State v. Santiago

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STATE v. SANTIAGO—SECOND CONCURRENCE
EVELEIGH, J., concurring. Vengeance has no place
in the orderly administration of justice by a civilized
society. It certainly can never serve as the justification
for the death penalty in today’s world. My review of
the text and legislative history of the public act under
consideration, No. 12-5 of the 2012 Public Acts (P.A.
12-5), leads me to the inescapable conclusion that ven-
geance was the motivating factor underlying the enact-
ment of the provisions allowing the eleven men on death
row to be executed while eliminating the death penalty
for crimes committed in the future. Because I conclude
that there is no longer any valid penological purpose
justifying the retention of the death penalty for prere-
peal defendants, and that our capital sentencing statu-
tory scheme no longer guards against arbitrariness, it
necessarily follows that the portions of P.A. 12-5 that
allow the men on death row to be executed are violative
of the federal and state constitutional bans against cruel
and unusual punishment. See U.S. Const., amend. VIII;
Conn. Const., art. I, §§ 8, 9.1 I therefore join the majori-
ty’s analysis in all respects, and join in remanding the
case with direction to sentence the defendant, Eduardo
Santiago, to a term of life imprisonment without the
possibility of release. I write separately to express my
view that, although our state constitution provides sepa-
rate and distinct protections to the citizens of Connecti-
cut and appropriately prohibits capital punishment, the
protections afforded by the eighth amendment to the
United States constitution and existing federal case law
would have been sufficient to prohibit capital punish-
ment in the state of Connecticut. Moreover, although
I agree with the majority that capital punishment is
unconstitutional and that the majority properly reached
the issue of unconstitutionality, in view of the dissents’
claims about the appropriateness of the majority’s
reaching the issue, I conclude that the unconstitutional
aspects of the act could have been severed in order to
effectuate the legislature’s clear intent to repeal the
death penalty.
Historically, Connecticut has been a leader in recog-
nizing limits to the application of the death penalty.2
The death penalty is an especially brutal, archaic pun-
ishment, and one that has been kept alive only because
of our society’s acceptance of the traditional theories
of punishment, namely, retribution and deterrence.
Because the concept of retributive justice inextricably
links the severity of a punishment with the culpability
of the offender, the death penalty must be available
for similarly culpable offenders in order for a capital
sentencing scheme to fulfill a valid retributive purpose.
By maintaining the death penalty for those who have
committed a capital offense before the act’s arbitrary
effective date while eliminating the death penalty for
any crime committed thereafter, no matter how heinous
that crime may be, P.A. 12-5 severs the tie between the
imposition of the death penalty and the culpability of
the individual offender.
I
P.A. 12-5 RENDERS CONNECTICUT’S CAPITAL
PUNISHMENT STATUTORY SCHEME
UNCONSTITUTIONAL UNDER THE
EIGHTH AMENDMENT TO THE
UNITED STATES
CONSTITUTION
The eighth amendment to the constitution of the
United States bans the infliction of all cruel and unusual
punishments. See footnote 1 of this concurring opinion.
In assessing the contours of the eighth amendment in
the context of the death penalty, the United States
Supreme Court has recognized that ‘‘the penalty of
death differs from all other forms of criminal punish-
ment, not in degree but in kind.’’ (Internal quotation
marks omitted.) Solem v. Helm, 463 U.S. 277, 289, 103
S. Ct. 3001, 77 L. Ed. 2d 637 (1983), quoting Furman
v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 33 L. Ed.
2d 346 (1972) (Stewart, J., concurring).
When a particular type of punishment is challenged
categorically or, in other words, when it is argued that
a given penalty is never appropriate for a specific cate-
gory of offender, ‘‘[t]he [c]ourt first considers objective
indicia of society’s standards, as expressed in legislative
enactments and state practice to determine whether
there is a national consensus against the sentencing
practice at issue. . . . Next, guided by the standards
elaborated by controlling precedents and by the
[c]ourt’s own understanding and interpretation of the
[e]ighth [a]mendment’s text, history, meaning, and pur-
pose . . . the [c]ourt must determine in the exercise
of its own independent judgment whether the punish-
ment in question violates the [c]onstitution.’’ (Citations
omitted; internal quotation marks omitted.) Graham v.
Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010).
