State v. Santiago ( 2015 )

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STATE v. SANTIAGO—FIRST DISSENT
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 con-
cludes 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 soci-
etal consensus in this state that the death penalty is an
inappropriate punishment for the most heinous mur-
ders. Thus, this history is entirely irrelevant to the ques-
tion before the court. Indeed, in apparent acknow-
ledgment 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 con-
sistent 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]mend-
ment’’); 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 unconsti-
tutional under the state constitution, however, this
court rejected a claim that the death penalty is inconsis-
tent 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 enact-
ment 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 indica-
tor of contemporary societal mores, expressly retained
the death penalty for crimes committed before the effec-
tive date of P.A. 12-5. The majority’s reasoning also
contains a glaring contradiction that cannot be recon-
ciled: at the same time that the majority concludes that
the prospective repeal of the death penalty demon-
strates 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 imper-
missible societal desire to wreak vengeance against the
perpetrators of such crimes.1 Moreover, in making its
determination that the death penalty violates contempo-
rary standards of decency in this state, the majority: (1)
addresses societal factors affecting the constitutionality
of the death penalty that the defendant, Eduardo Santi-
ago, 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 deci-
sion, 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.’’ (Inter-
nal 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 argu-
ment] because . . . these constitutional issues would
be more appropriately addressed in the context of post-
judgment motions.’’ Id., 308 n.167. 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., 306. 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 addi-
tional 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 defen-
dant’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 constitu-
tion because, among other reasons, the act evinces a
societal consensus against the death penalty; (3) car-
rying 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 cor-
rectness 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. 201, 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 profes-
sional 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 majori-
ty’s Geisler analysis.4 After reviewing the Geisler fac-
tors, the majority concludes that: (1) the United States
Supreme Court’s repeated holdings that the death pen-
alty ‘‘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 noth-
ing 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 protec-
tions 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 punish-
ment than their English contemporaries and forebear-
ers; 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 legisla-
ture’s 2012 decision to abolish the death penalty pro-
spectively’’;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 fac-
tors, relating to federal precedents, the precedents of
this court and the precedents of other states, the major-
ity appears to concede that these factors do not support
the conclusion that the death penalty is now unconstitu-
tional 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 constitu-
tional 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 constitu-
tion, 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, con-
cerned 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 constitu-
tion 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 com-
patible with this state’s fundamental law. See State v.
Rizzo, supra, 303 Conn. 188 (‘‘[W]e remain cognizant
that our constitution contains explicit references to
capital punishment . . . and, therefore, expressly sus-
tains the constitutional validity of such a penalty in
appropriate circumstances. . . . The defendant’s
claim must be evaluated against this clear textual back-
drop.’’ [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 atti-
tudes of 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 constitu-
tional prohibition on cruel and unusual punishments.
Indeed, the majority’s analysis is riddled with non sequi-
turs. 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 understand-
ing of the permissible nature and purposes of punish-
ment had undergone a thorough transformation’’ from
1818 to 1965. The question that the majority is
addressing, however, is not whether the underlying the-
ory of punishment for noncapital crimes has changed
in this state over the years, but whether our state consti-
tution now bars capital punishment for the most hei-
nous 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 conclu-
sion that it does. Indeed, in yet another glaring inconsis-
tency, 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 his-
tory’’; 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 rati-
fied 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 neverthe-
less unconstitutionally cruel and unusual in Connecti-
cut . . . 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 con-
stitutional 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 jurispru-
dence, 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 ‘‘pro-
gressive’’ for all forms of punishment, including the
death penalty for the most heinous murders.12 The real-
ity, however, is that neither the text of the state constitu-
tion 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 com-
ports 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 con-
tinue 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. 101 (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 constitu-
tionality 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 uncon-
stitutional, 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 present-
ment or indictment of a [g]rand [j]ury,’ and that no
person shall be ‘deprived of life . . . without due pro-
cess of law.’ ’’ [Emphasis in original.]). Even assuming,
however, that evolving standards of decency could ren-
der 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 amend-
ment: a punishment is unconstitutionally cruel and
unusual under the state constitution if it violates con-
temporary 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. 188 (‘‘[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 soci-
ety’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 recommenda-
tions 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. 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 contempo-
rary 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, 312; Graham v. Florida, supra, 62;
see also Thompson v. Oklahoma, supra, 822; and (2)
‘‘[a]ctual sentencing practices’’ in this country. Graham
v. Florida, supra, 62; see also Thompson v. Oklahoma,
supra, 822. 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 mem-
bers of the Western European community.’’ Thompson
v. Oklahoma, supra, 830. The court, however, does not
consider views of other nations and, by extension, pro-
fessional organizations, to determine the contemporary
societal consensus in this nation regarding a particular
punishment. See Graham v. Florida, supra, 80 (‘‘[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. Ken-
tucky, 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 coun-
tries are relevant. While [t]he practices of other nations,
particularly other democracies, can be relevant to
determining whether a practice uniform among our peo-
ple 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.’’ [Cita-
tions 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. 195
(‘‘the United States Supreme Court at times has refer-
enced international norms as support for its own deter-
minations, 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 judg-
ment 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 chal-
lenged sentencing practice serves legitimate penologi-
cal goals.’’ (Citations omitted.) Graham v. Florida,
supra, 67; see also Atkins v. Virginia, supra, 312–13;
Thompson v. Oklahoma, supra, 833.
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 meth-
odology 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. 312;
and the actual sentencing practices of Connecticut
juries.16 Graham v. Florida, supra, 560 U.S. 62; see also
Atkins v. Virginia, supra, 312 (judgments regarding
evolving standards of decency ‘‘should be informed by
objective factors to the maximum possible extent’’
[internal quotation marks omitted]); Stanford v. Ken-
tucky, supra, 492 U.S. 369 (same). After making a deter-
mination 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, 369 n.1.
