1951, is death; for all first degree murders committed thereafter, the penalty is either death or life imprisonment. It follows that the plaintiff is being treated in exactly the same manner as all others who committed murder in the first degree prior to October 1, 1951.” Id., at 30, 110 A.2d 471. Thus, this court implicitly held that the defendant was not similarly situated to defendants who committed first degree murder after October 1, 1951. See also Comerford v. Commonwealth, 233 F.2d 294, 295 (1st Cir.) (Disparate treatment of prisoners "might arise when a legislature prospectively reduced the maximum penalty for a crime, for then a prisoner sentenced to the maximum penalty before the effective date of the act would serve a longer [term of] imprisonment than one sentenced to the maximum term thereafter. Yet we are not aware of any violation of the constitutional rights of either group of prisoners in that situation ... provided ... that all prisoners in each group are treated alike....”), cert. denied, 352 U.S. 899, 77 S.Ct. 141, 1 L.Ed.2d 90 (1956) ; People v. Brown, 54 Cal.4th 314, 329, 278 P.3d 1182, 142 Cal.Rptr.3d 824 (2012) ("inmates [are] only similarly situated with respect to the purpose of [the new law] on [its effective date], when they were all aware that it was in effect and could choose to modify their behavior accordingly” [internal quotation marks omitted] ); People v. Floyd, supra, 31 Cal.4th at 189–90, 1 Cal.Rptr.3d 885, 72 P.3d 820 (citing cases); People v. Grant, 71 Ill.2d 551, 561, 17 Ill.Dec. 814, 377 N.E.2d 4 (1978) ("[T]he ability to elect to be sentenced under a law enacted after the date of the commission of a crime is not a constitutional right but a benefit conferred solely by statute. It is not unconstitutional for the legislature to confer such benefit only prospectively, neither is it unconstitutional for the legislature to specify a classification between groups differently situated, so long as a reasonable basis for the distinction exists.” [Internal quotation marks omitted.] ); Rondon v. State, 711 N.E.2d 506, 513 (Ind.1999) ( "Criminal statutes apply exclusively to one class of people, those who violate the law, and they relate to the specific point in time that a violation occurs. Upon alteration of the criminal law, individuals subsequently convicted are not similarly situated and cannot be equated to those previously convicted.” [Internal quotation marks omitted.] ); State v. Roseborough, 263 Kan. 378, 386, 951 P.2d 532 (1997) ("[a]s long as [the defendant] is treated the same as other offenders who were sentenced under the applicable law in effect at the time they committed their crimes, there is no constitutional violation”); Sonnier v. State, 913 S.W.2d 511, 520–21 (Tex.Crim.App.1995) ( "appellant was treated in the same manner as all those who committed a capital murder after September 1, 1991; that is, he is treated the same as all those 'similarly situated’ ”); cf. Meeks v. Jago, 548 F.2d 134, 138 (6th Cir.1976) (defendant "was not denied [e]qual [p]rotection of the [l]aws or [d]ue [p]rocess of [l]aw as long as sentence was imposed according to the statute applicable at the time of sentence”), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977) ; State v. Ferrell, 126 Ariz. 1, 2, 612 P.2d 52 (1980) (applying more severe law in force at time defendant committed offense does not deny equal protection of law); cf. Dobbert v. Florida, 432 U.S. 282, 301, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) (defendant who was sentenced to death under statute enacted after he committed crime was not similarly situated to defendants who were sentenced to death before effective date of new statute and had sentences commuted). It is clear, therefore, that, under Dortch and the great weight of authority from other jurisdictions, the defendant in the present case is not similarly situated to defendants who commit similarly egregious crimes after the effective date of P.A. 12–5.Moreover, even if I were to assume that the defendant is similarly situated to defendants who committed their crimes after the effective date of P.A. 12–5, he has not established beyond a reasonable doubt that imposing the death penalty on him would constitute a denial of the equal protection of the laws under the federal constitution. First, when a person is on notice that a specific crime is punishable by a specific penalty, and the person chooses to commit that crime, there simply is nothing unfair about imposing the penalty in effect at the time of the offense; State v. Kane, 101 Wash.App. 607, 618, 5 P.3d 741 (2000) ("there is nothing fundamentally unfair in sentencing offenders in accordance with the law they presumably were aware of at the time they committed their offenses”); at least when the law imposes the penalty in effect at the time of the offense on all persons who commit similar offenses during the same period, which P.A. 12–5 does; see part V of this dissenting opinion; and the law in effect at the time of the offense is not otherwise unconstitutional. In other words, even if I were to assume that defendants who violate a statutory scheme that is later amended or repealed are similarly situated to defendants who engage in the same conduct after amendment or repeal, when all defendants are subject to the law in effect at the time of their crimes, all are being treated the same. See United States v. Santana, 761 F.Supp.2d 131, 162 (S.D.N.Y.2011) ("[T]he result of prospective application of the [Fair Sentencing Act of 2010, Pub.L. No. 111–220, 124 Stat. 2372 (2010) ] is ... that similarly situated defendants will be treated similarly.... All those who committed their offenses before the enactment of [that act] will be sentenced according to the statutory scheme in place at the time the offenses were committed, while all those who commit crack-related offenses after [the effective date] will be subject to the [Fair Sentencing Act of 2010].” [Citation omitted.] ).Second, even if I were to assume that P.A. 12–5 does not treat all defendants the same because it imposes a different penalty depending on the date of the crime, it is well established that "a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. ... The test ... is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis.... Further, the [e]qual [p]rotection [c]lause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification.” (Footnote added; internal quotation marks omitted.) Harris v. Commissioner of Correction, 271 Conn. 808, 834, 860 A.2d 715 (2004) ; see also State v. Higgins, supra, 265 Conn. at 68, 826 A.2d 1126 ("When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.... [I]n every instance where a line must be drawn or a cutoff established there are those who fall directly on either side.... [W]e cannot, for this reason, find the [legislation] unreasonable in its purpose and overall effect.... If a conceivable rational basis exists for the distinction, then the classification passes constitutional muster.” [Citation omitted; internal quotation marks omitted.] ).I would conclude that there is a legitimate rational basis for the classification created by P.A. 12–5. As I have indicated, with respect to defendants who committed their crimes before the effective date of P.A. 12–5, the legislature reasonably could have concluded that its refusal to enforce the laws in place when the crime was committed would send the message to potential offenders that the laws are unstable and that the state ultimately may be unwilling to enforce them, thereby weakening their force. See People v. Floyd, supra, 31 Cal.4th at 191, 1 Cal.Rptr.3d 885, 72 P.3d 820. In addition, the legislature reasonably could have concluded that, because the defendants on death row already have been subject to many of the expensive, time-consuming and emotionally wrenching procedures that the prospective repeal was intended to avoid, those societal costs do not outweigh the deterrent and retributive benefits of imposing the death penalty on these defendants. Cf. id., at 189–90, 1 Cal.Rptr.3d 885, 72 P.3d 820 (citing cases for proposition that "[a] reduction of sentences only prospectively from the date a new sentencing statute takes effect is not a denial of equal protection” [internal quotation marks omitted] ); People v. Grant, supra, 71 Ill.2d at 561–62, 17 Ill.Dec. 814, 377 N.E.2d 4 ("[T]he legislature distinguished between those defendants, on the one hand, who had not yet been accorded any sentencing hearings prior to the cut-off date, and those, on the other hand, whose sentences, already imposed, would require remandments for additional sentencing hearings. We find this to be a reasonable basis for distinction and, therefore, no constitutional denial of equal protection.”); see also State v. Higgins, supra, 265 Conn. at 69, 826 A.2d 1126 (rejecting defendant's claim that statute authorizing death penalty for murder of child under age of sixteen years violated equal protection principles because legislature could have defined protected class in any number of ways). Finally, as I previously have explained in part III of this dissenting opinion, the legislature rationally could have believed that its decision not to repeal the death penalty retroactively was justified by the legitimate expectations of the families of the victims of the capital felonies that were committed before the enactment of P.A. 12–5 who already have been subjected to the trauma of capital felony litigation.

In Dortch, the court did not specify whether the defendant raised his claim under the federal constitution, under the state constitution or under both. Presumably, however, he did not raise the claim solely under the state constitution.

The defendant in the present case contends that Dortch is distinguishable because it involved "a mere procedural change in our state's capital punishment scheme,” while the question in the present case is whether the defendant "is similarly situated to defendants who are ineligible for the death penalty because of the fortuitous date of their offense.” If the "mere procedural change” had applied to the defendant in Dortch, however, he might have been sentenced to life in prison instead of to death, and he was deprived of that beneficial opportunity merely because of the "fortuitous” date of his offense. Accordingly, I would reject this claim.

The defendant also points out that the defendant in Dortch ultimately was not executed because the state Pardons Board commuted his sentence. See G. Demeusy, "Chair Claims 13th Victim As W.J. Lorain is Executed: Sentence of [George M. Dortch, Jr.] Commuted: Pardons Board Gives Him Life,” Hartford Courant, July 12, 1955, p. 1. The defendant contends that this fact reveals "a societal judgment that it would be inappropriate to execute someone who has been arbitrarily denied the benefit of a potentially lifesaving law based solely on an arbitrary effective date.” The reasons for the commutation of the sentence of the defendant in Dortch, however, are unclear. Although the attorney for the defendant in that case argued before the Pardons Board that the defendant should have been given the benefit of the new statute, he also made other arguments in support of commutation. G. Demeusy, supra, at p. 5. In any event, the actions of the Pardons Board in 1955 reveal little about contemporary societal norms. Finally, the fact that the legislature has delegated to the Board of Pardons and Parole the authority to commute the defendant's death sentence if it finds that that sentence would be unduly harsh in light of the enactment of P.A. 12–5 does not mean that this court has the authority to ignore the clear legislative intent that the act not be applied retroactively.



In Dobbert v. Florida, supra, 432 U.S. at 288, 97 S.Ct. 2290 the defendant committed certain capital offenses in violation of Florida's capital sentencing scheme. After he committed the offenses, but before he was tried and sentenced, the United States Supreme Court held in Furman v. Georgia, supra, 408 U.S. at 239–40, 92 S.Ct. 2726 that capital sentencing schemes like Florida's were unconstitutional. Dobbert v. Florida, supra, at 288, 97 S.Ct. 2290. Thereafter, the Florida Supreme Court resentenced all prisoners who had been sentenced to death before the decision in Furman to life imprisonment. Id., at 301, 92 S.Ct. 2726 ; see also Donaldson v. Sack, 265 So.2d 499, 505 and n. 10 (Fla.1972) (Florida court commuted death sentences pursuant to statute providing that, if death penalty should be held unconstitutional, "the court having jurisdiction over a person previously sentenced to death for a capital felony shall cause such person to be brought before the court, and the court shall sentence such person to life imprisonment with no eligibility for parole” [internal quotation marks omitted] ). The Florida legislature enacted a new capital sentencing scheme, under which the defendant was tried, convicted and sentenced to death. Dobbert v. Florida, supra, at 287, 97 S.Ct. 2290. The defendant in Dobbert contended on appeal to the United States Supreme Court that, because the Florida Supreme Court had resentenced all prisoners who had already been sentenced to death when the unconstitutional statute was invalidated to life imprisonment, the imposition of the death sentence on him pursuant to the new statute denied him the equal protection of the laws. Id., at 301, 97 S.Ct. 2290. The United States Supreme Court concluded that the defendant was "simply not similarly situated” to those defendants whose sentences had been commuted, because "[h]e was neither tried nor sentenced prior to Furman, as were they....” Id. Thus, the court held that, because of the date of his sentencing, the defendant was not similarly situated to other defendants who had committed offenses while the invalidated statute was in effect.

Dobbert is not inconsistent with the holding of this court in Dortch that defendants who commit crimes during the period that a particular capital sentencing scheme is in effect are similarly situated to each other but not to defendants who commit crimes under a subsequently enacted prospective scheme. See Dortch v. State, supra, 142 Conn. at 30, 110 A.2d 471. Dortch, like the present case, involved legislative line drawing between two constitutionally permissible approaches, while Dobbert involved the judicial invalidation of a statute as unconstitutional and the subsequent enactment of a constitutional statute. In the latter situation, any statutory savings provision would not apply (because it obviously could not preserve the application of an unconstitutional statute and, in any event, the unconstitutional statute was not rendered inoperative by legislative repeal), and the court in Dobbert merely concluded that neither the equal protection clause nor the ex post facto clause barred the application of a later enacted, constitutional statute to a defendant who committed a crime while the unconstitutional statute was in force, in accordance with the presumptive desire of the legislature, as long as the new law was not more onerous than the old one and the defendant was on notice at the time of the crime that his conduct would subject him to the penalty imposed. Dobbert v. Florida, supra, 432 U.S. at 296–97, 97 S.Ct. 2290. Thus, the United States Supreme Court was not troubled by the fact that defendants who committed similarly egregious crimes during the period that a particular death penalty statute was in force, but who were not similarly situated under state law because of the fortuity that their sentences were imposed on different dates, were treated very differently. I can perceive no reason why the court would be more troubled by different treatment of defendants based on differences in the laws in effect on the dates that they committed their crimes.



The defendant contends that, because the imposition of the death penalty on him implicates his fundamental right to life, the statutory classification created by P.A. 12–5 is subject to strict scrutiny. This court repeatedly has rejected similar claims. For example, the defendant in State v. Wright, 246 Conn. 132, 140–41, 716 A.2d 870 (1998), argued that "the right to be free from deprivations of liberty as a result of arbitrary sentences is fundamental, and therefore the statutory provision at issue may be upheld only if the [g]overnment has a compelling interest in the classification in question.” (Internal quotation marks omitted.) This court observed that "[t]he Supreme Court in Chapman [v. United States, 500 U.S. 453, 465, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ] rejected that claim ... stating: [W]e have never subjected the criminal process to this sort of truncated analysis, and we decline to do so now. Every person has a fundamental right to liberty in the sense that the [g]overnment may not punish him unless and until it proves his guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees.... But a person who has been so convicted is eligible for, and the court may impose, whatever punishment is authorized by statute for his offense, so long as that penalty is not cruel and unusual ... and so long as the penalty is not based on an arbitrary distinction.... As an interpretation of the federal constitution by the United States Supreme Court, this holding necessarily governs the defendant's federal constitutional claim. We therefore conclude that rational basis analysis governs the defendant's claim.” (Footnote omitted; internal quotation marks omitted.) State v. Wright, supra, at 140–41, 716 A.2d 870 ; see also State v. Higgins, supra, 265 Conn. at 66, 826 A.2d 1126 (legislature's choice of punishment for criminal offense is not subject to strict scrutiny merely because it implicates defendant's fundamental liberty interest). This reasoning applies equally to the defendant's claim in the present case. See Styron v. Johnson, 262 F.3d 438, 452 (5th Cir.2001) ("[E]qual protection clauses do not require a higher level of scrutiny for legislative classifications that may result in the death penalty. Thus, [the petitioner's] claims are to be assessed under a rational basis test.” [Internal quotation marks omitted.] ), cert. denied sub nom. Styron v. Cockrell, 534 U.S. 1163, 122 S.Ct. 1175, 152 L.Ed.2d 118 (2002) ; Henderson v. State, 962 S.W.2d 544, 561 (Tex.Crim.App.1997) (rejecting defendant's claim that court must apply strict scrutiny to legislative classification governing eligibility for death penalty and applying rational basis test to statute); Gray v. Commonwealth, 274 Va. 290, 307, 645 S.E.2d 448 (2007) (applying rational basis review to equal protection claim when defendant "was unable to cite, nor do we find, any capital murder case from any court that applied strict scrutiny review to an equal protection claim made by a convicted capital murder defendant facing a death sentence”), cert. denied, 552 U.S. 1151, 128 S.Ct. 1111, 169 L.Ed.2d 826 (2008).

I recognize that there may be capital offenses that were committed before the effective date of P.A. 12–5 that have not yet been discovered or prosecuted. If so, the persons who committed those offenses could be subject to a capital sentencing scheme that the legislature has deemed problematic. If such offenses were committed, however, their number is presumably very small.

Indeed, the defendant has not cited, and my research has not revealed, a single case in which a court has held that, when the legislature amends a criminal statute to impose a less severe punishment, its failure to make the new punishment retroactive violates equal protection principles under any theory. Accordingly, I would

The defendant cites Saylor v. Indiana, 808 N.E.2d 646 (Ind.2004), for the proposition that ameliorative changes to capital sentencing laws must be applied retroactively. In Saylor, the defendant was tried, convicted and sentenced to death in 1992 under a state law that authorized the trial judge to override a jury recommendation against the death penalty. Id., at 650–51. The jury rendered a unanimous recommendation against the death penalty, the trial judge overrode that recommendation, and the defendant's death sentence was affirmed on appeal to the Supreme Court of Indiana. Id., at 648. Thereafter, the United States Supreme Court, in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), held that a jury must find any fact necessary to impose a death sentence. Saylor v. Indiana, supra, at 648. The Indiana legislature then amended the death penalty statute to remove the judicial override provision for future cases. The defendant sought a rehearing, claiming that the new statute required the reversal of his death sentence. Id. The Supreme Court of Indiana declined to decide whether the new statute applied retroactively to cases on collateral review under Teague v. Lane, 489 U.S. 288, 311, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), which held that a newly announced constitutional rule involving "watershed rules of criminal procedure” implicating the fundamental fairness of a trial applied retroactively to cases on collateral review. Saylor v. Indiana, supra, at 649. Instead, it held pursuant to an Indiana rule of appellate procedure that allows reviewing courts to revise a sentence if the sentence was "inappropriate” that the defendant's death sentence was inappropriate because, "[e]ven if the [s]ixth [a]mendment does not bar [the defendant's] execution ... as a matter of Indiana state law [the defendant], if tried today, could not be sentenced to death without a jury recommendation that death be imposed.” Id., at 650. This conclusion, however, was largely driven by the fact that the sentence was imposed pursuant to a statute that was later held to be unconstitutional. Thus, even if this court had the same authority as the Indiana court to determine whether sentences are "inappropriate,” which we do not, Saylor does not support the proposition that, when a defendant has been sentenced to death under a death penalty statute that would be constitutional under current law and the statute is later amended or repealed, equal protection principles require that the amendment or repeal must apply retroactively.

