State v. Santiago ( 2015 )

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STATE OF CONNECTICUT v. EDUARDO SANTIAGO*
(SC 17413)
Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,
McDonald and Espinosa, Js.**
Argued April 23, 2013—officially released August 25, 2015
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom were Matthew A. Weiner, deputy assistant state’s
attorney, and, on the brief, Kevin T. Kane, chief state’s
attorney, Gail P. Hardy, state’s attorney, Susan C.
Marks, supervisory assistant state’s attorney, and Mar-
jorie Allen Dauster, Donna Mambrino and John F.
Fahey, senior assistant state’s attorneys, for the appel-
lee (state).
Constance de la Vega, pro hac vice, and Hope R.
Metcalf filed a brief for experts on international human
rights and comparative law as amicus curiae.
Alex V. Hernandez and Brian W. Stull filed a brief
for legal historians and scholars as amicus curiae.
Sandra J. Staub, David J. McGuire and Lauren R.
Masotta filed a brief for the American Civil Liberties
Union Foundation of Connecticut as amicus curiae.
Kent S. Scheidegger, pro hac vice, and Judith Rossi
filed a brief for the Criminal Justice Legal Foundation
as amicus curiae.
Opinion
TABLE OF CONTENTS
Page
I. STATE CONSTITUTIONAL PROHIBITIONS
AGAINST CRUEL AND UNUSUAL PUNISH-
MENT . . . . . . . . . . . . . . . . . . . . . .
A. Federal Constitutional Standards. . . .
1. Inherently Barbaric Punishments . .
2. Excessive and Disproportionate Pun-
ishments . . . . . . . . . . . . . . . .
3. Arbitrary or Discriminatory Punish-
ments . . . . . . . . . . . . . . . . . .
B. Relevant State Constitutional History .
1. Preconstitutional Legal Traditions. .
2. 1818 . . . . . . . . . . . . . . . . . . .
C. Relevant Constitutional Text . . . . . .
D. Relevant Connecticut Precedents . . .
E. Persuasive Sister State Precedents. . .
F. Conclusion . . . . . . . . . . . . . . . .
II. THE DEATH PENALTY FAILS TO COM-
PORT WITH CONTEMPORARY STAN-
DARDS OF DECENCY. . . . . . . . . . . . .
A. Historical Development . . . . . . . . .
B. Legislative Enactments . . . . . . . . .
C. Current Practice . . . . . . . . . . . . .
D. Laws and Practices of Other Jurisdic-
tions . . . . . . . . . . . . . . . . . . . .
E. Opinions and Recommendations of Pro-
fessional Associations . . . . . . . . . .
F. Conclusion . . . . . . . . . . . . . . . .
III. THE DEATH PENALTY IS DEVOID OF ANY
LEGITIMATE PENOLOGICAL JUSTIFICA-
TIONS . . . . . . . . . . . . . . . . . . . . . .
A. Deterrence. . . . . . . . . . . . . . . . .
B. Retribution . . . . . . . . . . . . . . . .
1. Legislative Judgments . . . . . . . . .
2. Delays . . . . . . . . . . . . . . . . . .
3. Possibility of Error . . . . . . . . . .
4. Caprice and Bias. . . . . . . . . . . .
C. Vengeance . . . . . . . . . . . . . . . . .
D. Conclusion . . . . . . . . . . . . . . . .
IV. RESPONSE TO THE DISSENTING JUS-
TICES . . . . . . . . . . . . . . . . . . . . . .
A. Whether the Questions Decided Are
Properly before the Court . . . . . . . .
1. Arguments Allegedly Not Raised by
the Defendant . . . . . . . . . . . . .
2. Opportunity for Briefing . . . . . . .
3. Extra-Record Materials . . . . . . . .
B. Connecticut’s Historical Acceptance of
Capital Punishment. . . . . . . . . . . .
C. Whether Deference to the Legislature
Requires That We Uphold P.A. 12-5 . .
V. CONCLUSION . . . . . . . . . . . . . . . . .
Opinion
PALMER, J. Although the death penalty has been a
fixture of Connecticut’s criminal law since early colo-
nial times, public opinion concerning it has long been
divided. In 2009, growing opposition to capital punish-
ment led the legislature to enact Public Acts 2009, No.
09-107 (P.A. 09-107), which would have repealed the
death penalty for all crimes committed on or after the
date of enactment but retained the death penalty for
capital felonies committed prior to that date. Then Gov-
ernor M. Jodi Rell vetoed P.A. 09-107, however, and it
did not become law. Three years later, in 2012, the
legislature passed a materially identical act that pro-
spectively repealed the death penalty; see Public Acts
2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dan-
nel P. Malloy signed it into law. During the public hear-
ings on both P.A. 09-107 and P.A. 12-5, supporters
argued that the proposed legislation represented a mea-
sured and lawful approach to the issue. Others raised
serious concerns, however, as to whether, following a
prospective only repeal, the imposition of the death
penalty would violate the state constitutional prohibi-
tion against cruel and unusual punishment. Perhaps
most notably, Chief State’s Attorney Kevin T. Kane, who
serves as this state’s chief law enforcement officer and
represents the state in the present case, testified before
the legislature that such a statute could not pass consti-
tutional muster.1 Additionally, the Division of Criminal
Justice submitted written testimony, in which it advised
the legislature that a prospective only repeal would be
a ‘‘fiction’’ and that, ‘‘[i]n reality, it would effectively
abolish the death penalty for anyone who has not yet
been executed because it would be untenable as a mat-
ter of constitutional law . . . . [A]ny death penalty that
has been imposed and not carried out would effectively
be nullified.’’2 In the present appeal, the defendant, Edu-
ardo Santiago, raises similar claims, contending that,
following the decision by the elected branches to abol-
ish capital punishment for all crimes committed on or
after April 25, 2012, it would be unconstitutionally cruel
and unusual to execute offenders who committed capi-
tal crimes before that date. Upon careful consideration
of the defendant’s claims in light of the governing consti-
tutional principles and Connecticut’s unique historical
and legal landscape, we are persuaded that, following
its prospective abolition, this state’s death penalty no
longer comports with contemporary standards of
decency and no longer serves any legitimate penological
purpose. For these reasons, execution of those offend-
ers who committed capital felonies prior to April 25,
2012, would violate the state constitutional prohibition
against cruel and unusual punishment.
Following a trial on charges that included capital
felony in violation of General Statutes (Rev. to 1999)
§ 53a-54b (2)3 and General Statutes § 53a-8, a jury found
the defendant guilty as charged, and the trial court,
Lavine, J., rendered judgment accordingly.4 The court
then conducted a penalty phase hearing pursuant to
General Statutes (Rev. to 1999) § 53a-46a, at which the
jury found the existence of an aggravating factor, one
or more jurors found the existence of one or more
mitigating factors, and the jury found that the aggravat-
ing factor outweighed the mitigating factor or factors.
The trial court thereupon imposed a sentence of death,5
and the defendant appealed to this court from both the
judgment of conviction and the death sentence. See
State v. Santiago, 305 Conn. 101, 117–18, 49 A.3d 566
(2012) (Santiago I). While the appeal was pending, the
legislature repealed the death penalty for all crimes
committed on or after the effective date of the repeal,
April 25, 2012. See P.A. 12-5. On June 12, 2012, this
court ultimately affirmed the judgment of conviction
but reversed the sentence of death and remanded the
case for a new penalty phase hearing on the ground
that the defendant had been deprived of the opportunity
to review and use certain potentially mitigating evi-
dence. See State v. Santiago, supra, 215, 308. There-
after, the defendant filed a motion for reconsideration
in which he asked this court to consider, among other
things, whether the prospective repeal leads inexorably
to the conclusion that capital punishment has ceased
to comport with state constitutional requirements. The
adoption of P.A. 12-5, when considered in light of the
history of capital punishment in our state and other
recent legal developments, compels us to conclude that
the death penalty now constitutes cruel and unusual
punishment, in violation of the state constitution. Con-
sequently, we reverse the judgment of the trial court
with respect to the sentence of death on the capital
felony count and remand the case to that court with
direction to sentence the defendant to life imprison-
ment without the possibility of release on that count.6
The underlying facts of this case, which are set forth
in detail in Santiago I, may be summarized briefly as
follows. In December, 2000, Mark Pascual agreed to
give the defendant a snowmobile from Pascual’s repair
shop if the defendant would kill the victim, Joseph
Niwinski, for whose girlfriend Pascual had developed
romantic feelings. Id., 121. That same month, with the
assistance of Pascual and another friend, the defendant
entered the victim’s apartment and shot and killed the
victim as he slept. Id., 123. The defendant was charged
with, among other things, the capital felony of ‘‘murder
committed by a defendant who is hired to commit the
same for pecuniary gain,’’ in violation of § 53a-54b (2).
In his original appeal to this court, the defendant
raised numerous challenges to his conviction of capital
felony and his conviction on other charges, as well as
his death sentence. Id., 142–46. This court affirmed the
defendant’s conviction on all counts; see id., 118, 143,
308; and declined his invitation to revisit our prior deci-
sions holding that the death penalty is not a per se
violation of the Connecticut constitution.7 Id., 307. We
also concluded, however, that the trial court, Solomon,
J., improperly had failed to disclose to the defendant
certain confidential records in the possession of the
Department of Children and Families that were mitigat-
ing in nature. Id., 215, 239–41. Accordingly, we reversed
the trial court’s judgment with respect to the sentence
of death and remanded the case to the trial court for
a new penalty phase hearing. Id., 241, 308.
While the defendant’s appeal was pending in this
court, the legislature passed and the governor signed
P.A. 12-5, which repealed the death penalty for all
crimes committed on or after the date of passage, April
25, 2012. See generally P.A. 12-5. Shortly before we
released our opinion in Santiago I, the defendant filed
a motion for permission to file a supplemental brief in
support of his argument that the prospective abolition
of capital punishment barred the state from seeking the
death penalty at his new penalty phase hearing. See
State v. Santiago, supra, 307–308 n.167. Specifically,
the defendant sought review of what we characterized
as four ‘‘new appellate claims,’’ the first of which was
that, ‘‘although his crimes were committed prior to the
effective date of [P.A. 12-5], that legislation nevertheless
‘represents a fundamental change in the contemporary
standard[s] of decency in Connecticut and a rejection
of the penological justifications for the death penalty,’
rendering the death penalty now cruel and unusual pun-
ishment . . . .’’ Id., 308 n.167.
We denied the defendant’s motion, concluding that
his new appellate claims would be more appropriately
addressed in the context of a postjudgment motion. See
id. Thereafter, the defendant filed such a motion, in
which he sought reconsideration of our decision in San-
tiago I. In support of his motion, he again maintained,
among other things, that P.A. 12-5 ‘‘represents a funda-
mental change in the contemporary standard[s] of
decency in Connecticut and a rejection of the penologi-
cal justifications for the death penalty, eliminating the
constitutional prerequisites to the validity of the death
penalty, such that it is now cruel and unusual punish-
ment forbidden by . . . article first, §§ 8 and 9, of the
[state] constitution . . . .’’ The defendant also urged
this court to order supplemental briefing and further
oral argument on this and related issues, particularly
in light of the fact that the constitutionality of imposing
the death penalty following a prospective only repeal
presents a question of first impression in Connecticut
and one that, to our knowledge, no jurisdiction has
addressed comprehensively in the modern era. See
State v. Santiago, Conn. Supreme Court Records &
Briefs, April Term, 2013, Amicus Brief of the American
Civil Liberties Union Foundation of Connecticut p. 2.
We granted the defendant’s motion for reconsideration
and request for supplemental briefing and further oral
argument without limitation.8
On reconsideration, although the defendant focuses
on the claim that P.A. 12-5 creates an impermissible
and arbitrary distinction between individuals who com-
mitted murders before and after April 25, 2012, in light
of the prospective abolition of capital punishment, he
also asks this court to ‘‘exercise its independent judg-
ment as to the current acceptability of the death penalty
in Connecticut.’’ Specifically, he argues that the enact-
ment of P.A. 12-5 means that ‘‘the death penalty is no
longer consistent with standards of decency in Connect-
icut and does not serve any valid penological objective.’’
That claim is the sole issue that we address herein.9
Public Act 12-5 not only reflects this state’s long-
standing aversion to carrying out executions, but also
represents the seminal change in the four century long
history of capital punishment in Connecticut. Accompa-
nying this dramatic departure are a host of other
important developments that have transpired over the
past several years. Historians have given us new chroni-
cles of the history and devolution of the death penalty
in Connecticut. Legal scholars have provided new
understandings of the original meaning of the constitu-
tional prohibition against cruel and unusual punish-
ments. Social scientists repeatedly have confirmed that
the risk of capital punishment falls disproportionately
on people of color and other disadvantaged groups.
Meanwhile, nationally, the number of executions and
the number of states that allow the death penalty con-
tinue to decline, and convicted capital felons in this
state remain on death row for decades with every likeli-
hood that they will not be executed for many years to
come, if ever. Finally, it has become apparent that the
dual federal constitutional requirements applicable to
all capital sentencing schemes—namely, that the jury
be provided with objective standards to guide its sen-
tence, on the one hand, and that it be accorded unfet-
tered discretion to impose a sentence of less than death,
on the other—are fundamentally in conflict and inevita-
bly open the door to impermissible racial and ethnic
biases. For all these reasons, and in light of the apparent
intent of the legislature in prospectively repealing the
death penalty and this state’s failure to implement and
operate a fair and functional system of capital punish-
ment, we conclude that the state constitution no longer
permits the execution of individuals sentenced to death
for crimes committed prior to the enactment of P.A.
12-5.
In part I of this opinion, we review the scope, nature,
and history of the protections from cruel and unusual
punishment afforded by article first, §§ 8 and 9, of the
constitution of Connecticut, both as a general matter
and as applied to capital punishment in particular. In
part II of this opinion, we explain why, in view of the
adoption of P.A. 12-5, and the state’s near total morato-
rium on carrying out executions over the past fifty-
five years, capital punishment has become incompatible
with contemporary standards of decency in Connecti-
cut and, therefore, now violates the state constitutional
prohibition against excessive and disproportionate pun-
ishments. In part III of this opinion, we explain why
the prospective repeal also means that the death penalty
now fails to satisfy any legitimate penological purpose
and is unconstitutionally excessive on that basis as well.
Finally, in part IV of this opinion, we address certain
general objections raised by the dissenting justices, and
we explain why their arguments are unpersuasive.10
I
STATE CONSTITUTIONAL PROHIBITIONS
AGAINST CRUEL AND UNUSUAL
PUNISHMENT
Since this court first considered the constitutionality
of capital punishment, we have recognized that, ‘‘in the
area of fundamental civil liberties—which includes all
protections of the declaration of rights contained in
article first of the Connecticut constitution—we sit as
a court of last resort. In such constitutional adjudica-
tion, our first referent is Connecticut law and the full
panoply of rights Connecticut citizens have come to
expect as their due.’’11 (Internal quotation marks omit-
ted.) State v. Ross, 230 Conn. 183, 247–48, 646 A.2d 1318
(1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130
L. Ed. 2d 1095 (1995); accord State v. Mikolinski, 256
Conn. 543, 547, 775 A.2d 274 (2001).
It is by now well established that the constitution of
Connecticut prohibits cruel and unusual punishments
under the auspices of the dual due process provisions
contained in article first, §§ 8 and 9.12 Those due process
protections take as their hallmark principles of funda-
mental fairness rooted in our state’s unique common
law, statutory, and constitutional traditions. See State
v. Ross, supra, 230 Conn. 246–47; State v. Lamme, 216
Conn. 172, 178–79, 184, 579 A.2d 484 (1990). Although
neither provision of the state constitution expressly
references cruel or unusual punishments, it is settled
constitutional doctrine that both of our due process
clauses prohibit governmental infliction of cruel and
unusual punishments. See State v. Rizzo, 266 Conn.
171, 206, 833 A.2d 363 (2003) (Rizzo I); State v. Ross,
supra, 246.
In this part of the opinion, we examine the freedoms
from cruel and unusual punishment traditionally
enjoyed by the citizens of this state. Because we have
not previously undertaken a comprehensive review of
these constitutional liberties, we first consider their
scope and nature in full, before considering how they
apply to the defendant’s specific challenge to Connecti-
cut’s current capital punishment scheme. In parts II
and III of this opinion, we turn to that issue, namely,
whether, in light of the enactment of P.A. 12-5, the
Connecticut constitution now forbids the imposition of
the death penalty.
In State v. Geisler, 222 Conn. 672, 610 A.2d 1225
(1992), we identified six nonexclusive tools of analysis
to be considered, to the extent applicable, whenever
we are called on as a matter of first impression to define
the scope and parameters of the state constitution: (1)
persuasive relevant federal precedents; (2) historical
insights into the intent of our constitutional forebears;
(3) the operative constitutional text; (4) related Con-
necticut precedents; (5) persuasive precedents of other
states; and (6) contemporary understandings of applica-
ble economic and sociological norms, or, as otherwise
described, relevant public policies.13 See id., 684–85; see
also State v. Rizzo, supra, 266 Conn. 208. These factors,
which we consider in turn, inform our application of the
established state constitutional standards—standards
that, as we explain hereinafter, derive from United
States Supreme Court precedent concerning the eighth
amendment—to the defendant’s claims in the present
case.14
A
Federal Constitutional Standards
The eighth amendment to the federal constitution
establishes the minimum standards for what constitutes
impermissibly cruel and unusual punishment.15 See, e.g.,
State v. Rizzo, supra, 266 Conn. 206. Specifically, the
United States Supreme Court has indicated that at least
three types of punishment may be deemed unconstitu-
tionally cruel: (1) inherently barbaric punishments; (2)
excessive and disproportionate punishments; and (3)
arbitrary or discriminatory punishments.16 In Ross, we
broadly adopted, as a matter of state constitutional
law, this federal framework for evaluating challenges
to allegedly cruel and unusual punishments.17 See State
v. Ross, supra, 230 Conn. 252.
1
Inherently Barbaric Punishments
First, the eighth amendment categorically prohibits
the imposition of inherently barbaric punishments. Gra-
ham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010). This prohibition is directed toward
manifestly and unnecessarily cruel punishments, such
as torture and other wanton infliction of physical pain.
See, e.g., Gregg v. Georgia, 428 U.S. 153, 170–72, 96 S.
Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion announcing
judgment); In re Kemmler, 136 U.S. 436, 447, 10 S. Ct.
930, 34 L. Ed. 519 (1890). In the context of capital
punishment, the eighth amendment also bars particular
modes of execution that present a substantial or objec-
tively intolerable risk of inflicting severe pain. Baze v.
Rees, 553 U.S. 35, 50, 52, 128 S. Ct. 1520, 170 L. Ed. 2d
420 (2008) (opinion announcing judgment).
2
Excessive and Disproportionate Punishments
Second, the eighth amendment mandates that punish-
ment be proportioned and graduated to the offense of
conviction. See Graham v. Florida, supra, 560 U.S. 59.
In the capital punishment context, the United States
Supreme Court has held, for example, that the death
penalty is categorically excessive and disproportionate
when imposed on certain classes of offenders. See, e.g.,
Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183,
161 L. Ed. 2d 1 (2005) (prohibiting execution of individu-
als who were under eighteen years of age when they
committed capital crimes); Atkins v. Virginia, 536 U.S.
304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (execu-
tion of intellectually disabled individuals was held to
be unconstitutional). The court also has concluded that
capital punishment is never warranted for nonhomicide
crimes against individuals. See, e.g., Kennedy v. Louisi-
ana, 554 U.S. 407, 446, 128 S. Ct. 2641, 171 L. Ed. 2d 525
(2008) (death penalty was held to be disproportionate
punishment for child rape); Enmund v. Florida, 458
U.S. 782, 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)
(eighth amendment does not permit execution of defen-
dant who did not kill or intend to kill but who played
minor role in felony in course of which murder was
committed by others); Coker v. Georgia, 433 U.S. 584,
592 and n.4, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)
(plurality opinion) (sentence of death for rape of adult
woman was held to be grossly disproportionate and
excessive punishment).
A reviewing court engages in a two stage analysis in
determining whether a challenged punishment is uncon-
stitutionally excessive and disproportionate. Enmund
v. Florida, supra, 458 U.S. 788–89. First, the court looks
to ‘‘objective factors’’ to determine whether the punish-
ment at issue comports with contemporary standards
of decency. (Internal quotation marks omitted.) Id., 788.
These objective indicia include ‘‘the historical develop-
ment of the punishment at issue,’’ legislative enact-
ments, and the decisions of prosecutors and sentencing
juries. Id.; see also Roper v. Simmons, supra, 543 U.S.
563; Thompson v. Oklahoma, 487 U.S. 815, 821–22, 108
S. Ct. 2687, 101 L. Ed. 2d 702 (1988).
This objective evidence of contemporary social
mores, however, does not wholly determine the issue.
‘‘Although legislative measures adopted by the people’s
chosen representatives provide one important means
of ascertaining contemporary values, it is evident that
legislative judgments alone cannot be determinative of
[e]ighth [a]mendment standards since that [a]mend-
ment was intended to safeguard individuals from the
abuse of legislative power.’’ Gregg v. Georgia, supra,
428 U.S. 174 n.19 (opinion announcing judgment).
Because the eighth amendment imposes ‘‘a restraint
[on] the exercise of legislative power’’; id., 174; the
United States Supreme Court repeatedly has empha-
sized that courts must conduct a second stage of analy-
sis in which they bring their own independent
judgments to bear, giving careful consideration to the
reasons why a civilized society may accept or reject a
given penalty. See, e.g., Hall v. Florida, U.S. ,
134 S. Ct. 1986, 1993, 1999–2000, 188 L. Ed. 2d 1007
(2014); Atkins v. Virginia, supra, 536 U.S. 312; Thomp-
son v. Oklahoma, supra, 487 U.S. 822–23. ‘‘Although the
judgments of legislatures, juries, and prosecutors weigh
heavily in the balance, it is for [the court] ultimately to
judge whether the [constitution] permits imposition of
the death penalty . . . .’’ Enmund v. Florida, supra,
458 U.S. 797. Our independent analysis must be
informed not only by judicial precedents, but also by
our own understanding of the rights secured by the
constitution. Kennedy v. Louisiana, supra, 554 U.S.
434. This analysis necessarily encompasses the question
of whether the penalty at issue promotes any of the
penal goals that courts and commentators have recog-
nized as legitimate: deterrence, retribution, incapacita-
tion, and rehabilitation.18 E.g., Graham v. Florida,
supra, 560 U.S. 71. A sentence materially lacking any
legitimate penological justification would be nothing
more than the ‘‘gratuitous infliction of suffering’’ and,
by its very nature, disproportionate. Gregg v. Georgia,
supra, 183 (opinion announcing judgment).
3
Arbitrary or Discriminatory Punishments
Third, the eighth amendment prohibits punishments
that are imposed in an ‘‘arbitrary and unpredictable
fashion . . . .’’ (Citations omitted; internal quotation
marks omitted.) Kennedy v. Louisiana, supra, 554 U.S.
436. In the context of capital punishment, the United
States Supreme Court has indicated that there are two
dimensions to this rule.
On the one hand, in Furman v. Georgia, 408 U.S.
238, 239–40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in
which the court held, in a per curiam opinion, that
capital punishment as then applied violated the eighth
amendment, and four years later in Gregg v. Georgia,
supra, 428 U.S. 153, in which the court held that Geor-
gia’s revamped capital punishment statute did not
offend the United States constitution; id., 206–207 (opin-
ion announcing judgment); the court established the
principle that a capital sentencing scheme must provide
the sentencing authority sufficient guidance as to which
crimes and criminals are death worthy to ensure that
the death penalty is not imposed in an arbitrary or
freakish manner. Id., 192–95 (opinion announcing judg-
ment). ‘‘To pass constitutional muster, a capital sen-
tencing scheme must genuinely narrow the class of
persons eligible for the death penalty and must reason-
ably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of
murder.’’ (Internal quotation marks omitted.) Lowen-
field v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 98 L.
Ed. 2d 568 (1988). ‘‘This means that if a [s]tate wishes
to authorize capital punishment it has a constitutional
responsibility to tailor and apply its law in a manner
that avoids the arbitrary and capricious infliction of the
death penalty. Part of a [s]tate’s responsibility in this
regard is to define the crimes for which death may
be the sentence in a way that obviates standardless
[sentencing] discretion. . . . It must channel the sen-
tencer’s discretion by clear and objective standards that
provide specific and detailed guidance, and that make
rationally reviewable the process for imposing a sen-
tence of death.’’19 (Citations omitted; footnotes omitted;
internal quotation marks omitted.) Godfrey v. Georgia,
446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)
(plurality opinion).
It goes without saying, moreover, that the eighth
amendment is offended not only by the random or arbi-
trary imposition of the death penalty, but also by the
greater evils of racial discrimination and other forms of
pernicious bias in the selection of who will be executed.
See, e.g., Tuilaepa v. California, 512 U.S. 967, 973, 114
S. Ct. 2630, 129 L. Ed. 2d 750 (1994) (guarding against
bias or caprice in sentencing is ‘‘controlling objective’’
of court’s review); see also Graham v. Collins, 506 U.S.
461, 484, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993)
(Thomas, J., concurring) (racial prejudice is ‘‘the para-
digmatic capricious and irrational sentencing factor’’);
Furman v. Georgia, supra, 408 U.S. 242 (Douglas, J.,
concurring) (one aim of English Declaration of Rights
of 1689, in which eighth amendment language origi-
nated, was to forbid discriminatory penalties); Furman
v. Georgia, supra, 310 (Stewart, J., concurring) (‘‘if any
basis can be discerned for the selection of these few
to be sentenced to die, it is the constitutionally imper-
missible basis of race’’). The eighth amendment, then,
requires that any capital sentencing scheme determine
which defendants will be eligible for the death penalty
on the basis of legitimate, rational, nondiscriminatory
factors.
On the other hand, the United States Supreme Court
also has insisted that, at the sentencing stage, juries
must have unlimited discretion to assess ‘‘the character
and record of the individual offender and the circum-
stances of the particular offense as a constitutionally
indispensable part of the process of inflicting the pen-
alty of death.’’ Woodson v. North Carolina, 428 U.S.
280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (opinion
announcing judgment). The court in Woodson held that
this sort of individualized sentencing determination is
necessary to arrive at a just and appropriate sentence
and to honor the eighth amendment’s ‘‘fundamental
respect for humanity . . . .’’ Id. The court also has con-
sistently indicated that the government has broad dis-
cretion as to whom to prosecute and what charge to
file. See, e.g., Hartman v. Moore, 547 U.S. 250, 263, 126
S. Ct. 1695, 164 L. Ed. 2d 441 (2006); McCleskey v. Kemp,
481 U.S. 279, 296–97, 107 S. Ct. 1756, 95 L. Ed. 2d 262
(1987); Wayte v. United States, 470 U.S. 598, 607, 105 S.
Ct. 1524, 84 L. Ed. 2d 547 (1985). As currently construed,
then, the federal constitution simultaneously requires
that states narrowly limit and carefully define which
offenders are eligible for capital punishment, while,
paradoxically, also giving prosecutors and juries,
respectively, virtually unfettered discretion whether
actually to charge defendants with capital crimes and
whether to sentence convicted offenders to death.
In response to Furman and Gregg, a majority of the
states, including Connecticut, drafted new capital pun-
ishment statutes in the 1970s that attempted to define
with greater precision that small subset of felonies the
commission of which could subject an offender to the
ultimate punishment. During the ensuing four decades,
a majority of the United States Supreme Court has con-
tinued to hold—in the face of persistent dissent—that
capital punishment comports with contemporary Amer-
ican standards of decency, satisfies legitimate penologi-
cal objectives, and is not imposed in an impermissibly
arbitrary or discriminatory manner. See, e.g., Kansas
v. Marsh, 548 U.S. 163, 181, 126 S. Ct. 2516, 165 L.
Ed. 2d 429 (2006); McCleskey v. Kemp, supra, 481 U.S.
291–92. That court, however, never has addressed the
specific issue raised by the present appeal, namely,
whether a state’s prospective only repeal of its capital
felony statutes renders its continued imposition of the
death penalty unconstitutionally excessive and dispro-
portionate punishment. Indeed, the parties have not
brought to our attention any case in which a federal
court has addressed that question.
B
Relevant State Constitutional History
We next consider our state’s constitutional and pre-
constitutional history with respect to the freedom from
cruel and unusual punishment.20 We consider, first, the
preconstitutional era and the legal traditions that inform
the meaning of the Connecticut constitution and, sec-
ond, the period leading up to the adoption of the Con-
necticut constitution of 1818.21
1
Preconstitutional Legal Traditions
We first consider the preconstitutional roots of the
freedom from cruel and unusual punishment in Con-
necticut. As early as 1672, our colonial code, which
incorporated a quasi-constitutional statement of indi-
vidual liberties, provided that, ‘‘for bodily punishment,
none shall be inflicted that are Inhumane, Barbarous
or Cruel.’’22 The Book of the General Laws for the People
within the Jurisdiction of Connecticut (1672) p. 58
(Laws of Connecticut); see also W. Holdsworth, Law
and Society in Colonial Connecticut, 1636–1672 (1974)
p. 484 (unpublished doctoral dissertation, Claremont
Graduate School) (explaining that 1672 code incorpo-
rated what were, in essence, constitutional statutes).
The 1672 code also differed from prior Connecticut
statutes in that it (1) forbade the use of torture to extract
confessions, (2) placed new restrictions on the use of
corporal punishment, and (3) afforded novel procedural
rights to criminal defendants, especially in capital
cases.23 See Laws of Connecticut, supra, p. 65; W. Hold-
sworth, supra, pp. 513–14, 527, 539, 581. Many of these
protections, in turn, derived from the Massachusetts
Body of Liberties of 1641; see C. Collier, ‘‘The Common
Law and Individual Rights in Connecticut Before the
Federal Bill of Rights,’’ 76 Conn. B.J. 1, 12 (2002); a
declaration of rights that was far more progressive24
than English law at that time.25 See A. Granucci, ‘‘ ‘Nor
Cruel and Unusual Punishments Inflicted:’ The Original
Meaning,’’ 57 Calif. L. Rev. 839, 851 (1969).
In perhaps the most substantial scholarly account of
the early legal traditions of the Connecticut colony,
William K. Holdsworth offers a window into the original
meaning of Connecticut’s inceptive prohibition of cruel
punishment. Holdsworth describes the years leading up
to the adoption of the 1672 code as a key formative
period in the colony’s legal history. W. Holdsworth,
supra, p. x. ‘‘The decade [of 1662 through 1672] was
a watershed in the early history of Connecticut,’’ he
explains, ‘‘a period of profound intellectual, social, eco-
nomic, and political change that set the colony on a
course of its own.’’ Id., p. 582. During this period of
‘‘extraordinarily rapid and vital change’’; id., p. 479; a
new generation of leaders restructured the colony’s
political and judicial systems. See id., pp. 479–80, 547–
48. The legislature ‘‘made fairer use of its juries . . .
gave formal recognition to numerous civil liberties, dis-
played a greater awareness of individual rights, dealt
less severely with most criminal offenders than before,
and, either formally or in practice, reduced the penalties
for several capital crimes.’’ Id., pp. 547–48. In the pro-
cess, Connecticut’s new leaders bequeathed to its citi-
zens a ‘‘legacy of moderation . . . .’’ Id., p. 545.
During the decade, dramatic shifts in public, judicial,
and executive attitudes toward crime and punishment
resulted in fundamental changes in how the criminal
law was applied, changes that directly foreshadowed
the prohibition against cruel punishment and other free-
doms that the legislature enshrined in the 1772 code.