Finally, the court may exercise its independent judg-
ment to consider whether ‘‘the challenged sentencing
practice serves legitimate penological goals.’’ Graham
v. Florida, supra, 67.
With respect to the enactments of our legislature,
which provide the clearest evidence of contemporary
societal mores, the majority contends that the enact-
ment of P.A. 12-5 reveals that ‘‘[o]ur elected representa-
tives 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 con-
clusion that capital punishment no longer comports
with contemporary standards of decency and, there-
fore, constitutes cruel and unusual punishment.’’17 (Cita-
tion omitted; footnotes omitted.) To the contrary,
however, the legislature’s enactment of P.A. 12-5 sup-
ports 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 legis-
lature enacted legislation that still allows for the death
penalty to be imposed, because the minority of legisla-
tors 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 impris-
onment 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. 190 n.88 (prospective repeal of death
penalty does not establish that ‘‘legislature was con-
vinced that the death penalty is intolerable under any
and all circumstances’’); id., 199 n.101 (legislative his-
tory of prospective repeal by legislature that governor
later vetoed showed that repeal ‘‘was motivated by prac-
tical 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. Accord-
ingly, it is simply untenable to conclude that the passage
of P.A. 12-5 evinces a legislative determination or soci-
etal 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 cer-
tain 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 clear-
est 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 princi-
ple.’’20 Of course, there is no dispute that some legisla-
tors 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 consti-
tuted 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 with-
out expressing any moral objections to the death pen-
alty. 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, p. 814; 55 H.R. Proc., supra, 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 unob-
jectionable had come to believe that it is simply unwork-
able 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 differen-
tiate between defendants who already had been sen-
tenced 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 constit-
uents committed to the execution of particular resi-
dents 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 find-
ings. Thus, the record is clearly inadequate for review.30
Accordingly, as I have explained in part I of this dis-
senting 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.
194 n.94, ‘‘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 safe-
guards. 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. 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, 195; 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 pen-
alty 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 con-
cluded 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 Con-
necticut.’’ (Emphasis added.) See part I E of the major-
ity 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 organiza-
tions 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 defen-
dant 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 deter-
mination, the majority again relies on slanted and
untested sources that neither party has had the opportu-
nity 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 pro-
fessional 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 deter-
mine whether the death penalty serves any legitimate
penological goals; see Graham v. Florida, supra, 560
U.S. 67; the majority concludes that it no longer has
any deterrent or retributive value.33 As the majority rec-
ognizes, 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 legisla-
tures . . . . 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. 571 ([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. 175 ([i]n a democratic society legisla-
tures, 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. 197–98. 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 justi-
fication that it results in the gratuitous infliction of
suffering.’’ (Internal quotation marks omitted.) Gregg
v. Georgia, supra, 182–83.
The United States Supreme Court has held that ‘‘pun-
ishment is justified under one or more of three principal
rationales: rehabilitation, deterrence, and retribution.’’
Kennedy v. Louisiana, supra, 554 U.S. 420. 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. 321, 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 commit-
ted 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 per-
fectly proper for the [l]egislature to create a new sen-
tencing procedure which operates prospectively only
despite the disparity created by rendering different sen-
tences 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 punish-
ment 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. 183.
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 outra-
geous that society insists on adequate punishment,
because the wrong-doer deserves it, irrespective of
whether it is a deterrent or not.’’ Id., 184 n.30. 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 justifi-
cation.’’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 mur-
ders, 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 major-
ity 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. 147–49; 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, 159 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, 159 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, pp. 1103–10, remarks of Represen-
tative 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., 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., 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., pp. 1183–86, remarks of Representative
Anthony J. D’Amelio (same); id., pp. 1190–92, remarks
of Representative Selim G. Noujaim (same); id., p. 1209,
remarks of Representative Themis Klarides (‘‘I feel terri-
ble 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., 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, 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, 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, pp. 726–28, remarks of Senator Robert J.
Kane (discussing details of crimes committed by defen-
dants in Rizzo, State v. Colon, 272 Conn. 106, 864 A.2d
666 [2004], Peeler and Breton, and arguing that defen-
dants deserved death penalty); Conn. Joint Standing
Committee Hearings, supra, pp. 2807–2809, remarks of
Sergeant Richard Holton of the Hartford Police Depart-
ment (referring to crime committed by defendant in
Reynolds and arguing in favor of death penalty); Conn.
Joint Standing Committee Hearings, supra, p. 2823
(referring to crimes committed by defendants in Chesh-
ire case, Webb and Rizzo).36 Accordingly, I would con-
clude 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 determi-
nation.
In summary, the majority has not based its determina-
tion that the death penalty violates the state constitu-
tional ban on cruel and unusual punishment on an
objective determination that the death penalty is incon-
sistent 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. 369 (‘‘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 judg-
ments should not be, or appear to be, merely the subjec-
tive 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 achiev-
ing its chosen penological goals. (Internal quotation
marks omitted.) State v. Rizzo, supra, 303 Conn. 197–98,
quoting Roper v. Simmons, supra, 543 U.S. 571. Indeed,
the primary right that our state constitution guarantees
is the right to self-government. See Conn. Const., pream-
ble; 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 funda-
mental 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 con-
sistency 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 simultane-
ously 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 con-
cern 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 sen-
tence for the most egregious murders and that the effec-
tive 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 vio-
lation 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 Dispar-
ity 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 McDon-
ald themselves point out, however, this ‘‘issue of sub-
stantial 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 unconstitu-
tionally 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 schol-
arly 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 identifica-
tion and evaluation of scientific studies supporting leg-
islative 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., 1303; see also Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., supra, 311 Conn. 147 (‘‘[t]he litigants’
control of case presentation is thought to promote digni-
tary and participation values by affirm[ing] human indi-
viduality 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, 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., 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 authori-
ties and enshrine them in the [official reports]’’). In
addition to undermining democratic legitimacy of judi-
cial 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 pub-
lished 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. 101; 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 execu-
tion, to its data, to its statistical analysis, and to its
conclusions. Moreover, Michelson has concluded that
Donohue’s data, when investigated and analyzed thor-
oughly 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, 325 n.11
(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 conclu-
sions 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 con-
clusions. I strongly agree.