Hamm v. Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1964), also provides no support for the defendant's position. In that case, the United States Supreme Court held that, "[f]uture state prosecutions [for peaceful attempts to be served in places of public accommodation] being unconstitutional [under the supremacy clause of the United States constitution after the enactment of the federal Civil Rights Act of 1964, 42 U.S.C. § 1981 et seq. ] and there being no saving[s] clause in [that act] itself, convictions for pre-enactment violations would be equally unconstitutional and abatement necessarily follows.” Id., at 315, 85 S.Ct. 384. Thus, the court held that, because Congress had no intent to allow prosecutions for violations of state laws that conflicted with the Civil Rights Act of 1964 prior to the enactment of that act, such prosecutions were unconstitutional under the supremacy clause. Hamm does not support the proposition that a state legislature's refusal to repeal the state's own criminal law retroactively violates the equal protection clause when the law prior to the repeal was constitutional. Indeed, in Bell v. Maryland, 378 U.S. 226, 242, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964), the United States Supreme Court remanded a case to state court for a determination as to whether a state savings clause operated to protect convictions that had been obtained under a trespassing law that was later repealed by the state legislature, without reaching the question of whether the convictions violated the equal protection clause because the state trespassing law discriminated against the defendants on the basis of their race. As the defendant acknowledges, the Court of Appeals of Maryland concluded that Maryland's statutory savings provisions applied to the repeal of the trespassing law and affirmed the convictions under review in Bell, but subsequently granted a rehearing and reversed the convictions, presumably as the result of the United States Supreme Court's intervening decision in Hamm, which was issued on December 14, 1964. Hamm v. Rock Hill, supra, at 306, 85 S.Ct. 384 ; Bell v. State, 236 Md. 356, 369, 204 A.2d 54 (1964) (concluding in decision issued on October, 22, 1964, that savings provision applied to repeal of trespassing law and prosecutions were not barred by Civil Rights Act of 1964 because federal act was not retroactive); Bell v. State, supra, at 356, 204 A.2d 54 (rehearing was granted on December 7, 1964, and convictions were reversed on April 9, 1965).



reject the defendant's claim that P.A. 12–5 violates the equal protection clause of the federal constitution.

B

I next consider the defendant's claim that imposing the death penalty on him would violate his right to equal protection of the laws under article first, § 1, of the Connecticut constitution. The defendant contends that the fourth, fifth and sixth Geisler factors support this claim. See State v. Rizzo, supra, 303 Conn. at 136, 31 A.3d 1094 (under Geisler, courts may consider "[4] related Connecticut precedents; [5] persuasive precedents of other state courts; and [6] ... relevant public policies” [internal quotation marks omitted] ).

Article first, § 1, of the Connecticut constitution provides: "All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

The defendant states conclusorily that, under the second Geisler factor, the text of article first, § 1, of the state constitution supports his claim, but does not explain why. See State v. Rizzo, supra, 303 Conn. at 134, 31 A.3d 1094 (second Geisler factor is text of operative constitutional provisions). Accordingly, I decline to consider this claim. See State v. T.R.D., 286 Conn. 191, 213–14 n. 18, 942 A.2d 1000 (2008) (claim not considered because it was inadequately briefed). The defendant makes no claim that the first or third Geisler factors support his claim. See State v. Rizzo, supra, at 136, 31 A.3d 1094 (Geisler factors include "[1] persuasive relevant federal precedents ... [and] [3] historical insights into the intent of our constitutional forebears” [internal quotation marks omitted] ).

With respect to the fourth Geisler factor, this court's precedents, the defendant relies on this court's decisions in State v. Conlon, 65 Conn. 478, 33 A. 519 (1895), and Tough v. Ives, 162 Conn. 274, 294 A.2d 67 (1972). In Conlon, this court held that a statute that conferred on mayors within this state "[t]he unrestrained power of selecting the favored recipients of a license” to engage in a temporary business for the sale of goods in their respective cities; State v. Conlon, supra, at 487, 33 A. 519 ; violated article first, § 1, of the Connecticut constitution. Id., at 491, 33 A. 519. This conclusion rested largely on the fact that the purpose of the statute was "to grant exclusive privileges to such persons as [the mayors] please in the transaction of a lawful business essential to the conduct of human affairs, and in which each citizen has an equal right to engage for the support of life,” with "absolutely no legal test and no indication of who may be a 'proper person.’ ” Id., at 488, 33 A. 519 ; see also id. (purpose of statute was "to authorize the mayor to permit or forbid the transaction of an ordinary lawful business at his pleasure”). No such unrestrained government discretion, however, is at issue in the present case. Accordingly, I would conclude that the defendant's reliance on Conlon is misplaced.

The defendant relies on Tough v. Ives, supra, 162 Conn. at 293, 294 A.2d 67, for the proposition that, under article first, § 1, of the state constitution, legislative "classifications must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched.” The defendant, however, provides no analysis and cites no authority to support the proposition that this standard is stricter than the standard that we apply under the federal constitution. See Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986) (under federal constitution, classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation” [internal quotation marks omitted] ).

With respect to the fifth Geisler factor, precedents of other states, the defendant relies on People v. Canister, 110 P.3d 380 (Colo.2005), and People v. Hagos, 110 P.3d 1290 (Colo.2005). In People v. Canister, supra, at 381, the defendant, Randy Canister, was charged with offenses that made him eligible for the death penalty. During his trial, the United States Supreme Court held that state capital sentencing schemes like the one in effect in Colorado were unconstitutional. Id. Thereafter, Canister was convicted of the offenses. Id., at 382. Within days of his conviction, the Colorado legislature passed a law providing that all defendants (1) for whom the prosecution, as of the effective date of the law, had announced it was seeking the death penalty, (2) who had been convicted of the offense that made them eligible for the death penalty, and (3) who had not yet had a sentencing hearing, would be subject to a new sentencing procedure that complied with the constitution. Id., at 381–82. The only defendants in this category were Canister, and the defendant in Hagos, Abraham Hagos. Id., at 382. The trial court in Canister concluded that the application of the newly enacted death penalty law to Canister violated the Colorado constitution's prohibition on special legislation. Id. On appeal, the Supreme Court of Colorado concluded that, because "it [was] absolutely certain that no one, other than Canister and Hagos, will ever meet the statutory criteria set forth” in the resentencing law; (emphasis in original) id., at 385 ; the classification created by the law was "illusory” and irrational and, therefore, violated the constitutional prohibition against special legislation. Id.; see also People v. Hagos, supra, at 1291 (same).

Thus, the resentencing law in Canister did not apply to defendants who had committed a capital felony before the effective date of the statute and who had not yet been apprehended or charged as of that date, or to defendants who had already been sentenced to death under the invalidated death penalty statute.

The relevant constitutional provision provided: "[T]he general assembly shall not pass local or special laws in any of the following enumerated cases ... regulating the practice in the courts of justice ... [or] summoning or impaneling grand or petit juries.... In all other cases, where a general law can be made applicable, no special law shall be enacted.” (Internal quotation marks omitted.) People v. Canister, supra, 110 P.3d at 382.

Unlike in Canister and Hagos, however, the class of persons subject to the death penalty under P.A. 12–5 is not limited to the defendant or even to those defendants who have already been charged and convicted of capital offenses in this state. Rather, the class includes all persons who committed crimes subjecting them to the death penalty in this state before the effective date of P.A. 12–5, including all of those who have already been sentenced to death and those who may be charged in the future with having committed such a crime before April 25, 2012. Accordingly, even if I were to assume that article first, § 1, of our state constitution operates similarly to the "special laws” provision of the Colorado constitution, unlike the law at issue in Canister and Hagos, P.A. 12–5 does not limit the application of the death penalty to a class of identifiable individuals or to a subset of all individuals who committed crimes before the effective date of P.A. 12–5. Accordingly, I would reject this claim.

See State v. Carbone, supra, 172 Conn. at 255–56, 374 A.2d 215 (when criminal statute was repealed after defendants violated it but before they were charged, "defendants were liable to prosecution [under the repealed statute] at the date of the repeal [and] § 54–194 preserves that liability”).

Finally, with respect to the sixth Geisler factor, public policy considerations, the defendant states conclusorily that the lack of appellate cases involving the application of article first, § 1, of the Connecticut constitution "has been ascribed to an admirable history of legislative restraint”; see State v. Conlon, supra, 65 Conn. at 491, 33 A. 519 ("[o]ur legislation affecting any important interest has been so generally confined within the clear lines of legislative power, that there has been no occasion to apply the limitations of the first section of the Bill of Rights”); and that the classification created by P.A. 12–5 is inconsistent with this history. For the reasons previously set forth in this dissenting opinion, I disagree. Accordingly, I would conclude that imposing the death sentence on the defendant would not violate article first, § 1, of the Connecticut constitution.

IX

The defendant next claims that imposing the death sentence on him would violate substantive due process principles. Specifically, he contends that P.A. 12–5 implicateshis fundamental life interest, and the substantive due process guarantee of the fourteenth amendment "forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” (Emphasis in original; internal quotation marks omitted.) Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). For the same reason that I concluded in part VIII A of this dissenting opinion that P.A. 12–5 is not subject to strict scrutiny under equal protection principles, but is subject to rational basis review; see footnote 93 of this dissenting opinion; I would conclude that P.A. 12–5 is not subject to strict scrutiny under substantive due process principles, but is subject to rational basis review. See Ramos v. Vernon, 254 Conn. 799, 840–41, 761 A.2d 705 (2000) (rational basis review applies to substantive due process claims when fundamental right is not at issue). I concluded in part VIII of this dissenting opinion that there is a rational basis for the prospective repeal of the death penalty. Accordingly, I would reject this claim.

X

I next address the defendant's claim that P.A. 12–5 is an impermissible bill of attainder under article one, § 10, of the United States constitution. "Bills of attainder are legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial tri al.... The bill of attainder clause was intended to implement the separation of powers, acting as a general safeguard against legislative exercise of the judicial function.... A bill of attainder has three requirements, i.e., specification of the affected persons, punishment, and lack of a judicial trial.” (Citations omitted; internal quotation marks omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 578–79, 964 A.2d 1213 (2009). I have concluded in part VIII of this dissenting opinion that P.A. 12–5 does not apply to named individuals or to easily ascertainable members of a group because it applies to all persons who committed a capital felony before the effective date of the legislation, and the defendant will not be punished without a trial. Accordingly, I would conclude that P.A. 12–5 is not a bill of attainder.

Article one, § 10, of the constitution of the United States provides in relevant part: "No State shall ... pass any Bill of Attainder....”

XI

I next address the defendant's claim that P.A. 12–5 is an impermissible ex post facto law under the federal constitution. "The ex post facto prohibition forbids ... the [s]tates [from] enact[ing] any law [that] imposes a punishment for an act [that] was not punishable at the time it was committed ... or imposes additional punishment to that then prescribed.... Through this prohibition, the [f]ramers [of the constitution] sought to assure that legislative [a]cts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.... [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” (Citation omitted; internal quotation marks omitted.) State v. Courchesne, supra, 296 Conn. at 727, 998 A.2d 1. The defendant contends that "the legislative act of exempting prerepeal cases from its abolition of capital punishment operates as 'additional punishment’ and makes a capital felony committed prior to the effective date 'aggravated in enormity or punishment.’ ” It should go without saying, however, that making a crime punishable under the law that existed at the time it was committed does not violate the ex post facto clause. Accordingly, I would reject this claim.

Article one, § 10, of the constitution of the United States provides in relevant part: "No State shall ... pass any ... ex post facto Law....”

XII

Finally, I address the defendant's claim that imposing the death penalty on him would violate the "clearly warranted by law” clause of article first, § 9, of the Connecticut constitution. Specifically, he claims that, because § 53a–46b (b)(1) prohibits the imposition of the death penalty based on an arbitrary factor, and imposing the death penalty on him is arbitrary, it is not warranted by law. My conclusion in part V of this dissenting opinion that imposing the death penalty on the defendant would not be arbitrary under § 53a–46b (b)(1) disposes of this claim.

XIII

Because I have concluded that P.A. 12–5 is constitutional, I need not resolve the question of whether the act is severable. Nevertheless, because Justice Eveleigh's severability analysis in his concurring opinion is seriously flawed, I briefly address it.

Justice Eveleigh starts from the assumption that the unconstitutional portion of P.A. 12–5 is the portion that makes the abolition of the death penalty prospective only, and concludes that that part may be severed. The basis for Justice Eveleigh's conclusion that the enactment of P.A. 12–5 rendered the death penalty unconstitutional, however, is that the legislative classification created by the act violates the prohibition on cruel and unusual punishment under the federal constitution because it results in disparate treatment of similarly culpable defendants. If that were the case, the statute could be rendered constitutional either by severing the effective date provisions of P.A. 12–5 or by severing the provisions that repeal the death penalty prospectively.

The question of which portion of P.A. 12–5 to sever is a question of legislative intent. Contrary to Justice Eveleigh's conclusion, the legislative history does not unambiguously support the proposition that the legislature preferred severance of the effective date provisions. Indeed, much of the legislative history strongly supports the opposite conclusion. As I have indicated, a number of legislators stated during the debates on the legislation and on the proposed amendment that would have provided for the repeal of the act if any death sentence were invalidated as the result of its enactment that the intent of the legislature was that the death penalty would be reinstated prospectively. Thus, I would conclude that the legislative history of the act is, at best, ambiguous on this point. It simply cannot be known with any level of certainty how the legislators who were adamantly against retroactive repeal, but who were willing to vote for prospective repeal in order to avoid future costs—whose votes were critical for the passage of the act—would have voted if they had known that prospective repeal was not an option. In addition, it does not logically follow from the fact that Chief State's Attorney Kevin Kane opined during hearings before the Judiciary Committee that the act was unconstitutional to the extent that it provided that the abolition of the death penalty is prospective that the legislators who voted for prospective repeal wanted the effective date provisions of the act to be invalidated.

See 55 H.R. Proc., supra, at p. 1064, remarks of Representative Sawyer ("When we look at the courts and the expectations that we have of them, it is to evaluate a question of law. We ... particularly get rankled if we think that they are making law.... That's why this amendment is very important because it's very clear to the courts when they make their determination what will happen.”); 55 S. Proc., Pt. 3, 2012 Sess., p. 667, remarks of Senator Coleman ("[E]ven assuming that [the proposed legislature would be found unconstitutional] ... I don't know what else would happen except that the people that are on death row would remain on death row and the bill as amended, if it were to become law, would be voided. And consequently ... I just don't think that it's something that's necessary to adopt.”); see also 55 S. Proc., Pt. 3, 2012 Sess., p. 668, remarks of Senator Fasano ("I guess I look at [the amendment] as a spare tire in your trunk. You may not need it. But if it is unconstitutional, you have it. And you've protected the intent of the [l]egislature, which is not, clearly not to let the [eleven prisoners] currently on death row to get a different sentence.”).

This court previously has recognized that "[s]eparability involves essentially two considerations: the legislature must have intended separability and the statute itself must be capable of separability.”Seals v. Hickey, 186 Conn. 337, 353, 441 A.2d 604 (1982). Because we simply cannot know in the present case which portion of the act the legislature would prefer to sever in the event that the classification created by P.A. 12–5 were found unconstitutional, the statute is not capable of separability. Accordingly, if the legislation were unconstitutional, this court would be required to invalidate the act in its entirety. See id., at 353–54, 441 A.2d 604 ("where a portion of the statute is invalid, the valid part can stand only if it and the invalid part are not so mutually connected and dependent as to indicate a legislative intent that they may be inseparable”). In that case, the law preexisting the enactment of P.A. 12–5 would be revived. Id., at 355, 441 A.2d 604 (when portion of statute is invalidated as unconstitutional and statute is not severable, law "will revert to that preexisting the enactment of [the unconstitutional statute]”); see also Ruttenberg v. Dine, 137 Conn. 17, 19, 74 A.2d 211 (1950) (stating in dicta that, when statute is invalidated as unconstitutional, preexisting statute "would remain applicable and controlling”); B.H. v. State, 645 So.2d 987, 995 (Fla.1994) ("when the legislature approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional” ), cert. denied, 515 U.S. 1132, 115 S.Ct. 2559, 132 L.Ed.2d 812 (1995) ; B.H. v. State, supra, at 995 ("this rule generally is applicable only where the loss of the invalid statutory language will result in a 'hiatus' in the law that would be intolerable to society”); State v. Sullivan, 90 Ohio St.3d 502, 508–509, 739 N.E.2d 788 (2001) ("[w]here an act of the [G]eneral [A]ssembly, purporting to provide a substitute for an existing law and in terms repealing the existing law, is declared to be unconstitutional and void, the repealing clause must also be held invalid, unless it clearly appear[s] that the [G]eneral [A]ssembly would have passed the repealing clause regardless of whether it had provided a valid substitute for the act repealed” [internal quotation marks omitted] ); Jenkins v. Bellingham Municipal Court, 95 Wash.2d 574, 581, 627 P.2d 1316 (1981) ("if a statute is repealed by a subsequent enactment and the subsequent enactment is declared unconstitutional, such unconstitutionality renders the repealing act invalid” and preexisting law is revived).