The Supreme Court also has recognized that, because
of its ultimate and irrevocable effect, the death penalty
cannot be imposed under procedures that create a sub-
stantial risk of its infliction in an arbitrary and capri-
cious manner. See Gregg v. Georgia, 428 U.S. 153, 188,
96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Simply put, ‘‘[t]he
[e]ighth and [f]ourteenth [a]mendments cannot tolerate
the infliction of a sentence of death under legal systems
that permit this unique penalty to be . . . wantonly
and . . . freakishly imposed.’’ (Internal quotation
marks omitted.) Id., quoting Furman v. Georgia, supra,
408 U.S. 310 (Stewart, J., concurring).
Following our legislature’s prospective repeal of the
death penalty, the single most determinative factor in
whether a death penalty is imposed or carried out under
our capital sentencing scheme is the date on which
a defendant commits his or her crime—specifically,
whether a defendant has committed his or her crime
before April 25, 2012. As I explain in part I A of this
concurring opinion, I conclude that, as amended by
P.A. 12-5, Connecticut’s capital sentencing scheme is
contrary to the consensus against executions postre-
peal of the death penalty. In addition, as I explain in
part I B of this concurring opinion, to allow such an
arbitrary factor, which lacks any connection to the pur-
ported purposes of the death penalty and the nature of
the offenses committed, to have such an extreme
impact on the ultimate fate of a limited class of individ-
ual defendants is the paradigm of capriciousness that
the eighth amendment will not tolerate.
A
Executing the Defendant Following the Repeal of the
Death Penalty Is Inconsistent with Contemporary
Standards of Decency
Under the test reserved for categorical challenges to
the death penalty for a particular class of offender, the
first step is to consider objective indicia of society’s
standards. Graham v. Florida, supra, 560 U.S. 61–62.
In the present case, this step requires the court to exam-
ine the standards expressed by legislatures and courts
regarding the imposition of the death penalty following
a prospective repeal. Although ‘‘[t]he clearest and most
reliable objective evidence of contemporary values is
the legislation enacted by the country’s legislatures’’;
(internal quotation marks omitted) id., 62, quoting
Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 153
L. Ed. 2d 335 (2002); ‘‘[t]here are measures of consensus
other than legislation. . . . Actual sentencing practices
are an important part of the [c]ourt’s inquiry into con-
sensus.’’ (Citation omitted; internal quotation marks
omitted.) Graham v. Florida, supra, 62; accord Ken-
nedy v. Louisiana, 554 U.S. 407, 433–34, 128 S. Ct. 2641,
171 L. Ed. 2d 525 (2008); Roper v. Simmons, 543 U.S.
551, 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Atkins
v. Virginia, supra, 316; Thompson v. Oklahoma, 487
U.S. 815, 821–29, 108 S. Ct. 2687, 101 L. Ed. 2d 702
(1988); Enmund v. Florida, 458 U.S. 782, 794–96, 102
S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). On the basis of not
only the actions of legislative and executive branches
worldwide regarding prospective repeals of the death
penalty, but also the actual sentencing practices of
other jurisdictions during periods of time in which the
death penalty has been repealed, I would conclude that
current societal standards unequivocally indicate an
unwillingness to impose the death penalty on defen-
dants who committed their crimes prior to the repeal.
1
Federal and State Case Law
Although the United States Supreme Court has
repeatedly upheld the facial validity of the death pen-
alty; see Gregg v. Georgia, supra, 428 U.S. 187; in recent
years, that court has limited the situations in which
capital punishment is permissible. See Kennedy v. Loui-
siana, supra, 554 U.S. 413 (death penalty impermissible
for nonhomicide crimes against individuals); Roper v.
Simmons, supra, 543 U.S. 568 (death penalty impermis-
sible for defendants who committed their crimes prior
to age of eighteen); Atkins v. Virginia, supra, 536 U.S.
321 (death penalty impermissible for defendants whose
intellectual functioning is in low range). That court,
however, has never decided whether a state may carry
out executions while a prospective repeal of the death
penalty is in effect.
Nonetheless, this nation’s highest court has consid-
ered the significance of a prospective repeal of the death
penalty for purposes of eighth amendment analysis. In
Atkins v. Virginia, supra, 536 U.S. 314–15, the United
States Supreme Court determined that a national con-
sensus existed against the execution of mentally dis-
abled defendants, relying in part on the fact that
eighteen of the thirty-eight states that permitted capital
punishment had enacted legislation forbidding the exe-
cution of such individuals. See id., 342 (Scalia, J., dis-
senting). The court was well aware that, of those
eighteen states, only seven had prohibited all such exe-
cutions, while eleven had enacted statutes prospec-
tively prohibiting the execution of mentally disabled
individuals, thus maintaining death sentences for men-
tally disabled individuals who had committed capital
offenses prior to the enactment of the repeals. See id.,
342–43 (Scalia, J., dissenting) (arguing against inclusion
of prospective repeal states). The court declined, how-
ever, to draw any analytic distinction between states
that had completely abolished the execution of mentally
disabled individuals and states that had only had pro-
spectively prohibited it in determining whether a
national consensus against the practice had emerged.