Justices Norcott and McDonald disregard this proce-
dural 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 dis-
parity 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] discrimi-
nating 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., p. 2612; see also id., 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 pro-
cess is carried out.’’ Id., p. 2651. Rather, he was ‘‘confi-
dent 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 inap-
propriate 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., 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 under-
standing of econometrics and capacity to differentiate
between valid and flawed statistical findings is neces-
sarily 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. 640; see also id., 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 publica-
tion’’); id. (noting ‘‘the difficulty that nonexperts have
in assessing statistical results’’); see also A. Larsen,
supra, 98 Va. L. Rev. 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, 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., 656
(noting that Kent Scheidegger submitted report to legis-
lature 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 estab-
lished facial racial disparities for purposes of resolving
issue on appeal, had produced ‘‘no statistically signifi-
cant evidence that race plays a part in either [the prose-
cutor’s or the jury’s death penalty] decisions in the
[s]tate of Georgia’’ [emphasis omitted; internal quota-
tion marks omitted]); K. Scheidegger, supra, 147 (find-
ings 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, 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 dis-
parities 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 pre-
sent 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 pen-
alty 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 imposi-
tion 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 spe-
cific issue that they address. Accordingly, even if I
believed that Justices Norcott and McDonald properly
could address this issue in their concurring opinion—
which I do not—because they have made factual find-
ings on the basis of extra-record and irrelevant evi-
dence, 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. 114. The defendant com-
mitted the murder on December 13, 2000. Id., 121–22.
In his original appeal to this court, the defendant raised
numerous claims challenging his conviction on the mur-
der for hire charge and other charges, as well as his
death sentence. Id., 142–46. This court affirmed the
defendant’s convictions; id., 118; 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., 118–19.
Accordingly, we reversed the sentence of death and
remanded the case to the trial court for a new penalty
phase hearing. Id., 241.
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 retro-
active 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 crimi-
nal 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 consti-
tution 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 pun-
ishments unless ‘‘clearly warranted by law.’’ I would
reject each of these claims.
VI
I first consider the defendant’s claim that the imposi-
tion 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 deter-
mines 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; inter-
nal 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 jurispru-
dential background.’’ State v. Webb, supra, 238 Conn.
494. ‘‘In 1972, the [United States] Supreme Court invali-
dated all of the death penalty statutes of the states
and the federal government because it determined that
those statutes violated the eighth amendment’s pro-
scription against cruel and unusual punishment.54 Jus-
tice Stewart stated ‘that the [e]ighth and [f]ourteenth
[a]mendments cannot tolerate the infliction of a sen-
tence 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, 494.
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. 196 n.47; see also State v.
Webb, supra, 238 Conn. 494–96. 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 permissi-
ble response to the need to avoid standardless sentenc-
ing 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, [198].’’ State
v. Ross, supra, 232. 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., 238–39.
Once the constitutional requirement for a capital sen-
tencing 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. 276 (‘‘prompt judicial review of the jury’s decision
in a court with statewide jurisdiction . . . provide[s]
a means to promote the evenhanded, rational, and con-
sistent imposition of death sentences under law’’). This
court previously has recognized that § 53a-46b was
intended to implement this eighth amendment require-
ment. In re Application for Petition for Writ of Habeas
Corpus by Dan Ross, supra, 272 Conn. 689 n.8; see
also State v. Webb, supra, 238 Conn. 497. 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.’’55
State v. Webb, supra, 503, citing Gregg v. Georgia, supra,
428 U.S. 198; Gregg v. Georgia, supra, 198 (‘‘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 preju-
dice, [and] whether the evidence supports the jury’s
finding of a statutory aggravating circumstance
. . . .’’).
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. 243; a determination that the
evidence supports the imposition of the death penalty
under our facially valid capital sentencing scheme ordi-
narily 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., 247–48
n.124 (declining to engage in further review of defen-
dant’s claim that death sentence was arbitrary after
determining that evidence supported jury’s weighing of
aggravating and mitigating factors); State v. Courch-
esne, 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.
308 (when death sentence was imposed under capital
sentencing scheme that focuses ‘‘on the particularized
nature of the crime and the particularized characteris-
tics 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 author-
ity’s decision to impose the death sentence was influ-
enced 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 sup-
ported by the evidence.56 See State v. Cobb, supra, 234
Conn. 761–62, 762 n.20; see also McCleskey v. Kemp,
supra, 308–309 (indicating that proof that race was fac-
tor in specific sentencing decision would invalidate sen-
tence imposed pursuant to facially valid capital
sentencing scheme); cf. McCleskey v. Kemp, supra,
312–13 (unexplained statistical discrepancy in imposi-
tion of death penalty that correlates with race does not
render death penalty facially invalid).
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 irratio-
nal 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. Geor-
gia, supra, 428 U.S. 196 n.47; 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 cir-
cumstances, his background, and the crime’’; Clemons
v. Mississippi, supra, 494 U.S. 749; 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 unconstitu-
tional because the eighth amendment is concerned only
with ensuring that the sentence that the defendant actu-
ally 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. 309 (Stewart, J., concurring);
because the scheme does not permit the sentencing
authority to impose the death penalty on a class of
‘‘capriciously selected’’ defendants.57 Id., 309–10 (Stew-
art, J., concurring).