Moreover, even if Justice Eveleigh were correct that the legislature preferred to sever the effective date provisions of P.A. 12–5, in light of Governor Dannel Malloy's public statement that he is in favor of abolishing the death penalty only prospectively; see footnote 20 of this opinion; I would still believe that it would be inappropriate for this court to order that remedy. The legislature should not be permitted to use this court as an instrument to deprive the governor of his constitutional veto power.

XIV

In summary, the legislature has incontrovertibly expressed an intent that the repeal of the death penalty in P.A. 12–5 applies only to crimes "committed on or after [the effective] date [of the act]”; P.A. 12–5, § 2; and that "[a] person shall be subjected to the penalty of death for a capital felony committed prior to the effective date [of the act] under the provisions of section 53a–54b in effect prior to the effective date of [the act]....” P.A. 12–5, § 5(a). In addition, P.A. 12–5 expressly incorporates the savings provisions set forth in §§ 1–1(t) and 54–194 ; see P.A. 12–5, § 38; which operate to preserve "punishments incurred and prosecutions pending” under the law in place before the effective date of the repeal. State v. Carbone, supra, 172 Conn. at 256, 374 A.2d 215. Accordingly, as a matter of statutory interpretation, it is beyond dispute that the repeal of the death penalty does not apply to the defendant. Indeed, the defendant makes no claim to the contrary.

With respect to the constitutionality of P.A. 12–5, the defendant has failed to establish that the legislature's prospective repeal of the death penalty is inconsistent with contemporary standards of decency in this state or nationally. In addition, I have concluded that, because P.A. 12–5 treats all defendants who committed their crimes prior to its effective date the same, it does not create an arbitrary legislative classification for equal protection purposes, and this conclusion effectively disposes of the defendant's claim that the legislation is arbitrary in violation of § 53a–46b. Accordingly, it is clear to me that P.A. 12–5 is constitutional. In concluding otherwise, the majority has addressed issues that the defendant did not raise, has relied on extra-record materials that the parties have not had an opportunity to review or to rebut, has failed to provide the state with an opportunity to respond to its arguments and conclusions and, finally, in reaching the decision that it has today, has unconstitutionally usurped the role of the legislature. I therefore respectfully dissent.

ZARELLA, J., with whom ESPINOSA, J., joins, dissenting.

The majority claims that it is not deciding that the death penalty is per se unconstitutional;1 nor is it deciding that Public Acts 2012, No. 12–5 (P.A. 12–5), is unconstitutional. Rather, the majority claims that, following the passage of P.A. 12–5, the death penalty is unconstitutional under the Connecticut constitution because it "no longer comports with contemporary standards of decency [in this state] and no longer serves any legitimate penological purpose.” The majority thus treats the claim of the defendant, Eduardo Santiago, as a "hybrid” claim, falling somewhere between a per se challenge and a statutory challenge, in order to avoid the tests we long ago adopted to determine whether the death penalty is unconstitutional on per se grounds or whether a particular death penalty statute is unconstitutional on due process grounds. For example, when determining whether the death penalty is per se unconstitutional, we have applied the six-pronged test set forth in State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992). See State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995) ; see also State v. Rizzo, 303 Conn. 71, 185, 31 A.3d 1094 (2011), cert. denied, U.S., ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). In contrast, when determining whether a death penalty statute is unconstitutional, we have applied the due process principles relevant to the resolution of a statutory claim;2 see State v. Ross, supra, at 253, 646 A.2d 1318 ; except when a Geisler analysis is required to determine whether the state constitution provides broader protections under our capital sentencing scheme than the federal constitution. See, e.g., State v. Rizzo, supra, at 136, 31 A.3d 1094 ; see also State v. Colon, 272 Conn. 106, 327, 382–83, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005) ; State v. Ross, 269 Conn. 213, 257–60, 849 A.2d 648 (2004). The advantage of treating the defendant's claim as a hybrid claim, as opposed to a per se claim or a statutory claim, is that the majority frees itself to create a new and different hybrid test to determine the constitutionality of the death penalty. The majority does this by claiming that the question is not whether P.A. 12–5 is unconstitutional but whether the prospective repeal provision in P.A. 12–5 makes the death penalty unconstitutional. In my view, this is a distinction without a difference. The majority nonetheless relies on it to conjure up a new test, a test this court has never previously applied before in any death penalty case.

The majority's new hybrid test is a confusing combination of the six factor test set forth in Geisler, a test we routinely have used to determine whether the death penalty is per se unconstitutional, and a legal standard derived from federal law that the majority incorrectly claims was adopted by this court in Ross and applied in Rizzo. 3 In applying this new hybrid test, however, the majority pays only lip service to the Geisler factors because it focuses on cruel and unusual punishment instead of on capital punishment. It also disregards the sixth Geisler factor and does not consider the relative importance of each Geisler factor. This is apparently because the majority wishes to avoid weighing repeated references to capital punishment in the text of our state constitution, the historical roots of capital punishment, Connecticut precedent upholding the constitutionality of capital punishment, and precedent from other state and federal jurisdictions against the federal evolving standards of decency standard on which it relies to determine whether capital punishment is constitutional. The only federal case in which the evolving standards of decency standard has been used to determine whether capital punishment is constitutional, however, is Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion announcing judgment), and the standard was applied in that case only after the court examined the text of the federal constitution, the history of capital punishment, and federal precedent. See id., at 176–79, 96 S.Ct. 2909 (opinion announcing judgment). The majority thus disregards Gregg as well as our own precedent in refusing to weigh and balance all of the Geisler factors in the context of capital punishment. Accordingly, because I strongly protest the majority's unorthodox reasoning in this case, I emphatically dissent.4

I

IMPROPER LEGAL STANDARD

The majority first conducts an abbreviated Geisler analysis that focuses on the meaning of cruel and unusual punishment. It then adopts a new legal standard derived from federal law to determine whether the death penalty is cruel and unusual punishment. In the discussion that follows, I explain why I strongly disagree with each step in the majority's analysis.

A

The Majority's Application of Geisler

The majority's application of the test set forth in Geisler is problematic for two reasons. First, this court has applied the Geisler test in other capital cases only when a defendant has challenged the facial validity of the death penalty; see, e.g., State v. Rizzo, supra, 303 Conn. at 185, 31 A.3d 1094 ; State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318 ; which the defendant in the present case has not done, or when the defendant has challenged our capital sentencing statutes and it has been necessary to assess whether the state constitution affords broader protection under those statutes than the federal constitution; see, e.g., State v. Rizzo, supra, at 136–45; State v. Webb, 252 Conn. 128, 146–47, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000) ; State v. Ross, supra, 230 Conn. at 253–54, 646 A.2d 1318 ; which the defendant also has not done. The defendant instead challenges the constitutionality of P.A. 12–5. This is clear not only from the defendant's briefs, but from the parties' oral arguments, in which the defendant's appellate counsel repeatedly described his claim as a statutory claim, and various members of the panel, including Justice Palmer, asked numerous questions regarding the issue of severability if this court should deem the retention provision of P.A. 12–5 unconstitutional.5 Thus, the majority's decision to review the defendant's challenge to P.A. 12–5 by applying the type of analysis usually reserved for a claim that capital punishment is unconstitutional on per se grounds, even though no such claim has been raised, creates a disturbing anomaly in Connecticut's capital punishment jurisprudence that cannot be lightly dismissed.

Having chosen to apply the incorrect legal standard to review the defendant's claim, the majority then compounds this error by focusing its Geisler analysis on the "scope, nature, and history of the protections from cruel and unusual punishment” instead of on capital punishment. As with the majority's initial decision to apply Geisler, this is a clear departure from our precedent in capital cases. See State v. Ross, supra, 230 Conn. at 245–48, 646 A.2d 1318 ; see also State v. Rizzo, supra, 303 Conn. at 186, 31 A.3d 1094. The majority acknowledges this deviation, observing that, although this court "used the Geisler framework to perform the actual substantive legal analysis” in Ross and Rizzo, it prefers to follow a different approach in the present case because "the constitutionality of a criminal sanction ... is governed by its own distinct legal rules and standards,” apparently unaware that the "rules and standards” developed for this purpose are embodied in Geisler. Footnote 14 of the majority opinion. The problem is not simply that the majority rejects well established Connecticut precedent but that the majority's misapplication of Geisler fails to achieve the objective for which the test was intended when the court adopted it in Ross to review challenges to the validity of capital punishment under the state constitution.

Cruel and unusual punishment is a legal concept intended to describe punishment deemed morally unacceptable by society. See, e.g., State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094 ("[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment” [internal quotation marks omitted] ); State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318 (whether death penalty constitutes cruel and unusual punishment requires court to determine whether it is "so inherently cruel and so lacking in moral and sociological justification that it is ... fundamentally offensive to evolving standards of human decency”). Thus, when a court is presented with the issue of whether a particular punishment is cruel and unusual, it must develop a set of principles to guide its analysis.Ross was the first case in which this court was asked to decide whether a punishment was cruel and unusual under the state constitution. Consequently, the court in Ross was required to develop a principled approach to resolving this question, an approach it rightly expected would be followed in subsequent cases. In so doing, the court first observed that, although the Connecticut constitution contains no cruel and unusual punishment clause, the due process clauses of article first, §§ 8 and 9, of the Connecticut constitution "impliedly prohibit punishment that is cruel and unusual.” State v.

Ross, supra, 230 Conn. at 246, 646 A.2d 1318. It then adopted the six factor test articulated in Geisler as the most principled means of determining whether capital punishment is cruel and unusual. Id., at 249, 646 A.2d 1318 ; see also State v. Rizzo, supra, at 184–86, 833 A.2d 363. Applying this test, the court examined (1) the text of the constitutional provisions, (2) related Connecticut precedents, (3) persuasive federal precedents, (4) persuasive precedents of other state courts, (5) historical insights into the intent of our constitutional forbearers, and (6) contemporary understandings of applicable economic and sociological norms6 in order to obtain a proper understanding of whether the people of Connecticut deemed capital punishment morally acceptable. State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318.

Instead of conducting a substantive analysis of whether capital punishment offends our state constitution under Geisler, however, as the court did in Ross and Rizzo, the majority applies the Geisler factors to examine the meaning of cruel and unusual punishment. Not unexpectedly, this analysis provides no insights into whether capital punishment is deemed morally acceptable in Connecticut because, with the exception of a small portion of the relevant constitutional history, the majority makes few, if any, references to capital punishment or capital offenses.

The majority also fails to address the sixth Geisler factor. The majority explains that, "when construing the state constitutional freedom from cruel and unusual punishment, we broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges.” The majority adds that it will consider the sixth Geisler factor—contemporary understandings of applicable economic and sociological norms—only to the extent this factor may be relevant in determining whether capital punishment comports with contemporary standards of decency in Connecticut. It thus becomes clear that the majority's Geisler analysis of cruel and unusual punishment is wholly unnecessary to the substantive analysis of capital punishment that follows.

B

The Majority's Application of Federal Law

When the majority finally considers whether capital punishment is constitutional, it substitutes federal eighth amendment jurisprudence in place of the framework adopted in Ross. The majority's rationale for creating an independent test derived from federal law, however, makes no legal sense, and its attempt to find support for doing so in Ross and Rizzo necessarily fails.

The majority relies on State v. Linares, 232 Conn. 345, 379–87, 655 A.2d 737 (1995), to justify its abandonment of Geisler. The majority states that, "[i]n some of our decisions, we have utilized the multifactor Geisler analysis to flesh out the general nature and parameters of the state constitutional provision at issue. Having done so, we proceeded to resolve the appellant's particular constitutional challenge according to the legal test and framework relevant and suited to that area of the law, rather than performing the substantive legal analysis under ... the six Geisler factors.” Footnote 14 of the majority opinion. The majority explains that the court in Linares first conducted a Geisler analysis to determine whether the state constitution affords expansive protections to free speech in public places before applying a legal test developed in the free speech context to determine whether the challenged statute infringed impermissibly on those protections. See id. The majority then declares its intention to follow the same approach in the present case because "the constitutionality of a criminal sanction, like the constitutionality of a limitation on the free expression at issue in Linares, is governed by its own distinct legal rules and standards.” Id.

No meaningful comparison between Linares and the present case is possible, however. Among other things, the defendant in Linares challenged the constitutionality of a statute, whereas the defendant in the present case, according to the majority, raised a general challenge to the constitutionality of capital punishment following the passage of P.A. 12–5. Linares also is inapposite because the purpose of conducting a Geisler analysis in that case was "[t]o determine whether our state constitution affords greater rights than the federal constitution”; State v. Linares, supra, 232 Conn. at 379, 655 A.2d 737 ; which the majority repeatedly declares is unnecessary and thus irrelevant in the present case. See footnotes 11 and 17 of the majority opinion. Finally, insofar as a specific legal test has been developed to determine the constitutionality of capital punishment in Connecticut, it is the six factor test set forth in Geisler. Thus, to the extent the majority relies on the reasoning in Linares to justify its substantive analysis in the present case, its reliance is misplaced.

The majority also claims that this court adopted the federal evolving standards of decency test in Ross and Rizzo to evaluate challenges to allegedly cruel and unusual punishment. Nothing could be further from the truth. In both decisions, the court made clear that the standard it was adopting for this purpose was the six factor Geisler test; see State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318 ; see also State v. Rizzo, supra, 303 Conn. at 185–86, 188 n. 86, 31 A.3d 1094 ; which is not a federal standard. To the extent the court in Rizzo also discussed contemporary economic and sociological norms, it did so only after accepting the court's analysis of the first five Geisler factors in Ross. State v. Rizzo, supra, at 185–86, 31 A.3d 1094. The court explained: "We undertake, in essence, a partial Geisler analysis regarding what has occurred since 1994, because our constitutional text and history remain the same, and this court repeatedly has sustained the constitutionality of the death penalty generally and our death penalty statutes in particular. Accordingly, our focus is on recent federal and state jurisprudence and contemporary economic and sociological norms.” Id., at 188 n. 86, 31 A.3d 1094. The court also noted: "In so doing ... we remain cognizant that our constitution contains explicit references to capital punishment ... and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.” (Citation omitted; internal quotation marks omitted.) Id., at 188, 31 A.3d 1094 quoting State v. Ross, supra, 230 Conn. at 249–50, 646 A.2d 1318. It is therefore clear that, insofar as Geisler permits an evaluation of contemporary norms similar to the federal evolving standards of decency test, it does so only under the sixth Geisler factor, subject to the qualifications articulated in Ross and to the ultimate weighing and balancing of all six Geisler factors. Problems with the majority's analysis under the federal test are further discussed in part II F of this opinion.

On the basis of this review, it is difficult to avoid concluding that the majority's sole intention is to ignore all information, regardless of its historical or contemporary relevance, inconsistent with its predetermined conclusion that capital punishment is unconstitutional in Connecticut. In the discussion that follows, I demonstrate how the majority should have applied Geisler in accordance with our precedent and why a proper Geisler analysis, even presuming Geisler applies, does not support the majority's conclusion that the death penalty is cruel and unusual punishment.7

II

GEISLER ANALYSIS

A

Constitutional Text

I begin with the text of the Connecticut constitution. In an analysis that would mystify anyone intent on understanding whether the constitutional text sustains the validity of capital punishment in Connecticut, the majority completely ignores language in the state constitution referring to capital punishment. The majority instead indulges in a meandering, speculative and entirely irrelevant examination of why no cruel and unusual punishment clause was included in the 1818 constitution. As the majority well knows, however, that is not what is expected or required under Geisler.

In explaining the textual approach to construing the contours of our state constitution, Geisler instructs that, "[u]nless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution. ” (Emphasis added; internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225 ; see also State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990) ("[i]n examining the text of [the state constitution] to determine the extent to which it supports the defendant's claim, we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state” [internal quotation marks omitted] ). Consequently, a textual analysis under Geisler necessarily requires that the court acknowledge all references in the Connecticut constitution to capital punishment and capital offenses, as this court has done each time it has conducted a textual analysis in the past.

In the present case, even a cursory examination of the text reveals that the Connecticut constitution contains repeated references to capital punishment and capital offenses. Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: "In all criminal prosecutions, the accused shall have a right to ... be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great....” (Emphasis added.) Article first, § 8, further provides: "No person shall ... be deprived of life, liberty or property without due process of law, ” and "[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law....” (Emphasis added.) Finally, article first, § 19, of the Connecticut constitution, as amended by article four of the amendments, provides in relevant part: "[N]o person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent....” (Emphasis added.) Thus, multiple references to capital punishment in the state constitution support the conclusion that, from a textual standpoint, the death penalty does not fall within the implied prohibition of cruel and unusual punishment because it was contemplated not only in 1818, when the relevant language in article first, § 8, was adopted as part of the original constitution; see Conn. Const. (1818), art. I, § 9 ; but also in 1972, when the provision referring to capital punishment in article first, § 19, was added by article four of the amendments. This court reached the same conclusion when it conducted a Geisler analysis of the Connecticut constitution in Ross and Rizzo. See State v. Ross, supra, 230 Conn. at 249–50, 646 A.2d 1318 ("our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances”); see also State v. Rizzo, supra, 303 Conn. at 185, 31 A.3d 1094 (same).