‘‘[N]ew social conditions and new attitudes on the part
of the people and their leaders’’ that emerged during
the decade of 1662 through 1672 were mirrored by a
growing judicial leniency.26 Id., p. 537. Magistrates
enjoyed considerable latitude in enforcing the nascent
criminal code during this period, and Holdsworth sug-
gests that the penalties that were actually imposed may
provide a more accurate picture of Connecticut’s early
legal landscape, and particularly of public attitudes
regarding what constituted acceptable punishment,
than the first legal codes themselves provided. See id.,
pp. 353–54. Although the punishments prescribed often
were severe, the criminal law generally was enforced
without ‘‘needless cruelty’’ in the 1660s; id., p. 286; and,
over the course of the decade, courts became increas-
ingly lenient in the sanctions they imposed. See id., pp.
286–87, 363, 576. Whipping began to fall out of favor,
for example, with fines—and, in the case of fornication,
mandatory marriage—emerging as the primary sanction
for many sexual crimes and crimes against property.
See id., pp. 292, 295–300, 313–17. More brutal forms of
corporal punishment ‘‘all but disappeared . . . .’’ Id., p.
364. Christopher Collier, Connecticut’s state historian,
observed that, ‘‘through the imposition of lenient pun-
ishments outside of statutory specifications, nonen-
forcement of restrictive statutes, a tendency to let local
consensus be their guide, and a punctilious regard for
due process . . . Connecticut’s jurists lightened the
load of ancient oppressive laws . . . .’’ C. Collier,
supra, 76 Conn. B.J. 49–50.
‘‘[This unmistakable] tendency toward judicial mod-
eration in the use of physical punishments in the years
[1662 through 1675] . . . is all the more pronounced
when we consider capital crimes and capital punish-
ment.’’ W. Holdsworth, supra, p. 365. As public attitudes
evolved, magistrates grew more reluctant to inflict capi-
tal punishment and came to believe that the death pen-
alty should be reserved for only the most heinous and
universally condemned offenses. See id., pp. 382, 431.
Before adultery was demoted from a capital offense to
a lesser crime in 1672; C. Collier, supra, 76 Conn. B.J.
19; for example, ‘‘magistrates displayed marked reluc-
tance to inflict death for the offense’’; W. Holdsworth,
supra, p. 533; and courts found ways to avoid imposing
the statutory death penalty on adulterers. C. Collier,
supra, 19 n.42. By the 1670s, courts also were demon-
strating less willingness ‘‘to exact the full measure of
retribution’’ for sodomy and other capital crimes. W.
Holdsworth, supra, p. 418; see also id., pp. 371, 519. In
1677, for example, a jury declined to convict Nicholas
Sension of capital sodomy, despite what Holdsworth
suggests was clear evidence of his guilt. See id., pp.
418–19.
Even more than the courts, however, it was Connecti-
cut’s forward thinking governor, John Winthrop, Jr., a
leading colonial physician and scientist, who was
responsible for the restraint that the colony began to
exercise in the 1660s with respect to capital crimes
ranging from witchcraft and blasphemy, on the one
hand, to adultery, sodomy, and rape, on the other. See
id., pp. 522–25, 579–80. Governor Winthrop’s ‘‘legendary
toleration and the force of his moderating influence
over the affairs of his colony’’ effectively extinguished
the colony’s hysteria over witchcraft, and ultimately
resulted in the delisting of adultery as a capital crime
in 1672.27 Id., p. 580. Holdsworth concludes that this
dramatic evolution in public and judicial attitudes
toward crime and penology during the 1660s directly
influenced the decision in 1672 to adopt key freedoms
that Massachusetts afforded its criminal defendants,
including the freedoms from inhumane, barbarous and
cruel punishments, in addition to torture, when formu-
lating the new colonial statutes. See id., pp. 513, 537,
539, 582. ‘‘The [c]ode of 1672 expounded in the language
of law the new ideal of a new generation, a more moder-
ate, more explicit, more progressive conception’’ of
crime and punishment. Id., p. 582. ‘‘By giving formal
legal recognition to many of the changes that had tran-
spired during the preceding decade,’’ Holdsworth
explains, ‘‘the [c]ode of 1672 reflected to a greater
extent than its predecessor the essential institutional
character that was to mark Connecticut for the remain-
der of the colonial period.’’ Id., p. 583.
In addition to abolishing such brutal forms of capital
punishment as flogging to death and breaking on the
wheel, the 1672 code lessened the severity of many
criminal sanctions, reducing the maximum number of
lashes that could be imposed for noncapital crimes and
replacing whipping with imprisonment as the penalty
for others. See id., pp. 513, 537–39, 576. Moreover,
although legislators did retain severe corporal punish-
ments such as branding, which replaced death as the
penalty for those crimes that were decapitalized in 1672,
court records indicate that such punishments were
rarely if ever inflicted. See id., pp. 535, 576.
It is apparent from this history that, long before the
adoption of either the federal or state constitution, Con-
necticut citizens enjoyed a quasi-constitutional freedom
from cruel punishment, one that reflected our unique
social and political traditions and that far exceeded the
protections recognized in England at the time. These
protections were enshrined in Connecticut’s early con-
stitutional statutes and common law, and, from the
start, were intimately tied to the principles of due
process.
2
1818
We next consider the historical circumstances lead-
ing up to the adoption of the state constitution in 1818.
The late eighteenth and early nineteenth centuries wit-
nessed the twilight of a premodern system of criminal
justice in the United States. See generally note, ‘‘The
Eighth Amendment, Proportionality, and the Changing
Meaning of ‘Punishments,’ ’’ 122 Harv. L. Rev. 960
(2009). The rapid evolution in penology that occurred
in the decades following the founding was especially
pronounced in Connecticut. The late eighteenth and
early nineteenth centuries in Connecticut witnessed a
pronounced liberalization in public, legislative, and judi-
cial attitudes toward crime and punishment. The period
has been described as one characterized by penological
reform, a broader commitment to human rights, and
the first serious public questioning of the moral legiti-
macy of capital punishment. See L. Goodheart, The
Solemn Sentence of Death: Capital Punishment in Con-
necticut (2011) pp. 69–70. This time between the adop-
tion of the federal and state constitutions also saw an
emerging awareness of and compassion for ‘‘the fate of
the condemned perpetrator.’’ Id., p. 85. These changes
coincided with the reopening of the newly established
Newgate Prison (Newgate) in 1790, which provided the
opportunity to impose incarceration as an alternative
to more severe traditional punishments. See id., p. 75.
During this period, Connecticut’s legislators, jurists,
and citizens refined their understanding of what consti-
tuted cruel and unusual punishment. Nowhere was this
more apparent than in the repudiation of corporal pun-
ishment as a legitimate penal sanction. ‘‘With the estab-
lishment of a [s]tate prison, many of the barbarous
punishments [began] to disappear from the statute
book, replaced by confinement for a term of years.’’
Judicial and Civil History of Connecticut (D. Loomis &
J. Calhoun eds., 1895) p. 98. In 1808, for instance, ‘‘legis-
lators crafted a less draconian statute for the regulation
of female sexuality’’; L. Goodheart, supra, p. 77; and,
by the middle of the next decade, a broad consensus
had emerged in the state that corporal punishment of
any sort was degrading and debasing. See id., pp. 77–78.
When the criminal code was revised in 1821 to comport
with the state constitution of 1818, bodily punishment
was largely abolished. See Judicial and Civil History of
Connecticut, supra, pp. 98–99. The last vestige of the
old system, the whipping post, survived only one decade
more as a punishment for theft.28 Id., p. 99.
Connecticut’s earliest reported judicial decisions
indicate that the courts, like the legislature, had begun
to adopt a broader conception of cruel and unusual
punishment in the years leading up to the adoption of
the 1818 constitution. In State v. Smith, 5 Day (Conn.)
175 (1811), for example, the defendant argued that
imposing successive terms of imprisonment in Newgate
for multiple incidents of counterfeiting was ‘‘novel,
without precedent, cruel and illegal.’’ Id., 178. A majority
of this court ultimately denied the requested relief, but
only because it concluded that ‘‘[n]o injustice [was]
done to the prisoner; and this proceeding [was] neither
new, nor without precedent; such [had] been the usage
of our courts, for many years past, in this state.’’ Id.,
179. Indeed, the majority went out of its way to note
that courts ‘‘are bound to become acquainted with the
situation and circumstances of the prisoner, when they
pronounce the sentence. If through infirmity, it should
appear to be inhuman or improper to confine him to
hard labor, in Newgate, immediately upon conviction,
it would be the duty of the court to postpone the com-
mencement of his confinement, to a future day.’’ Id.
That Connecticut had developed by the turn of the
nineteenth century a more expansive conception of
what constituted impermissibly cruel punishment is fur-
ther revealed in the writings of former Chief Justice
Zephaniah Swift. Swift did not hesitate to condemn as
‘‘cruel and illiberal’’ not only corporal punishment and
the like, but also what he saw as outmoded and unjust
common-law traditions. 2 Z. Swift, A System of the Laws
of the State of Connecticut (1796) p. 398. Practices
ranging from false imprisonment, to the denial of
defense counsel in capital cases, to punishing a parent
for harboring a fugitive child were all, to Swift, exam-
ples of cruelties that the law ought not countenance.
See id., pp. 58, 371–72, 398–99. Swift was especially
troubled by the traditional English punishment for sui-
cide—forfeiture of the deceased’s estate and burial on
a public highway with a stake driven through the body—
which he characterized as the product of a ‘‘barbarous
period of superstition, and cruelty.’’ Id., p. 304.29
Nor was capital punishment immune from these
broader currents in Connecticut’s criminal justice sys-
tem. Opposition to capital punishment gained traction
in the decade before the adoption of the 1818 state
constitution. In 1808, then Judge Swift instructed a
grand jury that courts were adopting a ‘‘milder practice’’
in applying the capital law. (Internal quotation marks
omitted.) L. Goodheart, supra, p. 76; see also id., p.
71. The following year, in a speech to the legislature,
Lieutenant Governor John Treadwell shared his view
that ‘‘[c]onfinement in Newgate . . . [was] terrible, but
not cruel; and it [was] probably more effectual to pre-
vent [atrocious] crimes, than capital punishment
. . . .’’ J. Treadwell, ‘‘Lieutenant Governor Treadwell’s
Speech to the Legislature of Connecticut: October,
1809,’’ The American Register, January 1, 1810, p. 6.
Although he lamented that there were few penitents
among the inmates housed at Newgate, Treadwell pro-
posed that providing them with Bibles and religious
instruction might have a beneficial effect. See id.
Finally, in a series of events that culminated in the
decision to convene a constitutional convention, the
legislature voted in 1816 to grant a new trial for Peter
Lung, who had been condemned to die for the murder
of his wife. J. Zeldes, ‘‘Connecticut’s Most Memorable
‘Good for Nothing Rascal’ in This ‘Land of Steady Hab-
its,’ ’’ 80 Conn. B.J. 367, 380–81, 393–94 (2006). The
deciding vote in favor of a retrial was cast by a member
of the governing council who ‘‘was not willing that a
man should be [hanged as a result of] his vote.’’30 (Inter-
nal quotation marks omitted.) Id., 394. Following his
conviction upon retrial, Lung was in fact hanged. The
following week, the Middlesex Gazette published an
article remarking on the ‘‘infrequency of capital punish-
ment’’ and observing that the ‘‘[behavior] of this unfortu-
nate sufferer on this trying occasion, was such as to
attract the tenderest sympathy of every rational
beholder.’’ ‘‘Execution,’’ Middlesex Gazzette, reprinted
in The Weekly Recorder: A Newpaper Conveying
Important Intelligence and Other Useful Matter Under
the Three General Heads of Theology, Literature and
National Affairs, July 31, 1816, p. 8.
In summary, it is clear that, from the earliest days of
the colonies, and extending until the adoption of the
state constitution in 1818,31 the people of Connecticut
saw themselves as enjoying significant freedoms from
cruel and unusual punishment, freedoms that were safe-
guarded by our courts and enshrined in our state’s pre-
constitutional statutory and common law. That our
history reveals a particular sensitivity to such concerns
warrants our scrupulous and independent review of
allegedly cruel and unusual practices and punishments,
and informs our analysis thereof.
C
Relevant Constitutional Text
We next consider the relevant provisions of the state
constitution. In light of our state’s firm and enduring
commitment to the principle that even those offenders
who commit the most heinous crimes should not be
subjected to inhumane, barbarous, or cruel punishment,
the question naturally arises why the framers of the
1818 constitution decided to embed these traditional
liberties in our dual due process clauses; see Conn.
Const. (1818), art. I, §§ 9 and 10; rather than in an
express punishments clause. Although there is no indi-
cation that that question was debated during the 1818
constitutional convention, we find guidance in the
broader legal history of turn of the century Connecticut.
Connecticut was among three of the original thirteen
states that chose not to officially ratify the eighth
amendment or, indeed, any of the first ten amendments
to the federal constitution.32 C. Leedham, Our Changing
Constitution (1964) p. 41. In 1787, the state’s representa-
tives to the federal constitutional convention had
argued vehemently against the need for a bill of rights.
See C. Collier, supra, 57, 67. ‘‘In Connecticut, unlike
those states that had recently been under the domina-
tion of royal and proprietary governors and appointed
upper houses, limited government was taken for
granted. Calvinist theory described limited government,
[Connecticut’s] Fundamental Orders [of 1639] pro-
claimed it, the [Connecticut] Charter [of 1662] estab-
lished it, tradition demanded it, common law enforced
it, and frequent elections guaranteed it.’’ Id., 53. During
the late eighteenth and early nineteenth centuries, for
example, Connecticut courts routinely safeguarded the
basic rights enshrined in the federal Bill of Rights on
the basis of natural rights or common law, without the
need for any formal constitutional sanction. See id., 31,
65. Moreover, there was a particular fear in Connecticut
that the adoption of a written bill of rights would imply,
by negative inference, that citizens were no longer enti-
tled to unenumerated protections long enshrined in the
state’s common law.33 See id., 56–59. ‘‘A strong state-
wide consensus, then, held that no bill of rights was
necessary and, indeed, might even limit individual lib-
erty.’’ Id., 57.
Although this viewpoint had become less prevalent
by 1818, when Connecticut adopted its first formal con-
stitution; see id., 68–69; it retained many ‘‘influential
adherents . . . .’’ Id., 69. This likely accounts for the
fact that certain protections long entrenched in the
state’s constitutional common law were not expressly
enumerated in the new written constitution. Indeed,
in an 1821 speech, Governor Oliver Wolcott called on
Connecticut’s courts to articulate and protect the many
natural rights that remained unenumerated by either
constitution or statute. See id., 37–38.
Accordingly, in Moore v. Ganim, 233 Conn. 557, 660
A.2d 742 (1995), we ‘‘assume[d] that the framers
believed that individuals would continue to possess
certain natural rights even if those rights were not enu-
merated in the written constitution. On the basis of this
assumption, we [would] not draw firm conclusions from
the silence of the constitutional text. . . . Rather, in
determining whether unenumerated rights were incor-
porated 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’ under-
standing of whether the particular right was so funda-
mental to an ordered society that it did not require
explicit enumeration. We can discern the framers’
understanding, of course, only by examining the histori-
cal sources.’’ (Emphasis omitted.) Id., 601.
In her dissenting opinion, Chief Justice Rogers cites
to Cologne v. Westfarms Associates, 192 Conn. 48, 60,
469 A.2d 1201 (1984), for the proposition that, by the
time the 1818 constitution was adopted, the view that
the basic liberties of the people should be enshrined
in a written constitution had come to prevail in Connect-
icut. See footnote 6 of Chief Justice Rogers’ dissenting
opinion. Chief Justice Rogers, however, neglects to con-
sider an adjacent passage in Cologne that recognizes
that ‘‘[a]n opposing view was expressed that such a
detailed specification of individual rights was superflu-
ous and tended to abridge them, because all governmen-
tal powers not granted by the constitution were
reserved to the people.’’ Cologne v. Westfarms Associ-
ates, supra, 60. In fact, history reveals that article first
of the 1818 constitution was born of and reflected a
compromise between these two constitutional philoso-
phies. See R. Purcell, Connecticut in Transition: 1775–
1818 (New Ed. 1963) pp. 241–42 (discussing opposition
to bill of rights at constitutional convention and
implying that ultimate decision of which freedoms to
enshrine and which to exclude was somewhat haphaz-
ard); J. Trumbull, Historical Notes on the Constitutions
of Connecticut and on the Constitutional Convention
of 1818 (1873) p. 53 (identifying prominent delegates
to convention who opposed incorporation of any bill
of rights in state constitution); J. Trumbull, supra, p.
56 (recognizing ultimate compromise). For these rea-
sons, we find little merit in the argument that the deci-
sion of the framers of the Connecticut constitution not
to include an express bar on cruel and unusual punish-
ment somehow suggests that this liberty was uncher-
ished.
D
Relevant Connecticut Precedents
Turning to the next Geisler factor, namely, relevant
Connecticut precedents, we write on a relatively blank
slate with respect to cruel and unusual punishment.
Nevertheless, since this court first recognized in Ross
that our due process clauses independently prohibit
cruel and unusual punishment; see State v. Ross, supra,
230 Conn. 246–47; we have begun to carve out the broad
contours of that prohibition. In Ross itself, as we have
noted, we adopted the aforementioned federal frame-
work for evaluating challenges to allegedly cruel and
unusual punishments. See id., 252. Specifically, we rec-
ognized that, under the state constitution, whether a
challenged punishment is cruel and unusual is to be
judged according to the ‘‘evolving standards of human
decency’’; id., 251; and that those standards are reflected
not only in constitutional and legislative text, but also
‘‘in our history and in the teachings of the jurisprudence
of our sister states as well as that of the federal courts.’’
Id. In Ross, we also rejected the theory that ‘‘article first,
§ 9, confers the authority to determine what constitutes
cruel and unusual punishment solely on the Connecticut
legislature and not on the courts.’’ Id., 248. ‘‘Although
we should exercise our authority with great restraint,’’
we explained, ‘‘this court cannot abdicate its nondelega-
ble responsibility for the adjudication of constitutional
rights.’’ Id., 249.
Subsequently, in Rizzo I, we characterized it as ‘‘set-
tled constitutional doctrine that, independently of fed-
eral constitutional requirements, our due process
clauses, because they prohibit cruel and unusual pun-
ishment, impose constitutional limits on the imposition
of the death penalty.’’ State v. Rizzo, supra, 266 Conn.
206. In that case, we recognized that there is an ‘‘over-
arching concern for consistency and reliability in the
imposition of the death penalty’’ under our state consti-
tution. (Emphasis omitted.) Id., 233. Accordingly, in
order to avoid having to resolve the state constitutional
question raised in that case, we construed General Stat-
utes (Rev. to 1997) § 53a-46a to require that a jury must
find beyond a reasonable doubt that the death penalty
is the appropriate penalty.34 See id., 234.
Most recently, in State v. Rizzo, 303 Conn. 71, 184–
201, 31 A.3d 1094 (2011) (Rizzo II), cert. denied,
U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), we
engaged in a full analysis of the constitutionality of the
death penalty pursuant to the state constitution. At that
time, we reiterated that, ‘‘in determining whether a par-
ticular punishment is cruel and unusual in violation of
[state] constitutional standards, we must look beyond
historical conceptions to the evolving standards of
decency that mark the progress of a maturing society.’’35
(Internal quotation marks omitted.) Id., 187–88. We also
‘‘recognize[d] that assessing the propriety of [a punish-
ment] is not exclusively the domain of the legislature,
and that this court has an independent duty to deter-
mine that the penalty remains constitutionally viable
as the sensibilities of our citizens evolve.’’ Id., 197. We
return to these well established principles in parts II
and III of this opinion.
E
Persuasive Sister State Precedents
The unique structure and text of the Connecticut
constitution of 1965, in which the freedom from cruel
and unusual punishment is embeded in our dual due
process clauses rather than in a distinct punishments
clause, mean that sister state authority is less directly
relevant than in cases in which we have construed other
constitutional provisions. We do agree with our sister
courts, however, that, under the state constitution, the
pertinent standards by which we judge the fairness,
decency, and efficacy of a punishment are necessarily
those of Connecticut. Although regional, national, and
international norms may inform our analysis; see, e.g.,
State v. Rizzo, supra, 303 Conn. 188–96; the ultimate
question is whether capital punishment has come to
be excessive and disproportionate in Connecticut. Cf.
Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989)
(‘‘[t]he standard of decency that is relevant to the inter-
pretation of the prohibition against cruel and unusual
punishment found in the Georgia [c]onstitution is the
standard of the people of Georgia, not the national
standard’’ [internal quotation marks omitted]); District
Attorney v. Watson, 381 Mass. 648, 661, 664–65, 411
N.E.2d 1274 (1980) (holding that death penalty violated
state constitution on basis of contemporary standards
of decency in Massachusetts);36 J. Acker & E. Walsh,
‘‘Challenging the Death Penalty under State Constitu-
tions,’’ 42 Vand. L. Rev. 1299, 1325 (1989) (‘‘[e]ven if
state courts are guided by the doctrinal analysis now
associated with the eighth amendment, their frame of
reference for measuring evolving standards of decency
must be within state borders’’ [internal quotation marks
omitted]); cf. also Kerrigan v. Commissioner of Public
Health, 289 Conn. 135, 188–213, 957 A.2d 407 (2008) (in
context of determining whether gay persons are entitled
to heightened protection for equal protection purposes
under state constitution, court assessed their political
power or lack thereof in Connecticut). Justice Zarella’s
arguments to the contrary notwithstanding, we also
agree with those courts that have determined that it
is perfectly reasonable to apply the federal evolving
standards of decency rubric to cruel and unusual pun-
ishment claims brought under a state constitution. See,
e.g., People v. Anderson, 6 Cal. 3d 628, 647–48, 493 P.2d
880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S.
Ct. 2060, 32 L. Ed. 2d 344 (1972);37 Fleming v. Zant,
supra, 689–90; District Attorney v. Watson, supra, 661–
62. Indeed, we are not aware of any court that has
concluded that the federal evolving standards of
decency rubric is inapplicable to state constitutional
claims.
F
Conclusion
To summarize our analysis of the first five Geisler
factors, when construing the state constitutional free-
dom from cruel and unusual punishment, we broadly
adopt the framework that the federal courts have used
to evaluate eighth amendment challenges. We apply this
framework, however, with respect to the constitutional
facts as they exist in Connecticut and mindful of our
state’s unique and expansive constitutional and precon-
stitutional history. To the extent that the sixth Geisler
factor—economic and sociological norms and policy
considerations—is relevant, we take such considera-
tions into account in parts II and III of this opinion, in
which we address the defendant’s specific constitu-
tional challenge.38
II
THE DEATH PENALTY FAILS TO COMPORT
WITH CONTEMPORARY STANDARDS
OF DECENCY
We next consider whether the death penalty, as cur-
rently imposed in Connecticut, and following the enact-
ment of P.A. 12-5, is so out of step with our contem-
porary standards of decency as to violate the state con-
stitutional ban on excessive and disproportionate pun-
ishment. We conclude that it is.
As we previously noted, both the federal and state
constitutions prohibit the imposition of any punishment
that is not proportioned and graduated to the offense
of conviction. Whether a punishment is disproportion-
ate and excessive is to be judged by the contemporary,
‘‘evolving standards of decency that mark the progress
of a maturing society.’’ Trop v. Dulles, supra, 356 U.S.
101 (plurality opinion); accord State v. Rizzo, supra,
303 Conn. 187–88. In other words, the constitutional
tened to the obsolete but may acquire meaning as public
opinion becomes enlightened by a humane justice.’’
Weems v. United States, 217 U.S. 349, 378, 30 S. Ct. 544,
54 L. Ed. 793 (1910); see also Hall v. Florida, supra, 134
S. Ct. 1992 (‘‘[t]he [e]ighth [a]mendment’s protection of
dignity reflects the [n]ation we have been, the [n]ation
we are, and the [n]ation we aspire to be’’). Because the
legal standard is an evolving one, it is both necessary
and appropriate for us to consider the issue anew, in
light of relevant recent developments, when it is
raised.39 See State v. Rizzo, supra, 303 Conn. 187–88.
On only two prior occasions has this court considered
in any depth whether capital punishment violates the
state constitutional ban on cruel and unusual punish-
ment. See State v. Rizzo, supra, 303 Conn. 184–201;
State v. Ross, supra, 230 Conn. 248–52. In those cases,
we considered—and at times blurred the lines
between—two distinct constitutional challenges: (1)
the claim that capital punishment is inherently barbaric
punishment and, therefore, offends the constitution at
all times and under all circumstances; and (2) the claim
that, although capital punishment may once have com-
ported with constitutional requirements, our state’s
standards of decency have evolved such that execution
now constitutes excessive and disproportionate punish-
ment. See State v. Rizzo, supra, 303 Conn. 187–88; State
v. Ross, supra, 248, 250. The dissenting justice in Ross
likewise challenged capital punishment along both
parameters. Compare State v. Ross, supra, 298 (Berdon,
J., dissenting in part) (‘‘[t]he punishment of death is
inherently degrading to the dignity of a human being’’),
with id., 301–313 (Berdon, J., dissenting in part)
(arguing that, inter alia, public no longer supports death
penalty, penalty is unfairly applied, and recent evidence
does not bear out deterrent effect).
The majority in Ross—consisting of two members of
this court and two Appellate Court judges sitting by
designation—focused its attention on the per se ques-
tion of whether the ‘‘imposition of the death penalty
invariably constitutes cruel and unusual punishment.’’
Id., 245. The majority evaluated the constitutionality of
the death penalty under the rubric of the six Geisler
factors. Id., 249–52. Dispensing with five of the factors
in a single paragraph, the majority in Ross afforded each
consideration no more than one sentence of attention.40
See id., 249–50. The sixth Geisler factor, which encom-
passes the full panoply of economic and sociological
norms and policy considerations, received only slightly
more attention. See id., 251–52.
With respect to the contention that the death penalty
is fundamentally offensive to evolving standards of
decency, the majority dismissed the claim of the defen-
dant, Michael B. Ross, with a one sentence quote from
the New Jersey Supreme Court: ‘‘When, in the course
of a decade, thirty-seven states call for the death pen-
alty, the probability that the legislature of each state
accurately reflects its community’s standards
approaches certainty.’’ (Internal quotation marks omit-
ted.) Id., 251, quoting State v. Ramseur, 106 N.J. 123,
173, 524 A.2d 188 (1987). In his lengthy dissent, Justice
Berdon lamented that the majority had given so novel
and weighty a question such ‘‘cursory analysis . . . .’’41
State v. Ross, supra, 230 Conn. 295 (Berdon, J., dis-
senting in part).
Subsequently, this court reiterated the holding of, or
merely cited to Ross, without any further elaboration,
in one-half dozen cases presenting facial challenges to
the death penalty under the state constitution. See State
v. Colon, 272 Conn. 106, 383, 864 A.2d 666 (2004), cert.
denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116
(2005); State v. Breton, 264 Conn. 327, 418, 824 A.2d
778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L.
Ed. 2d 708 (2003); State v. Reynolds, 264 Conn. 1, 236,
836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.
Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Cobb, 251
Conn. 285, 497, 743 A.2d 1 (1999), cert. denied, 531 U.S.
841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v.
Webb, 238 Conn. 389, 402–405, 680 A.2d 147 (1996);42
State v. Breton, 235 Conn. 206, 217–18, 663 A.2d 1026
(1995). Accordingly, it was not until 2011, in Rizzo II,
that we first seriously explored the scope of the state
constitutional ban on cruel and unusual punishment
with regard to the modern death penalty. See State v.
Rizzo, supra, 303 Conn. 184–201.
In Rizzo II, as in Ross, we had no difficulty rejecting
the defendant’s facial challenge, reasoning that a pen-
alty that is referenced explicitly in the state constitution
cannot have been unconstitutional at all times and
under all circumstances. See id., 188. In that case, how-
ever, we also recognized that the fact that capital pun-
ishment has been practiced throughout much of our
state’s history and was considered constitutional in
1818 says little about its legal status two centuries later.
See id., 187–88. Rather, under the governing legal frame-
work, ‘‘we must look beyond historical conceptions to
the evolving standards of decency that mark the prog-
ress of a maturing society. . . . This is because [t]he
standard of extreme cruelty is not merely descriptive,
but necessarily embodies a moral judgment. The stan-
dard itself remains the same, but its applicability must
change as the basic mores of society change.’’ (Internal
quotation marks omitted.) Id.; see also People v. Ander-
son, supra, 6 Cal. 3d 637–39 (incidental references to
death penalty in state constitution merely acknowledge
that penalty was in use at time of drafting and do not
enshrine its constitutional status as standards of
decency evolve); District Attorney v. Watson, supra,
381 Mass. 660–62 (interpretation of state constitutional
prohibition against cruel and unusual punishment is not
static and depends on contemporary moral standards).
In Rizzo II, we also recognized that whether the death
penalty constitutes excessive and disproportionate pun-
ishment is a subtler and more nuanced question than
the majority in Ross had acknowledged. Our under-
standing of what constitutes excessive punishment is
informed not only by the laws on the books, both in
Connecticut and elsewhere, but also by developments
in how those laws are applied by prosecutors and sen-
tencing juries. See State v. Rizzo, supra, 303 Conn.
188–98. Accordingly, we undertook a more sweeping
review of contemporary social mores and the actual
implementation of capital punishment at the state,
national and even international levels. See id. We ulti-
mately concluded, however, that ‘‘there remain[ed]
powerful evidence of strong public support for the
death penalty in the form of long-standing laws enacted
by the democratically elected representatives of this
state and other jurisdictions within the United States
. . . .’’ Id., 198. Notwithstanding various indications
that there had been a drop off in support for the death
penalty, we perceived no ‘‘dramatic shift’’ in the consti-
tutional or legislative landscape. (Internal quotation
marks omitted.) Id., 191.
We first take this opportunity to clarify that, although
a sudden sea change in public opinion would be suffi-
cient to demonstrate a constitutionally significant shift
in contemporary standards of decency, such a dramatic
shift is not necessary for us to recognize that a punish-
ment has become repugnant to the state constitution.
If the legally salient metaphor is the evolution of our
standards of decency, then a gradual but inexorable
extinction may be as significant as the sociological
equivalent of the meteor that, it is believed, suddenly
ended the reign of the dinosaurs. In any event, new
insights into the history of capital punishment in Con-
necticut, in tandem with the legislature’s 2012 decision
to abolish the death penalty prospectively, persuade us
that we now have not only a clear picture of the long,
steady devolution of capital punishment in our state,
and, indeed, throughout New England, but also a dra-
matic and definitive statement by our elected officials
that the death penalty no longer can be justified as a
necessary or appropriate tool of justice.
This court and the United States Supreme Court have
looked to five objective indicia of society’s evolving
standards of decency: (1) the historical development
of the punishment at issue; (2) legislative enactments;
(3) the current practice of prosecutors and sentencing
juries; (4) the laws and practices of other jurisdictions;
and (5) the opinions and recommendations of profes-
sional associations.43 See, e.g., Graham v. Florida,
supra, 560 U.S. 61–67; Atkins v. Virginia, supra, 536
U.S. 311–16; Thompson v. Oklahoma, supra, 487 U.S.
830; Enmund v. Florida, supra, 458 U.S. 788–89; State
v. Rizzo, supra, 303 Conn. 187–96. We consider each
factor in turn.
A
Historical Development
We begin by considering ‘‘the historical development
of the punishment at issue . . . .’’ Enmund v. Florida,
supra, 458 U.S. 788. The history of capital punishment
in Connecticut is especially important both because
substantial new historical information has become
available in recent years and because the ultimate legal
question—whether the death penalty remains conso-
nant with our evolving standards of decency following
the enactment of P.A. 12-5—necessarily requires that
we consider the broader historical perspective. We can-
not ascertain how our moral standards have evolved
without first understanding what they once were.44
Our task in this regard has been greatly facilitated
by Professor Lawrence B. Goodheart, who recently pub-
lished the first comprehensive history of capital punish-
ment in Connecticut in ‘‘The Solemn Sentence of Death:
Capital Punishment in Connecticut.’’ Beginning with the
founding of the Connecticut and New Haven colonies
in the 1600s, and proceeding methodically through the
first decade of the current millennium, Goodheart’s
award winning45 book traces nearly 400 years of the
state’s implementation and public perception of the
death penalty. Two recurring themes emerge from this
survey. First, the acceptability of imposing death as a
form of judicial punishment has declined steadily over
Connecticut’s nearly 400 year history. Secularization,
evolving moral standards, new constitutional and pro-
cedural protections, and the availability of incarcera-
tion as a viable alternative to execution have resulted
in capital punishment being available for far fewer
crimes and criminals, and being imposed far less fre-
quently, with a concomitant deterioration in public
acceptance. Second, what has not changed is that,
throughout every period of our state’s history, the death
penalty has been imposed disproportionately on those
whom society has marginalized socially, politically, and
economically: people of color, the poor and unedu-
cated, and unpopular immigrant and ethnic groups. It
always has been easier for us to execute those we see
as inferior or less intrinsically worthy.