Id., 314–16. Under Atkins, therefore, a prospective
appeal of the death penalty signals a jurisdiction’s own
consensus against the death penalty.3
Applying the proper standard, I turn now to the prac-
tices of our sister states, as articulated by their legisla-
tures and courts. As I explain in further detail
subsequently in this opinion, twenty-seven other states
and the District of Columbia have, at least at some
point in history, eliminated their death penalty, and no
executions have been carried out by those states as
long as the repeal or invalidation remained in effect.4
Eleven states other than Connecticut, namely, Hawaii,
Illinois, Iowa, Maine, Maryland, Michigan, Minnesota,
New Jersey, New Mexico, Vermont, and Wisconsin,
have enacted repeals of the death penalty that are pro-
spective only in nature.5 Only one state other than Con-
necticut, New Mexico, continues to have individuals
sentenced to death despite the enactment of a prospec-
tive repeal. See 2009 N.M. Laws 141. The appellate
courts of that state have not yet ruled on the constitu-
tionality of the prospective only nature of their repeal,
and no executions have been carried out since its enact-
ment.6 Significantly, however, a small number of states
have enacted prospective repeals of the death penalty
for certain classes of offenders or prospective repeals
of procedures that had made a death sentence more
likely. In these states, courts consistently have con-
cluded that the repeal must be applied to persons pre-
viously sentenced to death.7
I begin with the case law from those states that have
addressed the question that is before this court in the
context of a partial repeal of the death penalty or death
penalty provisions. This case law shows that, like the
view taken by the United States Supreme Court, a pro-
spective repeal of the death penalty is deemed to signify
consensus that the execution of individuals who fall
within the category of offender affected by the prospec-
tive repeal, including those individuals sentenced to
death prior to the repeal, would violate contemporary
standards of decency. See Fleming v. Zant, 259 Ga.
687, 690, 386 S.E.2d 339 (1989), superseded by statute
as stated in Turpin v. Hill, 269 Ga. 302, 303–304, 498
S.E.2d 52 (1998); Saylor v. Indiana, 808 N.E.2d 646,
650 (Ind. 2004); Cooper v. State, 540 N.E.2d 1216,
1220–21 (Ind. 1989); State v. Bey, 112 N.J. 45, 51, 548
A.2d 846 (1988); Van Tran v. State, 66 S.W.3d 790, 801–
804 (Tenn. 2001). Thus, courts have vacated a defen-
dant’s death sentence when, due to prospective changes
in that state’s capital punishment scheme, the defendant
would not have been eligible for the death penalty had
he been sentenced after the statutory changes were
made.
In Cooper v. State, supra, 540 N.E.2d 1220, the Indiana
Supreme Court concluded that a prospective repeal of
the death penalty for offenders under the age of sixteen
rendered the prerepeal death sentence of a fifteen year
old defendant unconstitutional under that state’s consti-
tution. In considering the Indiana legislature’s decision
to apply the repeal prospectively despite the fifteen
year old defendant’s pending death sentence, the court
noted: ‘‘The bill’s sponsors declared openly that this
exclusion was purposeful. Although the exclusion [of
the defendant] was assaulted on the [h]ouse floor during
consideration of the bill as being unjust, it was apparent
that the authors wished to enact a general policy with-
out the passion that legislating on a particular case
would arouse.’’ (Footnotes omitted.) Id., 1219. The Indi-
ana Supreme Court reasoned as follows in holding that
executing the defendant would violate the state consti-
tution:8 ‘‘While this case has been pending on appeal,
the legal landscape surrounding it has changed dramati-
cally in ways that reflect on the appropriateness of this
death penalty ‘in light of other death penalty cases.’ ’’
Id. Although the legislature purposefully had crafted
the repeal so as not to affect the defendant’s death
sentence, the court did not find the effective date provi-
sion of the act dispositive of the issue of whether it
was constitutional to execute the defendant. Id. Rather,
the court stated: ‘‘Now that Indiana law establishes
[sixteen] as the minimum age for the imposition of the
death penalty, [the defendant] would be both the first
and the last person ever to be executed in Indiana for
a crime committed at the age of [fifteen]. This makes
her sentence unique and disproportionate to any other
sentence for the same crime.’’ Id., 1219–20. This lan-
guage, in my view, suggests that the court determined
that the prospective repeal signified a societal consen-
sus against the execution of any offender who was
younger than sixteen years of age at the time of his or
her crime, regardless of whether the crime was commit-
ted prior to the effective date of the repeal.