Article first, § 1, of the Connecticut constitution, which describes the constitution as a social compact,8 provides additional textual support for the conclusion that capital punishment is deemed morally acceptable in Connecticut. A social compact is an agreement "between the people and the government they create [that] binds the agencies of government to respect the blueprint of government and the rights retained by the people.” L. Henkin, "The United States Constitution As Social Compact,” in American Philosophical Society, "A More Perfect Union: Essays on the Constitution,” 131 Proc. Am. Phil. Society 261, 265 (1987); see also Moore v. Ganim, 233 Conn. 557, 598, 660 A.2d 742 (1995)"The social compact theory posits that all individuals are born with certain natural rights and that people, in freely consenting to be governed, enter a social compact with their government by virtue of which they relinquish certain individual liberties in exchange 'for the mutual preservation of their lives, liberties, and estates.’ J. Locke, 'Two Treatises of Government,’ book II [Hafner Library of Classics Ed.1961] ¶ 123, p. 184; see also 1 Z. Swift, A System of the Laws of the State of Connecticut [1795] pp. 12–13.”). Accordingly, repeated references to capital punishment and capital offenses throughout the constitution, which never have been challenged or eliminated by constitutional amendment, suggest that the people of Connecticut always have accepted, and continue to accept, capital punishment as an integral part of the social compact for the purpose of maintaining public order, preserving their freedom to live in peace and tranquility, and "perpetuat[ing] the liberties, rights and privileges which they have derived from their ancestors....”9 Conn. Const., preamble.

B

Historical Insights

With respect to the relevant constitutional history, Geisler explains that the "historical approach” includes consideration of "the historical constitutional setting and the debates of the framers....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. Ross thus examined "historical insights into the intent of our constitutional forbearers”; State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318 ; and observed that "Connecticut's history has included a death penalty statute since 1650, when it was incorporated into Ludlow's Code ... and such a penalty was considered constitutional at the time of the adoption of the constitution of 1818.” (Citation omitted; footnote omitted.) Id., at 250, 646 A.2d 1318. Nevertheless, the majority not only fails to acknowledge the historical roots of capital punishment in Connecticut, but diverts the discussion to an expansive and wholly irrelevant analysis of our state's "unique and expansive constitutional and preconstitutional history” relating to the freedom from cruel and unusual punishment. This is the same approach the majority employs in its analysis of the relevant constitutional provisions by dismissing language in the state constitution referring to capital punishment and capital offenses.If the majority had conducted the historical analysis required under Geisler and conducted in Ross, the only conclusion it could have drawn is that capital punishment has deep roots in Connecticut going back to early colonial times and that the framers of the Connecticut constitution in 1818 and the convention delegates in 1965 had no intention of eliminating death as the most severe penalty in a proportional system of punishments.

In practice, the death penalty has been imposed in Connecticut from the founding of the colony in 1636 until the first constitutional convention in 1818. Between 1636 and 1699, when the rationale for the death penalty was embedded in the religious foundation of New England and punishment was regarded as divinely mandated, capital punishment applied at different times to as few as twelve and as many as twenty-three crimes,10 and thirty-one persons were executed. L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011), pp. 4, 7, 10–13. Thereafter, during the first seven decades of the eighteenth century, when a more worldly society emerged and the legal culture was transformed to reflect an increasingly secular ethic; id., at p. 39; capital punishment applied to between twelve and nineteen crimes,11 and seventeen persons were executed. Id., at pp. 4, 45, 49. Even when the legal system experimented unsuccessfully with reform from 1773 to 1827, capital punishment applied at different times to between six and eleven crimes,12 and sixteen persons were executed. Id., at pp. 4, 75, 79. Thus, when Connecticut held its first constitutional convention in 1818, capital punishment was firmly entrenched and thoroughly accepted as the most severe penalty available to punish criminal offenders.

Public support for capital punishment also was reflected in the views of Zephaniah Swift, who was the chief justice of the Connecticut Supreme Court of Errors from 1815 to 1819, the state's "leading jurist [at the time of the 1818 constitutional convention] and the person most responsible for the major reform of Connecticut's judicial system during” the late eighteenth and early nineteenth centuries. Id., at p. 71. Because of Swift's role as "[a] pioneer in the development of an American common law distinct from England”; W. Horton, "Connecticut Constitutional History 1776–1988,” 64 Conn. B.J. 355, 358 (1990); his ideas on the law "take on great significance in determining what the framers had in mind when adopting the language of the constitution.” State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993) (Berdon, J., dissenting). These ideas are principally understood through his two legal treatises, published in 1796 and 1823,13 respectively, "setting forth the common law of Connecticut based on the actual practices of local judges.” W. Horton, The Connecticut State Constitution (2d Ed.2012) p. 23. Both treatises are relevant because they describe Swift's views on capital punishment, as well as those of the framers, both before and directly after the 1818 constitutional convention.In his 1796 treatise, Swift expressed strong support for the death penalty if properly imposed within a proportional system of punishments, explaining that "[i]t is a fundamental principle, that the sole end of punishment is the prevention of crimes, and that every punishment ought to be proportioned to the [offense].” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 293. He thus approved of the legislature's attempt to create the type of proportional system he advocated by establishing three grades of punishment, these being death, confinement to hard labor and coarse fare, and corporal and pecuniary pains and penalties. Id., at p. 296. He disapproved, however, of the number of crimes the legislature had deemed deserving of the ultimate punishment, which included "treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered”; id.; believing instead that "[t]he dreadful punishment of death, ought only to be inflicted [for] those crimes which directly and immediately tend to the destruction of society and the human race, as treason, and murder.” Id.

When Swift updated his 1796 treatise in the early 1820s, immediately following the constitutional convention, he maintained his belief that punishments should be proportional to the offense and continued to support the death penalty,14 contending that it should apply not only to treason and murder, but to other crimes as well.15 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 262. He wrote: "Treason, murder, rape, and arson, where life is destroyed or endangered, ought to be punished with death. These crimes are of such an atrocious nature, that the interest of the community requires they should not only be punished in the severest manner, but the offender ought to be deprived of the power of repeating the crime. The punishment of death will not only be sanctioned by public opinion, but there is no probability that executions will be so frequent in such cases, as to weaken their effect on the community.” Id. Accordingly, to the extent the majority suggests that Swift and other reformers rejected harsh punishments and became increasingly uneasy with capital punishment by the time of the constitutional convention, it indulges in revisionist thinking.Approval of capital punishment by our constitutional forbearers is also reflected in their handling of an event that led directly to the calling of the 1818 constitutional convention, namely, legislative interference with a criminal conviction and sentence of death in Lung's Case, 1 Conn. 428 (1815). See W. Horton, The Connecticut State Constitution, supra, at p. 12. In response to the legislature's action, "Swift convened a special court to try Peter Lung for murder. After being duly convicted and sentenced to die, Lung filed a petition with the General Assembly claiming that the trial had been procedurally improper. The General Assembly agreed, set aside the conviction, and ordered a new trial, at which Lung was promptly convicted, and he was hanged.” Id. "The case outraged the Connecticut judges, who were Federalist to a man. Led by Swift, who wrote a pamphlet in 1816 attacking legislative interference with a judicial decision, the judiciary demanded separation of powers.” Id., citing Z. Swift, "A Vindication of the Calling of the Special Superior Court, at Middletown, on the 4th Tuesday of August, 1815, For the Trial of Peter Lung, Charged with the Crime of Murder. With Observations on the Constitutional Power of the Legislature to Interfere with the Judiciary in the Administration of Justice” (1816) p. 42 (A Vindication of the Calling of the Special Superior Court).

What is striking about this case, in addition to the fact that it led in part to the 1818 constitutional convention and the adoption of a new state constitution formalizing the separation of powers in Connecticut, is the lack of any suggestion by the legislature or judiciary that the imposition of the death penalty was wrong. Connecticut judges were inflamed because the legislature had interfered with Lung's conviction and verdict due to perceived procedural irregularities, and the fact that he had been condemned to die was simply not an issue.16 To the extent the majority disagrees and cites a newspaper article published after Lung's execution "remarking on the 'infrequency of capital punishment’ and observing that the '[behavior] of this unfortunate sufferer on this trying occasion, was such as to attract the tenderest sympathy of every rational beholder,’ ” it misunderstands the context in which the article was written. In his pamphlet on Lung's Case, Swift effectively countered any notion that capital punishment lacked broad public support when he observed that public sympathy for a capital offender as the execution drew near was "probably owing to the weakness incident to human nature.” A Vindication of the Calling of the Special Superior Court, supra, at p. 11. Swift further explained: "When a crime has been committed, public indignation is awakened, and all unite to bring about the conviction of the offender. But as soon as he is convicted, especially in capital cases—when the awful sentence of death is pronounced, then a sentiment of compassion begins to operate in [favor] of the unfortunate convict: the sense of justice is drowned in the feelings of compassion; and false humanity begins to run riot. His case will then be viewed in the most favorable light. Some will doubt about the evidence of his guilt—some will question the propriety of capital punishments in any case, and some will hint at the possible unfairness of the trial. Prejudice will be excited even against the triers, who are then considered as having sought the blood of a fellow creature, and many will find fault with [everything] that has been done from a secret aversion to the law, and a natural disposition to pull down courts, and prostrate government. Artful and designing men well know how to fan the flame and profit by it. Such was the course of things in the case of Lung. As soon as he was removed from the theatre of his crimes, and the place of trial, the convicted murderer was transformed into an innocent sufferer, and many began to take a deep interest in his fate.” (Emphasis added.) Id., at pp. 11–12.

Whatever public sympathy may have been extended to Lung following his conviction, there is no indication in the annotated debates of the constitutional convention, two years after the uproar over Lung's Case, of decreasing public support for capital punishment. See generally W. Horton, "Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI–7 through SI–84 (1991). Nor is there evidence that any convention delegates sought to ban capital punishment or objected to the inclusion of language in the constitution referring to capital punishment. See id. The convention appointed a committee of twenty-four delegates to draft the new constitution. See id., at SI–14 through SI–15. The committee's proposed language in article first referring to capital offenses and to the deprivation of life without due process of law was based on language in the 1817 Mississippi Bill of Rights; see id., at SI–102 through SI–103; and was adopted by the convention delegates without comment. See id., at SI–31 through SI–32. Thereafter, language in article first referring to punishment by death that was proposed on the convention floor also was accepted without significant comment or debate. See id.Directly following the constitutional convention, public support for capital punishment continued unabated when the legislature endorsed the proportional system of punishment advocated by Swift, including the continued use of the death penalty, in revisions to the General Statutes for the purpose of ensuring their conformance with the new constitution.17 See State v. Ellis, 197 Conn. 436, 450–51 n. 13, 497 A.2d 974 (1985). A note in the crimes and punishments section of the revised statutes explained that "the object has been ... to proportion the punishment according to the nature and grade of the crime” and that "[t]he experience of this state has [shown], not only that mild punishments are better calculated to prevent crimes, than those which are sanguinary; but that punishments must be attended with considerable severity, to operate as examples to others....” General Statutes (1821 Rev.) tit. 22, § 118, p. 177 n.5. To that effect, capital punishment, which had been imposed in 1805 for crimes such as bestiality, sodomy, false witness, arson resulting in death, treason, destruction of military property, dismemberment, murder and rape; see Acts and Laws of the State of Connecticut in America (1805), pp. 182, 321, 349, 419; was retained for, among other crimes, treason, murder, maiming, arson and rape. See General Statutes (1821 Rev.) tit. 22, §§ 1, 3, 6, 8, 10, pp. 151–52. The revised statutes also authorized the governor to reward persons who provided authorities with information leading to the timely capture of capital offenders. General Statutes (1821 Rev.) tit. 22, § 118, p. 176.

Almost 150 years later, Connecticut revisited its commitment to capital punishment when an amendment proposing abolition of the death penalty was submitted but soundly defeated at the 1965 constitutional convention, which adopted the state's present constitution. The record of the 1965 proceedings reveals that a Greenwich delegate submitted a resolution entitled "Resolution Proposing an Amendment to the Constitution Concerning Capital Punishment” for the purpose of abolishing the death penalty. Constitutional Convention Record Index, Constitutional Convention of 1965 (August, 1965) p. 5. The resolution received an unfavorable report by the committee on resolutions, however, and was summarily rejected by the convention delegates. Journal of the Constitutional Convention of Connecticut 1965, p. 111. This explicit rejection of a direct attempt to abolish capital punishment in 1965 demonstrates, first, that the death penalty, which had been operative in this state since colonial times, always had been deemed constitutional and, second, that the convention delegates in 1965, like the framers in 1818, did not want to change the status quo. The state's commitment to capital punishment was renewed a second time on December 22, 1972, when article first, § 19, of the Connecticut constitution was amended to provide that "no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent.” (Emphasis added.) Conn. Const., amend. IV. There appears to have been no other attempt to amend the constitution for the purpose of abolishing capital punishment during the last 200 years.

To conclude, any suggestion that there was little or diminishing support for the death penalty before, during or directly after the constitutional conventions of 1818 and 1965 is a gross mischaracterization of the historical record. An examination of Connecticut's history reveals that, although the number of crimes to which capital punishment was applied diminished over the years, the punishment was accepted in Connecticut as the most severe penalty for a criminal offense not only in 1818, at the time of the first constitutional convention, but in 1972, as well, when the most recent constitutional amendment referring to capital offenses was adopted. Accordingly, a historical analysis under Geisler supports the conclusion that capital punishment was not deemed morally unacceptable by our constitutional forbearers.

C

Related Connecticut Precedents

A Geisler analysis also includes an examination of the "holdings and dicta of this court, and the Appellate Court....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. The majority nonetheless continues to disregard Geisler by failing to acknowledge this court's recent holdings rejecting challenges to capital punishment under the state constitution. Rather, the majority engages in a brief discussion regarding the degree of protection from cruel and unusual punishment provided under the due process clauses of the state constitution. In addition to fundamentally changing the required analysis, the consequence of this attempt to avoid revealing Connecticut's well established precedent upholding capital punishment is the majority's misrepresentation of the reasoning in Ross and Rizzo, neither of which adopted a federal evolving standards of decency test to evaluate challenges to allegedly cruel and unusual punishment, as the majority claims. See part I B of this opinion.

When the court considered a constitutional challenge to capital punishment in Ross, it relied on State v. Davis, 158 Conn. 341, 358, 260 A.2d 587 (1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972), in concluding that "Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution.” State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. Since Ross, capital punishment has been deemed facially constitutional in many other cases as well. See State v. Santiago, 305 Conn. 101, 307, 49 A.3d 566 (2012) ; State v. Rizzo, supra, 303 Conn. at 184, 201, 31 A.3d 1094 ; State v. Colon, supra, 272 Conn. at 383, 864 A.2d 666 ; State v. Reynolds, 264 Conn. 1, 236–37, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004) ; State v. Cobb, 251 Conn. 285, 496–97, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ; State v. Webb, 238 Conn. 389, 401–402, 411–12, 680 A.2d 147 (1996) ; State v. Breton, 235 Conn. 206, 218, 663 A.2d 1026 (1995).

This court also has implicitly endorsed the constitutionality of capital punishment under the social compact clause of the state constitution. In Webb, the court determined that the social compact clause does not preclude death penalty legislation in Connecticut because Connecticut's social compact does not confer on convicted offenders a natural and unenumerated right to life. State v. Webb, supra, 238 Conn. at 411–12, 680 A.2d 147. The court explained: "Unenumerated rights [such as a citizen's right to be protected from capital punishment] exist, if at all ... only if they are grounded in or derived from the constitutional text or Connecticut's unique historical record”; id., at 410, 680 A.2d 147 ; and "the constitutional text and historical record support the constitutionality of the death penalty statutes [in Connecticut].” Id., at 411 n. 21, 680 A.2d 147. Accordingly, relevant Connecticut precedent overwhelmingly supports the conclusion that capital punishment has continued to receive strong public support in Connecticut in recent years.

D

Persuasive Federal Precedents

Geisler further instructs the court to consider "federal constitutional precedents that appropriately illuminate open textured provisions in our own organic document....” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. Although none of the provisions in the Connecticut constitution referring to capital punishment is open textured, the court in Ross cited to Gregg v. Georgia, supra, 428 U.S. at 153, 96 S.Ct. 2909 for the proposition that federal constitutional law does not forbid the death penalty outright and that federal constitutional law is consistent with the repeated recognition of capital punishment in our own constitution. State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. Nonetheless, the majority disregards federal precedent holding that capital punishment is constitutional and directs its attention to the "minimum standards for what constitutes impermissibly cruel and unusual punishment” under the federal constitution. Text accompanying footnote 15 of the majority opinion.