Beginning with the seventeenth century, Goodheart
explains that early Connecticut penal statutes reflected
the Puritans’ deep-seated commitment to the Mosaic
legal code of the Old Testament. See L. Goodheart,
supra, pp. 10–12. In 1656, the New Haven colony recog-
nized twenty-three different capital crimes. Id., p. 12.
An individual could be executed for conduct offending
the colony’s strict religious sensibilities (e.g., idolatry,
witchcraft, blasphemy, cursing or smiting a parent, defi-
ance by a rebellious son, profaning the Sabbath); for
behavior deemed to be sexually deviant (adultery, mas-
turbation, bestiality, heterosexual and homosexual sod-
omy, incest); for repeated incidents of burglary or
robbery; as well as for rape, rebellion, and killing of
various sorts. See id. From the founding of the colonies
through the end of the seventeenth century, more peo-
ple were executed in Connecticut for witchcraft
(eleven) and for sexual infractions, such as bestiality
and sodomy (eleven, including one rape), than for homi-
cide (ten). See id., pp. 17, 22, 33.
Even in that era, however, judges and juries often
hesitated to enforce the capital laws as written. See,
e.g., C. Collier, supra, 76 Conn. B.J. 19 n.42. In many
adultery cases, for example, courts avoided imposing
the ultimate punishment by finding the parties not guilty
but ‘‘highly suspicious,’’ and thus imposing a sentence
of something other than death. Id.
Commencing with the Age of Enlightenment in the
late 1600s, and continuing for the next three plus centu-
ries, Connecticut’s courts and elected officials have
steadily pared back the number and types of crimes
deemed worthy of the ultimate punishment. See gener-
ally L. Goodheart, supra, cc. 2–7. By the early 1660s,
juries, magistrates, and the governor himself all were
taking steps to, in essence, decapitalize crimes such as
sodomy, blasphemy, and witchcraft, in keeping with
the public’s increasingly secular attitudes toward crime
and punishment. See part I B 1 of this opinion. The last
executions for bestiality and witchcraft were carried
out in 1662 and 1663, respectively. L. Goodheart, supra,
pp. 33, 97. Adultery was delisted as a capital offense in
1672, the same year Thomas Rood was executed for
incest, and, since then, no one has been executed in
Connecticut for any nonviolent sexual crime. See id.,
p. 31. The revised Connecticut laws of 1750 removed
the capital crimes of idolatry, man stealing, and various
offenses of rebellious offspring from the books; id., pp.
38, 45–49; and, two years later, the General Assembly
blocked an execution for the crime of blasphemy, effec-
tively decapitalizing that crime. Id., pp. 49, 68. The last
execution in Connecticut for infanticide, a charge under
which married and unmarried mothers were treated
differently,46 took place in 1753; id., p. 57; followed in
1768 by the last hanging for burglary or any purely
economic crime. Id., pp. 65–66.
The colonialists’ commitment to Mosaic eye for an
eye justice had been grounded not only in their religious
convictions, but also in the fact that they lacked any
viable alternatives to execution. See W. Holdsworth,
supra, pp. 356–57. That changed with the advent of
modern correctional facilities. Although one dozen cap-
ital crimes remained on the books through the end of
the eighteenth century, after Newgate opened in East
Granby in 1773, no one was executed in Connecticut
for any crime other than homicide or rape. See L. Good-
heart, supra, pp. 68, 75. Moreover, the last execution
for rape, in 1817; id., p. 94; was carried out just one
decade before the opening of the state prison in Weth-
ersfield; id., p. 101; which Goodheart characterizes as
reflecting ‘‘more hopeful, even utopian, assumptions
about penology.’’ Id. With the ideal and means of achiev-
ing rehabilitation well established, in 1846, the legisla-
ture, for the first time, created a distinction between
first and second degree murder to further limit the
application of the death penalty. Id., pp. 104–105. One
century later, ‘‘[i]n 1951, the legislature enacted a statute
that allowed the jury to recommend life imprisonment
rather than death for individuals convicted of first
degree murder, making it even easier for the jury to
avoid imposing the death penalty. See Public Acts 1951,
No. 369.’’ State v. Ross, supra, 230 Conn. 303 (Berdon,
J., dissenting in part).
Connecticut’s steadily waning commitment to capital
punishment also has been evidenced in the narrowing
range of offenders who have been subject to the ulti-
mate punishment. No female has been executed in the
state since 1786, and no male under the age of eighteen
at the time of the offense since 1904. See L. Goodheart,
supra, pp. 81–82, 136. Indeed, our legislature has ‘‘acted
ahead of the United States Supreme Court’’; State v.
Rizzo, supra, 303 Conn. 189; in prohibiting the execu-
tion of persons with intellectual disabilities; Public Acts
1973, No. 73-137, § 4; of offenders who committed their
capital crimes when they were under eighteen; Public
Acts 1973, No. 73-137, § 4; and for any crime not involv-
ing the death of a victim. State v. Rizzo, 303 Conn.
supra, 189.
Although the past 380 years have witnessed an ongo-
ing decline in our state’s commitment to the death pen-
alty as a legitimate form of punishment, it is noteworthy
that Connecticut’s two constitutions, adopted in 1818
and 1965, were drafted during periods of particularly
dramatic change. As we previously discussed, the late
eighteenth and early nineteenth centuries were charac-
terized by penological reform, an emerging commit-
ment to human rights, and the first widespread public
questioning of the moral legitimacy of capital punish-
ment in Connecticut. See L. Goodheart, supra, pp. 69–
70. Throughout the first half of 1786, the New Haven
Gazette had reprinted Cesare Beccaria’s entire 1764
treatise ‘‘On Crimes and Punishments,’’ a seminal
Enlightenment era work that condemned torture and
the death penalty, and that led to widespread ques-
tioning of the latter throughout Europe and the United
States. See id., pp. 67–70. The impact of Beccaria’s pro-
gressive approach to penology may be seen in the case
of Henry Wilson, a convicted rapist whose death sen-
tence the General Assembly commuted in 1822. See id.,
pp. 96–97. Goodheart implies that the decision reflected
the fact that neighboring states, such as Rhode Island,
already had decapitalized that crime. See id., p. 97.
 One hundred and fifty years later, when Connecticut
adopted the 1965 constitution, there was an ‘‘unofficial
moratorium’’ on the death penalty in the state. Id., p.
196. The last execution in the state had taken place in
1960, and that only after the condemned man, Joseph
Taborsky, ‘‘volunteered to die . . . .’’ Id., p. 193. Good-
heart attributes the unofficial moratorium that began
in the early 1960s to a myriad of factors: the expansion
of defendants’ federal constitutional rights; declining
popular support for the death penalty; opposition from
organized religion, which originally had championed
capital punishment in Connecticut; and research indi-
cating that, since 1930, ‘‘the death penalty [had fallen]
inordinately on those at the bottom of society,’’ includ-
ing the poor, uneducated, and mentally disabled. Id.,
p. 202.
Another Connecticut execution would not occur until
forty-five years later, in 2005, when Ross, like Taborsky,
waived his right to further appeals and habeas remedies.
Id., pp. 228, 230–31, 244–46. No capital sentences have
been carried out in the decade since Ross was executed.
Over the past fifty-five years, then, during which time
thousands of murders have been committed in the state,
our criminal justice system has conducted but a single
execution, and that only after the condemned man all
but forced the state to carry out his sentence. See id.,
pp. 230–31. The eleven men currently on death row in
Connecticut are, at the least, many years, and most
likely decades, away from exhausting all of their state
and federal appeals and habeas remedies. Even if the
legislature never had enacted P.A. 12-5, if past is pro-
logue, there simply is no reason to believe that any
Connecticut executions would be carried out in the
foreseeable future.
As Justice Berdon observed in his dissent in Ross,
this ‘‘whole state history demonstrates a reluctance to
impose the death penalty.’’ State v. Ross, supra, 230
Conn. 302 (Berdon, J., dissenting in part). ‘‘[O]ur early
capital laws were seldom enforced, and, indeed, the
cases in which capital punishment has been inflicted
have been exceedingly rare, some counties hardly hav-
ing known an execution.’’ (Internal quotation marks
omitted.) Id., 303 (Berdon, J., dissenting in part). ‘‘There
have been, it is believed, within the last [220] years,
fewer executions in Connecticut for crime, than in any
other state of equal size in the world. The records of
our courts have scarcely the stain of blood upon them
. . . .’’ (Internal quotation marks omitted.) Id.
Connecticut’s historical ambivalence toward the
death penalty also has manifested in persistent efforts
to abolish capital punishment. As we previously dis-
cussed, the first serious organized opposition to the
death penalty emerged in the early nineteenth century,
and, by the mid-1800s, two governors and a majority
of the state Senate had signed petitions for its repeal.
L. Goodheart, supra, pp. 130–31. Abolition efforts per-
sisted throughout the nineteenth and twentieth centu-
ries. See id., pp. 163–64, 178, 191, 195. In 2009, the
General Assembly passed P.A. 09-107, which would
have repealed the death penalty for crimes committed
after the passage of that act. See State v. Rizzo, supra,
303 Conn. 198. Governor Rell vetoed P.A. 09-107, how-
ever, and the legislature did not muster the two thirds
vote necessary to override the governor’s veto. Id. Simi-
lar legislation was introduced in 2011, which advanced
through the Judiciary Committee but failed to achieve
a full vote in either the House or the Senate. See id.,
199. Finally, on April 25, 2012, Governor Malloy signed
P.A. 12-5, which abolished the death penalty for all
crimes committed on or after that date. Connecticut’s
history, then, evinces a steady, inexorable devolution
in the popularity and legitimacy of the death penalty,
culminating in its prospective abolition in 2012.
B
Legislative Enactments
With respect to the second indicator of our evolving
standards of decency, both this court and the United
States Supreme Court have stated that ‘‘the clearest
and most reliable objective evidence of contemporary
values is the legislation enacted by the country’s legisla-
tures.’’47 (Internal quotation marks omitted.) Atkins v.
Virginia, supra, 536 U.S. 312; accord State v. Rizzo,
supra, 303 Conn. 191. We last examined the constitu-
tionality of the death penalty in Rizzo II. See State
v. Rizzo, supra, 303 Conn. 184–201. At that time, we
recognized that, during the preceding decade, (1) the
United States Supreme Court had imposed additional
restrictions on the range of offenses and offenders con-
stitutionally subject to capital punishment; id., 188; (2)
several additional sister states had abolished the death
penalty; id., 190; and (3) the number of death sentences
imposed and executions carried out in the United States
had continued to decline. Id., 192–93. Nevertheless, we
concluded ‘‘that, as long as there remains powerful evi-
dence of strong public support for the death penalty in
the form of long-standing laws enacted by the democrat-
ically elected representatives of this state and other
jurisdictions within the United States, we will not
attempt to discern a contrary view of the public will,
or to answer complex policy questions best answered
by the legislative process . . . .’’ Id., 198.
Public Act 12-5 pulled that linchpin out of our deci-
sion in Rizzo II. For the first time in our state’s history,
the governor and a majority of both legislative chambers
have now rejected state sanctioned killing and agreed
that life imprisonment without the possibility of release
is a just and adequate punishment for even the most
horrific crimes. For any future crimes, the death penalty
has been removed from the list of acceptable punish-
ments that may be imposed in accordance with law.
Public Act 12-5 thus represents the terminus of the
four century long devolution of the death penalty in
Connecticut. Although the prospective nature of P.A.
12-5 reflects the intent of the legislature that capital
punishment shall die with a whimper, not with a bang,
its death knell has been rung nonetheless. Our elected
representatives have determined that the machinery of
death48 is irreparable or, at the least, unbecoming to a
civilized modern state. As a ranking member of the
Judiciary Committee recognized in 2012, ‘‘this law is the
best and most recent indication of evolving standards in
our society of human decency.’’49 55 S. Proc., Pt. 2, 2012
Sess., p. 574, remarks of Senator John A. Kissel. The
prospective abolition of the death penalty thus provides
strong support for the conclusion that capital punish-
ment no longer comports with contemporary standards
of decency and, therefore, constitutes cruel and
unusual punishment.
In her dissenting opinion, Chief Justice Rogers takes
issue with the conclusion that the prospective repeal
of the death penalty indicates that capital punishment
no longer comports with our state’s evolving standards
of decency. She argues that, as a matter of common
sense, legislators would not have voted to retain capital
punishment on a retroactive basis if they had believed
such punishment to be immoral, indecent, or unneces-
sary. Rather, she speculates that ‘‘the reason for the
prospective repeal was not that a majority of legislators
found the death penalty morally repugnant even for the
worst crimes, or that they found life imprisonment an
adequate substitute for the death penalty, but that they
had determined that the death penalty simply had
become impracticable.’’ Text accompanying footnote
19 of Chief Justice Rogers’ dissenting opinion. The most
reasonable interpretation of P.A. 12-5, Chief Justice
Rogers posits, is that the legislature continues to believe
that death is the appropriate punishment for certain
crimes but that, for financial and other pragmatic rea-
sons, our elected representatives were forced to accept
a less severe form of punishment for the future.
We begin by observing that the United States
Supreme Court, in Atkins v. Virginia, supra, 536 U.S.
304, considered and rejected Chief Justice Rogers’ argu-
ment that a prospective only repeal of a punishment
does not indicate that the punishment no longer com-
ports with society’s evolving values. See id., 313–16
(recognizing emergence of national consensus against
executing intellectually disabled, based on decisions of
eighteen states to amend their death penalty statutes
to exempt such persons from capital punishment, even
though majority of those states had done so prospec-
tively only); see also id., 342–43 (Scalia, J., dissenting)
(criticizing majority for counting among those jurisdic-
tions that no longer permitted execution of intellectu-
ally disabled eleven states that had abolished practice
only prospectively). Similarly, in Fleming v. Zant,
supra, 259 Ga. 687, the Supreme Court of Georgia con-
cluded that a statute that prohibited the death penalty
for mentally disabled individuals on a prospective only
basis nevertheless evidenced an evolving societal con-
sensus that the execution of such individuals was inap-
propriate. See id., 690 and n.3. Accordingly, that court
concluded that execution of mentally disabled individu-
als sentenced prior to the effective date of the Georgia
statute would be cruel and unusual punishment, in vio-
lation of the Georgia constitution. Id., 690; see also
Van Tran v. State, 66 S.W.3d 790, 805 (Tenn. 2001)
(concluding that statute prohibiting execution of men-
tally disabled offenders was not intended to apply retro-
actively but also concluding, under Tennessee consti-
tution, in light of Fleming, that statute evidenced evolv-
ing consensus that carrying out any such executions
would be cruel and unusual).
More importantly, the voluminous legislative history
of P.A. 12-5 simply does not bear out Chief Justice
Rogers’ interpretation of that act. During the legislative
debates, of the three dozen senators and representa-
tives who spoke in favor of P.A. 12-5, nearly every legis-
lator stated that he or she had come to oppose capital
punishment as a matter of conscience or principle. Not-
withstanding the solely prospective application of P.A.
12-5, numerous legislators declared that they categori-
cally opposed state sanctioned killing or, in a few cases,
that they had concluded that life imprisonment without
the possibility of release is a more appropriate punish-
ment for capital felons.50 They cited a range of princi-
pled objections to the death penalty. Many found
unacceptable the possibility that the state might mistak-
enly execute an innocent person.51 Others condemned
capital punishment as incurably arbitrary and discrimi-
natory,52 or came to believe that death sentences retrau-
matize the families of murder victims.53 In his own
remarks, one of the cochairmen of the Judiciary Com-
mittee left little doubt as to the primary rationale for
the legislation: ‘‘This was a matter of conscience for
me and I think it’s a matter of conscience for everyone
in this body, proponents and opponents alike. I want
to make that very clear.’’ 55 S. Proc., Pt. 3, 2012 Sess.,
pp. 791–92, remarks of Senator Eric D. Coleman.
Indeed, many of the senators and representatives who
opposed P.A. 12-5 acknowledged that its supporters
voted out of a conscientious and moral rejection of
capital punishment.54
Notably, although Chief Justice Rogers repeatedly
chides the majority for failing to afford adequate defer-
ence to the legislative process, she herself is dismissive
of legislators’ own characterizations of their votes,
favoring instead a narrative that is contradicted by the
legislative record. It is certainly true, as Chief Justice
Rogers emphasizes, that some proponents of the repeal
also expressed concerns over monetary or practical
challenges facing our state’s capital punishment system.
The fact that supporters voted to abolish capital punish-
ment for both moral and practical reasons, however,
in no way demonstrates that the death penalty contin-
ues to comport with contemporary standards of
decency in Connecticut. An indecent punishment is no
less indecent for the fact that it is also costly and inef-
fectual.
To our knowledge, not a single legislator has publicly
indicated that the decision to repeal the death penalty
prospectively while retaining it for those who offended
prior to April 25, 2012, embodied the sort of grand
financial and pragmatic agreement suggested by Chief
Justice Rogers. In fact, comments by Senator Kissel, a
ranking member of the Judiciary Committee, directly
refute Chief Justice Rogers’ theory that the legislative
history of the act could support such an interpretation:
‘‘[T]his isn’t being driven by cost savings. There [is]
. . . ample testimony, year in and year out, that say[s]
we for moral, philosophical, religious reasons, because
it doesn’t deter crime and all these other factors, say[s]
that people stridently oppose this penalty in Connecti-
cut. People will stand up on the floor of the House and
the floor of the [Senate] and say, if we had a bill in
front of us with complete abolition, I’d support it, but for
political reasons or expediency or for whatever reason,
that’s not the bill the Judiciary Committee gave us. But
because this gets us one step closer to full abolition,
I’m going to support this at this time.’’55 Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 9, 2012
Sess., pp. 2766–67. Ultimately, of the three dozen legisla-
tors who spoke in favor of P.A. 12-5 during the legisla-
tive hearings and debates, only two indicated that they
personally supported the repeal primarily for prag-
matic reasons.56
Why, then, did a legislature committed to abolishing
the death penalty vote to retain it for the handful of
inmates already on death row? It is clear from the legis-
lative history of P.A. 12-5, as well as the record of
other recent attempts to abolish capital punishment in
Connecticut, that, as Senator Kissel indicated, the vast
majority of those legislators who voted for P.A. 12-5
would have supported a full repeal but were forced at
that time to accept half a loaf because there were not
enough votes to pass a full repeal. With regard to the
handful of legislators whose support for a repeal was
contingent on retaining the death penalty for previous
capital felons, the legislative record strongly suggests
that they insisted on a prospective only repeal not for
the pragmatic and financial reasons offered by Chief
Justice Rogers but, rather, for one of two reasons.
First, some legislators opposed retroactive abolition
out of a principled belief that the state had made a
commitment to families of victims murdered before the
passage of P.A 12-5 that the state would pursue the
death penalty in those cases. Those legislators felt that
the state was morally obliged to honor that prior com-
mitment, even if it had foresworn capital punishment
going forward.57 For such legislators, retaining the death
penalty on a retroactive basis represented the lesser of
two evils. Indeed, at least one legislator speculated that
an unwillingness to ‘‘up end’’ victims’ expectations was
the primary rationale for enacting a prospective only
repeal.58 55 S. Proc., Pt. 3, 2012 Sess., p. 720, remarks
of Senator Andrew W. Roraback; see also K. Barry,
‘‘From Wolves, Lambs (Part II): The Fourteenth Amend-
ment Case for Gradual Abolition of the Death Penalty,’’
35 Cardozo L. Rev. 1829, 1837 (2014) (‘‘[p]rospective-
only repeal grants the ‘victim’s mother’ her pound of
flesh and then bids her adieu’’). Indeed, at oral argument
before this court, the state acknowledged that the legis-
lature indicated that ‘‘keeping a promise to the victims’’
was one of the primary rationales for enacting a pro-
spective only repeal.
For other legislators, support for a prospective only
repeal appears to have reflected a calculation that they
could accommodate the public demand that certain
notorious inmates remain on death row; see part III C
of this opinion; with little concern that those death
sentences ever would be carried out.59 During the
debates over P.A. 12-5, many legislators were of the
opinion that, once the death penalty had been prospec-
tively abolished, the official policy of the state would
then disapprove capital punishment, and it would,
therefore, become unconstitutional to execute offend-
ers whose crimes were committed prior to the repeal.
It was widely predicted that the individuals already on
death row would immediately seek appellate or habeas
relief upon passage of a prospective repeal, and that
this court would bar all future executions.60 Although
not all legislators were in agreement on this point, it is
noteworthy that Chief State’s Attorney Kane, who heads
the Division of Criminal Justice and represents the state
in this matter, has himself publicly taken the position
that, following a prospective repeal, any efforts to exe-
cute those already on death row would be unlikely to
pass constitutional muster. See Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp.
2601–2602 (‘‘I can’t imagine how we would be executing
somebody who’s on death row today’’); id., pp. 2630–35
(indicating that, after prospective repeal, capital punish-
ment would fail to comport with evolving standards of
decency in Connecticut).61
Some legislators, then, 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. Professor
Kevin Barry, on whose opinions Chief Justice Rogers
repeatedly relies, has argued that adoption of a prospec-
tive only repeal represented precisely this sort of ‘‘stra-
tegic’’ decision on the part of legislators ‘‘to discard the
death penalty going forward . . . while punting the
hard political decisions about what to do with those
on death row . . . .’’ K. Barry, supra, 35 Cardozo L.
Rev. 1836; see also id., 1834 (noting that abolitionists
adopted similar strategy of gradual abolition in move-
ment to end slavery); id., 1836 (prospective only repeal
is politically viable because it removes so-called ‘‘ ‘vic-
tim’s mother’ ’’ effect). We do not consider such action
to evidence legislative endorsement of the death penalty
as a fitting and acceptable means of punishment in
modern Connecticut.62
Lastly, we note that, if the primary concern of the
legislature had been with the workability of the death
penalty, as Chief Justice Rogers contends, then the leg-
islature certainly could have implemented measures,
short of abolition, aimed at removing some of the
impediments in the state’s capital punishment scheme.63
That option was proposed on several occasions during
the hearings and debates on P.A. 12-5 but ultimately
rejected.64 The only plausible reading of the legislative
history, then, is that the legislature made a principled
determination that capital punishment should no longer
be the policy of Connecticut.
Turning our attention to the other elected branch of
government, we also recognize that the meaning of a
statute is revealed not only in the intent of the legislators
who draft and enact it, but also in the aspirations of
the governor who signs it. As Chief Justice Rogers,
writing for the court in Rizzo II, recently explained:
‘‘The governor, like our legislators, is an elected repre-
sentative of the people of the state. Additionally, execu-
tive approval . . . of legislation is an integral part of
the legislative process . . . and it is axiomatic that
when the governor exercises this power, he or she is
acting in a substantive legislative role. . . . Thus . . .
a governor’s [signing statement issued upon] approval
of legislation may provide evidence of the motivations
underlying that legislation . . . .’’ (Citations omitted.)
State v. Rizzo, supra, 303 Conn. 199–200. In fact, Chief
Justice Rogers observed in this very context that ‘‘it may
be, at some times, on some subjects, that the [governor]
elected by all the people is rather more representative
of them all than are the members of either body of
the [l]egislature whose constituencies are local and not
[statewide] . . . .’’ (Emphasis added; internal quota-
tion marks omitted.) Id., 201. In the present case, Gover-
nor Malloy made clear, in signing P.A. 12-5, that his
decision to approve legislation abolishing the death pen-
alty was a principled one: ‘‘Many of us who have advo-
cated for this position over the years have said there
is a moral component to our opposition to the death
penalty. For me, that is certainly the case. . . .
‘‘I [have come] to believe that doing away with the
death penalty [is] the only way to ensure it [will] not
be unfairly imposed.’’65 Gov. Malloy on Signing Bill To
Repeal Capital Punishment (April 25, 2012) (Gover-
nor’s Statement).
In conclusion, although support for a legislative com-
promise as significant and complex as Connecticut’s
prospective abolition of the death penalty is bound to
arise from and reflect a range of sentiments and con-
cerns, the best evidence of legislative intent available
to us strongly suggests that both of the elected branches
were motivated in no small part by a principled belief
that state sanctioned executions are no longer a neces-
sary or appropriate form of punishment, even for the
most heinous crimes.
C
Current Practice
‘‘Although the clearest and most reliable objective
evidence of contemporary values is the legislation
enacted by the country’s legislatures . . . in assessing
whether a punishment is constitutionally sound, it also
is appropriate for us to consider what is occurring in
actual practice.’’ (Citation omitted; internal quotation
marks omitted.) State v. Rizzo, supra, 303 Conn. 191.
‘‘[T]he sentencing decisions that juries have made . . .
[are] a significant and reliable objective index of con-
temporary values because [juries are] so directly
involved’’ in the administration of criminal justice.
(Internal quotation marks omitted.) Enmund v. Flor-
ida, supra, 458 U.S. 794. For example, ‘‘[s]tatistics about
the number of executions may inform the consideration
whether capital punishment . . . is regarded as unac-
ceptable in our society.’’ Kennedy v. Louisiana, supra,
554 U.S. 433; see id. (finding social consensus against
capital punishment for crime of child rape); see also
Graham v. Florida, supra, 560 U.S. 64, 74 (determining
that sentence of life imprisonment without possibility
of parole is cruel and unusual punishment for juvenile
who had committed nonhomicide offense when only
123 people were serving such sentences in eleven juris-
dictions nationwide). The number of death sentences
actually imposed and carried out is a key barometer of
social mores because, although ‘‘it is easy for the public
to respond to the conviction of a vicious murderer or
a serial killer by advocating the ultimate penalty of
death, it is far more difficult for society to carry out
that penalty by taking the life of that person.’’ State v.
Ross, supra, 230 Conn. 297; see also D. Garland, Peculiar
Institution: America’s Death Penalty in an Age of Aboli-
tion (2010) p. 60. ‘‘Although death penalty statutes do
remain on the books of many jurisdictions, and public
opinion polls show opinion to be divided as to capital
punishment as an abstract proposition, the infrequency
of its actual application suggests that among those per-
sons called [on] to actually impose or carry out the
death penalty it is being repudiated with ever increasing
frequency.’’ People v. Anderson, supra, 6 Cal. 3d 648;
see also District Attorney v. Watson, supra, 381 Mass.
662 (prolonged dearth of executions evidences current
standards of decency).
In the post-Furman era, Connecticut has imposed
sustained death sentences at a rate (taken as a percent-
age of capital eligible convictions) that is among the
lowest in the nation. See J. Donohue, ‘‘An Empirical
Evaluation of the Connecticut Death Penalty System
Since 1973: Are There Unlawful Racial, Gender, and
Geographic Disparities?,’’ 11 J. Empirical Legal Stud.
637, 638 (2014). Of the 205 capital eligible murders
committed in Connecticut between 1973 and 2007, of
which approximately two thirds were charged capitally,
only 12 resulted in death sentences. Id., 641. Indeed,
since 1973, whereas juries in states such as Texas and
Florida have imposed death sentences at an average
rate of approximately two per month, Connecticut
juries on average have imposed a death sentence only
approximately once every two years.66
Moreover, each of the capital sentences imposed in
Connecticut has, in effect, become the equivalent of
life imprisonment. As we discussed, there has been an
almost complete moratorium on executions in the state
since 1960. Connecticut has put only one offender to
death over the past fifty-five years, and that was a serial
killer who believed that he deserved to die and volunta-
rily waived his right to further appeals and habeas reme-
dies. L. Goodheart, supra, pp. 228, 230–31, 244–46. Even
then, it took the state more than two decades to carry
out his sentence. See id., p. 248. Nor is there even the
remotest likelihood that any of the inmates currently
on death row in Connecticut will exhaust their federal
and state appeals and habeas remedies any time in the
foreseeable future.
The United States Supreme Court also has recognized
that the willingness or reluctance of prosecutors to seek
a particular punishment constitutes further objective
evidence of whether society considers that punishment
to be excessive or disproportionate. See Enmund v.
Florida, supra, 458 U.S. 796. This is because prosecu-
tors ‘‘represent society’s interest in punishing crime
. . . .’’ Id. In Connecticut, Chief State’s Attorney Kane,
testifying before the legislature prior to the enactment
of P.A. 12-5, strongly suggested that, following the pro-
spective repeal of the death penalty, he no longer would
consider it appropriate to seek the death penalty for
eligible crimes. See Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2602, 2633. At
neither the charging nor the sentencing stages, then,
have the key decision makers in our state’s capital pun-
ishment system demonstrated that the death penalty
continues to comport with contemporary standards of
decency in Connecticut.
D
Laws and Practices of Other Jurisdictions
Although trends within Connecticut are the most
direct and relevant indicators of contemporary stan-
dards of decency with respect to the state constitution,
we also look to developments in our sister states, and
even the international community, for additional input.
See State v. Rizzo, supra, 303 Conn. 192–96; see also
Roper v. Simmons, supra, 543 U.S. 578 (‘‘[t]he opinion
of the world community [opposing the death penalty
for juveniles], while not controlling our outcome, does
provide respected and significant confirmation for our
own conclusions’’). Globally, 98 countries have now
formally abolished the death penalty for all crimes, up
from just 16 countries in 1977, and 140 countries effec-
tively have renounced the death penalty by law or prac-
tice.67 ‘‘The ‘age of abolition’ . . . has made America
an anomaly, the last remaining holdout in a historical
period that has seen the [w]estern nations embrace
abolitionism as a human rights issue and a mark of
civilization.’’ D. Garland, supra, p. 11.
Domestically, although capital punishment remains
legal in a majority of jurisdictions within the United
States, the number of states eschewing the death pen-
alty continues to rise. The United States Supreme Court
has explained that ‘‘[i]t is not so much the number of
these [s]tates that is significant, but the consistency of
the direction of change.’’ Atkins v. Virginia, supra, 536
U.S. 315; see also Hall v. Florida, supra, 134 S. Ct. 1997.
When Nebraska repealed its death penalty in May, 2015,
it became the seventh state in just nine years to have
abolished capital punishment either prospectively or
completely.68 In total, nineteen states and the District
of Columbia no longer permit the imposition of new
capital sentences.69 And, significantly, no state or nation
that has repealed the death penalty prospectively ever
has carried out another execution. See, e.g., State v.
Santiago, Conn. Supreme Court Records & Briefs, April
Term, 2013, Amicus Brief of legal historians and schol-
ars p. 1.