Instead, the defendant claims that the legislature, as
opposed to the sentencing authority, has acted arbi-
trarily 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 constitu-
tional 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), pro-
viding that murder of person under age of sixteen years
is capital felony, ‘‘violates constitutional equal protec-
tion 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 mur-
dered adults’’). Thus, the defendant is effectively invok-
ing § 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 princi-
ples, 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. 352 (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.’’58 (Inter-
nal quotation marks omitted.) State v. Higgins, supra,
68; see also id., 68–69 (rejecting claim that General
Statutes [Rev. to 2003] § 53a-54b [8] is irrational merely
because legislature could have drawn line between chil-
dren 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.59
VII
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.60
1
In support of his claim that executing a death sen-
tence in a state that has prospectively repealed the
death penalty is inconsistent with contemporary stan-
dards 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.61 I have already concluded in part III of this
dissenting opinion that there is no consensus in this
state against the death penalty.62 See also part VII B of
this dissenting opinion. For the following reasons, I
would also reject the defendant’s contention that impos-
ing the death sentence on him would violate the eighth
amendment because there is a national consensus
against postrepeal executions.
‘‘The [c]ruel and [u]nusual [p]unishments [c]lause
prohibits the imposition of inherently barbaric punish-
ments under all circumstances.’’ Graham v. Florida,
supra, 560 U.S. 59. ‘‘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 imple-
ments the proportionality standard by certain categori-
cal restrictions on the death penalty.’’ Id.
‘‘The second classification of cases has used categori-
cal 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 sub-
sets, 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. 437–38 (death penalty for
rape of child violates eighth amendment)]; see also
Enmund v. Florida, [supra, 458 U.S. 782] [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], or whose intellectual functioning is in a low range,
Atkins v. Virginia, [supra, 536 U.S. 304]. See also
Thompson v. Oklahoma, [supra, 487 U.S. 815].’’ Graham
v. Florida, supra, 560 U.S. 60–61.
Thus, in cases involving the death penalty, the United
States Supreme Court has applied the ‘‘ ‘evolving’ stan-
dards of decency’’ rubric in two situations: (1) when
the defendant claimed that the death penalty was cate-
gorically 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 cul-
pability, 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 com-
mits 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 disproportion-
ate 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 impos-
ing 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 ‘‘ ‘evolv-
ing’ 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.63 As of the date of this opinion,
of the states that have no death penalty, the twelve
states that have prospectively repealed it are: Connecti-
cut, Hawaii,64 Illinois,65 Iowa,66 Maine,67 Maryland,68
Michigan,69 Minnesota,70 New Jersey,71 New Mexico,72
Vermont73 and Wisconsin.74 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 discern-
ible ‘‘national’’ consensus on this question.
Finally, even if I were to assume that we may deter-
mine 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.75 This fact does not estab-
lish convincingly, however, that there is a societal con-
sensus among those states against the postrepeal
imposition of the death penalty for crimes committed
prior to the repeal. In Illinois and New Jersey, the gover-
nor granted clemency to every defendant who had been
sentenced to death before the prospective repeal.76 In
addition, according to the amicus, group of legal histori-
ans 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 pro-
spectively 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 com-
muted the sentences of that state’s death row inmates.77
Thus, although a governor’s response to legislation may
reflect societal standards of decency; State v. Rizzo,
supra, 303 Conn. 199–201; in only five out of the twelve
states that have prospectively repealed the death pen-
alty 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.78 In New
Mexico, there were two prisoners on death row at the
time of repeal and the governor declined to grant clem-
ency.79 See id., 190 n.88 (‘‘the New Mexico ban is pro-
spective only and no clemency has been granted to
convicted capital offenders’’). While those defendants
have not yet been executed, they remain on death row.80
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 prison-
ers also have not had their sentences commuted.81 Thus,
in these states, societal approval of postrepeal execu-
tions 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.82 See id., 191 (‘‘the clearest and
most reliable objective evidence of contemporary val-
ues is the legislation enacted by the country’s legisla-
tures’’ [internal quotation marks omitted]). For four of
the twelve states that have prospectively repealed the
death penalty—Maine, Michigan, Vermont and Wiscon-
sin—neither the defendant nor the amicus group of
legal historians and scholars has provided any explana-
tion for the fact that no prisoners were executed after
the effective date of the repeal.83 Thus, I can only specu-
late 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 prac-
tices of those states beyond the approval implicit in the
prospective repeal itself.84
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.85 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 exe-
cuted pursuant to a repealed statute after reinstate-
ment. 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 proce-
dural flaws in the repealed statute that cast doubt on
the fairness of the prisoner’s conviction.86 In that case,
however, societal reluctance to impose the death pen-
alty 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 prospec-
tively does not establish that there is a national societal
consensus that it would be immoral or disproportionate
to do so.
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 peno-
logical objective for the death penalty. Specifically, he
claims that the death penalty no longer has any deter-
rent 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 provi-
sions of the state constitution, however; see part III of
this dissenting opinion; I would also reject this nar-
rower 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 legisla-
tors 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 prison-
ers 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 Repre-
sentatives Lawrence F. Cafero, Jr., and John W. Hether-
ington; 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, p. 1066; 55 S. Proc., supra, 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 por-
tions 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, 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 deter-
mination 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 pro-
posed legislation were invalidated. Similarly, in the Sen-
ate, 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 por-
tion of the proposed legislation to be unconstitutional,
the entire act would be voided, resulting in the reinstate-
ment of the death penalty. See 55 S. Proc., supra, p. 667,
remarks of Senator Eric D. Coleman (‘‘[E]ven assuming
that [the proposed legislation would be found unconsti-
tutional], 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., 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 unconstitu-
tional, 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 differ-
ent sentence.’’).