The majority claims that the United States Supreme Court has identified as unconstitutionally cruel those punishments that are (1) inherently barbaric, (2) excessive and disproportionate, and (3) arbitrary or discriminatory, and contends that the court in Ross "broadly adopted, as a matter of state constitutional law, this federal framework for evaluating challenges to allegedly cruel and unusual punishments.” Text accompanying footnote 17 of the majority opinion. This is not the case. There is no reference in Ross to this federal framework as the basis for evaluating the constitutionality of capital punishment. The only references in Ross to capital punishment as being excessive or arbitrarily imposed are in the context of as applied challenges to the constitutionality of Connecticut's death penalty statutes. See State v. Ross, supra, 230 Conn. at 231, 232, 239, 646 A.2d 1318. As for the barbarity of capital punishment, the author of the dissenting opinion in Ross was the only member of the court to use that term. Id., at 298, 646 A.2d 1318 (Berdon, J., dissenting in part). Furthermore, as repeatedly noted in this opinion, the court in Ross adopted the framework established in Geisler to evaluate challenges to allegedly cruel and unusual punishments. Accordingly, because the United States Supreme Court has not modified or rejected its conclusion in Gregg that capital punishment is not forbidden in all circumstances under federal constitutional law, federal precedent continues to support the constitutional validity of capital punishment under the Connecticut constitution.

E

Persuasive Precedents of Other State Courts

Geisler next requires an examination of "sister state decisions....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. In Ross, the court followed this directive by observing that "[c]ourts in the overwhelming majority of our sister states have rejected facial challenges to the death penalty under their state constitutions.” State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. The court specifically noted that, between 1972 and 1994, thirty-seven states had passed death penalty statutes, and, in the only two jurisdictions in which the state's highest court had deemed the death penalty facially unconstitutional, California and Massachusetts, subsequent constitutional amendments promptly abrogated those decisions. Id., at 250 n. 30, 646 A.2d 1318. Although the majority does not address this question as part of its Geisler analysis but, rather, as part of its subsequent discussion of evolving standards of decency, I note for the record the majority's concession that "capital punishment remains legal in a majority of jurisdictions within the United States....” An analysis of persuasive state precedents thus supports the continued validity of capital punishment under the Connecticut constitution.

F

Economic and Sociological Considerations

The last Geisler factor, economic and sociological considerations, is the most challenging factor to interpret and apply. See State v. Geisler, supra, 222 Conn. at 285, 610 A.2d 590. The court in Geisler provided little guidance as how to conduct this analysis and merely cited to State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), in which the court observed that "[c]onstitutional provisions must be interpreted within the context of the times”; id., at 114, 547 A.2d 10 ; and that the state constitution "should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” Id., at 115, 547 A.2d 10. Accordingly, the court in Ross determined that this factor requires an examination of "whether contemporary understandings of applicable economic and sociological norms compel the conclusion that any death penalty constitutes cruel and unusual punishment.” State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. The court explained: "The question is not whether any one of us would vote to enact a death penalty if our role were that of a legislator. It is, rather, whether the defendant is correct in his contention that the death penalty is so inherently cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is fundamentally offensive to evolving standards of human decency.” Id. The court then advised: "Judicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.”18 Id.

In an apparent attempt to circumvent this analysis, the majority replaces it with an entirely new standard, derived from federal law, that requires a determination as to whether capital punishment comports with evolving standards of decency. Apparently searching for precedent in Connecticut's own capital punishment jurisprudence, the majority suggests that the federal standard pertaining to evolving standards of decency was adopted in Ross and followed in Rizzo. This is not the case.

The majority initially contends that, when the court in Ross and Rizzo considered whether the death penalty was cruel and unusual punishment under the state constitution, it did not address the issue as a single constitutional claim but as "two distinct constitutional [claims],” the first being a per se claim that capital punishment violates the state constitution under all circumstances, and the second being a claim that capital punishment no longer comports with Connecticut's evolving standards of decency. The majority thus appears to rely on the existence of this purported second claim in Ross and Rizzo as precedent for framing the defendant's claim in the present case as a claim that capital punishment is unconstitutional because it no longer comports with evolving standards of decency in Connecticut. Having identified Ross and Rizzo as precedent for the defendant's claim, the majority next contends that, although the court addressed the evolving standards of decency claim only briefly in Ross, it conducted "a more sweeping review” of a similar claim in Rizzo before concluding that there remained strong public support for capital punishment in this and other jurisdictions. The majority then adopts "five objective indicia of society's evolving standards of decency,” based on federal eighth amendment jurisprudence, to review the defendant's claim. These include (1) the historical development of the punishment at issue, (2) legislative enactments, (3) the current practice of prosecutors and sentencing juries, (4) the laws and practices of other jurisdictions, and (5) the opinions and recommendations of professional associations. See text accompanying footnote 43 of the majority opinion. For the following reasons, I strongly disagree with the majority's misrepresentation of the reasoning in Ross and Rizzo for the apparent purpose of legitimizing its adoption of a wholly independent test derived from federal law and of avoiding the analysis required under the sixth Geisler factor.

First, in Ross and Rizzo, the court considered and decided only one claim challenging the constitutionality of capital punishment under the state constitution. In both cases, that claim was brought on per se grounds. State v. Rizzo, supra, 303 Conn. at 184, 31 A.3d 1094 ; State v. Ross, supra, 230 Conn. at 245, 646 A.2d 1318. There was no second claim in either case challenging the constitutionality of capital punishment on the ground that it failed to comport with evolving standards of decency.

Second, to the extent the court considered evolving standards of decency in Ross and Rizzo, it did so in the context of the sixth Geisler factor, which Ross described as requiring an examination of contemporary understandings of applicable economic and sociological norms. See State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318 ; see also State v. Rizzo, supra, 303 Conn. at 186–88, 31 A.3d 1094. There is no room for debate regarding these facts.

Third, although the court conducted a more expansive analysis in Rizzo than it did in Ross under the sixth Geisler factor, it did not go nearly as far as the majority contends. As previously discussed, Ross stated that evidence of contemporary understandings of applicable economic and sociological norms, or evolving standards of human decency, "are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.”State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. Thus, the court in Rizzo began its analysis of the sixth Geisler factor by noting that the "constitution contains explicit references to capital punishment ... and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094. The court then examined developments in the capital punishment jurisprudence of the United States Supreme Court and our sister states, as instructed by Ross. See id., at 188–90, 31 A.3d 1094. In a departure from Ross, however, the court in Rizzo also considered actual practices in other states and determined that, because several thousand inmates were being held on death row in thirty-six states, the death penalty continued to be accepted in the nation generally. See id., at 190–92, 31 A.3d 1094. All of the remaining discussion in Rizzo, which concerned a decline in the number of executions and in new death sentences, the results of public opinion polls, international norms, whether capital punishment continues to serve a legitimate penological purpose, and the passage but subsequent veto of legislation in Connecticut repealing capital punishment, was in response to arguments by the defendant in that case, and was not initiated by the court or necessary to the court's analysis under the sixth Geisler factor. See id., at 192–201, 31 A.3d 1094.

Fourth, the majority concedes that the "five objective indicia of society's evolving standards of decency” are largely derived from eighth amendment jurisprudence rather than Connecticut law. In addition to the fact that this is contrary to the majority's claim that it is deciding this case after "careful consideration of the defendant's claims in light of the governing constitutional principles and Connecticut's unique historical and legal landscape ”; (emphasis added); the five indicia are drawn from four federal cases, each of which articulated a slightly different set of criteria in determining whether the penalty in question was constitutional. See Graham v. Florida, 560 U.S. 48, 61–62, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (legislative enactments and actual sentencing practices); Atkins v. Virginia, 536 U.S. 304, 313–16, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (legislative enactments); Thompson v. Oklahoma, 487 U.S. 815, 822–23, 830, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (legislative enactments, jury determinations, views of respected professional organizations and views of other nations); Enmund v. Florida, 458 U.S. 782, 788–89, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (historical development of punishment, legislative enactments, international opinion, and sentencing decisions of juries). Moreover, a comparison of the majority's five indicia with those discussed in Ross shows that only two of the five overlap. These two common indicia are the history of the punishment in question and the laws and practices of other jurisdictions. The other three indicia, legislative enactments, the current practices of prosecutors and sentencing juries, and the opinions and recommendations of professional associations were not recognized in Ross. Correspondingly, the majority does not recognize the first and most important indicium recognized in Ross, the constitutional text, as one of the five indicia in its analysis. This discrepancy between the five indicia that the majority adopts in the present case and the indicia described in Ross is significant.

As previously discussed, Ross advised that "[j]udicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.” State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. Ross thus viewed evolving standards of human decency in the broadest possible sense. Given this understanding, the current practices of prosecutors and sentencing juries, and the opinions and recommendations of professional associations, are not particularly relevant because they are not representative of the community as a whole.19 In contrast, because the state constitution is a social compact that incorporates the principles by which an entire society is governed, it is far more likely to reflect the views of the general population. In Connecticut, for example, the state constitution was amended fifty-nine times between 1818 and 1965, and thirty-one times since 1965; W. Horton, The Connecticut State Constitution, supra, at pp. 17, 22; and thus reflects not only the beliefs of the original framers but those of the people of Connecticut over the course of 200 years. Historical information, including events of more recent origin, likewise provides a broad view of social change within the state and is not unduly reflective of a single perspective. As for the jurisprudence of other jurisdictions, the court in Ross understood that Connecticut is not a self-contained entity that exists in a vacuum but is inextricably linked to other federal and state jurisdictions. Accordingly, the capital punishment jurisprudence of other jurisdictions may be influenced to some degree by the same events and historical developments that inform our own. I therefore do not take issue with the majority's reliance on the historical development of the punishment at issue or on the laws and practices of other jurisdictions, although I strongly disagree with the majority's analysis and conclusions.

I also disagree with the majority's reliance on legislative enactments as one of the five indicia of evolving standards of decency and with its specific reliance on the passage of P.A. 12–5 as the principal basis for determining that capital punishment is impermissible under the Connecticut constitution. The majority concedes at the outset that this is the most important part of its analysis, stating that, "[u]pon careful consideration of the defendant's claims in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.” In my view, this is a serious mistake, not only because it is inconsistent with Connecticut precedent but because it places the legislature in a legally untenable position.

I note initially that the court in Ross did not contemplate judicial reliance on state legislation as a basis for determining evolving standards of decency in the context of a state constitutional claim. Rather, the court deliberately steered clear of this potential quagmire and made no reference to legislative enactments as one of the indicia of community standards in Connecticut, most likely because of the legal predicament that would have resulted from relying on legislative enactments to deem a criminal penalty unconstitutional.

The majority seems to believe that relying on legislation to determine evolving standards of decency is Rizzo, supra, 303 Conn. at 191, 31 A.3d 1094 quoting Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242. The majority, however, takes this language out of context. In Rizzo, the court did not recognize legislative enactments in Connecticut as a source of community standards in this state but cited Atkins in discussing recent developments in our sister states, which Ross had recognized as relevant under the sixth Geisler factor. See State v. Rizzo, supra, at 191–93, 31 A.3d 1094 ; State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318.The majority also fails to understand the difference between examining legislative enactments in a federal and a state constitutional analysis, and why it is appropriate in the former but makes no sense in the latter. The answer, however, is simple. In a federal analysis of a death penalty statute, the statute is compared to all of the other state statutory schemes in order to determine whether the statute under review is out of step with contemporary norms. When analyzing the constitutionality of the death penalty under the state constitution, however, the majority reviews the state statute by comparing it against itself. This makes no sense. Thus, if P.A. 12–5 authorized drawing and quartering for those convicted of murder, the majority would conclude that the standards of decency in Connecticut are established by the public act and are therefore constitutional. This logical incoherence is why the court in Ross did not rely on legislative enactments to determine contemporary norms.

In my view, if the legislature decides to eliminate capital punishment, it is because it is authorized to do so under the state constitution; see State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976) ; and its decision has no implications regarding the constitutionality of the punishment itself. If, on the other hand, the legislature establishes capital punishment as the most severe penalty in a proportional system of punishments, it is because the Connecticut constitution expressly recognizes death as a viable penalty. Thus, the only way capital punishment may be deemed unconstitutional in Connecticut is by the approval of a constitutional amendment to that effect. Capital punishment also may be eliminated by legislative repeal of the death penalty in its entirety, but a legislative act eliminating capital punishment is not an indication that the punishment is unconstitutional. If social values have changed such that capital punishment no longer comports with contemporary standards of decency in Connecticut, this will be reflected in legislative action or a constitutional amendment banning capital punishment. In the absence of a constitutional amendment, neither an act of the legislature nor a judicial edict can nullify explicit constitutional provisions expressly recognizing capital punishment or erase from the historical record the relatively recent rejection of a proposed abolition amendment during the 1965 constitutional convention. Accordingly, P.A. 12–5 cannot serve as the basis for concluding that capital punishment is unconstitutional in Connecticut under the federal test the majority adopts or, for that matter, under any other test. The only realistic constitutional claim that can be made regarding the effect of P.A. 12–5 on the defendant's sentence is that the statute is unconstitutional.

Rejecting the standard the majority adopts, and applying the standard on which the court in Ross relied, I believe contemporary understandings of applicable economic and sociological norms do not compel the conclusion that capital punishment is morally unacceptable in Connecticut. As previously discussed, the state constitutional text contains numerous references to capital punishment. See part II A of this opinion. Thus, I agree with Justice Scalia that "[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates. ”(Emphasis in original.) Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2747, 192 L.Ed.2d 761 (2015) (Scalia, J., concurring). This is especially true in Connecticut, where there have been more than eighty-five amendments to the state constitution since 1818 and the delegates to the 1965 constitutional convention rejected an amendment abolishing capital punishment. The Connecticut constitution thus reflects current public attitudes toward capital punishment, as well as those of the original framers. At this time, state and federal jurisprudence also supports the conclusion that capital punishment is morally acceptable under the state constitution. See part II D and E of this opinion. As for Connecticut's history, I disagree with the majority's claim that "new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to abolish the death penalty prospectively ... [provide] a clear picture of the long, steady devolution of capital punishment in our state....”

The majority claims that various developments during the past 400 years "have resulted in capital punishment being available for far fewer crimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public acceptance.” As Chief Justice Rogers discusses in her dissenting opinion, however, the historical record does not demonstrate a decline in public support for the death penalty in Connecticut as the most severe form of punishment, even in contemporary society, where persons accused of capital crimes are provided with many more legal protections than similar offenders were provided in the past.

The "new insights” to which the majority refers appear to come entirely from the author of a recently published book, Lawrence B. Goodheart, who repeatedly demonstrates his bias in favor of abolishing capital punishment in his commentary, in his selection and presentation of the historical evidence, and in numerous other published articles. See, e.g., L. Goodheart, supra, at p. 2 (opining that "the death penalty in Connecticut is contradictory in principle and unworkable in practice”); L. Goodheart, "Changing Use of Death Penalty Argues For Abolition,” Hartford Courant, April 23, 2011, p. A7 ("[m]y research has convinced me that it's time to abolish a law that is unenforceable, unfair and unethical,” and "I've come to the belief that we can no longer enforce this law, it was never effective and it was unfairly applied”); see also M. Kirk, "The History of the Death Penalty in Connecticut,” UCONN Today, October 24, 2011, available at http://today.uconn.edu/2011/10/the-history-of-the-death-penalty-in-connecticut/ (last visited July 27, 2015) (quoting from interview in which Goodheart expresses opposition to death penalty). Accordingly, Goodheart does not discuss the historical facts on which he relies in a completely objective fashion. Nevertheless, even Goodheart concedes that public support for capital punishment has remained strong in Connecticut during the past four centuries. For example, he observes that, in the more recent past, "[d]espite a petition campaign and gubernatorial support, opponents [of capital punishment] during an era of reform in the 1840s and 1850s failed to sway the legislature....” L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, at p. 3. Similarly, "[a]fter the horrors of World War II, Governor Abraham Ribicoff ... supported broad-based efforts to end capital punishment, but the General Assembly voted down abolition....” Id., at pp. 3–4. Thereafter, in 1963, "the House voted overwhelmingly, once again, to retain capital punishment” because of "popular support for the execution of hardened criminals”; id., at p. 201; and, "[i]n 1965, the House voted ... 167 to 67 to retain the death penalty.” Id., at p. 202. Goodheart also observes that, in the 1970s, following the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which, according to Goodheart, the nation's highest court "found that the arbitrary and inconsistent imposition of the death penalty violated the [e]ighth and [f]ourteenth amendments [of the federal constitution] concerning cruel and unusual punishment and due process of the law”; L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, at p. 196; Connecticut did not abolish capital punishment but "was one of thirty-seven states to rewrite its capital code to comply with the revised standard.” Id.In explaining why the death penalty retains strong public support in Connecticut, Goodheart states that "[s]urveys of public opinion provide an answer. A Quinnipiac University poll in January [of] 2005 indicated that 59 percent of Connecticut residents favored the death penalty,” which was "comparable to national sentiment.” Id., at p. 249. Goodheart also observes that, more recently, "[p]ublic opinion, the General Assembly (except in 2009), most governors, and the courts (state and federal) sustain the death penalty, at least for particularly cruel and heinous murders.” Id., at p. 2. He further acknowledges that, "[a]fter nearly four centuries of capital punishment, Connecticut is exceptional in its region in still carrying out the [capital punishment] statute. It appears that a substantial majority of the state's citizens wish to preserve the death penalty, at least for multiple murderers....” Id., at p. 5. At other times, he explains that "[t]he death penalty remains on the books because enough citizens believe that it is a necessary and just retribution”; id., at pp. 5–6; and that "[m]ost citizens in Connecticut [have] approved the death penalty when it applie[s] to horrific murders.” Id., at p. 250. For example, Goodheart states that 70 percent of those polled supported the execution of Michael Ross in 2005, the last person executed in Connecticut, and that "[o]ne-fourth of those who had previously indicated they opposed the death penalty wanted Ross executed.” Id. Goodheart ultimately concludes, without qualification, that, despite a vocal minority, "[p]ublic opinion supports the death penalty for [the worst] killers....” Id., at p. 252. Goodheart's statistics are consistent with statistics cited by Chief Justice Rogers in her dissenting opinion, which indicate that 62 percent of Connecticut voters favored the death penalty in April, 2012, and 59 percent in March, 2013, for persons convicted of murder. See footnote 31 of Chief Justice Rogers' dissenting opinion and accompanying text. Thus the "facts” cited by the majority's own "historian” do not support its claim that there has been a significant "deterioration in public acceptance” of the death penalty.