Even within those jurisdictions where it remains
legal, ‘‘use of the death penalty (in terms of executions
and especially death sentences) has declined signifi-
cantly in recent years.’’ C. Steiker & J. Steiker, Report
to the American Law Institute Concerning Capital Pun-
ishment, in A.L.I., Report of the Council to the Member-
ship of the American Law Institute on the Matter of the
Death Penalty (April 15, 2009) annex B, p. 2. The total
number of executions carried out nationally has fallen
by more than 60 percent from the post-Furman peak
of 1999, dropping from 98 in 1999 to 39 in 2013, and
then falling again to 35—a 20 year low—in 2014.70 Of
the 35 executions carried out in 2014, approximately
90 percent occurred in just four states: Texas, Missouri,
Florida, and Oklahoma.71
‘‘Nationwide death sentences have dropped even
more precipitously’’; id.; falling from modern era highs
of more than 300 annually in the mid-1990s to modern
era lows of 85 or fewer since 2011.72 The number of
death sentences imposed in 2014, 73, was by far the
lowest in the post-Furman era.73 That same year, Gover-
nor Jay Inslee of the state of Washington imposed a
moratorium on the carrying out of the death penalty in
that state,74 and Governor Martin O’Malley of the state
of Maryland announced his intention to commute all
remaining death sentences for those inmates in the
state’s prison system to life without parole.75 The latter
decision, reached after Maryland’s attorney general
called into question the legality of carrying out pre-
viously imposed death sentences, effectively trans-
forms Maryland’s prospective only repeal into a full
abolition of the death penalty. Notably, by 2012, less
than 2 percent of the nation’s counties accounted for
all of the death sentences imposed nationwide. Glossip
v. Gross, U.S. , 135 S. Ct. 2726, 2761, 192 L. Ed.
2d 761 (2015) (Breyer, J., dissenting).
When we interpret the protections afforded under the
state constitution, trends and norms in our neighboring
New England states, with which Connecticut shares a
cultural and historical affinity, can be especially perti-
nent. See, e.g., State v. Rizzo, supra, 303 Conn. 204 n.4
(Norcott, J., dissenting) (emphasizing in 2011 that New
Hampshire was only New England state other than Con-
necticut with death penalty); cf. State v. James, 237
Conn. 390, 452, 678 A.2d 1338 (1996) (Berdon, J., dis-
senting) (noting that ‘‘[e]very state but one in the north-
east ha[d] adopted a standard of proof in excess of
the preponderance of the evidence to determine the
voluntariness of a confession’’).
In the case of capital punishment, the regional dispar-
ities are both instructive in their character and striking
in their magnitude. Of approximately 1400 executions
carried out nationwide since 1976, nearly two thirds
have been performed in just 5 states, and Texas alone
accounts for more than 37 percent of the total.76 Ten
states have accounted for 83 percent of the post-Fur-
man executions in the country.77 The geographic con-
centration of those executions is remarkable. The thir-
teen states that comprised the Confederacy78 have car-
ried out more than 75 percent of the nation’s executions
over the past four decades.79 Adding in Oklahoma and
Arizona—not yet states at the time of the civil war—
brings the total to nearly 90 percent.80 In stark contrast,
the six New England states have carried out a combined
total of one execution since 1976.81 Adding in New York,
New Jersey, and Pennsylvania, the nine northeastern
states have accounted for less than one-third of 1 per-
cent of the nation’s post-Furman executions.82 Con-
necticut’s execution of Ross has been the only exe-
cution in the entire Northeast in the new millennium.
In fact, only a few northeastern states still permit
capital punishment. The death penalty was abolished
by Maine in 1887, Vermont in 1964, Massachusetts and
Rhode Island in 1984, and New York and New Jersey
in 2007.83 Following Connecticut’s prospective abolition
of the death penalty in 2012, New Hampshire is the
only remaining New England state in which new death
sentences may be imposed.84 No one has been executed
in New Hampshire since 1939, however, and it does not
even have an operational death chamber.85 Accordingly,
Connecticut now stands as an outlier, the sole remain-
ing New England state in which execution remains a
legal and potentially viable option.86
E
Opinions and Recommendations of
Professional Associations
The United States Supreme Court also has looked to
the opinions of ‘‘respected professional organizations,’’
such as the American Law Institute, to help illuminate
‘‘civilized standards of decency’’ in the capital punish-
ment context. Thompson v. Oklahoma, supra, 487 U.S.
830; accord Hall v. Florida, supra, 134 S. Ct. 1994–95
(relying on American Psychological Association).
Indeed, when the United States Supreme Court effec-
tively reinstated the death penalty in Gregg, it relied
heavily on the American Law Institute’s work in devel-
oping Model Penal Code § 210.6 for its determination
that juror discretion can be sufficiently cabined to avoid
arbitrary and capricious imposition of the death pen-
alty. See Gregg v. Georgia, supra, 428 U.S. 193–95 (opin-
ion announcing judgment); see also B. Newton, ‘‘The
Slow Wheels of Furman’s Machinery of Death,’’ 13 J.
App. Prac. & Process 41, 47 (2012).
The American Law Institute no longer holds out such
hopes. During the hearings on P.A. 12-5, the legislature
heard testimony that, following a two year study com-
missioned by the American Law Institute, unequivocal
conclusions were reached regarding the modern death
penalty: ‘‘[A] review of the unsuccessful efforts to con-
stitutionally regulate the death penalty, the difficulties
that continue to undermine its administration, and the
structural and institutional obstacles to curing those
ills forms the basis of our recommendation to the
[American Law] Institute. The [long-standing] recogni-
tion of these underlying defects in the capital justice
process, the inability of extensive constitutional regula-
tion to redress those defects, and the immense struc-
tural barriers to meaningful improvement all counsel
strongly against the Institute’s undertaking a law reform
project on capital punishment, either in the form of a
new draft of § 210.6 or a more extensive set of propos-
als. Rather, these conditions strongly suggest that the
Institute recognize that the preconditions for an ade-
quately administered regime of capital punishment
do not currently exist and cannot reasonably be
expected to be achieved.’’ (Emphasis added.) C.
Steiker & J. Steiker, supra, p. 49; see also Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 9, 2012
Sess., p. 2923, written testimony of Chief Public
Defender Susan O. Storey. On the basis of those conclu-
sions, and consistent with the recommendations to the
American Law Institute, in 2009, § 210.6 was withdrawn.
Members of the American Law Institute opted not to
develop a revised or replacement model death penalty
statute, in light of their concerns that ‘‘real-world con-
straints make it impossible for the death penalty to be
administered in ways that satisfy norms of fairness and
process.’’ A.L.I., supra, p. 5.
We are compelled to agree. In his concurrence in
Furman, Justice Brennan observed that the ‘‘accept-
ability of a severe punishment is measured, not by its
availability, for it might become so offensive to society
as never to be inflicted, but by its use.’’ Furman v.
Georgia, supra, 408 U.S. 279 (Brennan, J., concurring).
In passing P.A. 12-5, the legislature simply has acknowl-
edged and formalized what has become apparent in
Connecticut, among our sister New England states, and
throughout the industrialized world for more than one-
half century. Although some opinion polls continue to
reflect public support for the death penalty in theory,
in practice, our state has proved increasingly unwilling
and unable to impose and carry out the ultimate punish-
ment.87 ‘‘The evolution of this punishment,’’ Justice
Brennan observed, ‘‘evidences, not that it is an inevita-
ble part of the American scene, but that it has proved
progressively more troublesome to the national con-
science.’’ Id., 299 (Brennan, J., concurring).
F
Conclusion
In conclusion, we are aware that the issue of whether
the death penalty is an appropriate punishment for the
most heinous crimes is one about which people of good
faith continue to disagree. Nevertheless, our review of
the five objective indicia that have been deemed rele-
vant under both the federal and state constitutions com-
pels the conclusion that, following the enactment of
P.A. 12-5, Connecticut’s capital punishment scheme no
longer comports with our state’s contemporary stan-
dards of decency.88 It therefore offends the state consti-
tutional prohibition against excessive and dispropor-
tionate punishment.89
III
THE DEATH PENALTY IS DEVOID OF
ANY LEGITIMATE PENOLOGICAL
JUSTIFICATIONS
As the constitution requires, we next consider
whether, on the basis of our independent review of
the available evidence, executing those individuals who
committed capital felonies prior to the enactment of
P.A. 12-5 would serve any legitimate penological pur-
pose. In light of the history and desuetude of the death
penalty in Connecticut over the past one-half century,
culminating in its prospective abolition in 2012, we con-
clude that capital punishment no longer measurably
contributes to any legitimate penological goal.
Enforcing the criminal law means marshaling the
awesome coercive power of the state to deprive its own
citizens of the life, liberty, or property to which they
are otherwise naturally entitled. See, e.g., Stutson v.
United States, 516 U.S. 193, 196, 116 S. Ct. 600, 133 L.
Ed. 2d 571 (1996); State v. Vumback, 247 Conn. 929,
933, 719 A.2d 1172 (1998) (Berdon, J., dissenting from
the denial of certification to appeal). The death penalty
represents the most extreme exercise of this power.
See, e.g., State v. Rizzo, supra, 266 Conn. 227. Such a
deprivation must, of course, be justified, and society
traditionally has recognized four principal justifications
for the imposition of criminal sanctions. Criminal penal-
ties may be imposed (1) to deter the perpetrator and
others from committing crimes (deterrence), (2) to pun-
ish the perpetrator and give voice to the moral outrage
experienced by the victim and society at large (retribu-
tion), (3) to prevent the perpetrator from committing
additional offenses (incapacitation), or (4) to transform
the perpetrator into a better, more law-abiding citizen
(rehabilitation). See, e.g., Graham v. Florida, supra,
560 U.S. 71–74. ‘‘A sentence lacking any legitimate peno-
logical justification is by its nature disproportionate to
the offense.’’ Id., 71. Neither the federal nor the state
constitution will permit the imposition of a sanction ‘‘so
totally without penological justification that it results in
the gratuitous infliction of suffering.’’ Gregg v. Georgia,
supra, 428 U.S. 183 (opinion announcing judgment).
In the case of the death penalty, the punishment itself
terminates any opportunity for rehabilitation. Hall v.
Florida, supra, 134 S. Ct. 1992–93. Moreover, execution,
as compared to life in prison without the possibility
of release, offers minimal additional value by way of
incapacitation.90 See Spaziano v. Florida, 468 U.S. 447,
461, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (noting that
‘‘incapacitation has never been embraced as a sufficient
justification for the death penalty’’). Accordingly, it is
generally accepted that, if capital punishment is to be
morally and legally justified, it must be based on the
deterrent or retributive value of executions. E.g., Ken-
nedy v. Louisiana, supra, 554 U.S. 441; Gregg v. Geor-
gia, supra, 428 U.S. 183 (opinion announcing judgment).
Unless the imposition of the death penalty ‘‘measurably
contributes to one or both of these goals, it is nothing
more than the purposeless and needless imposition of
pain and suffering, and hence an unconstitutional pun-
ishment.’’ (Emphasis added; internal quotation marks
omitted.) Atkins v. Virginia, supra, 536 U.S. 319. ‘‘At
the moment that [the death penalty] ceases realistically
to further these purposes . . . its imposition would
then be the pointless and needless extinction of life with
only marginal contributions to any discernible social or
public purposes. A penalty with such negligible returns
to the [s]tate would be patently excessive and cruel
and unusual . . . .’’ Furman v. Georgia, supra, 408 U.S.
312 (White, J., concurring).
We previously have acknowledged that ‘‘the value of
[a criminal sanction], and its contribution to acceptable
penological goals, typically is a complex factual issue
the resolution of which properly rests with the legisla-
tures . . . .’’ (Internal quotation marks omitted.) State
v. Rizzo, supra, 303 Conn. 197. We also have recognized,
however, that this assessment ‘‘is not exclusively the
domain of the legislature, and that this court has an
independent duty to determine that the penalty remains
constitutionally viable as the sensibilities of our citizens
evolve.’’ Id.; see also part IV C of this opinion. Deference
to legislative assessments is least warranted, and judi-
cial scrutiny must be especially exacting, when, as in
the present case, the policy judgments embodied in
the relevant legislation are ambiguous.91 Upon close
consideration of the arguments and the available
research, and particularly in light of the legislature’s
decision to abolish capital punishment for all future
crimes, we conclude that the death penalty no longer
measurably contributes to the penological goals of
deterrence or retribution. We consider each in turn.
A
Deterrence
Turning first to deterrence, we observe that it is clear
that, with the passage of P.A. 12-5, any deterrent value
the death penalty may have had no longer exists. As
Justice Harper explained in his dissent in Santiago I:
‘‘The ultimate test of this deterrence claim is whether
the state, by executing some of its citizens, better
achieves the unquestionably legitimate goal of discour-
aging others from committing similar crimes. As a gen-
eral matter, the empirical evidence regarding deter-
rence is inconclusive. Following the abolition of the
death penalty for all future offenses committed in Con-
necticut, however, it is possible to determine the exact
number of potential crimes that will be deterred by
executing the defendant in this case. That number is
zero.’’ (Emphasis omitted; footnote omitted.) State v.
Santiago, supra, 305 Conn. 320–21 (Harper, J., concur-
ring in part and dissenting in part).
In her dissenting opinion, Chief Justice Rogers rejects
Justice Harper’s commonsense conclusion that once
the legislature enacts a high profile repeal of a punish-
ment, that punishment no longer serves as a deterrent.
Rather, she contends, by maintaining capital punish-
ment for offenders sentenced to death before the enact-
ment of P.A. 12-5, the state can send a ‘‘message’’ to
potential offenders that the laws are stable and will be
enforced as written. This, she believes, can strengthen
the deterrent force of all penal laws.92
We very much doubt that the citizens of Connecticut,
learning that the death penalty has been abolished, will
somehow infer that they can now rape, pillage, and
exceed the speed limits with impunity. In fact, during
the legislative hearings on P.A. 12-5, a member of the
Judiciary Committee rejected the suggestion that the
legislature was adopting a prospective only repeal ‘‘to
convince people that the government is really serious
about carrying out its penalties.’’ Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp.
2781–82, remarks of Representative Arthur J. O’Neill
(responding to law student who proposed that solely
prospective repeal could be justified on basis of
deterrence).
In any event, the horse that Chief Justice Rogers
seeks to corral has long since left the barn. Of the more
than 4000 individuals who have committed murder in
Connecticut since the death penalty was reinstated four
decades ago, only one has been executed, and then only
after he demanded that the state carry out his death
sentence. L. Goodheart, supra, pp. 228, 230–31. The
overwhelming majority of killers are not sentenced to
death. As we discuss more fully hereinafter, those who
are sentenced to death routinely spend decades on
death row, and there is every reason to believe that
they would die there, outlived by their various appeals
and habeas petitions. Chief Justice Rogers fails to
explain how it is that this system of unexecuted capital
punishment promotes a respect for the law or leads our
citizens to expect that the state will carry out prescribed
punishments as written.
Even if the legislature had not prospectively abol-
ished the death penalty, it would appear that capital
punishment, as administered in Connecticut in the post-
Furman era, has failed to demonstrate a sufficient
deterrent effect to justify continued state imposed kill-
ing. Although some studies have purported to document
a deterrent effect,93 ‘‘the majority of social science
research on the issue concludes that the death penalty
has no effect on the homicide rate.’’94 D. Beschle, ‘‘Why
Do People Support Capital Punishment? The Death Pen-
alty as Community Ritual,’’ 33 Conn. L. Rev. 765, 768
(2001). A principal reason for this failure of deterrence
appears to be the substantial delays involved in actually
carrying out a sentence of death. The number of poten-
tial state and federal postconviction remedies available,
the range and complexity of legal issues involved in
capital appeals, and the multiple stages of review mean
that at least one decade typically passes from capital
crime to execution, and delays of twenty years or more
are not at all uncommon. See, e.g., A. Kozinski & S.
Gallagher, ‘‘Death: The Ultimate Run-On Sentence,’’ 46
Case W. Res. L. Rev. 1, 10–11, 17 (1995). The delays,
moreover, appear to be getting longer. Of the thirty-
five offenders executed in the United States in 2014,
only one had been on death row for less than one
decade, and the average time from sentencing to execu-
tion exceeded seventeen years.95 The situation is no
different in Connecticut. Of the eight men sentenced
to death in the state between 1987 and 2007 whose
sentences were not later overturned, only one has been
executed. Ross was executed by lethal injection in 2005,
eighteen years after sentencing, and then only after
he voluntarily abandoned further legal challenges. L.
Goodheart, supra, pp. 228, 230–31, 246. Of the eleven
men currently on death row in Connecticut, one has
been awaiting execution for twenty-five years, two oth-
ers for nearly that long, and one for twenty years.
‘‘The deterrent value of any punishment is, of course,
related to the promptness with which it is inflicted.’’
Coleman v. Balkcom, 451 U.S. 949, 952, 101 S. Ct. 2031,
68 L. Ed. 2d 334 (1981) (Stevens, J., concurring in the
denial of certiorari); see also Gomez v. Fierro, 519 U.S.
918, 918, 117 S. Ct. 285, 136 L. Ed. 2d 204 (1996) (Stevens,
J., dissenting) (‘‘[d]elay in the execution of judgments
imposing the death penalty frustrates the public interest
in deterrence and eviscerates the only rational justifica-
tion for that type of punishment’’); Furman v. Georgia,
supra, 408 U.S. 302 (Brennan, J., concurring) (‘‘[a]
rational person contemplating a murder or rape is con-
fronted, not with the certainty of a speedy death, but
with the slightest possibility that he will be executed
in the distant future’’); Jones v. Chappell, 31 F. Supp.
3d 1050, 1064 (C.D. Cal. 2014) (law and common sense
dictate that ‘‘long delays preceding execution frustrate
whatever deterrent effect the death penalty may have’’);
People v. Anderson, supra, 6 Cal. 3d 652 (‘‘capital pun-
ishment can have a significant deterrent effect only if
the punishment is swiftly and certainly exacted’’); L.
Powell, commentary, ‘‘Capital Punishment,’’ 102 Harv.
L. Rev. 1035, 1035 (1989) (‘‘years of delay between sen-
tencing and execution . . . [undermine] the deterrent
effect of capital punishment and [reduce] public confi-
dence in the criminal justice system’’). Even prior to
the enactment of P.A. 12-5, the fact that one who com-
mits the most heinous of crimes can expect to spend
decades in prison prior to any execution suggests that
capital punishment promises little if any deterrence
over and above life imprisonment.96 The legislature
heard extensive expert testimony to this effect when
considering P.A. 12-5, and numerous legislators cited
the lack of a deterrent effect as a justification for their
decision to abolish the death penalty.97 Indeed, Chief
State’s Attorney Kane, who represents the state in this
and all other death penalty cases, acknowledged in pub-
lic testimony that there is insufficient evidence to con-
clude that capital punishment deters crime. See Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 8,
2012 Sess., p. 2623 (‘‘I don’t know if I’d even go so far
as to say [the death penalty] might well be a deterrent
because the studies are mixed. I’m not ready [to say
that the] . . . answer is clear enough to justify that as
a reason for having the death penalty.’’).
In addition, aside from the inevitable delays, the sheer
rarity with which death sentences are imposed and
carried out in Connecticut—and, indeed, the entire
northeastern United States—suggests that any conceiv-
able deterrent value will be far less than in a state like
Texas, for example, which carries out executions on a
regular basis. ‘‘[C]ommon sense and experience tell us
that seldom-enforced laws become ineffective mea-
sures for controlling human conduct and that the death
penalty, unless imposed with sufficient frequency, will
make little contribution to deterring those crimes for
which it may be exacted.’’ Furman v. Georgia, supra,
408 U.S. 312 (White, J., concurring). Judge Alex Kozinski
of the Ninth Circuit Court of Appeals puts the problem
most plainly: ‘‘Rather than go through the competing
considerations, let’s cut to the meat of the coconut.
The death penalty, as we now administer it, has no
deterrent value because it is imposed so infrequently
and so freakishly. To get executed in America these
days you have to be not only a truly nasty person, but
also very, very unlucky . . . .’’ A. Kozinski & S. Gal-
lagher, supra, 46 Case W. Res. L. Rev. 25.
Our legislature’s adoption of P.A. 12-5 underscores
this state’s historical and profound ambivalence with
respect to the death penalty, and is further reason to
believe that, even if we were to sustain its constitution-
ality, the delays in the administration of our capital
sentencing scheme would not abate. On the contrary,
as we previously noted, no state or nation ever has
executed someone after a prospective only repeal of
the death penalty. See, e.g., State v. Santiago, Conn.
Supreme Court Records & Briefs, April Term, 2013,
Amicus Brief of legal historians and scholars p. 1.
Whether death has been belayed by executive clemency
or simple public aversion, it universally has been con-
sidered unseemly to carry out an execution after the
people’s representatives have expressed their will that
the sentence of death no longer shall be imposed.
Accordingly, Connecticut’s prospective repeal of capi-
tal punishment provides strong reason to believe that
those persons currently on death row never will be
executed. In any event, in light of the passage of P.A.
12-5, and in the absence of any indication that the death
penalty, as administered in this state, has forestalled
the commission of capital crimes, it is apparent that
capital punishment no longer serves any meaningful
deterrent function in Connecticut.98
B
Retribution
The second commonly articulated rationale for the
death penalty is that, regardless of whether capital pun-
ishment provides any tangible benefits such as deter-
rence, incapacitation, or rehabilitation, it is a justified
moral response to a heinous crime such as the one
committed by the defendant in the present case. This
retributive function of the criminal law has been
expressed in varying terms: giving the offender his ‘‘just
deserts’’; providing a sense of restoration and closure
to victims and their families; expressing society’s out-
rage at the crime and denunciation of the perpetrator;
and, more philosophically, restoring balance to the
moral order.
Both this court and the federal courts have recog-
nized that, as society has evolved and matured, the
erstwhile importance of retribution as a goal of and
justification for criminal sanctions has waned. See, e.g.,
State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183
(1986) (agreeing with observation of United States
Supreme Court that reformation and rehabilitation of
offenders, rather than retribution, has become primary
goal of criminal jurisprudence). Over time, ‘‘our society
has moved away from public and painful retribution
toward ever more humane forms of punishment.’’ Baze
v. Rees, supra, 553 U.S. 80 (Stevens, J., concurring in
the judgment). In addition, the United States Supreme
Court has cautioned that, of the valid justifications for
punishment, ‘‘retribution . . . most often can contra-
dict the law’s own ends. This is of particular concern
. . . in capital cases. When the law punishes by death,
it risks its own sudden descent into brutality, trans-
gressing the constitutional commitment to decency and
restraint.’’ Kennedy v. Louisiana, supra, 554 U.S. 420.
Accordingly, ‘‘[r]etribution is no longer the dominant
objective of the criminal law.’’ Williams v. New York,
337 U.S. 241, 248, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).
Critics of the death penalty have articulated in pas-
sionate and persuasive terms why, in their view, it can
never be morally appropriate for the state to kill one
of its own. See, e.g., District Attorney v. Watson, supra,
381 Mass. 677–86 (Liacos, J., concurring). On the other
hand, we are sympathetic to the view, expressed by
Justice Scalia, among many others, that, however bar-
baric a modern execution may seem, it pales in compari-
son to the suffering and trauma experienced by the
victims and their families. See Callins v. Collins, 510
U.S. 1141, 1143, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994)
(Scalia, J., concurring in the denial of certiorari) (‘‘How
enviable a quiet death by lethal injection compared with
that!’’). Regardless of one’s general beliefs about the
morality of the death penalty, however, there are four
reasons why capital punishment, as administered in
Connecticut, simply does not serve a meaningful retrib-
utive purpose.
1
Legislative Judgments
First, as we previously discussed; see part II B of this
opinion; the passage of P.A. 12-5 reflects a legislative
judgment that capital punishment no longer serves a
necessary moral function in our state. The retributive
rationale for capital punishment always has been that
the worst of the worst, those who commit especially
heinous crimes, have thereby cut themselves off from
the human community. See Roper v. Simmons, supra,
543 U.S. 568 (‘‘[c]apital punishment must be limited to
those offenders who commit a narrow category of the
most serious crimes and whose extreme culpability
makes them the most deserving of execution’’ [internal
quotation marks omitted]). In other words, execution
is the ultimate form of ostracism. ‘‘[T]he decision that
capital punishment may be the appropriate sanction in
[such] extreme cases is an expression of the communi-
ty’s belief that certain crimes are themselves so grievous
an affront to humanity that the only adequate response
may be the penalty of death.’’ (Emphasis added.) Gregg
v. Georgia, supra, 428 U.S. 184 (opinion announcing
judgment).
By prospectively repealing the death penalty, how-
ever, the legislature necessarily has made a determina-
tion that he who lives by the sword need not die by it;
that life imprisonment without the possibility of release
is an adequate and sufficient penalty even for the most
horrific of crimes; and that we can express our moral
outrage, mete out justice, bring some measure of solace
to the families of the victims, and purge the blemish of
murder on our community whilst the offender yet lives.
If this is true, then, although the death penalty still
might serve some minimal retributive function in Con-
necticut, it lacks any retributive justification. In other
words, to whatever limited extent capital punishment
may still further these retributive purposes, the legisla-
ture has determined that the death penalty is no longer
necessary to achieve them. See Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2638,
remarks of Representative Gary A. Holder-Winfield (if
justice can be achieved in capital eligible case without
death penalty, then it is unnecessary). Lacking such
necessity, the death penalty in Connecticut has become
unconstitutionally excessive. Cf. Furman v. Georgia,
supra, 408 U.S. 342 (Marshall, J., concurring) (capital
punishment unjustified when less severe penalties sat-
isfy legitimate legislative goals). As Justice Brennan
explained in his concurrence in Furman, ‘‘[w]hen the
overwhelming number of criminals who commit capital
crimes go to prison, it cannot be concluded that death
serves the purpose of retribution more effectively than
imprisonment. The asserted public belief that murder-
ers and rapists deserve to die is flatly inconsistent with
the execution of a random few.’’ Id., 304–305 (Brennan,
J., concurring).
2
Delays
The second reason the death penalty has lost its
retributive mooring in Connecticut is that the lengthy
if not interminable delays in carrying out capital senten-
ces ‘‘do not just undermine the death penalty’s deterrent
effect; they also spoil its capacity for satisfying retribu-
tion.’’ D. Garland, supra, p. 45; see also Jones v.
Chappell, supra, 31 F. Supp. 3d 1064. Of the eleven
individuals awaiting execution in Connecticut, four
have been there for more than twenty years, and several
others for well over one decade. Nor is there any reason-
able probability that anyone will be executed in this
state for many years to come, given the availability of
various appellate and postconviction remedies, as well
as the historical reluctance—indeed, unwillingness—
of our sister states and other countries to carry out
executions after prospectively abolishing capital pun-
ishment. See State v. Santiago, Conn. Supreme Court
Records & Briefs, April Term, 2013, Amicus Brief of
legal historians and scholars p. 1. ‘‘[W]hen imposition
of the [death] penalty reaches a certain degree of infre-
quency, it would be very doubtful that any existing
general need for retribution would be measurably satis-
fied. . . . Nor could it be said with confidence . . .
that community values are measurably reinforced by
authorizing a penalty so rarely invoked.’’ Furman v.
Georgia, supra, 408 U.S. 311–12 (White, J., concurring);
see also Valle v. Florida, U.S. , 132 S. Ct. 1, 2,
180 L. Ed. 2d 940 (2011) (Breyer, J., dissenting from
the denial of stay of execution) (‘‘I would ask how often
[the] community’s sense of retribution would forcefully
insist [on] a death that comes only several decades after
the crime was committed’’); Lackey v. Texas, 514 U.S.
1045, 1045–46, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995)
(mem. respecting the denial of certiorari) (expressing
doubt whether execution following extended imprison-
ment satisfies state’s interest in retribution); B. Newton,
supra, 13 J. App. Prac. & Process 65 (‘‘systemic delays
have undermined the legitimate purposes of capital pun-
ishment’’); L. Powell, supra, 102 Harv. L. Rev. 1041
(observing that retributive value of capital punishment
diminishes as imposition of sentence becomes even
farther removed from time of offense). As one federal
court recently observed in holding that California’s capi-
tal punishment scheme violates the eighth amendment,
‘‘for most [individuals on death row], systemic delay
has made their execution so unlikely that the death
sentence carefully and deliberately imposed by the jury
has been quietly transformed into one no rational jury
or legislature could ever impose: life in prison, with the
remote possibility of death. As for the random few for
whom execution does become a reality, they will have
languished for so long on [d]eath [r]ow that their execu-
tion[s] will serve no retributive or deterrent purpose
and will be arbitrary.’’ (Emphasis omitted.) Jones v.
Chappell, supra, 1053.
After such lengthy delays, scholars have questioned
whether there can be any true retribution when the
middle aged inmate who goes to the gallows bears little
resemblance to the individual who offended years
before: ‘‘The man you wanted to kill was the abusive
robber, high on crack, who pistol-whipped and shot
two customers at a [7-Eleven] store in 1984. Instead, in
1990, the state electrocutes a balding, religious, model
prisoner in a neat blue-denim uniform.’’ (Internal quota-
tion marks omitted.) D. Garland, supra, pp. 45–46, quot-
ing S. Gross, ‘‘The Romance of Revenge: Capital
Punishment in America,’’ 13 Stud. L. Pol. & Society
71, 82 (1993); see also L. Powell, ‘‘Unraveling Criminal
Statutes of Limitations,’’ 45 Am. Crim. L. Rev. 115, 130
(2008) (‘‘[t]he passage of time may . . . lead to pro-
found changes in . . . identity, arguably making pun-
ishment less deserved’’ [footnote omitted; internal
quotation marks omitted]). Even such staunch advo-
cates of capital punishment as the German philosopher
Immanuel Kant, the deacon of retributive justice, have
recognized that the retributive value of the death pen-
alty is not realized unless and until the actual execution
is carried out. See, e.g., I. Kant, The Metaphysics of
Morals (1991) p. 142; see also Coleman v. Balkcom,
supra, 451 U.S. 960 (Rehnquist, J., dissenting from the
denial of certiorari) (‘‘[t]here can be little doubt that
delay in the enforcement of capital punishment frus-
trates the purpose of retribution’’).
What then remains of retribution when one who com-
mits a heinous crime is not executed until after he has
spent half a lifetime or more on death row, if ever?
Unlike with deterrence, the retributive value of an exe-
cution defies easy definition and quantification,
shrouded as retribution is in metaphysical notions of
moral restoration and just deserts. What is clear, how-
ever, is that the most tangible retributive fruit of capital
punishment—providing victims and their families with
a sense of respite, empowerment, and closure—is griev-
ously undermined by the interminable delays in carrying
out the sentence imposed. ‘‘[I]n reality, rather than
affording them a quick and final disposition of the case
against the murderer, so that they may finalize the trag-
edy and begin rebuilding their lives, the capital punish-
ment process often creates a second victimization of
survivors. They must contend with repeated reminders
about the murder during the protracted proceedings in
which the death penalty’s implementation is—usually
unsuccessfully—sought.’’ R. Tabak & J. Lane, ‘‘The Exe-
cution of Injustice: A Cost and Lack-of-Benefit Analysis
of the Death Penalty,’’ 23 Loy. L.A. L. Rev. 59, 129 (1989);
see also Nichols v. Heidle, 725 F.3d 516, 559 (6th Cir.
2013) (Martin, J., concurring) (noting, inter alia, pro-
tracted nature of death penalty cases, which, in turn,
provides ‘‘no closure for the families of the victims’’),
cert. denied, U.S. , 135 S. Ct. 704, 190 L. Ed.
2d 438 (2014). Psychologically, the capital punishment
system actually may impede the healing process. R.
Tabak & J. Lane, supra, 131.
Legislators heard substantial testimony to this effect
when considering P.A. 12-5, with both mental health
professionals and the relatives of individual murder
victims speaking about the retraumatization that our
capital punishment scheme often inflicts on victims’
families.99 Many legislators cited such testimony as a
basis for their decision to support the repeal of the
death penalty, while at the same time recognizing that
there are, of course, families who continue to seek the
death penalty for the offenders who murdered their
loved ones. Governor Malloy, upon signing the bill,
shared the sentiments of one victim’s survivor: ‘‘Now
is the time to start the process of healing, a process
that could have been started decades earlier with the
finality of a life sentence. We cannot afford to put on
hold the lives of these secondary victims. We need to
allow them to find a way as early as possible to begin
to live again.’’ (Internal quotation marks omitted.) Gov-
ernor’s Statement, supra.
3
Possibility of Error
The third reason that capital punishment fails to sat-
isfy the demands of retributive justice is the ever pre-
sent danger of irreversible error. It is axiomatic that
‘‘the execution of a legally and factually innocent person
would be a constitutionally intolerable event.’’ Herrera
v. Collins, 506 U.S. 390, 419, 113 S. Ct. 853, 122 L. Ed.