In any event, as the defendant concedes, the legisla-
ture 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 prefer-
ence 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 reason-
able 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 defen-
dants would outweigh the penologically legitimate ben-
efits of 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 pun-
ishment, 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 (1998),
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 legisla-
tive enactment either prospectively repealing the death
penalty or substantially altering the way in which the
death penalty may be imposed in the future, that defen-
dant 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 culpabil-
ity of a class of offenders or the seriousness of a class
of offenses, violates any constitutional provision. More-
over, 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 pun-
ishment 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 circum-
stances.87 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 constitu-
tional by repealing the act and imposing the death pen-
alty on another class of offenders, namely, those who
commit crimes after April 25, 2012.
Implicitly recognizing the weakness of the defen-
dant’s argument that the legislative classification cre-
ated 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 accept-
able 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 unac-
ceptable 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 unconsti-
tutional; rather, his entire analysis is driven by his new-
found belief that the death penalty is unconstitutional
in this state because it no longer comports with contem-
porary 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. 307 (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.88 Accordingly, contrary to Justice Eveleigh’s
opinion, the question that this court must answer is
precisely whether our legislature ‘‘may create an excep-
tion to an otherwise acceptable punishment’’ for defen-
dants 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 prin-
ciples—which I conclude in part VIII of this dissenting
opinion that it does—I would conclude that the answer
to that question is ‘‘yes.’’
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.89 ‘‘To prevail on an equal protection claim,
a plaintiff first must establish that the state is affording
different treatment to similarly situated groups of indi-
viduals. . . . [I]t is only after this threshold require-
ment 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. 65 n.27 (‘‘[t]he analytical predicate [for consider-
ation of an equal protection claim] is a determination
of whether the allegedly disparately treated groups are
similarly situated’’ [internal quotation marks omitted]).
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 consti-
tutional equal protection principles.90 This court con-
cluded 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.,
29. The court then concluded that, ‘‘[a]s the law now
stands, the penalty for all first degree murders commit-
ted 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 Octo-
ber 1, 1951.’’ Id., 30. Thus, this court implicitly held that
the defendant was not similarly situated to defendants
who committed first degree murder after October 1,
1951.91 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] imprison-
ment than one sentenced to the maximum term there-
after. 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 189–90 (citing cases); People v. Grant,
71 Ill. 2d 551, 561, 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 subse-
quently 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 consti-
tutional 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 42 (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) (defen-
dant who was sentenced to death under statute enacted
after he committed crime was not similarly situated to
defendants who were sentenced to death before effec-
tive date of new statute and had sentences commuted).92
It is clear, therefore, that, under Dortch and the great
weight of authority from other jurisdictions, the defen-
dant 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 fundamen-
tally 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 fun-
damental 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.93 . . . 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 articu-
late at any time the purpose or rationale supporting
its classification.’’ (Footnote added; internal quotation
marks omitted.) Harris v. Commissioner of Correc-
tion, 271 Conn. 808, 834, 860 A.2d 715 (2004); see also
State v. Higgins, supra, 265 Conn. 68 (‘‘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 classifi-
cation 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 commit-
ted 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 191. 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 deter-
rent and retributive benefits of imposing the death pen-
alty on these defendants.94 Cf. id., 189–90 (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 561–62 (‘‘[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 sen-
tences, 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. 69 (rejecting defen-
dant’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 expecta-
tions 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.
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.95 Accordingly, I would
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.96 The defendant contends
that the fourth, fifth and sixth Geisler factors support
this claim. See State v. Rizzo, supra, 303 Conn. 136
(under Geisler, courts may consider ‘‘[4] related Con-
necticut precedents; [5] persuasive precedents of other
state courts; and [6] . . . relevant public policies’’
[internal quotation marks omitted]).97
With respect to the fourth Geisler factor, this court’s
precedents, the defendant relies on this court’s deci-
sions 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, 487;
violated article first, § 1, of the Connecticut constitu-
tion. Id., 491. 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., 488; see also id. (purpose of statute was
‘‘to authorize the mayor to permit or forbid the transac-
tion 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 mis-
placed.
The defendant relies on Tough v. Ives, supra, 162
Conn. 293, 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. Canis-
ter, 100 P.3d 380 (Colo. 2005), and People v. Hagos, 110
P.3d 1290 (Colo. 2005). In People v. Canister, supra,
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., 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 eligi-
ble 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 constitu-
tion.98 Id., 381–82. The only defendants in this category
were Canister, and the defendant in Hagos, Abraham
Hagos. Id., 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.99 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., 385; the classification created by the law was ‘‘illu-
sory’’ and irrational and, therefore, violated the consti-
tutional prohibition against special legislation. Id.; see
also People v. Hagos, supra, 1291 (same).
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, 2012.100 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.
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. 491
(‘‘[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 pre-
viously 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 impli-
cates his 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 pro-
vided, unless the infringement is narrowly tailored to
serve a compelling state interest.’’ (Emphasis in origi-
nal; 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.101 ‘‘Bills of attain-
der are legislative acts, no matter what their form, that
apply either to named individuals or to easily ascertain-
able members of a group in such a way as to inflict
punishment on them without a judicial trial . . . . 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 quo-
tation 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. Accord-
ingly, I would conclude that P.A. 12-5 is not a 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.102 ‘‘The ex post facto prohibition forbids
. . . the [s]tates [from] enact[ing] any law [that]
imposes a punishment for an act [that] was not punish-
able at the time it was committed . . . or imposes addi-
tional punishment to that then prescribed. . . .
Through this prohibition, the [f]ramers [of the constitu-
tion] 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 enact-
ment, and it must disadvantage the offender affected
by it.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Courchesne, supra, 296 Conn. 727. The
defendant contends that ‘‘the legislative act of exempt-
ing prerepeal cases from its abolition of capital punish-
ment 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 punish-
able under the law that existed at the time it was com-
mitted does not violate the ex post facto clause.