That capital punishment in Connecticut has been applied to a steadily decreasing number of crimes during the past 400 years and has been carried out infrequently in more recent decades does not mean that capital punishment for the most terrible crimes is lacking in significant public support. There always has been public debate as to the type and number of crimes to which capital punishment should apply, and the protections afforded to offenders before the punishment is carried out have grown over the years, thus extending the time between sentencing and execution. Capital punishment nonetheless continues to receive public support in Connecticut. This was reflected most recently in the inability of the legislature to override former Governor M. Jodi Rell's veto following the passage of an act intended to repeal the death penalty prospectively in 2009; see Public Acts 2009, No. 09–107; in the failure of similar legislation to achieve a full vote in either chamber of the legislature after advancing through the Judiciary Committee in 2011; see State v. Rizzo, supra, 303 Conn. at 199, 31 A.3d 1094 ; and in the fact that P.A. 12–5 provides only for the prospective repeal of capital punishment, while retaining it for current death row inmates.

The majority declares that the passage of P.A. 12–5 is a tipping point in the history of capital punishment in Connecticut, in that it represents such a significant change in public mores that capital punishment no longer comports with contemporary standards of decency. The majority's argument, in a nutshell, is that the passage of P.A. 12–5 is an expression of moral outrage against what the majority describes as the barbaric, excessive, arbitrary and discriminatory penalty of death. In reaching this conclusion, however, the majority rejects alternative explanations as to why the legislature may have passed P.A. 12–5, including that the death penalty is too expensive, that it takes too long to be carried out, or that it is merely an exercise of the legislative prerogative to establish penalties for crimes. The majority's narrow-minded view, however, is unsupported by the facts. If the legislature, as the majority claims, had rejected the death penalty only on the ground that it is barbaric, excessive, arbitrary and discriminatory, then why would it have enacted a retention provision specifically allowing executions to go forward for all current death row inmates, and why would it have permitted future arrests, indictments, the commencement of trials, and executions to be carried out with respect to those who had not yet been charged with a capital crime but who had committed such a crime before the effective date of P.A. 12–5? One need not be a legal scholar to understand that the majority's conclusion is not only out of step with the intent of P.A. 12–5, but is disrespectful to a coequal branch of government.

In sum, there is no support for the majority's determination that capital punishment no longer comports with evolving contemporary standards of decency or with understandings of applicable economic and sociological norms under the sixth Geisler factor. Nor can any support for its conclusion be drawn from the passage of P.A. 12–5. Accordingly, all six Geisler factors support the conclusion that capital punishment remains morally acceptable to the people of Connecticut in appropriate circumstances and is not cruel and unusual punishment under the state constitution following the passage of P.A. 12–5.

III

SEPARATION OF POWERS

My final concern is that the majority usurps the legislature's power to define crimes and establish punishments. In Rizzo, this court recognized that "assessing the propriety of the death penalty is not exclusively the domain of the legislature, and that this court has an independent duty to determine that the penalty remains constitutionally viable as the sensibilities of our citizens evolve. See Atkins v. Virginia, supra, 536 U.S. at 312–13, 122 S.Ct. 2242 ; State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318. In so doing, however, we must exercise our authority with great restraint ; State v. Ross, supra, [230 Conn.] at 249 [646 A.2d 1318 ]; and refrain from interfering with democratic processes unless there is compelling reason to disagree with the judgment reached by the citizenry and its legislatures. Atkins v. Virginia, supra, at 313 [122 S.Ct. 2242 ]. Moreover, it is clear that [r]easonable people of good faith disagree on the morality and efficacy of capital punishment; Baze v. Rees, [553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (opinion announcing judgment) ]; and that the value of [that sanction], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures.... Kennedy v. Louisiana, [554 U.S. 407, 441, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ]; see also Roper v. Simmons, [543 U.S. 551, 571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ] ( [i]n general we leave to legislatures the assessment of the efficacy of various criminal penalty schemes); Gregg v. Georgia, supra, 428 U.S. at 175 [opinion announcing judgment] ( [i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people ...); cf. Baze v. Rees, supra, at 69 [128 S.Ct. 1520 ] (Alito, J., concurring) ( [p]ublic policy on the death penalty, an issue that stirs deep emotions, cannot be dictated by the testimony of an expert or two or by judicial findings of fact based on such testimony). We therefore conclude that, as long as there remains powerful evidence of strong public support for the death penalty in the form of long-standing laws enacted by the democratically elected representatives of this state and other jurisdictions within the United States, we will not attempt to discern a contrary view of the public will, or to answer complex policy questions best answered by the legislative process, by choosing among the competing opinions of interest groups and individuals whose views are not necessarily in accord with those of the general population.” (Emphasis added; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094.

The foregoing view was expressed by this court, including the author of the majority opinion in the present case, a mere three and one-half years ago. For the majority now to ignore the court's recent precedent and to decide that capital punishment is impermissible under the Connecticut constitution, especially when the legislature has clearly expressed its intent that all presently sentenced offenders remain subject to the penalty, is inexplicable. See State v. Darden, supra, 171 Conn. at 679–80, 372 A.2d 99 ("it must be remembered that the constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment and to the judiciary the power to try offenses under these laws and [to] impose punishment within the limits and according to the methods therein provided”).

The majority's decision is especially disturbing in light of the fact that it is essentially a moral decision rather than a legal one. See, e.g., District Attorney v. Watson, 381 Mass. 648, 693, 411 N.E.2d 1274 (1980) (Quirico, J., dissenting). In other words, the majority determines that capital punishment is unconstitutional because it is "so out of step with our contemporary standards of decency as to violate the state constitutional ban on excessive and disproportionate punishment,” even though, only three and one-half years ago, this court reached the opposite conclusion. As a justice of the highest court in a neighboring jurisdiction stated in similar circumstances, foreshadowing the views expressed in Rizzo: "If this court is to determine the constitutionality of the death penalty in light of contemporary moral standards, I believe it must, at a minimum, award great deference to the legislative judgment implicit in the passage of the statute that contemporary moral standards support the punishment in certain circumstances.... Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the lawmaking department.... By substituting its view of contemporary standards for the view implicitly expressed by the [l]egislature, the court infringes on the [l]egislature's prerogative to define crimes and establish the terms of punishment.” (Citations omitted; internal quotation marks omitted.) District Attorney v. Watson, supra, at 693–94, 411 N.E.2d 1274 (Quirico, J., dissenting). Significantly, the opinion of the dissenting justice in Massachusetts was vindicated when the citizens of Massachusetts promptly rejected the court's decision that a state statute providing for the death penalty was unconstitutional on its face by amending the Massachusetts constitution to expressly provide that the death penalty was not forbidden. See State v. Ross, supra, 230 Conn. at 250 n. 30, 646 A.2d 1318. Moreover, to my knowledge, no other state court decision determining that capital punishment is unconstitutional under a state constitution has avoided abrogation by constitutional amendment.20

In State v. Ellis, supra, 197 Conn. at 450–51 n. 13, 497 A.2d 974, the court noted that Swift had recognized the legislature's authority to define crimes and establish punishments in the early 1800s. The court stated: "Prior to 1821, manslaughter was punished by methods which might be described as medieval. The 1808 statute provided that 'whatsoever person shall be guilty of the crime of manslaughter ... shall forfeit to the public treasury of this state, all the goods and chattels to him or her belonging ... and be further punished by whipping on the naked body, and be stigmatized, or burnt on the hand with the letter M, on a hot iron, and shall also be forever disabled from giving any verdict or evidence in any of the courts within this state.’ ... General Statutes (1808 Rev.) tit. 66, c. 7.” State v. Ellis, supra, at 450 n. 13, 497 A.2d 974. The court then observed that, even though Swift had "inveighed against this barbaric form of punishment”; id.; because "the ways of committing manslaughter differed greatly in criminality and ... the punishment [should have been] varied and proportioned accordingly ... [h]e concluded that in this enlightened period, when reason and science [had] dispelled the gloom of prejudice and superstition, it [was] to be hoped that the legislature [would] soon enact more rational and consistent laws on this subject.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., at 451 n. 13, 497 A.2d 974. The legislature's authority to establish punishments, within proper limits, has been expressly acknowledged in Rizzo and in other cases. See, e.g., State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094 ; State v. Williams, 157 Conn. 114, 121, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S.Ct. 1783, 23 L.Ed.2d 244 (1969) ; State v. McNally, 152 Conn. 598, 603, 211 A.2d 162, cert. denied, 382 U.S. 948, 86 S.Ct. 410, 15 L.Ed.2d 356 (1965) ; see also State v. Kreminski, 178 Conn. 145, 153, 422 A.2d 294 (1979) ; State v. Kyles, 169 Conn. 438, 444, 363 A.2d 97 (1975) ; State v. Levy, 103 Conn. 138, 148, 130 A. 96 (1925). Accordingly, this court must proceed with great caution when exercising its authority to determine that a punishment is unconstitutional.

Finally, the effect of the majority's decision on the relevant constitutional provisions and statutes referring to capital punishment in Connecticut is not their repeal or elimination, but their unenforceability. As this court stated in State v. Travelers Ins. Co., 73 Conn. 255, 47 A. 299 (1900), aff'd, 185 U.S. 364, 22 S.Ct. 673, 46 L.Ed. 949 (1902), "[n]o court can directly set aside an [a]ct of the legislature; and the power to indirectly invalidate legislation is one which in the nature of things can exist in the judicial department only under a constitution in the American sense, and is limited by the authority from which it is derived; it is not a power of veto or revision, but purely the judicial power of interpretation.” Id., at 259, 47 A. 299. Thus, both the legislature and this court are free to revisit the issue, as it has been asked to do in several pending cases in the context of a claim that capital punishment is per se unconstitutional.

For the foregoing reasons, I dissent.ESPINOSA, J., dissenting.

I agree with and join Justice Zarella's dissenting opinion, and generally agree with the dissenting opinion of Chief Justice Rogers. Both of those opinions thoroughly explain the myriad flaws in the majority's rationale, and make clear that the majority's conclusion that the passage of No. 12–5 of the 2012 Public Acts (P.A. 12–5) has rendered the death penalty unconstitutional is without basis. I write separately to highlight the majority opinion's apparent disregard of both the people of this state and their elected representatives. The majority's decision ignores the will of the people of Connecticut by abolishing the death penalty in a violation of the separation of powers, and essentially passes an amendment to P.A. 12–5 by a vote of four, abolishing that portion of the act that preserved the penalty of death for the eleven men currently on death row. This type of decision making is reminiscent of the same type of judicial activism that I spoke out against in my dissent in Lapointe v. Commissioner of Correction, 316 Conn. 225, 439, 112 A.3d 1 (2015), and, just as in that decision, today's majority decision "reflects a complete misunderstanding of the proper role that this court should play within the rule of law.” Id.

This court has developed an apparent practice of exceeding the constitutional bounds of its power in order to impose its personal notion of what justice and fairness require. In Lapointe, I expressed my strong disagreement with the majority's decision to abandon our role as an impartial reviewing court by acting as an advocate for the petitioner in that case and by usurping the role of the trial court in defiance of the constitutional limits on our power. Id. I also expressed concern that the decision in Lapointe marked a growing tendency by this court to go beyond the great power entrusted to it, a trend that traces its more recent roots to this court's decision in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014). Lapointe v. Commissioner of Correction, supra, 316 Conn. at 452, 112 A.3d 1. In Lapointe, I questioned whether the clouds cast over this court by its abuse of our supervisory authority in Blumberg Associates Worldwide, Inc. and Lapointe were not isolated squalls, but portended an approaching storm—one that would wash away any remaining pretense that this court is guided by the rule of law. See id., at 440–41, 112 A.3d 1.

Today, that perfect storm has arrived. Today's majority continues this court's unwarranted and unconstitutional expansion of its power, this time by usurping the role of our legislature, undermining the rule of the people and legislating from the bench in violation of the separation of powers. Using the guise of a contemporary standards analysis, today's majority tosses aside the moral standards held by the people of this state, as expressed through their legislature and their juries, and it imposes its own beliefs about what punishment should be appropriate for the worst criminal offenders in this state. In effect, the majority elevates itself to the ultimate political branch in our democracy with the power to impose its policies on the people—a result that is especially paradoxical when one considers that none of the members of this court were put here through a popular election. Importantly, however, because the majority opinion has grounded its decision on the conclusion, albeit incorrect, that the death penalty no longer comports with evolving standards of decency, the legislature has the power to reenact the death penalty. To be clear, after today's decision, the legislature is free to scrap the prospective repeal or adopt different legislation reinstating or preserving the use of the death penalty in future cases. As the majority acknowledges, legislative enactments are "the clearest and most reliable objective evidence of contemporary values....” Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). As the majority recognizes, there is nothing that requires that the standards of decency evolve only in one direction.

Before I proceed to my analysis, I offer the following observation. The question of whether the state should be able to execute its citizens for committing crimes held by society to be the most egregious entails thorny and essential legal, political, ethical and religious issues. It is unsurprising, therefore, that the death penalty is one of those issues about which people hold strong beliefs. The issue is necessarily entangled with the world view that one holds. Of course, we come to the bench not as automatons, but as persons, with fully developed world views, shaped by our experience and character. I am not suggesting that we must, or even should, leave those experiences at the door when we enter the courtroom. As United States Supreme Court Justice Sonia Sotomayor has eloquently acknowledged, the experience of a Latina jurist brings a different and valuable perspective to judicial decision making. S. Sotomayor, "A Latina Judge's Voice,” 13 Berkeley La Raza L.Rev. 87, 91–92 (2002). The same can be said of the various backgrounds of my esteemed colleagues—each of us brings the value of our diverse and individual experiences to the work of the court. At the same time, of course, we are all bound by the rule of law. The line that we must walk as judges, therefore, is a fine one. We bring our individual perspectives to each decision, but our personal world views must yield to the rule of law when the two conflict. It is much more challenging to walk that line when the question is one that engenders the level of passion inspired by the question of capital punishment. The fundamental failure of the majority is that it has failed to walk the line.

In The Federalist No. 78, Alexander Hamilton described the role of the judiciary in relation to the other branches of government. In his famous essay describing the judiciary as the "least dangerous” of the three branches, Hamilton summarized its role in the following statement: "It may truly be said to have neither FORCE nor WILL, but merely judgment....” The Federalist No. 78, p. 356 (Alexander Hamilton) (Hallowell: Masters, Smith & Co. 1857). Force lies in the role of the executive; will properly is the function of the legislature. That is, the legislature is the branch of government that properly reflects and carries out the will of the people. The judiciary's role cannot be to reflect the will of the people or the will of individual judges—its role is to apply the rule of law and issue judgment. In the content of today's decision, the majority ignores its proper role and seeks to usurp that of the legislature by carrying out a will—clearly, however, the will that the majority imposes is not the will of the people, but the will of the four unelected justices in the majority.

There is a good reason for Hamilton's view that the role of the judiciary should be one that is restricted to judgment and divorced from will. If the legislators fail to carry out that will, the people have the power to vote them out of office. As the Chief Justice observes in her dissent; see footnote 31 of the Chief Justice's dissenting opinion; at the time that P.A. 12–5 was passed, a Quinnipiac University poll revealed that Connecticut voters supported the death penalty by a huge margin, with 62 percent in favor and only 30 percent opposed. See Quinnipiac University, Release Detail (April 25, 2012), question 20, available at http://www.quinnipiac.edu/news-and-events/Quinnipiac-university- poll/connecticut/release-detail?ReleaseID=1739 (last visited July 16, 2015). I also note that that same 2012 poll revealed that 37 percent of Connecticut voters said that a legislator's death penalty vote would be "[e]xtremely important” or "[v]ery important” to their vote in the upcoming election that year, and that most voters would be less likely to vote for a legislator who had voted to abolish the death penalty. See id., question 26. Obviously, the legislators who enacted P.A. 12–5 realized that popular support for abolishing the death penalty simply did not exist, hence the partial repeal. No such check exists for this court. The four justices in the majority do not need to answer to the voters for their decision to dismiss the will of the people, and impose the majority's will on them.

The judicial power of interpretation is one of this court's greatest powers. As United States Supreme Court Chief Justice John Marshall explained, "[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). We say what the law means. That is undeniably a great power. It is not, however, a power without limits. Although we interpret it, we do not make the law—that function, as explained by Hamilton in The Federalist No. 78, is emphatically the province of the legislature. The Federalist No. 78, supra, at p. 356.