More recently, in Saylor v. Indiana, supra, 808 N.E.2d
651, the Indiana Supreme Court reduced a death sen-
tence after a change in the law altered the way that the
death penalty could be imposed in future cases. The
defendant in Saylor had been sentenced to death in
1992, despite a unanimous jury recommendation to the
contrary, under a law that allowed the trial judge to
override a jury recommendation against death if the
trial judge found that the statutory aggravating circum-
stances outweighed any mitigating circumstances. Id.,
647–48. After the defendant’s sentence was affirmed,
the Indiana legislature enacted legislation that elimi-
nated the trial judge’s authority to impose a death sen-
tence in contravention of a jury’s recommendation. Id.,
648. The defendant thereafter sought rehearing on the
judgment affirming his sentence, claiming, inter alia,
that his death sentence should be invalidated because,
if his sentencing had occurred after the amendments
to the capital sentencing statute took effect, he would
not have been eligible for the death penalty. Id. On
rehearing, the Indiana Supreme Court agreed with the
defendant and reduced his sentence from death to a
term of years. Id., 651. As it did in Cooper, the court
reaffirmed its goal of ensuring ‘‘ ‘evenhanded operation
of the death penalty statute’ by reviewing death senten-
ces ‘in light of other death penalty cases.’ ’’ Id., 650.
Although the court noted that it had previously affirmed
the defendant’s death sentence, it explained: ‘‘Since that
time the legal landscape has significantly changed. . . .
[A]s a matter of Indiana state law [the defendant], if
tried today, could not be sentenced to death without a
jury recommendation that death be imposed. Under
these circumstances we conclude that his death sen-
tence is inappropriate and should be revised.’’ Id. The
court compared the case before it with its previous
decision in Cooper, and stated that both cases presented
‘‘situations in which the legislature, after [the defen-
dants’] sentences were imposed, enacted significant
changes in the requirements for the death penalty that
would render [the defendants] ineligible for a death
sentence in a trial conducted today. . . . [W]e con-
clude it is not appropriate to carry out a death sentence
that was the product of a procedure that has since
been revised in an important aspect that renders the
defendant ineligible for the death penalty.’’ (Emphasis
added.) Id., 650–51. Accordingly, the Indiana Supreme
Court converted the sentence of death to a term of
imprisonment.
Similarly, in Van Tran v. State, supra, 66 S.W.3d 792,
the Tennessee Supreme Court concluded that it would
violate that state’s constitutional ban on cruel and
unusual punishment to execute a mentally disabled
defendant after the enactment of laws prospectively
banning such executions. That court concluded that,
although the legislature did not intend for the repeal
to apply retroactively to those mentally disabled defen-
dants who had been sentenced to death prior to the
effective date of the repeal; id., 798–99; the prospective
ban nevertheless reflected an ‘‘evolving societal view’’
in that state that executing a mentally disabled individ-
ual would violate ‘‘contemporary standards of
decency.’’ Id., 801–805.
The Georgia Supreme Court reached the same con-
clusion when faced with a challenge to a statute pro-
spectively repealing the death penalty for mentally
disabled individuals. See Fleming v. Zant, supra, 259
Ga. 690. That court concluded that the prospective
repeal signified that the contemporary ‘‘ ‘standard[s] of
decency’ ’’ in that state no longer supported the execu-
tion of those individuals, including those who were on
death row prior to the effective date of the repeal. Id.
In analyzing the significance of the prospective repeal,
the court stated: ‘‘The legislative enactment reflects a
decision by the people of Georgia that the execution
of mentally [disabled] offenders makes no measurable
contribution to acceptable goals of punishment. Thus,
although there may be no ‘national consensus’ against
executing the mentally [disabled], this state’s consensus
is clear.’’9 (Footnote omitted.) Id.
Likewise, in State v. Bey, supra, 112 N.J. 51, the New
Jersey Supreme Court gave retroactive effect to a stat-
ute prospectively repealing the death penalty for crimes
committed by minors. Although in that case the court
premised its decision to apply the statute retroactively
on rules of statutory construction; id., 100–105; it noted
that, apart from the legislature’s intent concerning ret-
roactivity, ‘‘notions of fundamental fairness . . .
would likewise demand retroactive application of the
juvenile-offender exemption in this case. . . . Indeed,
the [state] . . . concedes that sound public policy and
fundamental fairness dictate that [the] defendant not
be singled out to be the only juvenile ever executed or
even eligible for execution under our current death
penalty law.’’ (Citation omitted; internal quotation
marks omitted.) Id., 104–105.