2d 203 (1993) (O’Connor, J., concurring). Indeed, ‘‘[t]he
execution of a person who can show [that] he is inno-
cent comes perilously close to simple murder.’’ (Inter-
nal quotation marks omitted.) State v. Cobb, supra, 251
Conn. 549 (Norcott, J., dissenting), quoting Herrera v.
Collins, supra, 446 (Blackmun, J., dissenting).
Unfortunately, numerous studies have found that
‘‘[e]rrors can and have been made repeatedly in the trial
of death penalty cases because of poor representation,
racial prejudice, prosecutorial misconduct, or simply
the presentation of erroneous evidence.’’ State v. Ross,
supra, 230 Conn. 315 (Berdon, J., dissenting in part).
A study of all death sentences in the United States in
the two decades following Furman found ‘‘extremely
high error rates’’; A. Gelman et al., ‘‘A Broken System:
The Persistent Patterns of Reversals of Death Sentences
in the United States,’’ 1 J. Empirical Legal Stud. 209,
261 (2004); with at least two thirds of capital sentences
eventually overturned on appeal. Id., 209; see also D.
Benson et al., ‘‘Executing the Innocent,’’ 3 Ala. C.R. &
C.L. L. Rev., no. 2, 2013, 9 (placing number of exonera-
tions since reinstatement of death penalty at 140); R.
Tabak, ‘‘Finality Without Fairness: Why We Are Moving
Towards Moratoria on Executions, and the Potential
Abolition of Capital Punishment,’’ 33 Conn. L. Rev. 733,
748 (2001) (capital punishment system is ‘‘collapsing
under the weight of its own mistakes’’ [internal quota-
tion marks omitted]). Statistical analyses have demon-
strated to a near certainty that innocent Americans have
been and will continue to be executed in the post-
Furman era. See Glossip v. Gross, supra, 135 S. Ct.
2756 (Breyer, J., dissenting) (citing ‘‘convincing evi-
dence’’ that, ‘‘in the past three decades, innocent people
have been executed’’); id., 2758 (Breyer, J., dissenting)
(citing evidence that ‘‘about [4 percent] of those sen-
tenced to death are actually innocent’’); see also H.
Bedau & M. Radelet, ‘‘Miscarriages of Justice in Poten-
tially Capital Cases,’’ 40 Stan. L. Rev. 21, 36 (1987) (citing
high rate of error in death penalty cases); D. Benson
et al., supra, 3 Ala. C.R. & C.L. L. Rev. 3 (‘‘We know . . .
that [the] intolerable event [of executing an innocent
person] takes place with some regularity in . . . death
penalty jurisdictions’’ [emphasis omitted]); U. Bentele,
‘‘Does the Death Penalty, by Risking Execution of the
Innocent, Violate Substantive Due Process?,’’ 40 Hous.
L. Rev. 1359, 1365 (2004) (‘‘[s]ince capital punishment
was given a renewed seal of approval in 1976, more
than [100] people have been sentenced to death [and
have been] subsequently found to be innocent’’ [foot-
note omitted]).
From a retributive standpoint, the problem is simple:
‘‘[m]istakes cannot be corrected after a person is exe-
cuted.’’ State v. Ross, supra, 230 Conn. 314 (Berdon, J.,
dissenting in part). ‘‘We know that persons have been
condemned who were innocent; we know that future
scientific evidence can overturn the seemingly most
safe of convictions; and we know that we could easily
avoid such problems in adopting an alternative sanc-
tion, such as life imprisonment. Therefore, we know-
ingly, foreseeably, and avoidably sentence innocent
people to death . . . if we continue to endorse capital
punishment . . . .’’ T. Brooks, ‘‘Retribution and Capital
Punishment,’’ in Retributivism: Essays on Theory and
Practice (M. White ed., 2011) p. 238. Of course, all pun-
ishment is tainted by the possibility of error. Capital
punishment, however, ‘‘is especially problematic. When
we impose capital punishment on a convicted murderer,
there cannot be any room for error since the murderer
can never be brought back to life afterward if error
is discovered at some later date. If there remains a
substantial risk of error, as demonstrated by advances
in scientific testing in cases [in which] a person has
been sentenced beyond a reasonable doubt in a fair
trial, then we have good reason on retributivist grounds
to reject capital punishment in favor of an alternative
sanction.’’ Id., p. 237.
It was this risk of error that led Illinois Governor
George Ryan in 2003 to commute the death sentences of
that state’s 167 death row inmates to life imprisonment
without the possibility of parole. See J. Wilgoren, ‘‘Cit-
ing Issue of Fairness, Governor Clears Out Death Row
in Illinois,’’ N.Y. Times, January 12, 2003, p. 1. Governor
Ryan concluded that ‘‘[o]ur capital system is haunted
by the demon of error . . . .’’ (Internal quotation marks
omitted.) Id. The possibility of executing an innocent
person was also a principal concern voiced by both of
Connecticut’s elected branches in their support of P.A.
12-5.100 We do not suggest that anyone currently on
death row in Connecticut has a potentially viable claim
of actual innocence.101 In concluding that the death pen-
alty is unconstitutional, however, we recognize that the
legal and moral legitimacy of any future executions
would be undermined by the ever present risk that an
innocent person will be wrongly executed.102
4
Caprice and Bias
The fourth reason that our state’s capital punishment
system fails to achieve its retributive goals is that the
selection of which offenders live and which offenders
die appears to be inescapably tainted by caprice and
bias. ‘‘[T]he heart of the retribution rationale is that a
criminal sentence must be directly related to the per-
sonal culpability of the criminal offender.’’ (Internal
quotation marks omitted.) Graham v. Florida, supra,
560 U.S. 71. In other words, the death penalty must be
equally available for similarly culpable offenders if a
capital sentencing scheme is to fulfill a valid retributive
purpose. To the extent that the ultimate punishment is
imposed on an offender on the basis of impermissible
considerations such as his, or his victim’s, race, eth-
nicity, or socio-economic status, rather than the severity
of his crime, his execution does not restore but, rather,
tarnishes the moral order. See generally O. Londono,
‘‘A Retributive Critique of Racial Bias and Arbitrariness
in Capital Punishment,’’ 44 J. Soc. Phil. 95 (2013); D.
McDermott, ‘‘A Retributivist Argument against Capital
Punishment,’’ 32 J. Soc. Phil. 317 (2001); S. Nathanson,
‘‘Does It Matter if the Death Penalty Is Arbitrarily
Administered?,’’ 14 Phil. & Pub. Aff. 149 (1985).
The problem is that, as we previously noted, there is
an inherent conflict in the requirements that the eighth
amendment’s ban on cruel and unusual punishment,
as interpreted by the United States Supreme Court,
imposes on any capital sentencing scheme. On the one
hand, Furman and its progeny stand for the proposition
that any capital punishment statute, to avoid arbitrari-
ness and pass constitutional muster, must cabin the
discretion of prosecutors, judges, and juries by provid-
ing clear guidelines as to what specific types of crimes
are eligible for the punishment of death. In the context
of capital murder—the sole remaining crime against an
individual for which capital punishment may be
imposed under the eighth amendment—that require-
ment has been interpreted to mean that statutes must
identify specific aggravating factors that the fact finder
must find before imposing the death penalty. See Tui-
laepa v. California, supra, 512 U.S. 971–73. The ultimate
punishment must be reserved for the very worst offend-
ers, and may not be ‘‘wantonly [or] . . . freakishly
imposed.’’ Furman v. Georgia, supra, 408 U.S. 310
(Stewart, J., concurring). On the other hand, since it
decided Woodson v. North Carolina, supra, 428 U.S.
280, and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954,
57 L. Ed. 2d 973 (1978), the United States Supreme Court
has not wavered in its commitment to the principle
of individualized sentencing: juries must be afforded
unlimited discretion to consider any mitigating factor—
any unique characteristic of the crime, the criminal,
or the victim—before imposing the death penalty. See
Tuilaepa v. California, supra, 972–73. In other words,
the discretion of the jury to accord the capital defendant
mercy may not be confined or restricted in any way.103
The question is whether this individualized sentenc-
ing requirement inevitably allows in through the back
door the same sorts of caprice and freakishness that the
court sought to exclude in Furman, or, worse, whether
individualized sentencing necessarily opens the door
to racial and ethnic discrimination in capital sentenc-
ing.104 In other words, is it ever possible to eliminate
arbitrary and discriminatory application of capital pun-
ishment through a more precise and restrictive defini-
tion of capital crimes if prosecutors always remain free
not to seek the death penalty for a particular defendant,
and juries not to impose it, for any reason whatsoever?
We do not believe that it is.105
We begin by observing that the United States
Supreme Court itself has expressed serious doubts as
to whether its own commandments can be reconciled.
In Tuilaepa, the court recognized that ‘‘[t]he objectives
of these two inquiries can be in some tension . . . .’’
Id., 973. Fourteen years later, in Kennedy, the court
again acknowledged that ‘‘[t]he tension between gen-
eral rules and case-specific circumstances has pro-
duced results not altogether satisfactory.’’ Kennedy v.
Louisiana, supra, 554 U.S. 436. ‘‘Our response to this
case law,’’ the court frankly conceded, ‘‘is still in search
of a unifying principle . . . .’’ Id., 437; see also Turner
v. Murray, 476 U.S. 28, 35, 106 S. Ct. 1683, 90 L. Ed. 2d
27 (1986) (plurality opinion) (‘‘[b]ecause of the range
of discretion entrusted to a jury in a capital sentencing
hearing, there is a unique opportunity for racial preju-
dice to operate’’).
In fact, in the four decades since the United States
Supreme Court struck down the death penalty (as then
applied) in Furman and then resuscitated it four years
later in Gregg, at least one-half dozen members of that
court—jurists of all jurisprudential stripes—have con-
cluded that the demands of Furman, on the one hand,
and of Woodson and Lockett, on the other, are, ulti-
mately, irreconcilable. In Furman itself, of the five con-
curring justices, two (Justices Brennan and Marshall)
took the position that capital punishment is so inher-
ently arbitrary as to constitute cruel and unusual pun-
ishment under all circumstances, and a third (Justice
Douglas) opined that any nonmandatory capital sen-
tencing scheme would be inherently subject to discrimi-
nation and hence unconstitutional. See Furman v.
Georgia, supra, 408 U.S. 255 (Douglas, J., concurring)
(‘‘we know that the discretion of judges and juries in
imposing the death penalty enables the penalty to be
selectively applied, feeding prejudices against the
accused if he is poor and despised, and lacking political
clout, or if he is a member of a suspect or unpopular
minority, and saving those who by social position may
be in a more protected position’’); id., 294 (Brennan,
J., concurring) (‘‘[n]o one has yet suggested a rational
basis that could differentiate . . . the few who die
from the many who go to prison’’); id., 365 (Marshall,
J., concurring) (‘‘committing to the untrammeled discre-
tion of the jury the power to pronounce life or death
in capital cases is . . . an open invitation to discrimina-
tion’’ [internal quotation marks omitted]).
Justice Marshall elaborated on this ‘‘fundamental
defect’’ in the court’s eighth amendment jurisprudence
in Godfrey v. Georgia, supra, 446 U.S. 420: ‘‘[A]ppellate
courts are incapable of guaranteeing the kind of objec-
tivity and evenhandedness that the [c]ourt contem-
plated and hoped for in Gregg. The disgraceful
distorting effects of racial discrimination and poverty
continue to be painfully visible in the imposition of
death sentences. . . . The task of eliminating arbitrari-
ness in the infliction of capital punishment is proving to
be one which our criminal justice system—and perhaps
any criminal justice system—is unable to perform. . . .
‘‘The . . . inability to administer . . . capital pun-
ishment . . . in an evenhanded fashion is . . . symp-
tomatic of a deeper problem that is proving to be
genuinely intractable. . . .
‘‘[T]he task of selecting in some objective way those
persons who should be condemned to die is one that
remains beyond the capacities of the criminal justice
system. For this reason, I remain hopeful that even if
the [c]ourt is unwilling to accept the view that the death
penalty is so barbaric that it is in all circumstances
cruel and unusual punishment forbidden by the [e]ighth
and [f]ourteenth [a]mendments, it may eventually con-
clude that the effort to eliminate arbitrariness in the
infliction of that ultimate sanction is so plainly doomed
to failure that it—and the death penalty—must be aban-
doned altogether.’’ (Citations omitted; footnotes omit-
ted.) Id., 439–42 (Marshall, J., concurring in the judg-
ment). Both Justices Stevens and Blackmun have
reached similar conclusions. See Baze v. Rees, supra,
553 U.S. 85 (Stevens, J., concurring in the judgment)
(‘‘[a] . . . significant concern is the risk of discrimina-
tory application of the death penalty’’); Tuilaepa v. Cali-
fornia, supra, 512 U.S. 991–92 (Blackmun, J.,
dissenting) (‘‘One of the greatest evils of leaving jurors
with largely unguided discretion is the risk that this
discretion will be exercised on the basis of constitution-
ally impermissible considerations—primary among
them, race. . . . For far too many jurors, the most
important ‘circumstances of the crime’ are the race of
the victim or the defendant.’’ [Citations omitted.]).
Justice Scalia, while drawing a different legal conclu-
sion than his more liberal brethren, has been no less
persuaded by the premise that the United States
Supreme Court’s Furman and Woodson/Lockett lines
of jurisprudence are fundamentally incompatible: ‘‘Our
cases proudly announce that the [c]onstitution effec-
tively prohibits the [s]tates from excluding from the
sentencing decision any aspect of a defendant’s charac-
ter or record, or any circumstance surrounding the
crime: that the defendant had a poor and deprived child-
hood, or that he had a rich and spoiled childhood; that
he had a great love for the victim’s race, or that he had
a pathological hatred for the victim’s race; that he has
limited mental capacity, or that he has a brilliant mind
which can make a great contribution to society; that
he was kind to his mother, or that he despised his
mother.’’ (Emphasis in original.) Walton v. Arizona, 497
U.S. 639, 663, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990)
(Scalia, J., concurring in part and concurring in the
judgment), overruled in part on other grounds by Ring
v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002). ‘‘To acknowledge that there perhaps is an
inherent tension between this line of cases and the line
stemming from Furman,’’ Justice Scalia continued, ‘‘is
rather like saying that there was perhaps an inherent
tension between the [a]llies and the Axis Powers in
World War II. And to refer to the two lines as pursuing
twin objectives . . . is rather like referring to the twin
objectives of good and evil. They cannot be reconciled.
. . . The latter requirement quite obviously destroys
whatever rationality and predictability the former
requirement was designed to achieve.’’ (Citations omit-
ted; internal quotation marks omitted.) Walton v. Ari-
zona, supra, 664–65 (Scalia, J., concurring in part and
concurring in the judgment). ‘‘In short, the practice
which in Furman had been described as the discretion
to sentence to death and pronounced constitutionally
prohibited, was in Woodson and Lockett renamed the
discretion not to sentence to death and pronounced
constitutionally required.’’ Id., 662 (Scalia, J., concur-
ring in part and concurring in the judgment).
Since we decided Ross in 1994, four members of this
court likewise have concluded that the degree of fact
finder discretion required by the federal constitution
means that the death penalty in Connecticut has been
and inevitably will continue to be imposed with a degree
of discrimination that is impermissible under the state
constitution. See State v. Santiago, supra, 305 Conn.
324 (Harper, J., concurring in part and dissenting in
part) (‘‘invidious discrimination . . . pave[s] a
smoother path to execution for a subset of the popula-
tion’’); State v. Peeler, 271 Conn. 338, 466, 857 A.2d 808
(2004) (Katz, J., dissenting) (‘‘[w]e have not eliminated
the biases and prejudices that infect society generally;
therefore, it should not be surprising that such problems
continue to influence the determination of who is sen-
tenced to death, even within the narrower pool of death-
eligible defendants selected according to so-called
objective standards’’), cert. denied, 546 U.S. 845, 126 S.
Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Breton, supra,
264 Conn. 447 (Norcott, J., dissenting) (‘‘[t]he passage
of a few [years’] time has done nothing to blunt the
pervasive and insidious influence of race and poverty
in the administration of the death penalty’’); State v.
Webb, supra, 238 Conn. 557 (Berdon, J., dissenting)
(‘‘the effort to eliminate arbitrariness in the infliction
of that ultimate sanction is so plainly doomed to failure
that it—and the death penalty—must be abandoned
altogether’’ [internal quotation marks omitted]); State v.
Webb, supra, 570 (Norcott, J., dissenting) (‘‘the continual
legislative and judicial efforts to bring about a real sense
of fairness in the imposition of the death penalty are
delusional endeavors’’); see also State v. Breton, 212
Conn. 258, 281, 562 A.2d 1060 (1989) (Glass, J., dis-
senting) (expressing skepticism that state constitution
‘‘tolerates a certain amount of capriciousness in the
application of the death penalty’’). As Justice Norcott
first put it nearly twenty years ago, there can be no
death penalty scheme ‘‘adequate to cure the influence
of arbitrariness and race in the overall equation that
results in the imposition of death.’’ State v. Webb, supra,
570 (Norcott, J., dissenting).
Similar concerns also have been expressed by legal
scholars. See, e.g., D. Garland, supra, p. 12 (‘‘capital
punishment in the United States subsists—inescap-
ably—in a miasma of race’’ [internal quotation marks
omitted]); S. Bright, ‘‘Discrimination, Death and Denial:
The Tolerance of Racial Discrimination in Infliction of
the Death Penalty,’’ 35 Santa Clara L. Rev. 433, 434
(1995) (‘‘race and poverty continue to determine who
dies’’); G. Dix, ‘‘Appellate Review of the Decision to
Impose Death,’’ 68 Geo. L.J. 97, 161 (1979) (concluding
that Gregg and its companion cases ‘‘mandate pursuit
of an impossible goal’’). In 1973, former Yale Law School
Dean Louis H. Pollak, testifying regarding the legisla-
ture’s efforts to craft a new post-Furman capital murder
statute, opined that ‘‘[t]he conclusion that this [b]ill is
unconstitutional is not a criticism of the drafters, it
is rather a recognition that they were undertaking a
constitutional impossibility. Maintaining the idea of a
death sentence while [e]nsuring that it would in practice
almost never be imposed, the result necessarily is not
merely [that] death sentence[s] would be rarities but
that those rarities would occur wantonly and freakishly
and hence, unconstitutionally.’’ (Internal quotation
marks omitted.) 16 S. Proc., Pt. 4, 1973 Sess., p. 1892.
After thoroughly reviewing the operation of Connecti-
cut’s capital sentencing scheme over the past four
decades, we are persuaded that these critiques are well
founded and that the opportunity for the exercise of
unfettered discretion at key decision points in the pro-
cess has meant that the ultimate punishment has not
been reserved for the worst of the worst offenders.
There is no doubt that our death row has counted among
its residents the perpetrators of some of the most hei-
nous crimes in Connecticut history. It is equally clear,
however, that the process of selecting offenders for
execution has been both under inclusive and over inclu-
sive. Many who commit truly horrific crimes are spared,
whereas certain defendants whose crimes are, by all
objective measures, less brutal are condemned to death.
The defendant in the present case is, perhaps, the clear-
est example. He shot the sole victim, an adult white
male, in his sleep, killing him instantly. The defendant
had no prior criminal convictions. And yet, of the seven-
teen offenders convicted of committing capital eligible
murders for hire in the state since 1973, Eduardo Santi-
ago was the only one sentenced to death.106 To the
extent that the population of death row has been chosen
on grounds other than the atrocity of the offenders’
crimes, this would undermine all confidence that capital
punishment, as applied, is morally proportionate and
serves a legitimate retributive function in Connecti-
cut.107
C
Vengeance
Finally, it bears emphasizing that, to the extent that
the statutory history of P.A. 12-5 reveals anything with
respect to the legislature’s purpose in prospectively
abolishing the death penalty while retaining it for the
handful of individuals now on death row, it is that the
primary rationale for this dichotomy was neither deter-
rence nor retribution but, rather, vengeance—the Hyde
to retribution’s Jekyll. Vengeance, unlike retribution, is
personal in nature; it is motivated by emotion, and may
even relish in the suffering of the offender. See R. Noz-
ick, Philosophical Explanations (1981) p. 367. Accord-
ingly, vengeance traditionally has not been considered
a constitutionally permissible justification for criminal
sanctions. See Ford v. Wainwright, 477 U.S. 399, 410,
106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) (finding no
retributive value in ‘‘the barbarity of exacting mindless
vengeance’’). On the contrary, ‘‘[i]t is of vital importance
to the defendant and to the community that any decision
to impose the death sentence be, and appear to be,
based on reason rather than caprice or emotion.’’ Gard-
ner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L.
Ed. 2d 393 (1977) (plurality opinion).
There are, no doubt, cases in which the line between
a principled commitment to retributive justice and an
impermissible acquiescence to private vengeance is a
gray one. There is every indication, however, that P.A.
12-5 was crafted primarily to maintain the possibility of
executing two particular offenders—the much reviled
perpetrators of the widely publicized 2007 home inva-
sion and murder of three members of Cheshire’s Petit
family. K. Barry, supra, 35 Cardozo L. Rev. 1837–38. In
suggesting that the legislators who voted in favor of a
solely prospective repeal of the death penalty were
equally committed to executing the defendant in the
present case and other inmates on Connecticut’s death
row, Chief Justice Rogers ignores the overwhelming
evidence that the perpetrators in the Cheshire case,
Joshua Komisarjevsky and Steven Hayes, were the prin-
cipal targets of the decision to retain the death penalty
retroactively.108 There is certainly no question what
motivated one state senator, who opined that ‘‘ ‘[t]hey
should bypass the trial [in the Cheshire case] and take
that second animal and hang him by his penis from a
tree out in the middle of Main Street . . . .’ ’’109
It has been suggested that it would be a morally
permissible ‘‘sacrifice’’ for Connecticut to allow those
men currently on death row to be executed so as to
hasten the abolition of capital punishment in other juris-
dictions. K. Barry, ‘‘From Wolves, Lambs (Part I): The
Eighth Amendment Case for Gradual Abolition of the
Death Penalty,’’ 66 Fla. L. Rev. 313, 325 (2014). Such
judgments are not for us to make. We can say, however,
that it would not be constitutionally permissible to exe-
cute the defendant in the present case, and others simi-
larly situated, without any legitimate penological pur-
pose, merely to achieve the politically popular end of
killing two especially notorious inmates.
D
Conclusion
For all of these reasons, the death penalty no longer
serves any legitimate penological goal in our state. As
Judge Kozinski concludes, ‘‘we have little more than
an illusion of a death penalty in this country. To be
sure, we have capital trials; we have convictions and
death sentences imposed; we have endless and mas-
sively costly reviews by the state and federal courts;
and we do have a small number of people executed
each year. But the number of executions compared to
the number of people who have been sentenced to
death is minuscule, and the gap is widening every year.
Whatever purposes the death penalty is said to serve—
deterrence, retribution, assuaging the pain suffered by
victims’ families—these purposes are not served by the
system as it now operates.’’ (Footnotes omitted.) A.
Kozinski & S. Gallagher, supra, 46 Case W. Res. L. Rev.
3–4. We therefore conclude that, following the enact-
ment of P.A. 12-5, capital punishment also violates arti-
cle first, §§ 8 and 9, of the Connecticut constitution
because it no longer serves any legitimate penologi-
cal purpose.110
IV
RESPONSE TO THE DISSENTING JUSTICES
Lastly, we take this opportunity to address briefly
certain general arguments that the dissenting justices
have raised. Although we recognize and respect that
their opinions are grounded in a principled and com-
mendable commitment to judicial restraint, we find
them to be unpersuasive and, in a few instances, some-
what troubling.
A
Whether the Questions Decided Are
Properly before the Court
We first address Chief Justice Rogers’ argument that
some of the issues, evidence, and arguments considered
in this opinion are not properly before this court. Specif-
ically, she contends that (1) some of the arguments that
we consider in this opinion never were raised by the
defendant, (2) the parties were not afforded an adequate
opportunity to brief the issues addressed in this opinion,
and (3) the majority relies on research and statistics
that are not properly the subject of judicial notice. We
consider each argument in turn.
1
Arguments Allegedly Not Raised by the Defendant
Chief Justice Rogers first contends that we improp-
erly have considered certain arguments that the defen-
dant himself has not raised. For example, she contends
that the defendant did not adequately preserve the argu-
ments that (1) the death penalty is rarely imposed in
Connecticut, (2) the death penalty has slowly fallen out
of use in Connecticut, and (3) other states recently have
abolished the death penalty, while respected profes-
sional organizations, such as the American Law Insti-
tute, no longer support its use. We are not persuaded
by this contention.
We begin by noting that the defendant indisputably
preserved the claim that, following the enactment of
P.A. 12-5, the death penalty now offends the state consti-
tution in that it (1) fails to comport with contemporary
standards of decency, and (2) is now devoid of any
legitimate penological value.111 We recognized as much
in our initial decision in this case; see State v. Santiago,
supra, 305 Conn. 307–308 n.167; and, on reconsidera-
tion, the defendant dedicates pages of discussion to
this claim in his supplemental briefs. Indeed, his argu-
ment on reconsideration begins with the statement that
‘‘[P.A. 12-5] represents the considered judgment of our
legislature and governor that the death penalty is no
longer consistent with standards of decency in Connect-
icut and does not serve any valid penological objective.’’
That is precisely the issue that we have considered in
parts II and III of this opinion.
Chief Justice Rogers’ objection, then, is merely that
the defendant did not brief the issue in sufficient depth,
and, specifically, that he did not expressly address cer-
tain facts and factors—the accuracy of which is not
reasonably in dispute—on which we rely in this opinion.
Her view appears to be that, even though a significant
change in the legal landscape, such as the prospective
repeal of the death penalty, may warrant a full review
of whether that punishment remains consistent with
contemporary standards of decency, and even though
that analysis necessarily encompasses the consider-
ation of various factors and historical developments
that this court and other courts have considered in past
cases involving challenges to the death penalty on other
grounds, we may take those factors into consideration
in the present case only if the defendant fully briefs
each of them anew. This makes little sense.
In the present case, the defendant, in his initial
appeal, submitted an opening brief of nearly 300 pages,
in which he raised more than twenty distinct legal
claims. He also submitted a 122 page reply brief, as
well as more than 2000 pages of appendices. Upon our
grant of reconsideration, he submitted approximately
200 more pages of briefing and appendices, addressing
new legal claims. The state, of course, responded with
many hundreds of pages of its own briefing and
appendices.
Rather than exhaustively brief every aspect of the
question of whether capital punishment now offends
the state constitution, the defendant chose instead to
focus on the impact of the enactment of P.A. 12-5 on
that question, and to incorporate by reference the other
factors that this court has considered at length in previ-
ous capital appeals. The state, in rejecting the defen-
dant’s constitutional claim, likewise relied primarily on
references to our prior cases. We can only assume that
this choice represented a calculated decision, by both
parties, that, with their briefs already taking up more
than a ream of paper, resources—both natural and judi-
cial—would be better addressed to the novel issues
presented by the defendant’s case, and that we had
more than sufficient resources at our disposal to allow
us to fully review the present constitutionality of capital
punishment in a thorough and comprehensive manner.
This decision was perfectly reasonable.
The approach that Chief Justice Rogers advocates
would force counsel representing defendants in capital
appeals to make a Hobson’s choice. When, as in the
present case, this court previously has rejected a consti-
tutional claim, counsel either would have to (1) forgo
that and related claims for all subsequent capital defen-
dants, or (2) fully brief each aspect of the issue in each
capital appeal, repeatedly addressing every potential
argument, legal theory, and constitutional fact that this
court might find relevant or persuasive, on the mere
possibility that we might agree that intervening develop-
ments warrant a fresh consideration of the issue or
present novel grounds for finding a constitutional viola-
tion. If counsel followed the first path, we would be
precluded from ever revisiting important constitutional
questions, even those where, as in the case of cruel and
unusual punishment, the legal standard itself envisions
that punishments once permissible may over time come
to offend the constitution. If counsel followed the sec-
ond path, capital appeals, which are already deplorably
prolonged, expensive, and resource intensive, would
grow even more so. Forcing such a choice would be
both unwise and unjust.
Rather, we believe that appellate counsel in the pre-
sent appeal made a prudent and appropriate decision
to raise, and thereby preserve, the constitutional claim;
to submit thoughtful and informative supplemental
briefing to address those novel questions and key devel-
opments for which we concluded that additional brief-
ing would be helpful; and, with respect to paths already
traveled, simply to direct our attention to prior cases
in which potentially relevant factors have been more
fully vetted.112 Under the particular circumstances of
this capital appeal, nothing more was required.
For the same reasons, it would be inappropriate to
arbitrarily restrict our analysis of the constitutionality
of capital punishment to those facts and circumstances
that have been identified expressly by the parties. In
fact, although we generally do not consider claims or
issues that the parties themselves have not raised; see,
e.g., Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d
840 (2014); in cases too numerous to mention, we have
considered arguments or factors pertaining to those
claims or issues that were not expressly identified by
the parties. See id., 148 (‘‘when [a case] is properly
before the court, the court is not limited to the particular
legal theories advanced by the parties, but rather retains
the independent power to identify and apply the proper
construction of governing law’’ [internal quotation
marks omitted]); cf. Rowe v. Superior Court, 289 Conn.
649, 661–63, 960 A.2d 256 (2008) (concluding that defen-
dant had preserved issue for appeal because theories
related to single legal claim even though defendant had
not raised each theory at trial); Vine v. Zoning Board
of Appeals, 281 Conn. 553, 569, 916 A.2d 5 (2007)
(addressing alternative ground for affirmance that was
not raised at trial because, inter alia, issue was ‘‘closely
intertwined’’ with certified question); Imperial Casu-
alty & Indemnity Co. v. State, 246 Conn. 313, 322–23,
714 A.2d 1230 (1998) (considering argument that defen-
dants raised because court already was obliged to per-
form full and thorough review of trial court’s decision
on contested issue of insurance coverage and defen-
dants’ argument did not raise entirely new issue). This
is especially so when plenary consideration is necessary
to thoroughly address and accurately decide constitu-
tional claims and other matters of substantial public
importance, our resolution of which will surely redound
to the benefit or detriment of parties not presently
before the court.
Furthermore, the critiques that Chief Justice Rogers
levels are particularly ill suited to the present case. As
Chief Justice Rogers herself acknowledges, it is well
established that, before ruling on the constitutionality
of a challenged mode of punishment, a court must con-
duct its own independent review to determine whether
that punishment remains suitable to the crime and con-
tinues to serve any legitimate penological objective.113
See, e.g., State v. Rizzo, supra, 303 Conn. 197; see also
Graham v. Florida, supra, 560 U.S. 80; Atkins v. Vir-
ginia, supra, 536 U.S. 312. It would be difficult, if not
impossible, for us to fulfill our constitutional duty in
this regard if we were barred from considering basic
factual questions such as how frequently the punish-
ment is imposed or whether its ongoing use retains the
approval of our sister states, legal scholars, and other
sources of persuasive authority. We routinely look to
such sources when deciding legal questions of first
impression—often with regrettably sparse assistance
from the parties’ briefing—and we see no reason why
the scope of our review should be more fettered when
deciding significant constitutional questions. This is
especially true in capital cases, in which courts rou-
tinely, and quite properly, provide accommodations not
always afforded in other, less compelling circum-
stances. See State v. Cobb, 234 Conn. 735, 763, 663
A.2d 948 (1995) (‘‘the nature of the defendant’s claim
of systemic racial bias, and the seriousness and finality
of the death penalty, counsel against raising any undue
procedural barriers to review of such a claim’’).