The line between interpretation and legislation is the reason that, when a dispute brought to this court requires us to determine the constitutionality of an act by another branch of government, we must proceed cautiously; our forays into constitutional questions must give due respect to the decisions of our coordinate branches of government. Our analysis of the constitutionality of a law, accordingly, begins with the strong presumption that the law is valid. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008). This presumption is dispositive unless and until the party challenging the act shows beyond a reasonable doubt that it violates the mandates in our constitution. Id. We must indulge in every presumption in favor of sustaining its validity and we may not disregard a challenged act unless its invalidity is clear. State v. Matos, 240 Conn. 743, 748, 694 A.2d 775 (1997). If there is any reasonable doubt about whether a challenged act violates our constitution, we must uphold its validity and apply it to the case before us. See id.

To be sure, we do not submit entirely to the legislature when considering whether a punishment is cruel and unusual, and we must review the validity of the challenged punishment in light of contemporary standards of decency. State v. Rizzo, 303 Conn. 71, 197, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). The standards of decency that we must consider, however, are those of the people of this state, not the judges of this court; our constitution does not give us a license to impose our own conceptions of decency on the people. Our cases recognize, as they must, that the legislature's judgments are the "clearest and most reliable objective evidence of contemporary values....” (Internal quotation marks omitted.) Id., at 191, 31 A.3d 1094. Shaping our society's response to such a mutable problem as crime is quintessentially a legislative function, so our constitution properly "assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment....” State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976).

The democratically elected legislature is far better suited to evaluate and give effect to the social and moral choices of our people than a group of appointed judges who are largely insulated from public contact and scrutiny. Reasonable people may disagree about the wisdom of using capital punishment, and "the value of [that sanction], and its contribution to acceptable penological goals, typically is a complex factual issue” primarily for the legislature to resolve. (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197, 31 A.3d 1094. We must, therefore, exercise our constitutional duty with " 'great restraint’ ” and may interfere with the democratic process only when there are compelling reasons to conclude that our criminal statutes are far out of step with contemporary mores. Id.

Of course, because there are no such compelling reasons to cast aside the legislature's recent decision to retain capital punishment for certain offenders, as demonstrated by the opinions of the Chief Justice and Justice Zarella, the majority applies nothing resembling this deferential framework. In the majority's view, the issue is simple. Despite indicators that capital punishment remains a decent and deserved form of punishment for certain offenders, including those already under a capital sentence, the majority's own extra-record fact-finding leads it to an extraordinary and inflammatory conclusion, that those who support capital punishment are, at best, enemies of modern decency. Specifically, the majority cites approvingly to a report that states that "executions are overwhelmingly confined to the South (and states bordering the South), the very same jurisdictions that were last to abandon slavery and segregation, and that were most resistant to the federal enforcement of civil rights norms.” C. Steiker & J. Steiker, Report to the American Law Institute Concerning Capital Punishment, in A.L.I., Report of the Council to the Membership of The American Law Institute on the Matter of the Death Penalty (April 15, 2009) annex B, p. 29; see footnote 86 of the majority opinion. In this single statement, the majority suggests that Southerners are racists, and so are those who support the death penalty. Painting Southerners and supporters of the death penalty with the broad brush of racism could appear to some to be racist itself and reinforces stereotypes that have no foundation in fact or law. It is one thing to read about racism and believe that one understands it; it is an entirely different matter to live through it.

Indeed, the majority's insinuations about the moral values of those citizens in this state and elsewhere who continue to support capital punishment not only inappropriately stereotype those who support the death penalty, but they also miss the point that evaluating the current standards of decency is a complex task that cannot be accomplished by way of sweeping generalizations. The most that can be said in favor of finding capital punishment to be unconstitutionally cruel is that contemporary sentiment on the topic is mixed. Although there are citizens in our state who oppose capital punishment, there are certainly many fair-minded citizens who find it to be an appropriate punishment, at least for certain offenders, a sentiment reflected in the very recent judgment of our legislature and the decisions of our juries. Given the lack of any real consensus on the matter, this would be a fitting issue to leave to the people to resolve, at least until a consensus on contemporary standards truly arises.

Rather than acknowledging that contemporary standards are mixed, the majority scours the legislative record and extra-record materials to suggest that there is a statewide consensus that the death penalty does not comport with standards of decency. The majority's decision to exceed this court's limited power appears to be designed to eliminate capital punishment in this state. Rather than faithfully applying a true contemporary standards analysis, the majority applies only the appearance of such an analysis, selecting for consideration only those aspects of each factor that support its conclusion.

The majority also flouts the limits imposed by our constitution, engages in fact-finding limited to discovering only those facts supporting its conclusion, and ignores the import of facts that do not support its view. At every step in its analysis, the majority's selective review of the facts leads it to deliberately choose an explanation that undermines, rather than supports, the validity of the legislature's judgment that capital punishment remains a valid and appropriate punishment for those who committed their crimes prior to the enactment of P.A. 12–5. As the Chief Justice points out, the majority relies on floor speeches by a handful of legislators during the debate on P.A. 12–5 to find a legislative consensus that capital punishment is immoral, but gives short shrift to the legislature's ultimate and deliberate decision to retain capital punishment for certain offenders.

In reviewing actual sentencing practices, the majority cites a few misleading statistics from an extra-record source to find that our juries are reluctant to impose the death penalty, but the majority's selective quotation of figures ignores the impact of other factors affecting the ratio of capital sentences, such as plea agreements and acquittals, and does not mention that our juries ultimately imposed a capital sentence in 43 percent of the cases presenting that option. J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?” 11 J. Empirical Legal Stud. 637, 641 (2014). The majority's extra-record fact-finding also leads it to conclude that the lengthy delay between sentencing and punishment results from society's moral rejection of capital punishment, a conclusion that ignores that the cause of this delay is not a state loath to carry out a duly imposed sentence, but the robust appeal process that the defendants themselves use to challenge their sentences.

Most tellingly, in concluding that the death penalty no longer comports with contemporary standards of decency, the majority gives no consideration to the fact that a Connecticut jury recently handed down a capital sentence in the only capital sentencing hearing to take place after the enactment of P.A. 12–5. Richard Roszkowski was convicted of murdering three people in 2006, before the effective date of P.A. 12–5. The victims included nine year old Kylie Flannery, her mother, Holly Flannery, and Thomas Gaudet. In March, 2014, nearly two years after P.A. 12–5 took effect, a jury of Roszkowski's peers determined that his crimes warranted society's ultimate punishment. State v. Roszkowski, Superior Court, judicial district of Fairfield, Docket No. FBT–CR–06–0218479–T. They did this despite the knowledge that the state had repealed the death penalty for later committed crimes. One juror was quoted as saying: " 'He deserved to be punished to the full extent of the law of the land at the time. And at that time, it was death.’ ” A. Griffin, "New Death Sentence: Killer Exempt from Execution Ban,” Hartford Courant, May 23, 2014, pp. A1, A5. The majority relegates this crucial information to a brief footnote in its lengthy decision. See footnote 102 of the majority opinion.

The majority decision is replete with ironies that are so extreme that they reveal the lack of any rational basis for the opinion. The majority somehow extracts a public consensus in favor of prohibiting capital punishment from a lack of public support for such a repeal. It concludes that our juries despise capital punishment, despite a willingness to impose a death sentence in nearly one half of the cases that presented such an option. And, the majority reasons, providing defendants with a robust and sometimes lengthy process to ensure the fairness of their convictions and sentences renders those sentences unconstitutionally cruel, essentially allowing those sentenced to death to render their own sentences invalid.

In deciding that a prospective repeal demonstrates a consensus against capital punishment, the majority ignores our recent observation in Rizzo rejecting the notion that a prospective repeal indicates a legislative judgment that the death penalty "is intolerable under any and all circumstances” and, instead, reflects a choice between valid modes of punishment. State v. Rizzo, supra, 303 Conn. at 190 n. 88, 31 A.3d 1094. Similarly, the majority's position that the narrowing of the offenses for which the death penalty is available supports a conclusion that capital punishment is unconstitutional directly conflicts with our decision in Rizzo. Specifically, in Rizzo, this court acknowledged that refinements to the application of capital sentences may not indicate a fundamental disapproval of the death penalty, but are consistent with the principle that society's ultimate sanction ought to be used sparingly. Id., at 189, 31 A.3d 1094.

Equally problematic is the concurring opinion, which, in a highly unusual move, is coauthored by Justices Norcott and McDonald.1 The concurring justices have taken it upon themselves to decide whether our capital punishment system suffers from racial bias—an issue that is both unnecessary and improper to address in this appeal. This issue is not before us in the present appeal, we do not have a proper factual record to decide it, and the issue is presently pending in another, separate appeal before this court that does have a proper factual record. See In re Death Penalty Disparity Claims, Connecticut Supreme Court, Docket No. SC 19252 (filed November 6, 2013).

I observe that, because the concurring opinion addresses the issues presented in the pending appeal before this court in In re Death Penalty Disparity Claims, supra, at Docket No. SC 19252, Justice Norcott's participation raises questions about the scope of this court's decision in Honulik v. Greenwich, 293 Conn. 641, 663, 980 A.2d 845 (2009). General Statutes § 51–198(c)2 and Honulik contemplate that a judge may continue to wrap up the cases he had been working on before he attained the age of seventy, including hearing timely motions to reconsider. Accordingly, Justice Norcott's participation in this appeal is authorized by § 51–198(c) as interpreted by Honulik, because he had not attained the age of seventy when the motion to reconsider was argued to this court. Currently, however, Justice Norcott is serving as a judge trial referee and, therefore, would be unable to participate in the resolution of the pending appeal in In re Death Penalty Disparity Claims, supra. Yet, by coauthoring the concurrence, he weighs in on the issues presented in the pending appeal, thus expressing his opinion on an appeal in which he would not otherwise be authorized to participate.

The possibility that a justice who already has attained the age of seventy—in the context of an appeal in which, I reiterate, his participation is authorized by § 51–198(c) and Honulik —would be discussing in a judicial opinion the evidence and issues presented in an appeal that is still pending after that justice attained the age of seventy, could not have been contemplated or foreseen by Honulik. In light of the concurring opinion's discussion of the issues and evidence presented in In re Death Penalty Disparity Claims, supra, at Docket No. SC 19252, the legislature may want to consider clarifying the parameters of § 51–198(c).

By way of clarification, I do not criticize Justice Norcott for reiterating his well-known concerns about racial bias in the imposition of the death penalty. I have the utmost respect for Justice Norcott's courageous and steadfast adherence to his personal beliefs over the past twenty-three years, and nothing in this dissent should be construed to impugn his integrity. My concerns regarding the questions raised about the scope of Honulik are limited to the concurring opinion's discussion of the issues and evidence presented in a pending appeal.

Moreover, the concurring justices lack an adequate factual record to decide this issue. The record in the present appeal is devoid of these facts because we made clear, time and again, that any claims alleging racial disparity in capital sentencing must be heard in the consolidated habeas litigation styled In re Death Penalty Disparity Claims, Superior Court, judicial district of Tolland, Docket No. TSR–CV–05–4000632–S. See, e.g., State v. Reynolds, 264 Conn. 1, 233–34, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004) ; State v. Breton, 264 Conn. 327, 406–407, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003) ; State v. Cobb, 251 Conn. 285, 498–99, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000) ; State v. Cobb, 234 Conn. 735, 761–62, 663 A.2d 948 (1995). That case has now been decided by the habeas court and is presently pending on appeal before this court. See In re Death Penalty Disparity Claims, supra, at Docket No. SC 19252. The concurring justices acknowledge that they cannot rely on the findings of the habeas court in that case—that would plainly be improper—but they nevertheless discuss the issues presented in the habeas proceeding, and rely heavily on the opinion of John J. Donohue III, the expert who testified on behalf of the petitioners in In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S. The habeas court, in its memorandum of decision denying the petition, did not credit Donohue's opinion because the court found it lacking when subjected to an analysis pursuant to the test set forth in McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987), which requires proof of purposeful discrimination in the case at hand. See In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S, 2013 WL 5879422 (October 11, 2013) (unpublished opinion). The court also found Donohue's opinion to "fall short,” however, even under the broader test advocated by the petitioners, who relied on a more general demonstration of racial disparity in the imposition of the state's capital punishment scheme to challenge their sentences. Id. The fundamental weakness in Donohue's testimony, the court found, was that it failed to demonstrate that "the disparities shown by [his] analysis [were] the product of Connecticut's capital punishment procedure and not merely a reflection of ambient social or psychological forces.” (Emphasis in original.) Id.

The concurring justices state: "We strongly emphasize that the fact that a charging or sentencing decision may be based in part on impermissible racial factors does not imply that the prosecutor, judge, or juror making that decision is 'racist,’ as that term is typically used.” The concurrence claims that it relies on the phenomenon that "most, if not all, of us exhibit unconscious or implicit bias.” I offer two observations. First, by failing to define racism, the concurring justices free themselves simultaneously, on the one hand, to claim that those who support the death penalty or are part of a system that imposes it are racist, and, on the other hand, to disavow that claim by stating that they are instead referring to "unconscious” bias. Second, the concurring justices fail to draw any distinction between the feelings of unconscious bias that prosecutors, police officers, judges and juries may have, and the actions that are undertaken and the decisions that are made in the imposition of the death penalty. What reviewing courts should be concerned with in the imposition of the death penalty are racist acts, not racist feelings.

I agree with the concurring justices that unconscious racial bias in our society is a powerful, negative force. It is this type of racial bias that permeates the daily lives of every person of color, lying under the surface, unspoken and unacknowledged, rendered more powerful by its invisible omnipresence in every exchange. This type of racial bias is the reason that the achievements, contributions and opinions of persons of color are devalued and dismissed. It is the source of the stereotypes with which persons of color are encumbered, and the means by which those stereotypes are reinforced. The concurring opinion, and apparently also the majority, rely on these tendencies of racism and bias to suggest that in their view the death penalty is always motivated by bias and racism. Those tendencies, however, can be said to be present in the imposition of any criminal punishment, not only the death penalty. Following the logic of the concurring justices, we should therefore ban all criminal punishment, since it cannot be imposed in a racially neutral manner.3 Because the parties to the present appeal did not raise any claims of racial bias, there is no need for the concurring justices to address that issue. But the concurring justices address it anyway, claiming that, because of the result reached in the majority opinion, they must review the issue of racial bias now or else they will never have a chance to speak on it. While it is true that a concurring opinion is not binding authority, no one familiar with the persuasive force of many of the concurring opinions authored by United States Supreme Court Justice Sandra Day O'Connor can deny that concurring opinions have some precedential value. See generally D. Lowenthal & B. Palmer, "Justice Sandra Day O'Connor: The World's Most Powerful Jurist?,” 4 U. Md. L.J. of Race, Religion, Gender & Class 211 (2004). With that precedential value comes responsibility. In a concurring and dissenting opinion in State v. Santiago, 305 Conn. 101, 325–26, 49 A.3d 566 (2012), Justice Harper referred to a statistical study of capital punishment prepared by Donohue, the expert who testified on behalf of the petitioners in the then ongoing habeas corpus proceeding, In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S. Justice Harper, however, in a replacement page to his concurring and dissenting opinion, added a footnote, in which he properly recognized that the study by Donohue "was prepared in connection with” In re Death Penalty Disparity Claims, supra, Superior Court, at Docket No. TSR–CV–05–4000632–S. State v. Santiago, supra, at 325 n. 11, 49 A.3d 566. Accordingly, he noted the necessary limitations of his reference to that study: "I ... point to this study not for the ultimate truth of its assertions but as a provocation to critical inquiry. I leave it to the course of judicial process to pass definitive judgment on the soundness of the study's data and its ultimate conclusions regarding the impact of race on the death penalty in Connecticut.” Id. (Harper, J., concurring in part and dissenting in part). Accordingly, the rule precluding a judge from commenting on the issues presented in a pending appeal is not limited to remarks made in a majority opinion, but applies with equal force to remarks made in a concurring opinion. This limitation accommodates concurring opinions' potential precedential value, despite their nonbinding nature.

Today's decision is ultimately about disrespect. It is about disrespect for the limits placed on this court's power, disrespect for the judgment of the people expressed through their juries and their legislature, and disrespect for the value of carrying out punishments deemed warranted by juries and the people's legislature. By concluding that capital punishment is unconstitutional, the majority decides that the legislature must have acted improperly when it deliberately chose to retain capital punishment for certain offenders. The majority casts aside the limits on our power and the respect owed to our coequal branches of government and unilaterally removes this issue from the public debate and negates the legislature's decision to retain the death penalty for the eleven men on death row.

The majority's decision renders irrelevant the effort of our jurors who had to endure difficult testimony and render perhaps one of the most difficult decisions of their lives. By tossing aside the sentences reached by these jurors, and the people's judgment that these sentences ought to be carried out, the majority shows disrespect for the difficulties endured by the families of the victims of those under capital sentence, and deprives the victims' families of the predictability of the rule of law.