It is all but a certainty that at least some future offend-
ers protected by the prospective repeal will have the
same characteristics as the prerepeal defendants, and
that their crimes will be similar to—if not worse than—
those committed by the prerepeal defendants, yet only
the prerepeal defendants would face the possibility of
dying at the hands of the state. As I explain more fully
in part I A 3 of this concurring opinion, first, it would
be irrational to conclude that the prerepeal defendants
may be executed when the legislature has determined
that the death penalty should not be available for all
future offenders, irrespective of whether their moral
culpability is similar to, or greater than, that of the
prerepeal defendants. Second, these decisions from our
sister states were not all solely grounded on the fact that
the legislative enactments addressed offenders who,
in general, are less culpable than the average adult
offender, and that this diminished culpability rendered
imposition of the death penalty unconstitutional.
Rather, these decisions aptly highlighted the fundamen-
tal unfairness inherent in executing a defendant when,
due to a legislative enactment either prospectively
repealing the death penalty or substantially altering the
way in which the death penalty may be imposed in the
future, that defendant would not have been eligible for
the death penalty if he or she had been sentenced after
the enactment took effect.10 Thus, these courts were
also concerned with ensuring the evenhanded operation
of their capital sentencing statutes, and viewed the date
of an offense as an arbitrary eligibility factor for the
death penalty.11 See Saylor v. Indiana, supra, 808
N.E.2d 650; Cooper v. State, supra, 540 N.E.2d 1219;
State v. Bey, supra, 112 N.J. 104–105. Thus, the prece-
dents of our sister states, in my view, weigh strongly
against carrying out an execution after the legislature
has prospectively repealed the death penalty.
2
Actual Practices in Other Jurisdictions
Moreover, in assessing whether a punishment is con-
stitutionally sound, ‘‘it also is appropriate for us to con-
sider what is occurring in actual practice.’’ State v.
Rizzo, 303 Conn. 71, 191, 31 A.3d 1094 (2011), cert.
denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64
(2012). Thus, in determining whether there is a national
consensus against conducting executions while a death
penalty repeal is in place, it is proper to look to the
number of executions that have occurred in other states
while a repeal of the death penalty has been in effect.
See Graham v. Florida, supra, 560 U.S. 63–64
(reviewing statistics concerning number of juvenile
nonhomicide offenders serving sentences of life impris-
onment without possibility of parole); Kennedy v. Loui-
siana, supra, 554 U.S. 433–34 (reviewing statistics about
number of executions of child rapists to determine if
such punishment is socially unacceptable); State v.
Rizzo, supra, 191–93 (reviewing number of people on
death row and number of executions carried out nation-
ally to constitutionality of death penalty).
Upon review, it does not appear that any state has
ever executed an inmate while a death penalty repeal
has been in force.12 Aside from the two states with
expressly prospective death penalty repeals, Connecti-
cut and New Mexico; see footnote 6 of this concurring
opinion; seventeen states, as well as the District of
Columbia, do not have statutes that currently authorize
the death penalty. See Death Penalty Information Cen-
ter, ‘‘States With and Without the Death Penalty,’’
(2015), available at http://www.deathpenaltyinfo.org/
states-and-without-death-penalty (last visited August
10, 2015). In two of these states—North Dakota and
West Virginia—the legislation repealing the death pen-
alty expressly stated that the repeal applied retroac-
tively.13 In six of these states—Hawaii, Illinois, Iowa,
Maryland, Minnesota and New Jersey—the death sen-
tences of the remaining inmates on death row were
commuted by the executive branch, either before or
after the legislature repealed the death penalty.14 In two
other states—Massachusetts and New York—as well
as the District of Columbia, a court invalidated the
existing death penalty statutory scheme, which effec-
tively banned future executions in the absence of a
statutory change.15 No such changes have been made.
Thus, no postrepeal executions have taken place in the
nineteen other jurisdictions which currently prohibit
the death penalty.
In addition, the following thirteen states have, at vari-
ous times in our nation’s history, temporarily repealed
and later reinstated the death penalty, yet none of these
states ever executed a person previously sentenced to
death while the temporary repeal remained in effect:
Arizona,16 Colorado,17 Delaware,18 Iowa,19 Kansas,20
Maine,21 Missouri,22 New Mexico,23 New York,24 Ore-
gon—twice,25 South Dakota,26 Tennessee,27 and Wash-
ington.28 No state has executed an inmate while a repeal
was in effect.29 Rather, any executions occurred after
the death penalty was reinstated and a new death sen-
tence was imposed under the new capital sentencing
statute. On several occasions, the sentences of prere-
peal death row inmates were commuted to life impris-
onment through applicable procedures.30 In other
instances, the repeal legislation either expressly31 or
impliedly32 applied retroactively.33
The utter absence of postrepeal executions leads me
inexorably to the conclusion that there is a national
consensus against the practice. In fact, the statistics in
this case are far more convincing than some of the
statistics relied upon by the United States Supreme
Court in determining that a national consensus exists
against a given sentencing practice. See Graham v.