Accordingly, I would reject this claim.
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 constitu-
tional, I need not resolve the question of whether the act
is severable. Nevertheless, because Justice Eveleigh’s
severability analysis in his concurring opinion is seri-
ously 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 enact-
ment of P.A. 12-5 rendered the death penalty unconstitu-
tional, 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 legisla-
ture preferred severance of the effective date provi-
sions. 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.103
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 pro-
vided that the abolition of the death penalty is prospec-
tive that the legislators who voted for prospective repeal
wanted the effective date provisions of the act to be
invalidated.
This court previously has recognized that ‘‘[s]epara-
bility involves essentially two considerations: the legis-
lature 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 uncon-
stitutional, this court would be required to invalidate
the act in its entirety. See id., 353–54 (‘‘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 preex-
isting the enactment of P.A. 12-5 would be revived. Id.,
355 (when portion of statute is invalidated as unconsti-
tutional 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 legisla-
ture 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 uncon-
stitutional’’), cert. denied, 515 U.S. 1132, 115 S. Ct. 2559,
132 L. Ed. 2d 812 (1995); B.H. v. State, supra, 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 pro-
visions 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 inappropri-
ate for this court to order that remedy. The legislature
should not be permitted to use this court as an instru-
ment 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 effec-
tive 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.
256. 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 dis-
poses 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 mate-
rials 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 conclu-
sions and, finally, in reaching the decision that it has
today, has unconstitutionally usurped the role of the
legislature. I therefore respectfully dissent.
1
For example, in attempting to explain the ‘‘pronounced geographic dis-
parities 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.
2
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.
12-15 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 guaran-
tees 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.
3
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.
4
‘‘In State v. Geisler, [supra, 222 Conn. 684–86], we enumerated the follow-
ing six factors to be considered in determining [whether the state constitu-
tion provides broader protection than the federal constitution]: (1)
persuasive relevant federal precedents; (2) the text of the operative constitu-
tional 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. 136.
This court has traditionally numbered the Geisler factors in this order.
For the sake of consistency, I maintain the traditional order.
5
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. 71, 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.
6
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 estab-
lished 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, 246–47; 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.
7
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 analy-
sis, 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.
8
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.
9
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.
10
In addition, as Justice Zarella has aptly pointed out in his dissenting
opinion, far from supporting the majority’s position, the circumstances sur-
rounding Lung’s case show that there was contemporary public support for
the death penalty.
11
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 neces-
sarily 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.) Mich-
igan v. Long, 463 U.S. 1032, 1044, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).
12
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 proposi-
tion 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.
13
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 consti-
tutional 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.
14
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 constitu-
tion’s due process provisions that is more protective than the eighth amend-
ment in this context, Geisler falls out of the picture and federal standards
delineate the scope of the state constitutional provisions. See State v. Jen-
kins, 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.
15
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).
16
As I have explained, in the present case, the defendant has relied exclu-
sively 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.
17
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 sup-
ports 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 soci-
etal mores. See Atkins v. Virginia, supra, 536 U.S. 315–16 (‘‘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 objec-
tive 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, 335 (‘‘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. 296 (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.
18
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 Representa-
tive 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, 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.’’).
19
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 Connecti-
cut 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, p. 1295,
remarks of Representative John F. Hennessy (death penalty ‘‘does not work,
with its endless and costly appeals’’); 55 H.R. Proc., supra, 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, 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, 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’’).
20
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]).
21
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.
22
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 inco-
herent.
23
Cf. Contractor’s Supply of Waterbury, LLC v. Commissioner of Envi-
ronmental Protection, 283 Conn. 86, 93, 925 A.2d 1071 (2007) (‘‘In determin-
ing 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.]).
24
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 corres-
ponding 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 reason-
able 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. 175 (‘‘in assessing a
punishment selected by a democratically elected legislature against the
constitutional measure, we presume its validity’’). Thus, when the constitu-
tionality 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 116 (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, 559. 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 defen-
dant 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 major-
ity is invalidating the death penalty, however, on the basis of its assumption
that a majority of legislators believe that the death penalty violates contempo-
rary 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.
25
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.
26
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 prospec-
tive repeal provision provides ‘‘the best and most recent indication of evolv-
ing 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 supple-
mental 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.
27
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 appro-
priate punishment for certain crimes); id., 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).
28
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 Jus-
tice’s arguments in favor of retaining the death penalty for all crimes, which
clearly indicate a belief that the death penalty is not categorically unconstitu-
tional. 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.
29
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’ Juris-
prudence,’’ 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.
30
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 contem-
porary societal norms to advocate for a new constitutional rule . . . .’’ State
v. Rizzo, supra, 303 Conn. 184 n.81, 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 ‘‘appro-
priate . . . 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.
31
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 circum-
stances 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. 195, 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 legisla-
tion 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 com-
pelled 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.
32
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.
33
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. 312. 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 ade-
quately 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 concep-
tions of decency, but to those of modern American society as a whole.’’
Stanford v. Kentucky, supra, 492 U.S. 369.
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 unconstitu-
tional even though they were consistent with contemporary societal mores.
I disagree. In Hall, the United States Supreme Court considered the constitu-
tionality 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, 1998. In Solem v. Helm, supra, 299, 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 sentenc-
ing 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 pen-
alty was inherently inconsistent with contemporary societal mores. See
Gregg v. Georgia, supra, 428 U.S. 195 (‘‘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 Rob-
inson v. California, supra, 666, 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 inconsis-
tent with broader societal mores. Weems was decided before the full develop-
ment of the evolving standards of decency standard, and the standard that
the court applied is unclear. See Weems v. United States, supra, 381 (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 constitu-
tional limitations formed to establish justice’’). In People v. Anderson, supra,
649, 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. 369, 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. 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., 567. 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., 564. To be sure, it is arguable that the court in Roper implied that there
might be cases in which, although an established and previously constitu-
tional 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.