The eleven men currently on death row represent what the people consider to be the worst of our society, and the people of Connecticut decided that they should die for their crimes. The four justices of the majority today subvert the will of the people of this state, which was, both before and after the passage of P.A. 12–5, that these eleven men should die for their actions. And what committed by some of the prisoners on death row to serve as a reminder of the horrific crimes that the people of Connecticut have deemed worthy of execution.In the middle of the night, after spending the evening drinking and dancing with a woman he met at a bar in Waterbury, Robert Breton entered the apartment of his former wife, JoAnn Breton (JoAnn), who had recently divorced him. State v. Breton, supra, 235 Conn. at 212, 663 A.2d 1026. Breton went into JoAnn's bedroom while she was sleeping, and beat and stabbed her repeatedly. Id., 212–13, 663 A.2d 1026. She tried to escape, but barely managed to make it across the room before Breton caught her and continued stabbing her in the face, chest and neck. Id. He finally plunged the five inch blade through her neck, severing her carotid artery, then left her to bleed to death. Id. In the meantime, Breton's teenage son, Robert Breton, Jr. (Robert, Jr.), had been sleeping in his bedroom when he was awakened by his mother's screams for help. Id., at 213, 663 A.2d 1026. Robert, Jr., tried to come to his mother's aid, but Breton attacked him, slashing him in the forearm with the knife, and cutting him on his hands and fingers. Robert, Jr., tried to escape, running and bleeding down the stairs. He made it to the first floor landing, but then his father caught up with him. Id. Breton repeatedly stabbed his son in the face, chest, shoulder and neck, finally killing Robert, Jr., in the same way that he had killed his mother, burying the blade deeply in his son's neck. Id.

Daniel Webb abducted Diane Gellenbeck4 at gunpoint in the parking garage at her workplace in Hartford. State v. Webb, supra, 238 Conn. at 397–98, 680 A.2d 147. He forced her into the car he was using and drove to Keney Park. Id., at 398, 680 A.2d 147. Once there, he forced her to remove her shoes, pantyhose and panties, and then attempted to rape her. She struggled, scratching his face and ripping her clothing in the process. Id. When she managed to break free, he shot her twice in the back. Id. She collapsed, falling to the ground. As Gellenbeck was crawling away from the defendant and crying for help as she coughed up blood, he retrieved the car and drove it back to where she was crawling. Id. He got out of the car. He walked over. He came to where she had crawled, in excruciating pain, thirty-three yards from where she first fell. He stood in front of her. Id., at 398, 486, 680 A.2d 147. He then fired two more shots at her—in the chest and in the ear. Finally, he bent down and held the gun close to her skin—and he shot her in the face. Id., at 398, 487, 680 A.2d 147. With the last shot, Webb held the gun so close to her that her face was stippled from the hot gunpowder. Id., at 398, 680 A.2d 147. At least two of the bullets that were removed from Gellenbeck's body possessed hollow points, "designed to expand upon contact and cause greater damage to their target than ordinary bullets.” Id., at 399, 680 A.2d 147.

While twenty-two year old Julia Ashe was shopping in the Bradlees shopping center in Waterbury, Sedrick Cobb deflated one of her car tires, and then waited for her to return to her vehicle. State v. Cobb, supra, 251 Conn. at 302, 318, 743 A.2d 1. He had already unsuccessfully tried this ruse with two other potential victims, who were luckier than Ashe. Id., at 301–302, 743 A.2d 1. Ashe was not so lucky. When she returned to her car with her purchases, he offered to change her tire for her, an offer that she accepted. Id., at 302, 743 A.2d 1. Having gained her trust, Cobb claimed that his car was disabled and asked for a ride. Id. Ashe agreed, and while she was driving, Cobb forced her to drive to a nearby but secluded area, where there was a dam that abutted a pond. Id. Once there, he ordered her to move to the backseat of the two door car, so she could not escape. Id. He began to go through her handbag and shopping bags, taking money and her personal papers. Id., at 302–303, 743 A.2d 1. He next moved to the backseat and pulled down her pants, inserted his finger in her anus, then raped her vaginally. Id., at 303, 743 A.2d 1. He jammed one of her gloves in her mouth, then covered her mouth and nose with fiberglass reinforced tape that he had brought with him. Id., at 302–303, 743 A.2d 1. He also used the tape to bind her hands and her feet. He carried her to the edge of the dam, where there was a twenty-three foot drop to the concrete below, covered by about one foot of water. Id., at 303, 743 A.2d 1. He pushed her off the top of the dam, but he did not leave. He stayed and watched from his vantage point at the top of the dam to be certain that she had died from the fall. Id. Ashe survived the fall and used some wire mesh to remove the tape from her hands, cutting herself in the process. She also managed to remove the tape from her feet, but she could not remove it from her face, although she gouged her face with her fingernails trying. She then began to crawl out of the water onto the shore. Id. In the meantime, seeing that she was still alive, Cobb went down to the bottom of the dam, dragged Ashe back to the water, then forced her facedown into the water, drowning, strangling her, or both. Id., at 303–304, 743 A.2d 1.

Richard Reynolds, a convicted drug dealer and member of a cocaine trafficking organization in Waterbury, hit the streets before 4 a.m. on the morning of December 18, 1992, with a .38 caliber pistol in his right coat pocket and cocaine in his left pocket. State v. Reynolds, supra, 264 Conn. at 18–19, 836 A.2d 224. Thirty-four year old Officer Walter Williams of the Waterbury Police Department, who was on patrol alone that morning, noticed Reynolds and his companion, and ordered them to " '[g]et up against’ ” Williams' cruiser. Id., at 15, 19, 169 n. 153, 836 A.2d 224. Reynolds partially complied and placed his left hand on the hood of the cruiser, but kept his right hand in the pocket of his coat, where his gun lay, hidden. Id., at 19, 836 A.2d 224. Reynolds refused to remove his right hand from the coat pocket despite Williams' repeated instructions to do so. Id. Williams grabbed Reynolds' right arm, but could not force his hand out of the pocket. Id., at 19–20, 836 A.2d 224. As Williams released his hold on Reynolds' right arm, Reynolds removed his left hand from the hood of the cruiser and his elbow bumped Williams in the chest. Id. Reynolds could feel the officer's bulletproof vest under his uniform when his elbow made contact. Id. Knowing that Williams' body was protected, Reynolds made his decision. He whipped around, removed his gun from his coat pocket and aimed at the young officer's head, shooting Williams behind the left ear. Id. Reynolds ran, firing three to six more shots toward Williams as he raced away. Id. He left Williams to die in the road. Williams was still alive when a passerby came by shortly thereafter. He told the man that he had been hit, then became unintelligible. Id., at 21, 836 A.2d 224. His body began to shake uncontrollably. Id. The passerby radioed for help, and Williams was still alive when officers arrived at the scene. He reached out and grasped the shoulder of Officer Timothy Jackson, who had knelt down beside him. He tried to speak, but could not. Id. When he arrived at the hospital he was unconscious, and, soon after, he lapsed into a coma. He died that day from the gunshot wound to his head. Id.Stanley G. Edwards (Stanley) was thirteen years old when Todd Rizzo brutally murdered him on September 30, 1997, because Rizzo, who had been fascinated with serial killings in general and Jeffrey Dahmer in particular, "wanted to know what it was like to kill somebody.” State v. Rizzo, 266 Conn. 171, 179, 186, 190, 191, 833 A.2d 363 (2003). Earlier that day, Stanley had been playing with friends. Id., at 186, 833 A.2d 363. After dinner with his mother and his sister, he went for a ride on his bicycle. Id. As Stanley rode past Rizzo's house at approximately 8 p.m., Rizzo, who knew Stanley, was just walking to his car in front of his home. Stanley rode up to Rizzo, who asked him if his mother or anyone else knew that Stanley was there. When Stanley responded that no one knew, Rizzo decided to kill him " 'for no good reason and get away with it.’ ” Id., at 187, 833 A.2d 363. In order to lure the boy to his backyard, Rizzo told Stanley that he could show him some snakes. Id. As Stanley waited, Rizzo retrieved a flashlight from his car and he also picked up a three pound sledgehammer that he had hidden there. Id. He hid the sledgehammer down the front of his pants, and gave Stanley the flashlight. Id. While Stanley was using the flashlight to look for snakes in the backyard, Rizzo approached him from behind and held the sledgehammer high, then brought it crashing down into the side of Stanley's head. Id. Stanley fell forward on his face, rolling over when Rizzo missed with his second swing, begging for his life. Id. Rizzo responded by straddling Stanley " 'like a horse’ ” from behind, raining blow after blow down on him, because he did not want the neighbors to hear Stanley scream. Id., at 187–88, 833 A.2d 363. Stanley tried to defend himself, attempting to shield his head with his hands, but to no avail. After eleven or twelve blows, Stanley began to gurgle. Id., at 188, 833 A.2d 363. Rizzo bashed him two more times to be certain that he was dead. Id. Finally, Rizzo stomped on Stanley's back, leaving the imprint of his boot. Id. Rizzo unceremoniously dumped the body onto the pavement in a nearby condominium complex. Id., at 189, 833 A.2d 363.5

In the present case, the defendant, Eduardo Santiago, shot and killed Joseph Niwinski with a rifle in exchange for a used snowmobile. State v. Santiago, supra, 305 Conn. at 114, 121, 123, 49 A.3d 566. Before killing the victim, Santiago and his two accomplices cased Niwinski's home several times as part of their preparation for the murder. Id., at 122, 49 A.3d 566. In addition, they made a homemade silencer for the rifle, and Santiago hand carved the name "JOE” on the bullets. Id. On the night of the murder, Santiago coolly walked up the stairs to Niwinski's apartment, made certain that the alarm in the apartment had not been set, then shot the sleeping man in the head. Id., at 123, 49 A.3d 566. Santiago then stole a handgun and $200 from Niwinski's apartment but he delayed his exit when he heard an automobile pull up and sound its horn outside the apartment, and Niwinski's landline and cell phone began to ring. Id. After the car drove away, Santiago left. Id. The next night, Santiago asked the man who had hired him to kill Niwinski, Marc Pascual, when the snowmobile would be ready. Id., at 124, 49 A.3d 566. He was arrested for the murder before he could collect his payment. Id., at 125, 49 A.3d 566.

Because of today's decision, the families of the victims of these vicious crimes will never have the opportunity to have their voices heard on the subject of whether the punishment of death does not comport with contemporary standards of decency, as they would have, if the actual legislature had abolished the death penalty. Their voices, and the voices of the people of Connecticut, already had been heard by the legislature, and the result was P.A. 12–5, which retained the penalty of death for the men already on death row. What message do we send to the people of Connecticut when we ignore the reasoned judgment of their elected representatives and substitute our own judgment instead? What message do we send to the people of this state when we ignore the verdicts of their juries? Today's decision replaces the rule of law with the rule of four. This is not judging. This is not the rule of law.

We are here as arbiters to resolve disputes, not to dictate policy. When determining the scope of our protections from cruel and unusual punishment, we should be guided by the contemporary standards of the community, standards recently expressed in P.A. 12–5, which reflected a decision not to completely abolish capital punishment. We could have reaffirmed the magnificence of our democracy by respecting the limits the people placed on our power and by recognizing that contemporary standards demonstrate that this debate was still in the hands of the people to settle. It is certainly less dramatic to adhere to the decidedly unromantic role assigned to this court of "merely judg[ing]”; see The Federalist No. 78, supra, at p. 356; but we are not here for drama or glory. We are not here to sweep away entire statutory schemes with the stroke of a pen by amending public acts from the bench. We are here to perform the much smaller, yet essential role assigned to us as apart of this democracy—we are here to judge. The result of the majority's circumlocution is that four unelected judges are overruling the judgment of the people's legislature despite recent and strong evidence that the people continue to support capital punishment as a penalty that comports with contemporary standards of decency, at least for those offenders who committed their crimes when capital punishment was on the books. What picture does this paint for our citizens if their legislature passes a law permitting a punishment that is consistent with the standard held by the people, and this court overrules their decision and imposes its own standard?

Finally, and most importantly, although the majority's decision improperly substitutes its own judgment for that of the people and their elected representatives, today's decision does not strike a dagger into the heart of the death penalty. Rather, it should be understood as an opportunity for the legislature to review and consider, in light of the majority decision, as well as the current views of the people of Connecticut, especially those of the families of the victims of the atrocious crimes committed by the eleven men on death row, whether the death penalty comports with contemporary standards of decency in this state.

Accordingly, I dissent.


Summaries of

State v. Santiago

Supreme Court of Connecticut.
Aug 25, 2015
318 Conn. 1 (Conn. 2015)

holding that the death penalty no longer comported with contemporary standards of decency and violated the state constitutional ban on excessive and disproportion punishment and its prospective abolition applied to capital sentences already imposed

Summary of this case from State v. Jenks

striking down further Connecticut executions on state constitutional grounds following prospective repeal of capital punishment where "the number of executions compared to the number of people who have been sentenced to death is minuscule"

Summary of this case from Fry v. Lopez

collecting statements from legislators about the role of the Cheshire case in drafting the bill

Summary of this case from Reynolds v. Quiros

explaining that while Santiago's conviction was affirmed, his sentence of death was initially reversed and remanded for a new penalty phase hearing on the ground that he had been deprived of the opportunity to review and use certain potentially mitigating evidence; but, after the passage of Section 18-10b, on reconsideration, Santiago's sentence of death was reversed and remanded with direction to sentence the defendant to life imprisonment without the possibility of release

Summary of this case from Reynolds v. Quiros

In Santiago, 318 Conn. 1, the Supreme Court of Connecticut held that, following the 2012 prospective abolition of the death sentence, execution of those offenders remaining on Connecticut's death row would violate the state Constitution.

Summary of this case from Ashby v. Quiros

In Santiago, 318 Conn. 1, the Supreme Court of Connecticut held that, following the 2012 prospective abolition of the death sentence, execution of those offenders remaining on Connecticut's death row would violate the state Constitution.

Summary of this case from Campbell v. Quiros

emphasizing importance of our power to identify and apply proper construction of governing law "when plenary consideration is necessary to thoroughly address and accurately decide constitutional claims and other matters of substantial public importance"

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In Santiago, the defendant was found guilty of capital felony for a murder committed in December, 2000, and was sentenced to death.

Summary of this case from Griffin v. Comm'r of Corr.

explaining that Geisler test is "a scheme by which we organize and review, for purposes of state constitutional challenges, the various types of considerations that may bear on any question of first impression"

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listing panel members

Summary of this case from Skakel v. Comm'r of Corr.

addressing issue that was moot and that had not been briefed by parties because concurring justices "[felt] compelled" to do so

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In Santiago, this court held that, in light of the 2012 public act prospectively repealing the death penalty; Public Acts 2012, No. 12–5; the execution of offenders who committed capital felonies prior to the act's effective date would violate the state constitution's prohibition against cruel and unusual punishment.

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explaining that majority decision abolishing death penalty constituted “legislating from the bench”

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In Santiago, Chief Justice Rogers could uncover "no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution"; id., 276 (Rogers, C. J., dissenting); leading her to conclude that the majority in Santiago "improperly decided that the death penalty must be struck down because it offends the majority's subjective sense of morality."

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In Santiago, however, Justice Zarella, Justice Espinosa and I explained at great length why we believed that the majority decision was incorrect; see State v. Santiago, supra, 318 Conn. 231-341 (Rogers, C. J., dissenting); id., 341-88 (Zarella, J., dissenting); id., 388-412 (Espinosa, J., dissenting); and we were unable to persuade the majority.

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In Santiago, we exceeded the outer bounds of this duty by determining that the death penalty no longer comports with the state's contemporary standards of decency and by concluding that it thus can never be imposed.

Summary of this case from State v. Peeler

In Santiago, we opined only that, in light of the constraints imposed by federal law, it is virtually impossible to exercise such discretion so as to ensure that the imposition of the death penalty, writ large, will not be arbitrary and capricious.

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In Santiago, we reviewed numerous instances and contexts in which each of the three branches of government at times sought to temper what were perceived as cruel or unusual punishments.

Summary of this case from State v. Peeler

In State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), a majority of this court concluded that, following the legislature's April, 2012 decision to abolish the death penalty for all future offenses; see Public Acts 2012, No. 12-5 (P.A. 12-5); capital punishment no longer comports with the state constitutional prohibition against cruel and unusual punishment.

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In Santiago, however, Justice Zarella, Justice Espinosa and I explained at great length why we believed that the majority decision was incorrect; see State v. Santiago, supra, 318 Conn. at 231–341, 122 A.3d 1 (Rogers, C.J., dissenting); id., at 341–88, 122 A.3d 1 (Zarella, J., dissenting); id., at 388–412, 122 A.3d 1 (Espinosa, J., dissenting); and we were unable to persuade the majority.

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In Santiago, we exceeded the outer bounds of this duty by determining that the death penalty no longer comports with the state's contemporary standards of decency and by concluding that it thus can never be imposed.

Summary of this case from State v. Peeler

In Santiago, we opined only that, in light of the constraints imposed by federal law, it is virtually impossible to exercise such discretion so as to ensure that the imposition of the death penalty, writ large, will not be arbitrary and capricious.

Summary of this case from State v. Peeler

In Santiago, we reviewed numerous instances and contexts in which each of the three branches of government at times sought to temper what were perceived as cruel or unusual punishments.

Summary of this case from State v. Peeler

In State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), a majority of this court concluded that, following the legislature's April, 2012 decision to abolish the death penalty for all future offenses; see Public Acts 2012, No. 12–5 (P.A. 12–5); capital punishment no longer comports with the state constitutional prohibition against cruel and unusual punishment.

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considering competing interpretations of statutory text

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Case details for

State v. Santiago

Case Details

Full title:STATE of Connecticut v. Eduardo SANTIAGO.

Court:Supreme Court of Connecticut.

Date published: Aug 25, 2015

Citations

318 Conn. 1 (Conn. 2015)
122 A.3d 1

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