Florida, supra, 560 U.S. 64–65 (concluding that there
was national consensus against sentencing juvenile
nonhomicide offenders to life imprisonment without
possibility of parole when only 123 such people were
serving that sentence in eleven jurisdictions); Atkins
v. Virginia, supra, 536 U.S. 316 (concluding national
consensus against executing intellectually disabled
defendants existed where five such offenders had been
executed in thirteen year period); Enmund v. Florida,
supra, 458 U.S. 794 (concluding that society had
rejected death penalty for nontriggerman felony mur-
derers where only six such offenders had been executed
between 1954 and 1982). Thus, although the United
States Supreme Court has determined that a national
consensus exists against the sentencing practices in
those cases, despite the fact that those sentences had
actually been imposed, there cannot be a clearer indica-
tor of consensus than that demonstrated by the statis-
tics in the present case, namely, a complete
unwillingness on the part of this nation to impose or
carry out a death sentence while a death penalty
repeal—either prospectively or in toto—is in effect. The
actual practice of these states is the controlling factor,
and the practice of these states is, clearly, not to exe-
cute. See Atkins v. Virginia, supra, 316 (national con-
sensus exists against executing mentally disabled
individuals when, among others things, even states that
authorized practice had not actually carried out such
executions).
3
International Considerations
Finally, I would point out that, not only is there a
national consensus against the imposition of the death
penalty while a repeal is in effect, there is a demonstra-
ble global consensus that postrepeal executions are
impermissible. According to a recent report by the
United Nations, as of 2008, ninety-five countries have
abolished the death penalty for all crimes.34 U.N. Secre-
tary-General, ‘‘Capital Punishment and Implementation
of the Safeguards Guaranteeing Protection of the Rights
of Those Facing the Death Penalty; Report of the Secre-
tary-General,’’ (2009), p. 7, available at http://www.
crin.org/docs/UN_CP.pdf (last visited August 10, 2015).
According to available data, none of these countries
have ever executed an individual after the death penalty
was repealed, regardless of whether the repeal was
accomplished via legislation, executive action, or a
determination by a court of law. Id., pp. 60–62; see also
Death Penalty Information Center, ‘‘Abolitionist and
Retentionist Countries,’’ (2015), available at http://
www.deathpenaltyinfo.org/abolitionist-and-reten-
tionist-countries (last visited August 10, 2015).
Thus, if Connecticut were to execute the defendant
after the enactment of P.A. 12-5, it would apparently
earn the dubious distinction of becoming the first sover-
eign entity to execute one of its citizens while a repeal
of the death penalty remains in force. In doing so, our
state would distinguish itself from a host of countries
that have refused to tread the path on which our state
now travels, including countries as varied as Argentina,
Belgium, Cambodia, Djibouti, France, Haiti, Ireland,
Kyrgyzstan, Mexico, Mozambique, the Philippines,
Romania, Rwanda, Samoa, Senegal, Serbia, South
Africa, Turkey, and the United Kingdom. U.N. Secretary-
General, supra, pp. 60–62.
In light of the foregoing, I am persuaded that there
are clear objective indicia of societal standards support-
ing the proposition that there is a consensus that the
imposition of a sentence of death following a legislative
repeal of the death penalty violates contemporary stan-
dards of decency.
B
Enactment of P.A. 12-5 Eliminates Any Valid
Penological Objective for Maintaining the
Death Penalty for Prerepeal Offenders
for Reasons Unrelated to
Their Culpability
‘‘Community consensus, while entitled to great
weight, is not itself determinative of whether a punish-
ment is cruel and unusual.’’ (Internal quotation marks
omitted.) Graham v. Florida, supra, 560 U.S. 67. ‘‘In
accordance with the constitutional design, the task of
interpreting the [e]ighth [a]mendment remains our
responsibility. . . . The judicial exercise of indepen-
dent judgment requires consideration of the culpability
of the offenders at issue in light of their crimes and
characteristics, along with the severity of the punish-
ment in question. . . . In this inquiry the [c]ourt also
considers whether the challenged sentencing practice
serves legitimate penological goals.’’ (Citations omitted;
internal quotation marks omitted.) Id.
In Roper v. Simmons, supra, 543 U.S. 568–71, Gra-
ham v. Florida, supra, 560 U.S. 67–71, and Miller v.
Alabama, U.S. , 132 S. Ct. 2455, 2465–69, 183 L.