2
Opportunity for Briefing
Chief Justice Rogers next contends that it was
improper for the court to consider the issues that we
have decided without first affording the parties a full
opportunity to brief them. We disagree. The truth is
that the parties did have the opportunity to brief the
issue of whether the death penalty now violates the
state constitution. As we have explained, each party
made what we presume to be a calculated and reason-
able decision to focus its argument on the legal conse-
quences of the enactment of P.A. 12-5 and the novel
questions presented thereby, and, in essence, to incor-
porate by reference our prior decisions, both majority
and dissenting opinions, that address, in the context of
either per se or as applied challenges, other constitu-
tionally relevant factors. The purpose of our preserva-
tion requirements—‘‘to ensure fair notice of a party’s
claims to both the trial court and opposing parties’’—
was thereby satisfied. White v. Mazda Motor of
America, Inc., 313 Conn. 610, 620, 99 A.3d 1079 (2014).
Nor do we believe that, in so doing, the parties
deprived this court of the opportunity to perform its
constitutionally mandated independent review of the
death penalty in a fully informed manner. These are
matters about which courts, historians, legal scholars,
and social scientists have written extensively, both in
Connecticut and nationally. The relevant legislative his-
tory and constitutional facts are properly subject to
judicial notice. The legal arguments are well trodden
and not unfamiliar to us. After a decade of appeals in
this case, and several previous rounds of supplemental
briefing, our priority now must be to provide the parties,
the victims’ families, and the people of Connecticut
with some measure of clarity and resolution.
3
Extra-Record Materials
Chief Justice Rogers also maintains that we have
relied on extra-record materials that, she argues, are
not properly the subject of judicial notice. Again, we
disagree.
Although finding the adjudicative facts that concern
the parties and events of a particular case is largely the
province of the jury—or the trial court in cases tried
to the court—appellate courts tasked with determining
the content of law and policy may take notice of consti-
tutional and legislative facts, such as historical sources
and scientific and sociological studies. See footnote 44
of this opinion. It is well established that ‘‘[t]he intellec-
tual legitimacy of [judicial decisions in which the court
takes notice of legislative facts to ascertain constitu-
tional norms] turns [on] the actual truth-content of the
legislative facts taken into account by the judges who
propound the decision. While not necessarily indisput-
ably true, it would appear that these legislative facts
must at least appear to be more likely than not true if
the opinion is going to have the requisite intellectual
legitimacy [on] which the authority of judge-made rules
is ultimately founded.’’ (Emphasis added.) 2 K. Broun,
McCormick on Evidence (7th Ed. 2013) § 331, pp. 612–
13. Although Chief Justice Rogers accuses the majority
of relying on ‘‘cherry picked,’’ extra-record materials;
footnote 30 of Chief Justice Rogers’ dissenting opinion;
she never specifically explains why she thinks the
sources on which the majority relies, taken together,
fail to satisfy this ‘‘more likely than not true’’ standard.
2 K. Broun, supra, § 331, p. 613. She is unable to point
to any methodological flaws in the social science and
other research studies cited in this opinion, to challenge
the authors’ qualifications, or to direct our attention to
any conflicting research of equal quality and breadth.
She fails to cite to any sources that undermine the
meticulous historical research provided by Collier, Con-
necticut’s state historian, or Holdsworth’s voluminous
review of early Connecticut legal history, or Professor
Goodheart’s award winning treatise. Nor is there any
suggestion that the death penalty statistics that we have
presented are inaccurate or misleading. In reality, the
sociological research and historical facts on which we
rely far exceed the governing more likely than not true
standard, and they are not subject to reasonable dis-
pute.
It is also noteworthy that the authorities on which
Chief Justice Rogers relies for the proposition that legis-
lative fact-finding by appellate courts is improper
include a law review article that begins by lamenting
that ‘‘[m]any of the [United States] Supreme Court’s
most significant decisions turn on questions of [legisla-
tive] fact.’’ A. Larsen, ‘‘Confronting Supreme Court Fact
Finding,’’ 98 Va. L. Rev. 1255, 1255 (2012). To be clear,
then, Chief Justice Rogers’ complaint is not that the
majority uses social science research in a manner that
appellate courts ordinarily do not but merely that she
and a handful of law professors personally disapprove
of this common practice.
The sources on which Chief Justice Rogers relies
contend that legislative fact-finding by appellate tribu-
nals is subject to bias and error, and that it deprives
the parties of the opportunity to participate fully in the
adversarial truth seeking process. There is no doubt
that appellate review of legislative facts, as with virtu-
ally every other form of truth seeking in which human
beings engage, can be an imperfect process. Ultimately,
however, the practice has been approved and adopted
because there simply is no better alternative. Appellate
courts frequently are called on to make quasi-legislative
policy judgments, whether in crafting state common
law, construing open-ended constitutional and statu-
tory mandates, or simply determining whether a partic-
ular interpretation of a statute would ‘‘lead to absurd
consequences or bizarre results.’’ (Internal quotation
marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 703,
12 A.3d 783 (2011). These policy judgments often hinge
on facts about the world in which we live, facts the
study of which is the domain of natural and social
scientists. See 2 K. Broun, supra, § 331, pp. 610–15. If
we were to follow the counsel of Chief Justice Rogers,
and submit every such question to the crucible of
adversarial fact-finding in a trial court, the wheels of
justice would quickly grind to a halt.114
Ultimately, and most importantly, Chief Justice Rog-
ers, having criticized our consideration of extra-record
materials, fails to identify so much as a single statistic
or historical fact cited in this opinion that she believes
is subject to reasonable dispute. Accordingly, having
carefully considered Chief Justice Rogers’ arguments,
we continue to have every confidence that the constitu-
tional and legislative facts on which we rely are a proper
subject of judicial notice, are more likely than not true,
and paint an accurate picture of the historical and con-
temporary record of capital punishment in Connecticut
and the United States.
B
Connecticut’s Historical Acceptance
of Capital Punishment
We next address the argument of the dissenting jus-
tices that capital punishment cannot now offend the
constitution of Connecticut because (1) there are refer-
ences to capital punishment in the text of both the 1818
and 1965 state constitutions, (2) the framers of the 1818
constitution believed that the death penalty was an
appropriate punishment for the most serious crimes,
and (3) in 1965, the constitutional convention declined
to adopt a constitutional provision that would have
prohibited capital punishment. The premises of the dis-
sents’ argument are undoubtedly true. The conclusion
is not.
It is certainly the case that, although Connecticut has
steadily reduced the number of crimes subject to capital
punishment over the past four centuries, the death pen-
alty has continued during that period to be authorized
by statute, and it is referenced in our state constitution.
There also is little doubt that the framers of the state
constitution considered the death penalty to be an
acceptable form of punishment, under certain circum-
stances and if properly applied. Although the dissenting
justices reiterate these facts throughout their opinions,
they fail to explain exactly how our state’s historical
acceptance of the death penalty answers the primary
question presented by this appeal, namely, whether,
following the enactment of P.A. 12-5, capital punish-
ment now constitutes excessive and disproportionate
punishment when viewed through the lens of our state’s
contemporary standards of decency.
As we have explained, the constitutionally relevant
inquiry is whether the death penalty, as currently
administered in Connecticut, and following the enact-
ment of P.A. 12-5, offends our state’s evolving standards
of decency, and whether that punishment continues to
satisfy any legitimate penological objective. Although
the fact that the death penalty was considered accept-
able 50 or 200 years ago might be relevant to a challenge
contending that capital punishment is inherently uncon-
stitutional; see State v. Ross, supra, 230 Conn. 249–50;
it says little about whether capital punishment is consti-
tutional today, in light of our legislature’s most recent
pronouncement on the issue, and given what we now
understand and what our elected officials have deter-
mined regarding capital punishment’s lack of deterrent
value, the potential for irredeemable error, a pattern of
persistently arbitrary and discriminatory application,
and our state’s inability to administer the death penalty
in a way that affords closure and solace to the families
of the victims.
As the Supreme Court of California has recognized,
incidental references to the death penalty in a state
constitution merely acknowledge that the penalty was
in use at the time of drafting; they do not forever
enshrine the death penalty’s constitutional status as
standards of decency continue to evolve: ‘‘It has been
suggested that we are . . . restrained from considering
whether capital punishment is proscribed by [the state
constitutional prohibition against cruel and unusual
punishment] since the death penalty is expressly or
impliedly recognized in several other provisions of the
California constitution. We perceive no possible con-
flict or repugnance between those provisions . . .
however, for none of the incidental references to the
death penalty purport to give its existence constitu-
tional stature. They do no more than recognize its exis-
tence at the time of their adoption. Thus, the bail clause
of [the California constitution] restricts the right to bail
in capital cases . . . [and] the due process clause . . .
ensures that life will not be taken without due process
. . . . None of these provisions can be construed as
an affirmative exemption of capital punishment from
the compass of the cruel or unusual punishment clause
of [the California constitution].’’ (Footnote omitted.)
People v. Anderson, supra, 6 Cal. 3d 637–38. The United
States Supreme Court likewise has indicated that the
mere fact that the federal constitution makes reference
to capital crimes does not mean that contemporary
standards of decency may not evolve to the point that
the death penalty is no longer constitutionally permissi-
ble. See Gregg v. Georgia, supra, 428 U.S. 176–82 (opin-
ion announcing judgment).
It may well be that, at bottom, the opposition of
the dissenting justices reflects their disapproval of the
evolving standards of decency test itself, a legal stan-
dard according to which a penalty that once passed
constitutional muster may, within a relatively brief span
of time, come to be deemed cruel and unusual. See,
e.g., Roper v. Simmons, supra, 543 U.S. 574–75, 578
(overruling Stanford v. Kentucky, 492 U.S. 361, 109 S.
Ct. 2969, 106 L. Ed. 2d 306 [1989], in prohibiting execu-
tion of individuals who were under eighteen years old
when they committed capital crime); Atkins v. Vir-
ginia, supra, 536 U.S. 321 (overruling Penry v.
Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d
256 [1989], in holding that execution of intellectually
disabled individuals is unconstitutional). But that is the
law of the land, both federally and in Connecticut. In
the case of the death penalty, the past several years
have witnessed dramatic changes in the legal landscape,
most significant of which was the decision by the
elected branches to abolish capital punishment for all
future offenses. Whatever role the death penalty may
once have played in our system of justice, it is clear
that our elected representatives, acting on behalf of the
people of this state, have repudiated the death penalty
as a sentencing option unworthy of continued sup-
port.115
C
Whether Deference to the Legislature Requires
That We Uphold P.A. 12-5
We next address the argument of the dissenting jus-
tices that, in holding that the death penalty now violates
the constitution of Connecticut, we have failed to pay
adequate deference to the will of the legislature. Each
of the dissenting justices argues, in essence, that a
reviewing court is bound to accept what the dissenting
justices maintain to be the judgment of the legislature—
that the death penalty comports with contemporary
standards of decency and serves legitimate penological
interests—and that to do otherwise is to usurp the
proper role of the legislature in order to advance judges’
personal moral agendas.116 We already have rejected
this argument in State v. Ross, supra, 230 Conn. 248–49,
however, recognizing that it fundamentally misunder-
stands the well established function and role of judicial
review in the capital sentencing context.
We begin by reiterating that, although the legislature
voted to abolish capital punishment on a solely prospec-
tive basis, this by no means reflects or embodies a
determination that the death penalty remains consonant
with contemporary standards of decency and continues
to serve the goal of deterrence or retribution. The pro-
spective nature of P.A. 12-5 instead appears to reflect
a belief on the part of some legislators that prior com-
mitments the state has made to relatives of murder
victims justify the retention of capital punishment for
use in those cases. Capital punishment may, in other
words, simply be the lesser of two evils. Public Act 12-
5 also likely reflects a purely political decision to placate
the public’s desire to exact vengeance on certain notori-
ous inmates, while passing along to this court the task of
finally decommissioning the state’s machinery of death.
There is abundant evidence in the legislative history to
support both of these interpretations. See parts II B
and III C of this opinion.
If we assume, for the sake of argument, however,
that a majority of the legislature has in fact determined
that capital punishment remains a morally acceptable
punishment that serves legitimate penological interests,
the question arises as to the proper scope of this court’s
review. It is well established that, under both the federal
and state constitutions, a criminal sentence challenged
as unconstitutionally excessive or disproportionate
must undergo two stages of judicial review. First, the
reviewing court determines whether the punishment
offends contemporary standards of decency, as evi-
denced by the various factors discussed in part II of
this opinion. Legislative enactments are one of those
considerations, but certainly not the only one. Second,
the court is required to exercise its own independent
judgment as to whether the punishment remains suit-
able to the crime and continues to serve any legitimate
penological purpose. As the United States Supreme
Court explained in Atkins v. Virginia, supra, 536 U.S.
304, although the current legislative judgment is of great
importance, ‘‘the [c]onstitution contemplates that in the
end our own judgment will be brought to bear on the
question of the acceptability of the death penalty under
the [e]ighth [a]mendment.’’ (Internal quotation marks
omitted.) Id., 312. A punishment, therefore, must satisfy
both levels of review to survive constitutional scrutiny.
Such scrutiny is especially critical in the present case
because, to our knowledge, we are the first court in
the modern era to comprehensively address the issue
of whether the death penalty can remain consonant
with society’s evolving standards of decency and serve
legitimate penological interests following a prospective
only repeal.
Although Chief Justice Rogers concedes, as she must,
that a challenged punishment is subject to this type of
close judicial scrutiny, she nevertheless maintains that,
because the constitutional authority to define crimes
and to fix the degree and method of punishment belongs
to the legislature, once the legislature has determined
that a particular punishment is appropriate and morally
acceptable, that determination is, essentially, disposi-
tive. If that were the case, then judicial review would
be a weak tea indeed. When an appellate court is asked
to pass on the constitutionality of a mode of punish-
ment, it is, almost invariably, after a defendant has been
found guilty of a crime and sentenced in accordance
with a duly enacted penal statute. If the fact that an
elected legislature had authorized and enacted the pun-
ishment in question were enough to insulate it from
judicial scrutiny, then the freedom from cruel and
unusual punishment would be a hollow one. See People
v. Anderson, supra, 6 Cal. 3d 640 (‘‘[w]ere it otherwise,
the [l]egislature would ever be the sole judge of the
permissible means and extent of punishment and . . .
the [c]onstitution would be superfluous’’ [citation omit-
ted]). ‘‘We know that the [f]ramers did not envision so
narrow a role for this basic guaranty of human rights.’’
(Internal quotation marks omitted.) District Attorney
v. Watson, supra, 381 Mass. 662.
In dismissing the United States Supreme Court’s
repeated statements as to the importance of this inde-
pendent judicial review process, Chief Justice Rogers
fails to explain why the high court would continue to
emphasize that ‘‘[t]he [c]onstitution contemplates that
in the end our own judgment will be brought to bear on
the question of the acceptability of the death penalty’’;
(internal quotation marks omitted) Hall v. Florida,
supra, 134 S. Ct. 1999; and that ‘‘[t]hat exercise of inde-
pendent judgment is the [c]ourt’s judicial duty’’; id.,
2000; if that were not the law. Instead, Chief Justice
Rogers merely queries how truly independent judicial
review of an allegedly cruel and unusual punishment
can be reconciled with the observation by that court, in
a 1989 decision, that, ‘‘ ‘[i]n determining what standards
have ‘‘evolved’’ . . . [the court has] looked not to [its]
own conceptions of decency, but to those of modern
American society as a whole.’ ’’ Footnote 33 of Chief
Justice Rogers’ dissenting opinion, quoting Stanford v.
Kentucky, supra, 492 U.S. 369. Of course, we do not
disagree with the cited language from Stanford insofar
as independent judicial review must stand on the court’s
principled consideration of the available evidence
regarding a punishment’s penological merits, rather
than the personal predilections of individual judges.
The short answer to Chief Justice Rogers’ question,
however, is that Stanford, which was an outlier at the
time it was decided, subsequently was overruled by
Roper v. Simmons, supra, 543 U.S. 574–75, 578, and is
no longer good law. See id., 574 (overruling holding of
Stanford that persons under eighteen years of age at
time of capital offense may be executed and explaining
that, ‘‘to the extent Stanford was based on a rejection
of the idea that [the] [c]ourt is required to bring its
independent judgment to bear on the proportionality
of the death penalty for a particular class of crimes or
offenders . . . it suffices to note that this rejection was
inconsistent with prior [e]ighth [a]mendment deci-
sions’’ [citations omitted]). In fact, in Roper, the court
took pains to reiterate that ‘‘[t]he beginning point is a
review of objective indicia of consensus, as expressed
in particular by the enactments of legislatures that have
addressed the question. These data give us essential
instruction. We then must determine, in the exercise
of our own independent judgment, whether the death
penalty is a disproportionate punishment . . . .’’
(Emphasis added.) Id., 564.
In reality, the United States Supreme Court has, on
multiple occasions, held that punishments that were
duly enacted by democratically elected legislatures
were nevertheless unconstitutionally excessive and dis-
proportionate under this standard. See, e.g., Hall v.
Florida, supra, 134 S. Ct. 1990, 2001 (holding that Flor-
ida law foreclosing further exploration of capital defen-
dant’s intellectual disability if his IQ score is more than
seventy violated eighth amendment); Thompson v.
Oklahoma, supra, 487 U.S. 838 (declaring as unconstitu-
tional death penalty for offender who was under sixteen
years old when he committed capital offense). Indeed,
there are numerous cases in which that court and other
federal and state courts have held democratically
enacted criminal sanctions to be devoid of penological
value, and thus unconstitutionally excessive, without
relying on any predicate finding that those sanctions
had lost their popular support. See, e.g., Solem v. Helm,
463 U.S. 277, 281, 292–94, 303, 103 S. Ct. 3001, 77 L. Ed.
2d 637 (1983) (concluding that courts are competent
to apply ‘‘generally accepted criteria’’ to assess indepen-
dently relative severity of criminal offenses and senten-
ces for purposes of eighth amendment proportionality
analysis, and holding that sentence of life imprisonment
for writing $100 check with intent to defraud was uncon-
stitutionally excessive); Furman v. Georgia, supra, 408
U.S. 239–40 (holding death penalty unconstitutional as
then applied in Georgia and Texas, even though forty-
one state legislatures had approved of its use and polling
data was mixed); Robinson v. California, 370 U.S. 660,
667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (holding that
California statute authorizing jail sentence for narcotics
addiction inflicted cruel and unusual punishment in
violation of eighth and fourteenth amendments); Weems
v. United States, supra, 217 U.S. 357–58, 367, 377 (con-
cluding that traditional Philippine punishment of years
of hard and painful labor was unconstitutionally exces-
sive punishment for crime of falsifying public docu-
ment, even if punishment conformed to customs, habits,
and prejudices of resident population, and that punish-
ment would have been excessive even if authorized by
federal law); People v. Anderson, supra, 6 Cal. 3d 641
(holding that capital punishment violated state constitu-
tion and explaining that court ‘‘would abdicate [its]
responsibility to examine independently the question
were [its] inquiry to begin and end with the fact that
statutory provisions authorizing [the] imposition of the
death penalty have been recently enacted’’); see also
Kennedy v. Louisiana, supra, 554 U.S. 461 (Alito, J.,
dissenting) (indicating that court had exercised its own
independent judgment in holding that death penalty
was excessive and disproportionate penalty for rape of
child); Kennedy v. Louisiana, 554 U.S. 945, 129 S. Ct.
1, 171 L. Ed. 2d 932 (2008) (Scalia, J., respecting the
denial of rehearing) (observing that court in Kennedy
had exercised its own judgment while noting that par-
ties had failed to call court’s attention to fact that Con-
gress and the president recently had reauthorized death
penalty for military personnel convicted of child rape).
Despite her attempt to distinguish each of these cases,
Chief Justice Rogers simply cannot wipe away a century
of eighth amendment jurisprudence.
Nor has the United States Supreme Court ever
reviewed an eighth amendment challenge under the
highly deferential rational basis standard that Chief Jus-
tice Rogers would apparently have this court apply. As
Justice White explained in Furman, ‘‘[j]udicial review,
by definition, often involves a conflict between judicial
and legislative judgment as to what the [c]onstitution
means or requires. . . . It seems conceded by all that
. . . there are punishments that the [eighth] [a]mend-
ment would bar whether legislatively approved or not.
Inevitably, then, there will be occasions when [the
court] will differ with Congress or state legislatures
with respect to the validity of punishment.’’ Furman v.
Georgia, supra, 408 U.S. 313–14 (White, J., concurring).
Chief Justice Rogers may not agree that courts should
play such a critical role in securing the people’s freedom
from cruel and unusual punishment, but that is the law
of the land. See Glossip v. Gross, supra, 135 S. Ct. 2776
(Breyer, J., dissenting) (court, not legislature, ultimately
must determine whether capital punishment comports
with evolving standards of decency because ‘‘[these]
are quintessentially judicial matters . . . [that] con-
cern the infliction—indeed the unfair, cruel, and
unusual infliction—of a serious punishment [on] an
individual’’).
Finally, it would be difficult to imagine a case in
which the argument for legislative deference is weaker
than in the present case. The death penalty is a punish-
ment that Connecticut has imposed on fewer than two
dozen occasions over the past one-half century, and it
has been carried out only once during that time frame.
The penalty has been abolished by most of our neigh-
boring states, and, after years of repeal efforts, our
legislature and governor have now followed suit, abol-
ishing it for all future crimes. Capital punishment has
been preserved, then, only on a provisional basis, and
only for a handful of current death row inmates. More-
over, the legislative history suggests that many legisla-
tors would have supported a full repeal and that those
who voted to retain the death penalty on a retroactive
basis may well have done so in the belief that this court
would not permit any further executions to be carried
out, as this state’s chief prosecutor himself predicted.
See part II B of this opinion; see also footnotes 1, 59
and 60 of this opinion and accompanying text. In short,
the legislature could not have come any closer to fully
abolishing capital punishment without actually doing
so. We perceive no ringing legislative endorsement of
the death penalty in Connecticut.
V
CONCLUSION
In prospectively abolishing the death penalty, the leg-
islature did not simply express the will of the people
that it no longer makes sense to maintain the costly and
unsatisfying charade of a capital punishment scheme in
which no one ever receives the ultimate punishment.
Public Act 12-5 also held a mirror up to Connecticut’s
long, troubled history with capital punishment: the
steady replacement by more progressive forms of pun-
ishment; the increasing inability to achieve legitimate
penological purposes; the freakishness with which the
sentence of death is imposed; the rarity with which it is
carried out; and the racial, ethnic, and socio-economic
biases that likely are inherent in any discretionary death
penalty system. Because such a system fails to comport
with our abiding freedom from cruel and unusual pun-
ishment, we hold that capital punishment, as currently
applied, violates the constitution of Connecticut.
The judgment is reversed with respect to the imposi-
tion of a sentence of death and the case is remanded
with direction to impose a sentence of life imprison-
ment without the possibility of release; the judgment
is affirmed in all other respects.
In this opinion NORCOTT, EVELEIGH and McDON-
ALD, Js., concurred.
* This opinion supplements the opinion of this court in State v. Santiago,
305 Conn. 101, 49 A.3d 566 (2012) (Santiago I), which was released on June
12, 2012. The judgment rendered herein, however, supersedes the judgment
in Santiago I.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
1
In March, 2009, when he testified before the Judiciary Committee as to
the constitutionality of a bifurcated, prospective only repeal, Kane stated
that ‘‘[t]he [s]tate could not and would not, could not constitutionally and
would not as a matter of public policy seek to execute somebody for a
crime they committed today when they could not be executed for committing
the same crime tomorrow. I don’t think that would stand up as a matter of
constitutional law. I don’t think the courts would permit that . . . .’’ Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 8, 2009 Sess., p. 2403.
‘‘[I]f this [legislature] decides to abolish the death penalty for a crime that’s
committed later on,’’ he continued, ‘‘I think the Connecticut Supreme Court
would decide . . . in effect that the community standard is such that this
is now cruel and unusual punishment.’’ Id., p. 2412. For that reason, Kane
advised the legislature that the passage of a prospective only repeal ‘‘would
actually nullify the death penalty for anybody who has not yet been exe-
cuted.’’ Id., p. 2403. Kane’s substantially similar 2012 testimony regarding
the constitutional defects inherent in a prospective only repeal is discussed
in part II B of this opinion.
2
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2009 Sess.,
p. 2716.
3
Hereinafter, all references to § 53a-54b are to the 1999 revision, unless
otherwise noted.
4
The jury also found the defendant guilty of one count each of murder,
felony murder, conspiracy to commit murder, stealing a firearm, and larceny
in the sixth degree, and two counts each of burglary in the first degree and
conspiracy to commit burglary in the first degree. The murder and felony
murder counts were merged with the capital felony count for purposes
of sentencing.
5
In addition to the sentence of death, the trial court also imposed a total
effective term of imprisonment of forty-five years and ninety days on the
remaining charges of which the defendant was convicted; see footnote 4 of
this opinion; to run consecutive to the death sentence.
6
Our determination that the defendant must be sentenced on the capital
felony count to life imprisonment without the possibility of release has no
bearing on the sentence imposed by the trial court on the remaining charges.
See footnote 5 of this opinion.
7
In a footnote, the author of the majority opinion in Santiago I, Justice
Norcott, expressed that he maintained his long-standing belief that the death
penalty is a violation of the state constitution, and that he was able to author
the majority opinion only because there was a possibility that, on remand,
the defendant would not be sentenced to death. State v. Santiago, supra,
305 Conn. 307 n.166.
8
Thereafter, we granted permission to a group of experts on international
human rights and comparative law, a group of legal historians and scholars,
and the American Civil Liberties Union Foundation of Connecticut to file
amicus briefs in support of the defendant’s position, and permission to the
Criminal Justice Legal Foundation to file an amicus brief in support of the
state’s position. We also issued an order requesting supplemental briefs
from the parties to address a then unpublished paper in which the author
asserted that the death penalty may be imposed for crimes committed before
April 25, 2012, as provided in P.A. 12-5. See K. Barry, From Wolves, Lambs:
The Case for Gradual Abolition of the Death Penalty (preliminary working
draft), subsequently published at K. Barry, ‘‘From Wolves, Lambs (Part I):
The Eighth Amendment Case for Gradual Abolition of the Death Penalty,’’
66 Fla. L. Rev. 313 (2014). The defendant filed a second supplemental brief
addressing the paper, but the state declined to do so.
9
The defendant also claims that imposing the death penalty on a person,
such as the defendant, who committed a capital felony before April 25, 2012,
would (1) be arbitrary, in violation of General Statutes § 53a-46b (b), (2)
violate the equal protection guarantees of the federal and state constitutions,
(3) violate the substantive due process guarantees of the federal and state
constitutions, (4) violate the federal constitutional prohibition against bills
of attainder, (5) violate the federal constitutional prohibition against ex post
facto laws, and (6) violate the provision of article first, § 9, of the constitution
of Connecticut barring punishments ‘‘except in cases clearly warranted by
law.’’ Because we conclude that the state constitutional prohibition against
cruel and unusual punishment no longer permits the imposition of the death
penalty, we need not address these claims. Certain of these claims are
addressed, however, in Justice Eveleigh’s concurring opinion and Chief
Justice Rogers’ dissenting opinion.
10
We address certain other, more specific objections of the dissenting
justices throughout this opinion.
11
It has been argued that, when an appellant challenges a statute or
practice under both the state and federal constitutions, this court should
first consider the state claims, turning to the federal claim only after
determining that the appellant’s state constitutional challenges will not suc-
ceed. See W. Horton, The Connecticut State Constitution (2d Ed. 2012) p.
37. This approach is particularly apt when, as in the present case, the claim
is one of first impression under both the federal and state constitutions.
Accordingly, we will evaluate and resolve the defendant’s claim under the
state constitution. Because the legal framework that we apply with respect
to allegedly cruel and unusual punishments is not fundamentally distinct
from that adopted by the United States Supreme Court, we have no reason
to believe that the eighth amendment would compel a different result. In
any event, because the defendant prevails under the state constitution, we
need not speculate as to how that court might resolve his federal claims or
decide whether the state constitution provides broader protection than the
federal constitution in this regard.
12
The relevant portions of article first, §§ 8 and 9, of the Connecticut
constitution of 1965 are derived almost verbatim from article first, §§ 9, 10
and 13, of the Connecticut constitution of 1818. See State v. Joyner, 225
Conn. 450, 486 and n.5, 625 A.2d 791 (1993) (Berdon, J., dissenting) (compar-
ing article first, §§ 8 and 9, of Connecticut constitution of 1965 with article
first, §§ 9 and 10, of Connecticut constitution of 1818); see also Conn. Const.
(1818), art. I, § 13.
Article first, § 8, of the Connecticut constitution of 1965, as amended by
article seventeen of the amendments, provides in relevant part: ‘‘No person
shall be . . . deprived of life, liberty or property without due process of
law, nor shall excessive bail be required nor excessive fines imposed. No
person shall be held to answer for any crime, punishable by death or life
imprisonment, unless upon probable cause shown at a hearing in accordance
with procedures prescribed by law . . . .’’
Although article twenty-nine of the amendments amended article seven-
teen of the amendments in 1996, article twenty-nine did not amend the
foregoing language.
Article first, § 9, of the Connecticut constitution of 1965 provides: ‘‘No
person shall be arrested, detained or punished, except in cases clearly
warranted by law.’’
13
This ordering of the Geisler factors reflects the order in which we
consider them for purposes of the present case and does not necessarily
reflect their relative importance generally.
14
In some of our decisions, we have utilized the multifactor Geisler analy-
sis to flesh out the general nature and parameters of the state constitutional
provision at issue. Having done so, we proceeded to resolve the appellant’s
particular constitutional challenge according to the legal test and framework
relevant and suited to that area of the law, rather than performing the
substantive legal analysis under the somewhat artificial auspices of the six
Geisler factors. See, e.g., State v. Linares, 232 Conn. 345, 379–87, 655 A.2d
737 (1995) (concluding, on basis of Geisler factors, that state constitution
affords expansive protection to free speech in public places but then conclud-
ing that challenged statute did not infringe impermissibly on those protec-
tions under facts presented). In other cases, by contrast, we have used the
Geisler framework to perform the actual substantive legal analysis. See,
e.g., State v. Rizzo, 303 Conn. 71, 135–45, 31 A.3d 1094 (2011) (Rizzo II)
(evaluating challenges to death penalty according to six Geisler factors),
cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012); see also
State v. Ross, supra, 230 Conn. 249–51. In the present case, we follow
the former approach because, as we explain more fully hereinafter, the
constitutionality of a criminal sanction, like the constitutionality of a limita-
tion on the free expression at issue in Linares, is governed by its own
distinct legal rules and standards. Accordingly, assuming that the Geisler
framework is even applicable to the ultimate question of whether the death
penalty now constitutes excessive and disproportionate punishment follow-
ing the enactment of P.A. 12-5; cf. Kerrigan v. Commissioner of Public
Health, 289 Conn. 135, 227, 957 A.2d 407 (2008) (undertaking Geisler analysis
following conclusion that plaintiffs met state constitutional standard applica-
ble for determining quasi-suspect class status); our consideration of the
relevant Geisler factors is interwoven into our application of the legal frame-
work that properly governs such challenges. See parts II and III of this
opinion.
15
The eighth amendment to the United States constitution provides:
‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’
The cruel and unusual punishments clause of the eighth amendment is
made applicable to the states through the due process clause of the four-
teenth amendment to the United States constitution. See Robinson v. Cali-
fornia, 370 U.S. 660, 666–68, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).
16
In addition, some members of the United States Supreme Court have
suggested that a punishment may be so unusual that it runs afoul of the
eighth amendment on that basis alone. See, e.g., Furman v. Georgia, 408
U.S. 238, 331, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring);
Weems v. United States, 217 U.S. 349, 390, 30 S. Ct. 544, 54 L. Ed. 793 (1910)
(White, J., dissenting). For the most part, however, the court has treated
the term ‘‘unusual’’ as little more than constitutional surplussage. See, e.g.,
Furman v. Georgia, supra, 276–77 n.20 (Brennan, J., concurring) (meaning
of term is of minor significance); Trop v. Dulles, 356 U.S. 86, 100 n.32, 78
S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion) (‘‘[o]n the few occasions
[the] [c]ourt has had to consider the meaning of the phrase [‘unusual’],
precise distinctions between cruelty and unusualness do not seem to have
been drawn’’).