34
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.
35
See State v. Rizzo, supra, 303 Conn. 147–50 (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 sledgeham-
mer; 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. 345–48 (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. 18–21 (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. 302–304 (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. 397–98
(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.
36
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.
37
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 counterproductive even if they are right. Courts
do best by proceeding in a way that is catalytic rather than preclusive . . . .’’
[Internal quotation marks omitted.]).
38
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 effectu-
ally to define, secure, and perpetuate the liberties, rights and privileges
which they have derived from their ancestors; hereby, after a careful consid-
eration 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 . . . .’’
39
As the majority observes, the United States Supreme Court has repeat-
edly 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.
40
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 con-
curring justices may freely render dicta on issues that are of no current or
future interest to this court.
41
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 pro-
cess. 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, 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., 41.
42
See also A. Larsen, supra, 98 Va. L. Rev. 1291 (judicial finding of legisla-
tive 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., 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., 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, 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 develop-
ment 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’’).
43
Donohue’s article containing the statistical information that he pre-
sented 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. 639–40; the analysis
submitted by the state’s expert purporting to show the absence of racial
disparities was ‘‘problematic’’ and ‘‘flawed’’; id., 640; the habeas court
improperly failed to make a finding on the impact of race on capital charging;
id., 683; the habeas court improperly criticized Donohue’s analysis of racial
discrimination in the sentencing of capital defendants, as distinct from
charging decisions; id., 686; the habeas court improperly failed to recognize
that ‘‘[t]reating someone differently because of their race is disparate treat-
ment discrimination, regardless of whether one is aware of one’s bias’’;
(emphasis in original) id., 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., 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.
44
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. 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., 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., 666. Perhaps Justices Norcott and McDon-
ald 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.
45
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.
46
See K. Scheidegger, supra, 10 Ohio St. J. Crim. L. 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., 161, quoting R. Berk et al., ‘‘Statistical Difficulties in Determin-
ing 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, 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’’).
47
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 analy-
sis 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., p. 25. Moreover, the commission stated in the study
that the report of the petitioners’ expert in the consolidated habeas proceed-
ing, which was expected to be available later that year, was ‘‘expected to
provide information regarding race, ethnicity, gender, age, and socioeco-
nomic status of defendants and victims in capital felony cases, and will
be available for review by the [l]egislature at that time.’’ Id., 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 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 acknowl-
edge, 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.
48
As noted by this court in State v. Santiago, supra, 305 Conn. 114 n.1,
§ 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.
49
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.’’
50
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.’’
51
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.’’
52
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.
53
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.’’
54
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.’’
55
In State v. Webb, supra, 238 Conn. 494–505, 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, 504. The United States Supreme Court has since clarified
that proportionality review is a constitutionally permissible method of min-
imizing ‘‘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., 50–51. 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, 503; is a permissible method of ensuring
compliance with the eighth amendment prohibition on the arbitrary and
capricious imposition of the death penalty.
56
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 nine-
teen, 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, Docket No. SC 19252.
57
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.
58
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 murder-
ing 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. 705. 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. 65.
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 foot-
note 84 of this dissenting opinion.
59
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 sen-
tencing 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 murder-
ers shall live and which shall die.’’ Id., 303. 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., 303–305.
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 con-
cerns under the eighth amendment.
60
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.
61
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 omit-
ted) Graham v. Florida, supra, 560 U.S. 62; Atkins v. Virginia, supra, 536
U.S. 312; and (2) ‘‘[a]ctual sentencing practices’’ in this country. Graham
v. Florida, supra, 62. After determining the contemporary societal consensus,
the United States Supreme Court has then exercised its independent judg-
ment 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., 67.
62
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.
63
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 Informa-
tion Center, ‘‘States With and Without the Death Penalty,’’ available at http://
www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited
July 30, 2015).
64
See Death Penalty Information Center, ‘‘Hawaii,’’ (2015), available at
http://www.deathpenaltyinfo.org/hawaii-0 (last visited July 30, 2015).
65
See Death Penalty Information Center, ‘‘Illinois,’’ (2015), available at
http://www.deathpenaltyinfo.org/illinois-1 (last visited July 30, 2015).
66
See Death Penalty Information Center, ‘‘Iowa,’’ (2015), available at http://
www.deathpenaltyinfo.org/iowa-0 (last visited July 30, 2015).
67
See Death Penalty Information Center, ‘‘Maine,’’ (2015), available at
http://www.deathpenaltyinfo.org/maine-0 (last visited July 30, 2015).
68
See 2013 Md. Laws c. 156.
69
See Death Penalty Information Center, ‘‘Michigan,’’ (2015), available at
http://www.deathpenaltyinfo.org/michigan-0 (last visited July 30, 2015).
70
See Death Penalty Information Center, ‘‘Minnesota,’’ (2015), available
at http://www.deathpenaltyinfo.org/minnesota-0 (last visited July 30, 2015).
71
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 senten-
ces 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 character-
ized as a prospective repeal.
72
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.’’
73
See Death Penalty Information Center, ‘‘Vermont,’’ (2015), available at
http://www.deathpenaltyinfo.org/vermont-0 (last visited July 30, 2015).
74
See Death Penalty Information Center, ‘‘Wisconsin,’’ (2015), available
at http://www.deathpenaltyinfo.org/wisconsin-0 (last visited July 30, 2015).
75
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.deathpenalty
info.org/documents/ESPYstate.pdf (last visited July 30, 2015).