Ed. 2d 407 (2012), the United States Supreme Court
contrasted the characteristics of juveniles and adults
who committed the same criminal behavior, and con-
cluded that juveniles were less culpable than adults
who commit the same crime and, therefore, the punish-
ment at issue—whether it was life without parole or
the death penalty—would be cruel and unusual if
imposed on a juvenile even though the same sentence
would not violate the eighth amendment when imposed
on an adult. In Atkins v. Virginia, supra, 536 U.S. 317–
18, the court engaged in a similar analysis regarding
adults with intellectual disabilities.
In cases such as Coker v. Georgia, 433 U.S. 584, 592,
97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (plurality opinion),
Enmund v. Florida, supra, 458 U.S. 787, and Kennedy
v. Louisiana, supra, 554 U.S. 438–39, the Supreme Court
examined whether imposition of the death penalty for
a nonhomicide crime violated the eighth amendment.
In each case, the court concluded that the imposition
of the death penalty would be unconstitutionally dispro-
portionate to the culpability of the offender. See, e.g.,
Kennedy v. Louisiana, supra, 438. In reaching its con-
clusion, the court examined not only societal consensus
regarding the punishment faced by the defendant and
the underlying penological justifications, but also the
characteristics of the crime and the offender.
The present case raises an issue that has not been
answered by any of the previously cited cases. The
defendant asks us to decide whether the imposition of
the death penalty would be disproportionate in relation
to the particular type of homicide of which he was
convicted as to violate the eighth amendment now that
our legislature has determined that, moving forward,
the death penalty is an impermissible punishment for
any offender who commits the same type of homicide.
This is fundamentally a different question than the ones
posed by Enmund, Kennedy, Coker, Simmons, Atkins,
Graham, and Miller. In each of those cases, the court
was essentially being asked to make an exception—to
spare a group of offenders from an otherwise accept-
able penalty. By contrast, in the present case, we are
faced with the situation in which Connecticut has deter-
mined that the death penalty is no longer an acceptable
punishment for any crime committed today. Thus, the
question is not whether Connecticut may create an
exception to an otherwise acceptable punishment, but
whether Connecticut may inflict an otherwise unaccept-
able punishment on the defendant.
An exploration of P.A. 12-5 and how it would impact
offenders such as the defendant helps put the question
before us in proper context. Public Act 12-5, § 2,
amended General Statutes § 53a-35a, effective April 25,
2012. That statute presently provides in relevant part:
‘‘For any felony committed on or after July 1, 1981, the
sentence of imprisonment shall be a definite sentence
and, unless the section of the general statutes that
defines or provides the penalty for the crime specifically
provides otherwise, the term shall be fixed by the court
as follows: (1) (A) For a capital felony committed prior
to April 25, 2012, under the provisions of section 53a-
54b in effect prior to April 25, 2012, a term of life impris-
onment without the possibility of release unless a sen-
tence of death is imposed in accordance with section
53a-46a, or (B) for the class A felony of murder with
special circumstances committed on or after April 25,
2012, under the provisions of section 53a-54b in effect
on or after April 25, 2012, a term of life imprisonment
without the possibility of release . . . .’’ General Stat-
utes § 53a-35a. The most significant feature of this
scheme for purposes of this part of my analysis is that
the conduct classified as a ‘‘capital felony’’ or a ‘‘murder
with special circumstances’’ is exactly the same. The
legislature simply substituted the term ‘‘murder with
special circumstances’’ for ‘‘capital felony’’ in the provi-
sion setting forth the eight offenses that were previously
eligible for capital punishment. Compare General Stat-
utes (Rev. to 1999) § 53a-54b (‘‘[a] person is guilty of a
capital felony who is convicted of . . . [2] murder com-
mitted by a defendant who is hired to commit the same
for pecuniary gain or murder committed by one who
is hired by the defendant to commit the same for pecuni-
ary gain’’), with General Statutes (Rev. to 2013) § 53a-
54b (‘‘[a] person is guilty of murder with special circum-
stances who is convicted of any of the following . . .
[2] murder committed by a defendant who is hired to
commit the same for pecuniary gain or murder commit-
ted by one who is hired by the defendant to commit
the same for pecuniary gain’’). Only the former version
of the statute, however, permits punishment by death.
Thus, the precise conduct which gave rise to the defen-
dant’s capital felony conviction is now defined as ‘‘mur-
der with special circumstances . . . .’’ If the defendant
had engaged in identical conduct after April 25, 2012, the
death penalty simply would not have been an available
punishment. Therefore, the date of the offense, rather
than the particular culpability of the offender, is deter-
minative of whether the death penalty is available. With
this perspective in mind, I turn to the question of
whether such a dichotomy can be justified.