17
It is well established, however, that ‘‘[t]he adoption of federal constitu-
tional precedents that appropriately illuminate open textured provisions in
our own organic document in no way compromises our obligation indepen-
dently to construe the provisions of our state constitution.’’ State v. Lamme,
supra, 216 Conn. 184. Accordingly, we are not necessarily bound, for state
constitutional purposes, to reach the same conclusions as the United States
Supreme Court has with regard to any particular punishment or legal
challenge.
As we previously indicated; see footnote 11 of this opinion; because the
present appeal presents an issue that, to our knowledge, is a question of
first impression not only in Connecticut but also for the federal courts, we
need not determine, in resolving the defendant’s state constitutional claims,
whether the state constitution affords broader protections against cruel
and unusual punishment than does the eighth amendment. Even if those
protections are merely coextensive, however, we note that, in another case,
this court nevertheless might conclude that practices and punishments that
the United States Supreme Court has expressly approved are nevertheless
unconstitutionally cruel and unusual in Connecticut. This might be true
either because our state’s contemporary standards of decency differ from
those of the nation as a whole, or because this court simply reaches a
different conclusion when applying to the relevant constitutional facts, as
a matter of state constitutional law, standards similar or even identical to
those that the United States Supreme Court has articulated.
18
Some justices of the United States Supreme Court have suggested that
these considerations—whether a punishment is excessive or disproportion-
ate, whether it comports with contemporary standards of decency and dig-
nity, and whether it satisfies any legitimate penological goals—represent
three distinct elements or prongs of the eighth amendment analysis. See,
e.g., Furman v. Georgia, 408 U.S. 238, 330–32, 92 S. Ct. 2726, 33 L. Ed.
2d 346 (1972) (Marshall, J., concurring). Whether these considerations are
treated as distinct elements or merely as distinct components of a common
element, however, is merely semantic and ultimately immaterial, because
it is clear that a sentence’s failure to satisfy any of these requirements would
render it unconstitutional under the eighth amendment.
19
In Davis v. Connecticut, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750
(1972), and Delgado v. Connecticut, 408 U.S. 940, 92 S. Ct. 2879, 33 L. Ed.
2d 764 (1972), both memorandum decisions, the United States Supreme
Court struck down a prior incarnation of Connecticut’s capital punishment
scheme as facially unconstitutional because it failed to comply with these
requirements.
20
See footnote 44 of this opinion (noting cases in which this court has
permitted citation to extra-record reference materials, including state histor-
ies, as evidence of contemporary societal norms or to advocate for new
interpretation of state constitution).
21
With respect to the Connecticut constitution of 1965, see footnote 31
of this opinion.
We acknowledge that both the 1818 and 1965 Connecticut constitutions
make express reference to capital punishment and that such punishment
no doubt was considered constitutional at the time of their adoption. In
part IV B of this opinion, we explain why that historical acceptance does
not alter our conclusion that capital punishment no longer comports with
contemporary standards of decency or serves a legitimate penological pur-
pose in Connecticut.
22
This provision was retained in the 1702 laws; see Acts and Laws, of His
Majesties Colony of Connecticut in New-England (1702) p. 98; but was left
out of the 1784 laws in keeping with the general sentiment of that time that
such protections were not properly the subject of written legal codes.
23
In addition to recognizing the freedom from cruel, inhuman, and barba-
rous punishments, the 1672 code also guaranteed those accused of capital
offenses the right to a trial by jury and provided for a special jury of life
and death. See W. Holdsworth, supra, p. 581.
24
In her dissenting opinion, Chief Justice Rogers chides our use of terms
such as ‘‘progress’’ and ‘‘progressive,’’ implying that we improperly have
exceeded our constitutional mandate and embraced a progressive socio-
political viewpoint. (Internal quotation marks omitted.) Footnote 12 of Chief
Justice Rogers’ dissenting opinion. Nothing could be further from the truth.
The United States Supreme Court has instructed, on literally dozens of
occasions, that, in construing the eighth amendment, courts must look to
‘‘the evolving standards of decency that mark the progress of a maturing
society.’’ (Emphasis added; internal quotation marks omitted.) Hall v. Flor-
ida, supra, 134 S. Ct. 1992; accord Trop v. Dulles, 356 U.S. 86, 101, 78 S.
Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion); see also Weems v. United
States, 217 U.S. 349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (‘‘[the eighth
amendment] in the opinion of the learned commentators may be therefore
progressive, and is not fastened to the obsolete, but may acquire meaning
as public opinion becomes enlightened by a humane justice’’ [emphasis
added]). Indeed, Chief Justice Rogers acknowledges shortly thereafter in
her dissenting opinion that this is the governing federal standard. See text
accompanying footnote 15 of Chief Justice Rogers’ dissenting opinion. Fur-
thermore, in more than twenty of our cases, including four capital appeals,
this court has recognized that ‘‘our state constitution is an instrument of
progress . . . .’’ (Emphasis added; internal quotation marks omitted.) State
v. Rizzo, supra, 266 Conn. 207; accord State v. Webb, 238 Conn. 389, 411,
680 A.2d 147 (1996); State v. Ross, supra, 230 Conn. 248; State v. Dukes, 209
Conn. 98, 115, 547 A.2d 10 (1988). Both state and federal constitutional
jurisprudence, then, has been marked by the use of such language. In the
present case, we likewise use the term ‘‘progressive’’ in its established
constitutional, rather than political, sense. We do agree with Chief Justice
Rogers, however, that, although the arc of our history in this regard is both
clear and profound, there is no constitutional mandate that our state’s
criminal law become increasingly compassionate.
25
For nearly one century after the adoption of the English Declaration of
Rights of 1689, for instance, ‘‘the law of Great Britain condemned a prisoner
who refused to plead to be slowly pressed to death by weights placed [on]
his chest.’’ Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun
eds., 1895) p. 63; see also W. Holdsworth, supra, p. 356 (mutilating punish-
ments were imposed far less frequently in seventeenth century Massachu-
setts and, especially, in Connecticut, than in England); W. Holdsworth,
supra, p. 361 (England permitted more extensive and more brutal corporal
punishment than Connecticut in mid-seventeenth century); W. Holdsworth,
supra, pp. 431–32, 568 (capital punishment was considerably rarer in New
England than in England, where theft of as little as one shilling constituted
capital crime); W. Holdsworth, supra, p. 569 (‘‘[t]he courts and legislatures
of Connecticut and New Haven succeeded in creating a more equitable and
less brutal system of criminal justice than that of England’’).
26
For example, a second wave of immigration brought new residents to
Connecticut during this period, significantly expanding the colonial popula-
tion. These immigrants did not share the founding generation’s vision of
Connecticut as a ‘‘new Israel under a new covenant,’’ committed to observing
and strictly enforcing the judicial laws of Moses. W. Holdsworth, supra, p.
124; see id., pp. 532–34, 579–81. Whereas their predecessors were preoccu-
pied with the moral aspects of sinfulness, the new citizens were more
concerned with addressing the practical consequences of crime. See id., p.
518. This ‘‘erosion of moral outrage’’ left the public less convinced of the
need for strict punishment in many cases and resulted in more lenient public
sentiment toward a number of crimes. Id., p. 518; see id., p. 576.
27
In 1666, for example, a special court of assistants at Governor Winthrop’s
urging overruled Hannah Hackleton’s death sentence for blasphemy. See
W. Holdsworth, supra, p. 381. The same year, in the case of Elizabeth Seager,
Governor Winthrop himself directly overturned a capital sentence, this time
for witchcraft, and ordered the defendant freed. See id., pp. 519–20. Seager
is believed to have been the first convicted witch to have escaped the gallows
in Connecticut. See id., p. 520. Four years later, a specially appointed court
released another woman who had been sentenced to die for witchcraft. See
id., pp. 520–21. Katherine Harrison’s case is noteworthy as the first instance
in which a Connecticut court reversed a jury conviction in a capital case.
See id., p. 521.
28
That such punishments had come to be seen as cruel in Connecticut is
apparent from the case of Polly Rogers, a Native American who petitioned
the legislature for redress in 1815 after having been convicted of adultery
and sentenced to whipping and branding. L. Goodheart, supra, p. 78. ‘‘In
keeping with the sensibility of the age,’’ Professor Lawrence B. Goodheart
recounts, ‘‘she protested the ‘cruel punishment of being branded with a hot
iron.’ ’’ Id. The legislature granted her request and spared her. Id.
Moreover, although Newgate hardly would have met modern standards
for the treatment of inmates, records from Connecticut’s preconstitutional
period clearly indicate that the legislature was concerned that prisoners
not be treated cruelly. In 1809, the legislature appointed a committee that
considered, and ultimately enacted, the governor’s recommendation that
the prisoners in Newgate would benefit from religious instruction. See 1
Crimes and Misdemeanors, 2d Series (1809) pp. 95a–96a. The following year,
a second committee was appointed to evaluate the condition of the prison’s
inmates. See 1 Crimes and Misdemeanors, 2d Series (1810) p. 97a. On the
basis of the resulting report, the legislature directed Newgate’s overseers
to provide the prisoners with a more diverse diet and to ensure that suitable
bathing places were provided. See id., pp. 99d–99e, 99z, 100a. At the same
time, the legislature resolved to prohibit ‘‘unnecessary and cruel punish-
ments’’ within the facility. Id., p. 100a. In 1815, just three years before the
adoption of the state constitution, a legislative committee went even further,
condemning the practice of whipping at Newgate as ‘‘incompatible with
. . . decency and humanity,’’ and beginning to plan for the construction of
a new state prison. 1 Crimes and Misdemeanors, 2d Series (1815) pp. 153a,
154c; see also 2 Z. Swift, A Digest of the Laws of the State of Connecticut
(1823) pp. 268–69 (‘‘and though the law invests [jailers] with all the powers
necessary for the interest of the commonwealth, yet they are not to behave
with the least degree of wanton cruelty to their prisoners’’).
29
The fact that Swift later repudiated some of his more progressive peno-
logical views is of little moment. Swift did not begin to author his Digest
of the Laws of the State of Connecticut until after he stepped down as
Chief Justice in 1819; P. O’Sullivan, ‘‘Biographies of Connecticut Judges I:
Zephaniah Swift,’’ 19 Conn. B.J. 181, 190–91 (1945); and it was in that work
that he embraced a more severe philosophy of punishment. Indeed, in State
v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), we recognized that it was Swift
himself who, having inveighed against the barbaric and medieval forms of
punishment of the past; id., 450 n.13; impressed on the legislature in the
early 1820s to adopt ‘‘more rational and consistent laws’’ that would ‘‘propor-
tion the punishment according to the nature and grade of the crime . . . .’’
(Internal quotation marks omitted.) Id., 451 n.13.
30
Justice Zarella is simply incorrect, then, when, in his dissenting opinion,
he contends that ‘‘[w]hat is striking thing about this case . . . is the lack
of any suggestion by the legislature . . . that the imposition of the death
penalty was wrong.’’
31
Although we look primarily to our state’s preconstitutional traditions
and the history and intent of the drafters of the 1818 constitution to parse
the meanings of article first, §§ 8 and 9; see State v. Joyner, 225 Conn.
450, 486–87, 625 A.2d 791 (1993) (Berdon, J., dissenting); it also may be
appropriate to consider how the 1818 provisions were interpreted in 1965,
when they were incorporated into the state’s present constitution. See W.
Horton, The Connecticut State Constitution (2d Ed. 2012) pp. 33–34. By that
time, attitudes toward the purpose and permissible scope of punishment in
Connecticut had, of course, evolved even further, in ways that are too
numerous to count. Perhaps the clearest example of this evolution may be
seen in the state prison in Somers, which replaced the Wethersfield facility
shortly before the new constitution was adopted. See G. Demeusy, ‘‘State
Dedicates New Prison with Note of Hope for Future,’’ Hartford Courant,
February 16, 1964, p. 15B; G. Demeusy & J. Tucker, ‘‘400 Convicts Are Moved
to New Somers Prison,’’ Hartford Courant, November 6, 1963, p. 1. At a
dedication ceremony in 1964, the new facility was described as ‘‘a symbol
of progress, a gateway to penal reform . . . .’’ (Internal quotation marks
omitted.) ‘‘Penal Outlook Hailed at State Prison Ceremony,’’ Hartford
Courant, February 15, 1964, p. 4. Speaking at the dedication, Warden Freder-
ick G. Reincke hailed the Somers prison as ‘‘the beginning of a new era
. . . primarily devoted to preparing inmates for adjusting to community
living and responsibility when they are released.’’ (Internal quotation marks
omitted.) Id. According to Reincke, ‘‘[t]he days of revenge imprisonment in
Connecticut [were] over.’’ Id.
The chairman of the prison’s board of directors, Charles Stroh, concurred,
explaining that ‘‘we . . . have launched a rehabilitation [facility] that cen-
ters not around retribution and punishment, but the individual training and
treatment of inmates.’’ (Internal quotation marks omitted.) G. Demeusy,
supra, p. 15B. This new penal philosophy, he explained, reflected an emerging
public ‘‘realization that there’s something more to penology than simply
locking up the lawbreakers.’’ Id. Stroh further explained: ‘‘There is punish-
ment—but it’s punishment for a purpose and it is accepted by the inmates
as a part of their rehabilitation . . . .’’ (Internal quotation marks omitted.)
Id. For his part, Governor John Dempsey opined that the new state prison
was ‘‘wholly in keeping with modern penology, [and] maintain[ed] Connecti-
cut’s reputation as a state that is forward-looking and progressive in all
fields of human endeavor.’’ (Internal quotation marks omitted.) Id. To the
extent that conceptions of cruel and unusual punishment prevalent at the
drafting of the 1965 state constitution are relevant to the Geisler analysis,
then, there is no doubt that our state’s understanding of the permissible
nature and purposes of punishment had undergone a thorough transfor-
mation.
32
Connecticut ultimately approved the federal Bill of Rights in 1939, 150
years after its submission to the states for ratification in 1789. P. Maier,
Ratification: The People Debate the Constitution, 1787–1788 (2010) p. 459.
33
The opinions of the dissenting justices reveal the prescience of these
fears.
34
In State v. Rizzo, 303 Conn. 71, 142, 31 A.3d 1094 (2011) (Rizzo II),
cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), we therefore
identified Rizzo I as a case, albeit a rare one, in which we had treated the
state constitution as providing greater protection to capital defendants than
the federal constitution in concluding that the jury must find beyond a
reasonable doubt that the aggravating factors outweigh mitigating factors
in order for the death penalty to be imposed. Several members of this court,
in dissent, also have determined that the state constitution affords broader
protection from cruel and unusual punishment. See, e.g., State v. Santiago,
supra, 305 Conn. 309 (Harper, J., concurring in part and dissenting in part);
State v. Rizzo, supra, 303 Conn. 202–203 (Norcott, J., dissenting); State v.
Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., dissenting), cert.
denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Webb,
238 Conn. 389, 551, 680 A.2d 147 (1996) (Berdon, J., dissenting). As we have
explained, however, the present case does not require that we determine
whether the state constitution affords greater protection than the federal
constitution with respect to cruel and unusual punishment.
35
In his dissenting opinion, Justice Zarella refuses to acknowledge that,
in Rizzo II, we adopted and applied the federal courts’ eighth amendment
framework for evaluating challenges to the death penalty and other allegedly
cruel and unusual punishments. He does so despite language in that decision
that clearly indicates our adherence to the federal framework. See, e.g.,
State v. Rizzo, supra, 303 Conn. 191 (‘‘[a]lthough the clearest and most
reliable objective evidence of contemporary values is the legislation enacted
by the country’s legislatures . . . Atkins v. Virginia, supra, 536 U.S. 312;
in assessing whether a punishment is constitutionally sound, it also is appro-
priate for us to consider what is occurring in actual practice’’ [internal
quotation marks omitted]).
36
In Watson, the Supreme Judicial Court of Massachusetts struck down
that state’s death penalty as impermissibly cruel under the state constitution.
District Attorney v. Watson, supra, 381 Mass. 650. In the November, 1982
election, Massachusetts voters approved a referendum amending the state
constitution to permit the state legislature to reinstate capital punishment.
See Commonwealth v. Colon-Cruz, 393 Mass. 150, 152, 470 N.E.2d 116
(1984). No such statute is currently in place.
37
In Anderson, the California Supreme Court struck down that state’s
death penalty as both cruel and unusual. See People v. Anderson, supra, 6
Cal. 3d 651, 656–57. In the November, 1972 election, California voters passed
a ballot initiative amending the California constitution and reinstating capital
punishment. See People v. Frierson, 25 Cal. 3d 142, 173, 599 P.2d 587, 158
Cal. Rptr. 281 (1979).
38
We emphasize that we are not, as Justice Zarella suggests, in any way
conflating the sociological considerations encompassed by the sixth Geisler
factor with the standards by which federal courts have evaluated claims
that a particular punishment is excessive or disproportionate, namely, that
the punishment offends contemporary standards of decency or fails to
accomplish legitimate penological purposes. Those standards are, rather,
the substantive test according to which both this court and the federal
courts evaluate such claims. The Geisler ‘‘test,’’ by contrast, is merely a
scheme by which we organize and review, for purposes of state constitutional
challenges, the various types of considerations that may bear on any question
of first impression.
39
Although Chief Justice Rogers, in her dissenting opinion, suggests that,
because the federal constitution makes express reference to capital offenses,
it is an open question as to whether the federal courts ever would find
the death penalty unconstitutional per se under the evolving standards of
decency rubric, we disagree. In Gregg v. Georgia, supra, 428 U.S. 153, the
United States Supreme Court made clear that even claims that capital punish-
ment is categorically unconstitutional are to be evaluated according to that
rubric, and that the constitutional text is not dispositive. See id., 176–87
(opinion announcing judgment).
40
The majority specifically stated: ‘‘The first five factors do not support
the . . . argument [of the defendant, Michael B. Ross]. In article first, § 8,
and article first, § 19, our state constitution makes repeated textual refer-
ences to capital offenses and thus expressly sustains the constitutional
validity of such a penalty in appropriate circumstances. Connecticut case
law has recognized the facial constitutionality of the death penalty under
the eighth and fourteenth amendments to the federal constitution. . . .
Federal constitutional law does not forbid such a statute outright. . . .
Courts in the overwhelming majority of our sister states have rejected facial
challenges to the death penalty under their state constitutions. Finally,
Connecticut’s history has included a death penalty statute since 1650, when
it was incorporated into Ludlow’s Code . . . and such a penalty was consid-
ered constitutional at the time of the adoption of the constitution of 1818.’’
(Citations omitted; footnotes omitted.) State v. Ross, supra, 230 Conn.
249–50.
41
We note that the dissenting justices, while criticizing our departure from
the court’s discussion of capital punishment in Ross, make no attempt to
defend the adequacy of the analysis therein.
42
In Webb, this court did consider and reject an alternative argument: that
capital punishment violates the social compact clause of article first, § 1,
of the state constitution. State v. Webb, supra, 238 Conn. 406–12.
43
We do not disagree with Chief Justice Rogers that the last two factors—
the laws and practices of other jurisdictions, and the opinions and recom-
mendations of professional associations-—are of less importance, and we
agree that those considerations alone would constitute an insufficient basis
for deeming a punishment cruel and unusual in the absence of any evidence
that it has come to be so in Connecticut. We do, however, disagree with
Chief Justice Rogers’ suggestion in her dissenting opinion that the defendant
has asked that we consider the constitutional implications of the adoption
of P.A. 12-5 in a complete factual and jurisprudential vacuum, ignoring any
and all other evidence that capital punishment no longer comports with
contemporary standards of decency in Connecticut, even insofar as that
evidence pertains to the defendant’s claim that the death penalty is now
unconstitutional in light of P.A. 12-5. In fact, in his brief to this court, the
defendant expressly asked us to consider previous decisions of this court
that explored all of these factors in substantial depth.
44
We previously have permitted citation to extra-record reference materi-
als as evidence of contemporary societal norms or to advocate for a new
interpretation of the state constitution. See, e.g., State v. Rizzo, supra, 303
Conn. 184 n.81; see also Hall v. Florida, supra, 134 S. Ct. 1993–96 (relying
on medical and psychological research in concluding that eighth amendment
does not permit states to adopt rigid rule that individuals with intelligence
quotient [IQ] test scores higher than 70 are precluded from offering other
evidence of mental disability). Notice also may be taken in this context of
treatises reporting the public history of Connecticut. See 1 B. Holden & J.
Daly, Connecticut Evidence (1988) § 31, pp. 128–29. More generally, it is
well established that an appellate court may take notice of ‘‘legislative facts,’’
including historical sources and scientific studies, ‘‘which help determine
the content of law and policy,’’ as distinguished from the ‘‘adjudicative
facts,’’ which concern ‘‘the parties and events of a particular case.’’ (Internal
quotation marks omitted.) Moore v. Moore, 173 Conn. 120, 122, 376 A.2d
1085 (1977); accord State v. Rizzo, supra, 303 Conn. 184 n.81.
45
See Association for the Study of Connecticut History, 2012 Award Recipi-
ents (announcing Goodheart as recipient of 2012 Homer D. Babbidge, Jr.,
Award for best monograph on significant aspect of Connecticut’s history
published in calendar year), available at http://asch-cthistory.org/awards/
2012-recipients (last visited July 27, 2015).
46
Goodheart distinguishes infanticide from homicide in that, from 1699
to 1808, an unmarried woman who lost her infant during childbirth was
legally presumed to have killed the baby to conceal her shame. See L.
Goodheart, supra, p. 20. This presumption of infanticide could be rebutted
if a witness to the birth testified that the baby was stillborn. See id.
47
There is no precedent for Chief Justice Rogers’ contention that legislative
enactments are relevant indicia of evolving standards of decency only to
the extent that they accurately reflect popular opinion. See footnote 33 of
Chief Justice Rogers’ dissenting opinion. On the contrary, the United States
Supreme Court repeatedly has instructed that, for purposes of the eighth
amendment, social mores are to be measured by the legislation enacted by
the elected branches of government, and not according to the shifting winds
of public sentiment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.
Ct. 2934, 106 L. Ed. 2d 256 (1989) (conflicting public sentiment, as expressed
in polls and resolutions, does not evidence contemporary values until
expressed in legislative action), overruled on other grounds by Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); cf. Furman
v. Georgia, supra, 408 U.S. 362 (Marshall, J., concurring).
48
Although Justice Marshall appears to have coined the phrase ‘‘machinery
of death’’ in Rumbaugh v. McCotter, 473 U.S. 919, 921, 105 S. Ct. 3544, 87
L. Ed. 2d 668 (1985) (Marshall, J., dissenting from the denial of certiorari),
it is widely attributed to Justice Blackmun’s famous declaration, shortly
before his retirement from the United States Supreme Court in 1994, that,
‘‘[f]rom this day forward, I no longer shall tinker with the machinery of
death. For more than [twenty] years I have endeavored—indeed, I have
struggled—along with a majority of [the] [c]ourt, to develop procedural and
substantive rules that would lend more than the mere appearance of fairness
to the death penalty endeavor. Rather than continue to coddle the [c]ourt’s
delusion that the desired level of fairness has been achieved and the need
for regulation eviscerated, I feel morally and intellectually obligated simply
to concede that the death penalty experiment has failed. It is virtually self-
evident to me now that no combination of procedural rules or substantive
regulations ever can save the death penalty from its inherent constitutional
deficiencies. The basic question—does the system accurately and consis-
tently determine which defendants deserve to die?—cannot be answered
in the affirmative.’’ (Footnote omitted; internal quotation marks omitted.)
Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435
(1994) (Blackmun, J., dissenting from the denial of certiorari).
49
We fail to understand how Chief Justice Rogers could translate Senator
Kissel’s clear, unequivocal statement about P.A. 12-5 to mean nothing more
than that he thought that ‘‘there was no reliable way to predict the outcome’’
of this court’s review. (Internal quotation marks omitted.) Footnote 26 of
Chief Justice Rogers’ dissenting opinion. If there was any ambiguity in
Senator Kissel’s statement, it surely was resolved by his statement, during a
Judiciary Committee hearing on the proposed repeal legislation, that ‘‘[e]very
expert that I have asked . . . has stated that the evolving societal standards
evinced by a change in the law form . . . very solid grounds under the
cruel and unusual punishment portion of the constitution to support repeal
of [the] death [penalty] for folks sitting on death row when a prospective
bill is passed.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,
2012 Sess., pp. 2549–50.
50
See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 532–33, 593–95, remarks of
Senator Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 661–62, remarks
of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 670–71, remarks of
Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 765, remarks of
Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks
of Senator Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82,
remarks of Senator Edith Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–86,
remarks of Senator Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91,
remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc., Pt. 4, 2012 Sess.,
pp. 1136–37, remarks of Representative Patricia M. Widlitz; 55 H.R. Proc.,
Pt. 4, 2012 Sess., pp. 1250–52, remarks of Representative Roland J. Lemar;
55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1256–57, remarks of Representative
Michael L. Molgano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1258–60, remarks
of Representative Gary A. Holder-Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess.,
pp. 1280–81, remarks of Representative Richard A. Smith; 55 H.R. Proc., Pt.
4, 2012 Sess., pp. 1282–86, remarks of Representative Daniel S. Rovero; 55
H.R. Proc., Pt. 4, 2012 Sess., pp. 1292–94, remarks of Representative Auden
C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1295–96, remarks of Represen-
tative John F. Hennessy; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1310–12, remarks
of Representative Linda M. Gentile; 55 H.R. Proc., Pt. 4, 2012 Sess., pp.
1313–16, remarks of Representative Patricia B. Miller; 55 H.R. Proc., Pt. 4,
2012 Sess., pp. 1317–19, remarks of Representative Lile R. Gibbons; 55 H.R.
Proc., Pt. 4, 2012 Sess., pp. 1340–42, remarks of Representative Philip J.
Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1375–76, remarks of Representative
Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
8, 2012 Sess., pp. 2557–59, remarks of Senator Martin M. Looney; Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2514–16,
2523, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2690–92, remarks of
Representative Charlie L. Stallworth.
51
See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 593–94, remarks of Senator
Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 672–73, remarks of Senator
Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator
Edwin A. Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator
Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 772, remarks of Senator Carlo
Leone; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith
Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator Gayle
Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 801–803, remarks of Senator
Martin M. Looney; 55 S. Proc., Pt. 3, 2012 Sess., p. 812, remarks of Senator
Donald E. Williams, Jr.; 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1002, remarks of
Representative Gerald M. Fox III; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1049–50,
remarks of Representative Terry Backer; 55 H.R. Proc., Pt. 4, 2012 Sess.,
pp. 1090–91, remarks of Representative Mary Mushinsky; 55 H.R. Proc., Pt.
4, 2012 Sess., pp. 1115–16, remarks of Representative John W. Thompson;
55 H.R. Proc., Pt. 4, 2012 Sess., p. 1280, remarks of Representative Richard A.
Smith; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1291–94, remarks of Representative
Auden C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1314–15, remarks of
Representative Patricia B. Miller; Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 8, 2012 Sess., pp. 2514–15, remarks of Senator Williams; Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2690,
remarks of Representative Charlie L. Stallworth; see also 55 S. Proc., Pt. 3,
2012 Sess., pp. 792–93, remarks of Senator Coleman (possibility of error is
reason many legislators supported repeal).
52
See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 594, remarks of Senator Eric
D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle
Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1376, remarks of Representative
Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
8, 2012 Sess., pp. 2515–16, 2527, remarks of Senator Donald E. Williams,
Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p.
2622, remarks of Senator Edwin A. Gomes; Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2691, remarks of Representative
Charlie L. Stallworth; Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 9, 2012 Sess., pp. 2843–44, remarks of Representative Gary A. Holder-
Winfield.
53
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry
B. Gerratana; id., p. 751, remarks of Senator Edwin A. Gomes; id., p. 769,
remarks of Senator Bob Duff; id., pp. 772–73, remarks of Senator Carlo
Leone; id., p. 790, remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc.,
Pt. 4, 2012 Sess., p. 1256, remarks of Representative Michael L. Molgano;
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp.
2516, 2517, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2517, remarks of Senator
Edward Meyer; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,
2012 Sess., pp. 2629–30, remarks of Representative Richard A. Smith.
54
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 747, remarks of Senator Len
Suzio (stating that all members would agree that P.A. 12-5 concerns morality,
not finances); id., p. 757, remarks of Senator Paul R. Doyle (‘‘I consider this
a vote of consci[ence] for all of us’’); id., p. 804, remarks of Senator John
McKinney (‘‘[t]his is in many ways a vote of conscience, a vote of where
your moral compass leads you’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1381,
remarks of Representative Lawrence F. Cafero, Jr. (prospective repeal
implies that ‘‘it is no longer the policy of the [s]tate of Connecticut to take
a life’’); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 593, remarks of Senator
Coleman (observing that capital punishment is matter of principle for many
legislators); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1385, remarks of Representa-
tive J. Brendan Sharkey (debate is about profound moral and ethical ques-
tions). Importantly, although some opponents of P.A. 12-5 chided supporters
for what the opponents characterized as the inconsistency of prospectively
repealing capital punishment while retaining it for those already on death
row, they consistently characterized this dichotomy as a moral inconsistency
rather than a merely pragmatic decision. See, e.g., 55 S. Proc., Pt. 3, 2012
Sess., pp. 747–48, remarks of Senator Suzio.
55
Ignoring Senator Kissel’s explanation that members of the legislature
have indicated over the course of many years their moral opposition to the
death penalty, Chief Justice Rogers queries ‘‘how Kissel could have known
that.’’ Footnote 26 of Chief Justice Rogers’ dissenting opinion. The relevant
question, rather, is on what basis Chief Justice Rogers would purport to
know better than a twelve term senator and ranking member of the Judiciary
Committee what lies in the hearts and minds of his colleagues.
56
See 55 S. Proc., Pt. 2, 2012 Sess., pp. 583–84, remarks of Senator Carlo
Leone; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74, remarks of Representative
Juan R. Candelaria.
Chief Justice Rogers also takes out of context public testimony by Profes-
sor Kevin Barry, which she offers as evidence that support for P.A. 12-5
was driven primarily by financial considerations. See footnote 19 of Chief
Justice Rogers’ dissenting opinion; see also Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2765–66. In fact, in the quoted
testimony, Barry is speaking about the decision of the New Mexico legislature
to repeal that state’s death penalty on a prospective only basis. Id., p.
2765. Specifically, Barry refers to evidence that New Mexico’s repeal was
motivated in large part by that state’s pending budget crisis. Id. Although
Barry does propose that the state might try to make a similar argument in
Connecticut, he provides no support for the proposition that cost considera-
tions were of comparable importance for the legislators who supported P.A.
12-5. Indeed, his statements amount to little more than a recommended
litigation strategy for those who would seek to preserve the death pen-
alty retroactively.
57
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator
Edith Prague (opposing capital punishment out of moral concern that inno-
cent not be wrongly executed, but favoring retroactivity out of respect for
survivors of victims of capital felonies committed before 2012); id., p. 662,
remarks of Senator Andrew W. Roraback (‘‘I have long believed that the
[s]tate shouldn’t be in the business of taking life. And as strongly as I believe
that, I believe even more strongly that the [s]tate shouldn’t be in the business
of breaking its commitment to victims of crime.’’).
58
We do not share Chief Justice Rogers’ conviction that those legislators
who believed capital punishment to be indecent or unjustified, and yet who
held out for a prospective only repeal in order to honor the state’s prior
commitments to the families of murder victims, are somehow illogical or
‘‘morally incoherent . . . .’’ Footnote 22 of Chief Justice Rogers’ dissenting
opinion. There are, no doubt, opponents of the death penalty whose princi-
pled opposition is so staunch and so unyielding that they would not counte-
nance its use under any circumstances. We are equally certain, however,
that there are people of good faith and clear mind who, although they have
come to believe that, on balance, state sanctioned killing is impermissibly
excessive, or arbitrary, or subject to error, are not so stridently opposed
that their opposition cannot yield to countervailing moral commitments.