The defendant acknowledges that, in a number of pre-Furman cases,
various courts concluded that the death penalty may be imposed on a
defendant who committed a capital felony before the effective date of aboli-
tion. 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), avail-
able 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 Commuta-
tions (2006), pp. 170–71 (Missouri governor commuted Ora Lewis’ death
sentence in 1918).
76
See Death Penalty Information Center, ‘‘Clemency,’’ (2015), available at
http://www.deathpenaltyinfo.org/clemency (last visited July 30, 2015).
77
See Death Penalty Information Center, ‘‘Clemency,’’ (2015), available at
http://www.deathpenaltyinfo.org/clemency (last visited July 30, 2015).
78
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.
79
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).
80
See Death Penalty Information Center, ‘‘New Mexico,’’ (2015), available
at http://www.deathpenaltyinfo.org/new-mexico-1 (last visited July 30, 2015).
81
See Death Penalty Information Center, ‘‘Connecticut,’’ (2015), available
at http://www.deathpenaltyinfo.org/connecticut-1 (last visited July 30, 2015).
82
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.
83
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. 196. 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.
84
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 prospec-
tively 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 (1998) (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 per-
suaded. In each of those cases, the court was confronted with a legislative
determination that imposing the death penalty on defendants with a particu-
lar characteristic that reduced their moral culpability was categorically
inappropriate. See Fleming v. Zant, supra, 690 (‘‘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 punish-
ment’’); Cooper v. State, supra, 1220 (Indiana legislature made ‘‘policy deci-
sion that no one should be executed for a crime committed at age [fifteen]’’);
Van Tran v. State, supra, 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, 98, 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., 104; 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.
85
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) (Col-
orado abolished death penalty in 1897 and reinstated it in 1901); D. Wilson,
Office of Colorado State Public Defender, ‘‘Cataloge of Colorado Execu-
tions,’’ (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 reinstate-
ment); Death Penalty Information Center, ‘‘Delaware,’’ (2015), available at
http://www.deathpenaltyinfo.org/delaware-1 (last visited July 30, 2015) (Del-
aware 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 Pen-
alty,’’ (2015), available at http://deathpenalty.procon.org/view.resource.
php?resourceID=4925 (last visited July 30, 2015) (referring to ‘‘botched exe-
cutions’’ in Maine after 1883 reinstatement); E. Guillot, ‘‘Abolition and Resto-
ration 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, 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) (Ore-
gon 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, pp. 271–74 (listing dates of Oregon executions); Death Penalty Infor-
mation Center, ‘‘South Dakota,’’ (2015), available at http://www.deathpenal
tyinfo.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/exe
cutedlist.asp (last visited July 30, 2015) (listing dates of Washington exe-
cutions).
86
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 prospec-
tive, defendants who had been sentenced to death before repeal could
have no reasonable expectation that their death sentences would not be
carried out.
87
In the cases relied on by Justice Eveleigh, the defendants challenging
the prospective repeals were in different classes for equal protection pur-
poses, i.e., those who committed crimes before repeal and those who com-
mitted 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 defen-
dants are in the class for whom the death penalty constitutionally may
be imposed. Accordingly, equal protection principles, not eighth amendment
principles, apply.
88
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.
89
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.
90
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.
91
The defendant in the present case contends that Dortch is distinguishable
because it involved ‘‘a mere procedural change in our state’s capital punish-
ment scheme,’’ while the question in the present case is whether the defen-
dant ‘‘is similarly situated to defendants who are ineligible for the death
penalty because of the fortuitous date of their offense.’’ If the ‘‘mere proce-
dural 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, 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.
92
In Dobbert v. Florida, supra, 432 U.S. 288, 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.
239–40, that capital sentencing schemes like Florida’s were unconstitutional.
Dobbert v. Florida, supra, 288. Thereafter, the Florida Supreme Court resen-
tenced all prisoners who had been sentenced to death before the decision
in Furman to life imprisonment. Id., 301; 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 unconstitu-
tional, ‘‘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 defen-
dant was tried, convicted and sentenced to death. Dobbert v. Florida, supra,
287. 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 unconstitu-
tional 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., 301. 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 invali-
dated 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. 30. Dortch, like the present
case, involved legislative line drawing between two constitutionally permissi-
ble 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 unconstitu-
tional 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. 296–97. 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.
93
The defendant contends that, because the imposition of the death pen-
alty on him implicates his fundamental right to life, the statutory classifica-
tion 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 constitu-
tion 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, 140–41; see also
State v. Higgins, supra, 265 Conn. 66 (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 classifi-
cation 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).
94
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.
95
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., 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., 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, 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 fair-
ness of a trial applied retroactively to cases on collateral review. Saylor v.
Indiana, supra, 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., 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 ‘‘inappro-
priate,’’ 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 amend-
ment 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 constitu-
tion 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, convic-
tions for pre-enactment violations would be equally unconstitutional and
abatement necessarily follows.’’ Id., 315. 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 tres-
passing 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 subse-
quently 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,
306; 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, 356
(rehearing was granted on December 7, 1964, and convictions were reversed
on April 9, 1965).
96
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 com-
munity.’’
97
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. 134 (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, 136 (Geisler factors include
‘‘[1] persuasive relevant federal precedents . . . [and] [3] historical insights
into the intent of our constitutional forebears’’ [internal quotation marks
omitted]).
98
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 defen-
dants who had already been sentenced to death under the invalidated death
penalty statute.
99
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 382.
100
See State v. Carbone, supra, 172 Conn. 255–56 (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’’).
101
Article one, § 10, of the constitution of the United States provides in
relevant part: ‘‘No State shall . . . pass any Bill of Attainder . . . .’’
102
Article one, § 10, of the constitution of the United States provides in
relevant part: ‘‘No State shall . . . pass any . . . ex post facto Law . . . .’’
103
See 55 H.R. Proc., supra, 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 determi-
nation 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.’’).