Each day, legislators, no less than judges, must balance conflicting moral
principles and commitments: between free expression and national security;
between environmental conservation and the fruits of economic develop-
ment; between a right to life and a freedom of choice. Why Chief Justice
Rogers believes that opposition to the death penalty, alone among principled
beliefs, must be uncompromising simply eludes us. See generally K. Barry,
‘‘From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual
Abolition of the Death Penalty,’’ 66 Fla. L. Rev. 313 (2014) (articulating
principled defense of prospective only repeal of capital punishment on
moral grounds).
59
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator Kissel;
id., pp. 748–49, remarks of Senator Len Suzio; id., pp. 795–96, remarks of
Senator Leonard A. Fasano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1381–82,
remarks of Representative Lawrence F. Cafero, Jr.
60
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 795–96, remarks of Senator
Leonard A. Fasano (many legal scholars believe retroactive component of
bill is unconstitutional); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1354, remarks
of Representative John W. Thompson (‘‘it seems the consensus here that
nobody on death row will now be executed’’); Conn. Joint Standing Commit-
tee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2485, remarks of Representative
Al Adinolfi (numerous attorneys believe that prospective repeal will render
retroactive application unconstitutional); Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2507–2508, remarks of Representa-
tive Richard A. Smith (many legislators are concerned that inmates on
death row will be removed therefrom upon prospective repeal); Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2534, remarks
of Representative Arthur J. O’Neill (‘‘there seems to be pretty much a consen-
sus by both the prosecutor and the defense people here in Connecticut most
familiar with death penalty issues that that’s going to be a very difficult hill
for the prosecutors to climb in terms of defending the existing sentences
and that we should expect that if we repeal with so-called prospective only
language, that as a practical matter, no one will have the death penalty
imposed [on] them in the state of Connecticut’’); Conn. Joint Standing Com-
mittee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2549–50, remarks of Senator
Kissel (‘‘[e]very expert that I have asked . . . has stated that the evolving
societal standards evinced by a change in the law form . . . very solid
grounds under the cruel and unusual punishment portion of the constitution
to support repeal of [the] death [penalty] for folks sitting on death row
when a prospective bill is passed’’).
61
Kane’s statements on the question are no less unambiguous than those
of Senator Kissel; see text accompanying footnote 49 of this opinion; see
also footnote 1 of this opinion; and Chief Justice Rogers’ insistence that
Kane expressed no opinion on the matter is equally puzzling. See footnote
28 of Chief Justice Rogers’ dissenting opinion.
62
It bears noting that senators rejected an amendment crafted to ensure
that capital punishment would be retained for those already on death row
in the event that a court declared P.A. 12-5 unconstitutional. The proposed
amendment provided that, if a court were to conclude that a bifurcated,
prospective only repeal of the death penalty was unconstitutional, the repeal
would be nullified, and the state’s capital felony statutes would revert to
their pre-2012 status. See 55 S. Proc., Pt. 3, 2012 Sess., pp. 652–53, 662–64,
remarks of Senator Roraback; see also id., p. 669 (vote on amendment).
We are perplexed by Chief Justice Rogers’ suggestion that it is improper
for us to conclude that some legislators, in supporting a prospective only
appeal, may have acted in part out of political motivations. That conclusion,
Chief Justice Rogers contends, violates what she refers to as the ‘‘constitu-
tional principle that this court must presume that the legislature has acted
for legitimate reasons . . . .’’ Text accompanying footnote 23 of Chief Jus-
tice Rogers’ dissenting opinion. We have no quarrel with this principle
generally, but Chief Justice Rogers’ reliance on it in the present case is
misplaced. First, there is nothing improper about a legislator acting on the
basis of political considerations. Moreover, Chief Justice Rogers’ argument
improperly conflates equal protection and eighth amendment principles. As
she asserts; see text accompanying footnote 93 of Chief Justice Rogers’
dissenting opinion; when a statutory classification is challenged on equal
protection grounds, but the classification does not involve a fundamental
right or suspect class, such as race or national origin, it will be evaluated
under the highly deferential ‘‘rational basis’’ standard of review. (Internal
quotation marks omitted.) Contractor’s Supply of Waterbury, LLC v. Com-
missioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071
(2007). Under rational basis review, a statutory classification will be upheld,
as long as it is supported by some plausible legitimate rationale, regardless
of whether the legislature actually had that rationale in mind when enacting
the legislation. See id. This unremarkable legal principle is, however, wholly
irrelevant to the question before us. Under the eighth amendment and the
corresponding provisions of the state constitution, the issue is not whether
there is any legitimate justification for a statutory classification but, rather,
what a penal statute actually indicates about contemporary social mores.
It is no more improper for a court to consider the legislative calculations
involved in the crafting of such a statute than in any other situation in which
we look to legislative history to help discern the meaning of a statute. See,
e.g., Local No. 82, Furniture & Piano Moving, Furniture Store Drivers,
Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 542 n.17, 104
S. Ct. 2557, 81 L. Ed. 2d 457 (1984) (‘‘[t]he legislation contains more than
its share of problems for judicial interpretation because . . . many sections
contain calculated ambiguities or political compromises essential to secure
a majority’’ [internal quotation marks omitted]); Kerrigan v. Commissioner
of Public Health, supra, 289 Conn. 205 n.45 (concluding ‘‘that the disclaimer
set forth in [General Statutes] § 46a-81r [1] was a political compromise
designed to assure persons opposed to homosexual conduct of this state’s
unwillingness to approve or condone such conduct’’); see also Griswold
Inn, Inc. v. State, 183 Conn. 552, 561–62, 441 A.2d 16 (1981) (court is not
bound to accept most constitutionally favorable interpretation of state
action).
63
Among the many steps that the legislature could have taken in this
regard include habeas corpus reform, the allocation of additional resources
for the purpose of expediting the lengthy appeals process for this state’s
capital cases, simplification of our death penalty statutes, and streamlining
the procedures applicable to capital cases.
64
See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,
2012 Sess., pp. 2594–95, remarks of Chief State’s Attorney Kane; Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2741–42,
remarks of Robert Fromer.
65
Once again, Chief Justice Rogers begs the question in assuming that
Governor Malloy’s opposition to a retroactive repeal precluded him from
supporting P.A. 12-5 out of a sincere belief that the death penalty is a
punishment unbecoming a modern, enlightened state. In fact, Governor
Malloy’s signing statement, in which he makes it abundantly clear that
his opposition to capital punishment is principled rather than pragmatic,
notwithstanding his stated preference for a prospective only repeal, offers
perhaps the clearest and most powerful refutation of Chief Justice Rogers’
interpretation of P.A. 12-5. Nor would we join Chief Justice Rogers in labeling
the governor’s stated beliefs logically and morally ‘‘incoherent.’’ Footnote
22 of Chief Justice Rogers’ dissenting opinion. What is illogical, rather,
is the assumption that one cannot believe that something is indecent or
unacceptable unless one is prepared to reject it categorically, under every
possible circumstance.
66
Death Penalty Information Center, ‘‘Death Sentences in the United States
from 1977 by State and by Year,’’ available at http://www.deathpenalty
info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).
67
See Amnesty International, ‘‘Death Penalty Trends,’’ available at http://
www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-
facts/death-penalty-trend (last visited July 27, 2015).
68
Death Penalty Information Center, ‘‘States with and without the Death
Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-without-
death-penalty (last visited July 27, 2015); see also Death Penalty Information
Center, ‘‘Crimes Punishable by the Death Penalty,’’ available at http://
www.deathpenaltyinfo.org/crimes-punishable-death-penalty#BJS (last vis-
ited July 27, 2015). Besides Connecticut (2012) and Nebraska (2015), the
others are New York (2007), New Jersey (2007), New Mexico (2009), Illinois
(2011), and Maryland (2013). Death Penalty Information Center, ‘‘States with
and without the Death Penalty,’’ supra.
69
Death Penalty Information Center, ‘‘States with and without the Death
Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-without-
death-penalty (last visited July 27, 2015).
70
Death Penalty Information Center, ‘‘Executions by Year Since 1976,’’
available at http://www.deathpenaltyinfo.org/executions-year (last visited
July 27, 2015).
71
Death Penalty Information Center, ‘‘Execution List 2014,’’ available at
http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27,
2015).
72
Death Penalty Information Center, ‘‘Death Sentences in the United States
from 1977 by State and by Year,’’ available at http://www.deathpenalty
info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).
73
Death Penalty Information Center, ‘‘Death Sentences in the United States
from 1977 by State and by Year,’’ available at http://www.deathpenalty
info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).
74
See ‘‘Gov. Jay Inslee Announces Capital Punishment Moratorium’’ (Feb-
ruary 11, 2014), available at http://www.governor.wa.gov/news-media/gov-
jay-inslee-announces-capital-punishment-moratorium (last visited July 27,
2015).
75
A. Blinder, ‘‘Life Sentences for Last Four Facing Death in Maryland,’’
N.Y. Times, January 1, 2015, p. A12.
76
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
77
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
78
The thirteen states are Alabama, Arkansas, Florida, Georgia, Kentucky,
Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Tennessee,
Texas, and Virginia.
79
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
80
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
81
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
82
Death Penalty Information Center, ‘‘Number of Executions by State and
Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 (last visited July 27, 2015).
83
Death Penalty Information Center, ‘‘States with and without the Death
Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-without-
death-penalty (last visited July 27, 2015).
84
Death Penalty Information Center, ‘‘New Hampshire,’’ available at http://
deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015).
85
Death Penalty Information Center, ‘‘New Hampshire,’’ available at http://
deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015). In May
2014, the New Hampshire House of Representatives approved a bill that
would have repealed the death penalty, but the New Hampshire Senate
deadlocked. See Death Penalty Information Center, ‘‘News,’’ available at
http://deathpenaltyinfo.org/news/past/99/2014 (last visited July 27, 2015).
86
Some scholars have gone so far as to suggest that these pronounced
geographic disparities in the legality and use of the death penalty may be
more than mere happenstance. See C. Steiker & J. Steiker, supra, pp. 28–29
(referencing ‘‘broad scholarly literature . . . point[ing] to the fact that exe-
cutions are overwhelmingly confined to the South [and states bordering the
South], the very same jurisdictions that were last to abandon slavery and
segregation, and that were most resistant to the federal enforcement of civil
rights norms’’).
87
In Rizzo II, the defendant, Todd Rizzo, offered public opinion polling
data for this court’s consideration as another purported source of evidence
regarding contemporary standards of decency. See State v. Rizzo, supra,
303 Conn. 194–95. Chief Justice Rogers, writing for the court in that case,
properly rejected the relevance of such information, ‘‘recogniz[ing] the weak-
nesses inherent in public opinion polls as objective measures of the popular
psyche . . . .’’ Id., 195.
Now, in a stark about-face, Chief Justice Rogers criticizes the majority
for not focusing on the question of whether a majority of Connecticut
citizens, as gauged by public opinion polls, currently believe that the death
penalty is immoral. She then proceeds to cite to various opinion polls, polls
that demonstrate, at best, that a slim and shrinking majority of Connecticut
registered voters continue to support the death penalty. See Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2623, remarks
of Senator Edwin A. Gomes (reciting polling data and concluding therefrom
that ‘‘[t]he public [has] . . . soured on the death penalty’’).
Chief Justice Rogers simply ignores the fundamental principle that ‘‘[t]he
right to be free [from] cruel and unusual punishments, like the other guaran-
tees of the Bill of Rights, may not be submitted to vote . . . . The very
purpose of a [b]ill of [r]ights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied
by the courts.’’ (Internal quotation marks omitted.) Furman v. Georgia,
supra, 408 U.S. 268–69 (Brennan, J., concurring). ‘‘The [f]ramers were well
acquainted with the danger of subjecting the determination of the rights of
one person to the tyranny of shifting majorities.’’ (Internal quotation marks
omitted.) Immigration & Naturalization Service v. Chadha, 462 U.S. 919,
961, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) (Powell, J., concurring in the
judgment). That same principle animates article first of the constitution of
Connecticut. It never has been the practice of this court to define the scope
of our fundamental liberties according to a ‘‘popularity contest,’’ and we
will not begin to do so now. See Volusia County Kennel Club, Inc. v.
Haggard, 73 So. 2d 884, 898 (Fla.) (‘‘If popularity contests ever become the
criteria for determining the validity of law, the uncontrolled will of the
mob will become the substitute for constitutional government. It seems
superfluous to say that a poll to ascertain public opinion should never be
the necessary prerequisite to a judicial opinion under our constitutional
system for the administration of [j]ustice.’’), cert. denied sub nom. Lane v.
Volusia County Kennel Club, Inc., 348 U.S. 865, 75 S. Ct. 87, 99 L. Ed. 681
(1954); Gillis v. Yount, 748 S.W.2d 357, 369 (Ky. 1988) (Leibson, J., concur-
ring) (‘‘[c]onstitutional validity is not decided by a popularity contest’’).
88
As we have recognized, society’s standards of decency need not always
evolve in the same direction. We express no opinion as to the circumstances
under which a reviewing court might conclude, on the basis of a revision
to our state’s capital felony statutes or other change in these indicia, that
capital punishment again comports with Connecticut’s standards of decency
and, therefore, passes constitutional muster. See Fleming v. Zant, supra,
259 Ga. 690 (conclusion that prospective repeal of death penalty as to
mentally disabled offenders rendered execution of such individuals imper-
missibly cruel and unusual punishment did not amount to ‘‘per se’’ prohi-
bition).
89
In her dissenting opinion, Chief Justice Rogers accuses the majority of,
among other things, cherry picking its sources, improperly advocating for
certain political agendas, imposing its personal moral beliefs and policy
preferences on the people of Connecticut, disregarding this court’s prece-
dents, and usurping the legislature’s power. If Chief Justice Rogers truly
believes that we have arrived at this conclusion by ‘‘relying solely on [our]
own views’’ about capital punishment; footnote 33 of Chief Justice Rogers’
dissenting opinion; and merely because ‘‘it offends [our own] subjective
sense of morality,’’ it is only because she herself has refused either to
consider or to recognize the import of the words of our elected officials,
the actions of our jurors and prosecutors, the story of our history, the path
trodden by our sister states, and the overwhelming evidence that our society
no longer considers the death penalty to be necessary or appropriate. In
any event, we do not question the sincerity or good faith of Chief Justice
Rogers’ views, and we find it unfortunate that she deems it necessary to
question ours. Although it should go without saying, we feel compelled to
emphasize that we, no less than the dissenting justices, have decided this
case on the basis of our understanding of and dedication to the governing
legal principles, and our decision should in no way be taken as an indication
of our personal views with respect to the morality of capital punishment.
90
There is presumably some de minimus incapacitative value to the death
penalty in that one in prison for life may still escape or offend against other
inmates and prison staff.
91
Public Act 12-5 simultaneously abolished the death penalty for all crimes
committed on or after April 25, 2012, while preserving it for identical crimes
committed prior to that date. The act contains no statement of policy or
underlying findings purporting to explain the rationale therefor.
92
As authority for this theory, Chief Justice Rogers relies on public state-
ments made by Professor Barry, as well as a brief, conclusory citation to
People v. Floyd, 31 Cal. 4th 179, 191, 72 P.3d 820, 1 Cal. Rptr. 3d 885 (2003).
There is no indication what empirical evidence, if any, supports this novel
theory of deterrence.
93
See, e.g., I. Ehrlich, ‘‘The Deterrent Effect of Capital Punishment: A
Question of Life and Death,’’ 65 Am. Econ. Rev. 397, 397–98 (1975); M.
Frakes & M. Harding, ‘‘The Deterrent Effect of Death Penalty Eligibility:
Evidence from the Adoption of Child Murder Eligibility Factors,’’ 11 Am.
L. & Econ. Rev. 451, 494–95 (2009); C. Sunstein & A. Vermeule, ‘‘Is Capital
Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs,’’
58 Stan. L. Rev. 703, 706 (2005).
94
See generally J. Donohue & J. Wolfers, ‘‘Uses and Abuses of Empirical
Evidence in the Death Penalty Debate,’’ 58 Stan. L. Rev. 791 (2005) (ques-
tioning reliability of existing data on deterrence); J. Fagan, ‘‘Death and
Deterrence Redux: Science, Law and Causal Reasoning on Capital Punish-
ment,’’ 4 Ohio St. J. Crim. L. 255 (2006) (concluding that there is no reliable
evidence of deterrence and that studies demonstrating deterrent effect are
fraught with error); M. Radelet & T. Lacock, ‘‘Do Executions Lower Homicide
Rates?: The Views of Leading Criminologists,’’ 99 J. Crim. L. & Criminology
489 (2009) (overwhelming consensus among criminologists is that death
penalty does not add any significant deterrent effect above that of long-
term imprisonment).
95
See Death Penalty Information Center, ‘‘Execution List 2014,’’ available
at http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27,
2015); see also B. Newton, supra, 13 J. App. Prac. & Process 42 (average
time from sentencing to execution is close to twenty years when postappeal
resentencings are taken into account).
96
To the extent that the dissenting justices contend that such delays are
constitutionally irrelevant because they are the fault of criminal defendants,
who improperly delay their executions by filing frivolous appeals and post-
conviction challenges, we cannot agree. As Justice Breyer explained in his
dissenting opinion in Glossip v. Gross, supra, 135 S. Ct. 2726, between 1973
and 1995, state and federal courts found errors in more than two thirds of
the capital cases that they reviewed. Id., 2771 (Breyer, J., dissenting). Delays,
then, are indispensable if the ultimate punishment is to be reliably applied,
and, if the constitution did not mandate such close scrutiny, the execution
of innocent persons would inevitably result. See id., 2771–72 (Breyer, J.,
dissenting); see also Kyles v. Whitley, 514 U.S. 419, 422, 115 S. Ct. 1555, 131
L. Ed. 2d 490 (1995) (‘‘[o]ur duty to search for constitutional error with
painstaking care is never more exacting than it is in a capital case’’ [internal
quotation marks omitted]).
97
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012
Sess., p. 2783, remarks of Representative Arthur J. O’Neill (‘‘the record here
was replete with the proponents of getting rid of capital punishment saying
it has no deterrent effect’’); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 595,
remarks of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 670, remarks
of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., pp. 764–65, remarks
of Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of
Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 775, remarks of Senator
Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., p. 783, remarks of Senator
Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., p. 813, remarks of Senator
Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary,
Pt. 8, 2012 Sess., p. 2515, remarks of Senator Williams; Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2546, remarks of Senator
Martin M. Looney; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
8, 2012 Sess., p. 2622, remarks of Senator Edwin A. Gomes; Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2660–61,
remarks of Hartford Police Chief Daryl K. Roberts; Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2687, remarks of Profes-
sor Khalilah Brown Dean; Conn. Joint Standing Committee Hearings, Judi-
ciary, Pt. 9, 2012 Sess., p. 2825, remarks of Representative Gary A.
Holder-Winfield.
98
Although concededly somewhat anecdotal, it bears mention that the
one execution that was carried out in Connecticut over the past fifty years
does not appear to have had any beneficial impact on the state’s murder
rate. In fact, the opposite may be true. In the three years prior to Ross’
2005 execution, an average of 102 murders were committed annually in
Connecticut, a figure that is actually inflated by virtue of the inclusion of
sixteen deaths resulting from a single nursing home arson. Crimes Analysis
Unit, Department of Emergency Services & Public Protection, ‘‘Crime in
Connecticut: January–December 2011’’ (2013) p. 11, available at http://
www.dpsdata.ct.gov/dps/ucr/data/2011/Crime%20In%20Connecticut%20-
COMPLETE%202011.pdf (last visited July 27, 2015). By contrast, from 2006
through 2008, an average of 124 murders were committed per annum; id.;
a 22 percent increase.
We also note that murder rates actually fell in the wake of the mid-2012
abolition of the death penalty. The number of reported murders in the state’s
largest urban areas fell by more than 33 percent in the first half of 2013, as
compared to the first half of 2012. See Federal Bureau of Investigation,
‘‘Crime in the United States 2013: January-June Preliminary Semiannual
Uniform Crime Report,’’ Table 4, available at http://www.fbi.gov/about-us/
cjis/ucr/crime-in-the-u.s/2013/preliminary-semiannual-uniform-crime-
report-january-june-2013/tables/table-4-cuts/table_4_offenses_reported_to_
law_enforcement_by_state_colorado_through_idaho_2013.xls (last visited
July 27, 2015). In fact, the most recent available statewide statistics indicate
that the rates of every major category of violent crime declined from 2012
to 2013. See Federal Bureau of Investigation, ‘‘Crime in the United States
2013,’’ Table 4, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-
u.s/2013/crime-in-the-u.s.2013/tables/4tabledatadecoverviewpdf/table_4_
crime_in_the_united_states_by_region_geographic_division_and_state_
2012-2013.xls (last visited July 27, 2015).
99
See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012
Sess., pp. 2664–66, remarks of Anne Stone; Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2835–37, remarks of Dawn Manca-
rella; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess.,
pp. 2845–47, remarks of Gail Canzano; Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2861–63, remarks of Walter H.
Everett; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012
Sess., pp. 2865–66, remarks of Victoria Coward; Conn. Joint Standing Com-
mittee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2867–69, remarks of Jane
Caron.
100
See Governor’s Statement, supra (‘‘I [have seen] people wrongly
accused or mistakenly identified’’); footnote 51 of this opinion and accompa-
nying text.
101
It is perfectly reasonable to believe, however, that more than a few
innocent defendants have been executed throughout our state’s history. See,
e.g., W. Holdsworth, supra, p. 519 (as many as eleven people were hanged
as witches in seventeenth century Connecticut).
102
We note that P.A. 12-5 does not prevent the state from seeking the
death penalty for any future defendant who is accused of having committed
a capital felony prior to April 25, 2012, and one defendant, Richard Roszkow-
ski, was in fact sentenced to death in May, 2014; A. Griffin, ‘‘New Death
Sentence,’’ Hartford Courant, May 23, 2014, pp. A1, A5; approximately two
years after the enactment of P.A. 12-5.
103
In Ross, we adopted these principles under the due process clauses of
the state constitution. See State v. Ross, supra, 230 Conn. 252 (principles
articulated by United States Supreme Court ‘‘require, as a constitutional
minimum, that a death penalty statute, on the one hand, must channel the
discretion of the sentencing judge or jury so as to [ensure] that the death
penalty is being imposed consistently and reliably and, on the other hand,
must permit the sentencing judge or jury to consider, as a mitigating factor,
any aspect of the individual defendant’s character or record as well as the
circumstances of the particular offense’’); see also State v. Rizzo, supra,
266 Conn. 227 (same).
104
Justice Norcott has long expressed his profound concern that, ‘‘[a]s
long as racial prejudice is a factor in our lives, and it is an undeniable factor
in every facet of American life, there can be no place for a capital penalty
in our society.’’ State v. Webb, supra, 238 Conn. 570 (Norcott, J., dissenting);
see also State v. Cobb, supra, 251 Conn. 545–46 (Norcott, J., dissenting) (‘‘I
am convinced that the arbitrariness inherent in the sentencer’s discretion
is intensified by the issue of race’’). In their concurring opinion, Justices
Norcott and McDonald refer to what now appears to be strong evidence
demonstrating that impermissible racial and ethnic disparities have, in fact,
permeated this state’s capital sentencing scheme. We decline to address or
resolve such claims, however, because they are not before us at this time.
105
We fail to discern the contradiction that Chief Justice Rogers apparently
sees in recognizing that the citizens of Connecticut, as a people, have tradi-
tionally been at the forefront in adopting a more modern and humane system
of criminal justice; see part I B of this opinion; while at the same time
acknowledging that the decisions of individual jurors and prosecutors may
at times be tainted by the same sorts of subconscious biases and prejudices
with which all of us wrestle. Cf. United States v. Mulkis, 39 F.3d 664, 664
(W.D. Wn. 1930) (‘‘surely there is not a righteous man [on] earth that doeth
good and sinneth not’’ [internal quotation marks omitted]).
106
See J. Donohue, ‘‘Capital Punishment in Connecticut, 1973–2007: A
Comprehensive Evaluation from 4686 Murders to One Execution,’’ pp. 130–
31, 143, available at http://works.bepress.com/cgi/viewcontent.cgi?article=
1095&context=john_donohue (last visited July 27, 2015).
107
Once again, these concerns were at the forefront for the legislators
who supported P.A. 12-5; see footnote 50 of this opinion and accompanying
text; and for Governor Malloy when he signed the act. See Governor’s
Statement, supra (‘‘In the trenches of a criminal courtroom, I learned first-
hand that our system of justice is very imperfect. While it’s a good system
designed with the highest ideals of our democratic society in mind, like most
of human experience, it is subject to the fallibility of those who participate in
it. I saw people who were poorly served by their counsel. I saw people
wrongly accused or mistakenly identified. I saw discrimination. In bearing
witness to those things, I came to believe that doing away with the death
penalty was the only way to ensure it would not be unfairly imposed.’’).
108
Legislators who supported P.A. 12-5 and those who opposed it agreed
that public outrage at the perpetrators in the Cheshire case in particular
was a primary reason the act was drafted to retain the death penalty retroac-
tively. See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 539, remarks of Senator
Kissel (‘‘there’s no political will to abolish the death penalty because of
those two’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 675, remarks of Senator Toni
Boucher (‘‘the Petit family . . . is behind the whole rational[e] for making
this prospective’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator
Kissel (‘‘Hayes and . . . Komisarjevsky . . . [are] why it’s almost impossi-
ble to get a bill through this [l]egislature right now that would repeal the
death penalty across the board’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 746,
remarks of Senator Len Suzio (‘‘some members actually changed their vote
only a year ago in response to the horrible [Petit] tragedy’’); 55 S. Proc., Pt.
3, 2012 Sess., p. 781, remarks of Senator Edith Prague (opposed repeal out
of respect for William Petit); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1043, remarks
of Representative Lawrence F. Cafero, Jr. (‘‘It is no secret that what is
weighing over all of us is the Petit murders. . . . In fact, it was widely
reported that one of the reasons this General Assembly didn’t take this bill
up earlier was because of the freshness of those awful crimes.’’); 55 H.R.
Proc., Pt. 4, 2012 Sess., p. 1063, remarks of Representative Al Adinolfi (‘‘many
people in this room . . . have changed . . . their vote to abolish the death
penalty rather than vote against abolishing the death penalty based on [those]
. . . who are on death row being executed, especially, Komisarjevsky and
Hayes’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1209, remarks of Representative
Themis Klarides (‘‘[I]f anyone deserves the death penalty, those two guys
deserve the death penalty because what they did [was] so bad. We don’t
really support it for anybody else going forward [however] . . . .’’); 55 H.R.
Proc., Pt. 4, 2012 Sess., p. 1305, remarks of Representative Ernest Hewett
(addressing ‘‘members who are voting for a prospective bill so they can
make sure that Hayes and Komisarjevsky get the death penalty’’); 55 H.R.
Proc., Pt. 4, 2012 Sess., p. 1317, remarks of Representative Lile R. Gibbons
(‘‘[i]n the wake of the terrible Petit murders, it’s very hard for any of us to
want to vote to repeal the death penalty’’); 55 H.R. Proc., Pt. 4, 2012 Sess.,
p. 1337, remarks of Representative Robert C. Sampson (‘‘We’ve talked a lot
tonight about the murders in Cheshire. The two people—the two men that
committed those acts of violence are not men at all. They are animals. And
I don’t want to let them off the hook . . . .’’); 55 H.R. Proc., Pt. 4, 2012
Sess., p. 1383, remarks of Representative Lawrence F. Cafero, Jr. (‘‘in many
respects it’s because of [Hayes and Komisarjevsky] that we have the bill that
we have before us’’); Conn. Joint Standing Committee Hearings, Judiciary, Pt.
8, 2012 Sess., p. 2544, remarks of Senator Martin M. Looney (legislature
deferred consideration of repeal in 2011 due to Cheshire case).
By contrast, every legislator whom Chief Justice Rogers cites as having
been equally committed to executing the other residents of death row voted
against P.A. 12-5, and would have retained the death penalty both retroac-
tively and prospectively. Their principled views, while no less deserving of
respect, are simply not relevant to the question before us: whether those
legislators who voted to abolish capital punishment only on the condition
that it be retained for those already occupying death row did so out of a
principled belief in the appropriateness of the death penalty or, rather, to
satisfy a public or private call for vengeance against the perpetrators in the
Cheshire case.
109
B. Connors, ‘‘Prague: ‘Hang the Animal By His . . .’,’’ NBC Connecticut
(May 12, 2011), quoting Senator Edith Prague, available at http://
www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-by-His-
121670559.html (last visited July 27, 2015).
110
Because we conclude both that the continued imposition of the death
penalty in Connecticut following the enactment of P.A. 12-5 offends contem-
porary standards of decency and that it fails to satisfy any legitimate penolog-
ical objective, we need not determine whether it has come to be so rarely
imposed that it also violates the state constitutional prohibition on unusual
punishment. As we discussed; see footnote 16 of this opinion; the United
States Supreme Court has at times suggested that the eighth amendment
may contain an independent prohibition against punishments that are
unusual, even if they are not cruel. Recent scholarship supports this interpre-
tation and suggests that, especially in light of the enactment of P.A. 12-5,
the death penalty in Connecticut has become impermissibly unusual. See
R. Casale & J. Katz, ‘‘Would Executing Death-Sentenced Prisoners after the
Repeal of the Death Penalty Be Unusually Cruel under the Eighth Amend-
ment?,’’ 86 Conn. B.J. 329, 341, 344–45 (2012). For example, Professor John
F. Stinneford has observed that, under the original meaning of unusual
punishment, ‘‘when a traditional [common-law] punishment falls completely
out of usage, it loses the presumption of validity that comes with being
usual,’’ and attempts to reintroduce it would be met with as much or more
scrutiny as entirely novel punishments. J. Stinneford, ‘‘The Original Meaning
of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation,’’ 102 Nw.
U. L. Rev. 1739, 1746, 1813 (2008). This reflects the principle that, ‘‘[a]s
courts decide cases year after year and century after century, impractical
and unjust legal practices fall away like dross, while practical and just ones
survive’’; J. Stinneford, supra, 1775; and may apply with equal force to
punishments eliminated by legislative reform. See id., 1814. This interpreta-
tion of the constitutional ban on unusual punishment also is consistent with
Connecticut common law in the years leading up to the adoption of the
1818 constitution. See, e.g., State v. Smith, supra, 5 Day (Conn.) 178–79
(reviewing claim that punishment was new or ‘‘novel, without precedent’’);
L. Goodheart, supra, pp. 68, 76–77 (in 1808, legislature voted to commute
death sentence of Clarissa Ockry, who otherwise would have been first
woman executed in Connecticut for infanticide since 1753).
111
Although Justice Zarella contends otherwise, we disagree for the rea-
sons stated in this opinion.
112
Although it might have been helpful for the defendant himself to review
the additional historical information that has come to light over the past
several years, his failure to do so does not preclude our consideration of
information revealed from our own independent research. See part IV A 3
of this opinion.
113
See part IV C of this opinion.
114
To respond that appellate courts simply should refuse to consider or
address any questions of legislative fact that have not already been fully
vetted by the parties at the trial level is to miss the point. When a court
considers a legislative fact, it typically is because that fact is central to a
question of policy the necessary determination of which will broadly impact
persons who are not parties to the immediate dispute. To turn a blind eye
to relevant and well established scientific or sociological knowledge that
the parties may have overlooked or decided to leave unearthed, whether
for strategic or financial reasons, would unjustly and unwisely subject the
public at large to the results of an ill-informed decision.
115
Of course, if the citizens of Connecticut wish to reinstate the death
penalty, they may always amend the state constitution, as the citizens of
California and Massachusetts did, to clarify that the punishment is and will
remain constitutional notwithstanding any evolution in the state’s standards
of decency.
116
See footnote 89 of this opinion.