Under the eighth amendment, in order for a punish-
ment to pass constitutional muster, it must fulfill a valid
penological objective. ‘‘Criminal punishment can have
different goals, and choosing among them is within a
legislature’s discretion.’’ Graham v. Florida, supra, 560
U.S. 71. The two penological justifications traditionally
and consistently articulated in support of the death
penalty are deterrence of capital crimes and retribution.
See Kennedy v. Louisiana, supra, 554 U.S. 441. Unless
the imposition of the death penalty ‘‘measurably contri-
butes 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 punish-
ment.’’ (Emphasis added; internal quotation marks
omitted.) Atkins v. Virginia, supra, 536 U.S. 319.
Although this court has previously concluded that the
death penalty validly serves one or both of these objec-
tives; see State v. Rizzo, supra, 303 Conn. 197–98; it is
plain to me that, in light of the prospective repeal, the
execution of prerepeal death row inmates no longer
measurably contributes to a valid penological objective.
There has been a long running debate as to whether
the death penalty actually functions as a deterrent to
those crimes deemed capital offenses. See, e.g., J.
Acker, ‘‘Be Careful What You Ask For: Lessons From
New York’s Recent Experience With Capital Punish-
ment,’’ 32 Vt. L. Rev. 683, 702–11 (2008). Courts have
concluded that ‘‘[t]he value of capital punishment as
a deterrent of crime is a complex factual issue the
resolution of which properly rests with the legislatures,
which can evaluate the results of statistical studies in
terms of their own local conditions and with a flexibility
of approach that is not available to the courts.’’ Gregg
v. Georgia, supra, 428 U.S. 186; see also State v. Rizzo,
supra, 303 Conn. 197. Thus, courts have deferred to a
legislative judgment that ‘‘the possible penalty of death
may well enter into the cold calculus that precedes the
decision to act.’’ Gregg v. Georgia, supra, 186.
Deferring to our legislature is not proper in the pres-
ent case. Public Act 12-5 eliminates the possibility that
any future murderer will be sentenced to death. The
potential infliction of the penalty of death, therefore,
will no longer enter into an individual’s decision of
whether to commit murder with special circumstances.
Thus, ‘‘[f]ollowing the abolition of the death penalty for
all future offenses committed in Connecticut . . . it is
possible to determine the exact number of potential
crimes that will be deterred by executing the defendant
in this case. That number is zero.’’ (Emphasis in origi-
nal.) State v. Santiago, 305 Conn. 101, 321, 49 A.3d 566
(2012) (Harper, J., concurring in part and dissenting
in part). Accordingly, the execution of the defendant,
as well as the executions of the other inmates who
remain on death row, cannot be justified by its deterrent
effect.35 See Atkins v. Virginia, supra, 536 U.S. 319–20
(concluding that executing mentally retarded will not
further goal of deterrence).
Courts have always treated death differently from
other types of punishments in determining what is con-
stitutionally permissible. See Solem v. Helm, supra, 463
U.S. 289; Bullington v. Missouri, 451 U.S. 430, 445–46,
101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981); Beck v. Alabama,
447 U.S. 625, 637–38, 100 S. Ct. 2382, 65 L. Ed. 2d 392
(1980); Gardner v. Florida, 430 U.S. 349, 358–60, 97 S.
Ct. 1197, 51 L. Ed. 2d 393 (1977). No court has ever
justified the continued imposition of the death penalty
on minors or the mentally disabled following repeal
because doing so would have promoted stability in the
law. The prospective repeal of the death penalty in
this statute has eliminated the traditionally articulated
rationale of deterring those particularly heinous crimes
deemed to justify the punishment of death.
Therefore, I turn to the other claimed justification
for capital punishment, namely, retribution. Although
not a forbidden penological objective, ‘‘[r]etribution is
no longer the dominant objective of the criminal law
. . . .’’ (Citations omitted; internal quotation marks
omitted.) Gregg v. Georgia, supra, 428 U.S. 183; see
also State v. Corchado, 200 Conn. 453, 463, 512 A.2d
183 (1986). The United States Supreme Court has recog-
nized that, of the valid justifications for punishment,
‘‘retribution . . . most often can contradict the law’s
own ends. This is of particular concern when the [c]ourt
interprets the meaning of the [e]ighth [a]mendment in
capital cases. When the law punishes by death, it risks
its own sudden descent into brutality, transgressing the
constitutional commitment to decency and restraint.’’
Kennedy v. Louisiana, supra, 554 U.S. 420.
‘‘[T]he heart of the retribution rationale is that a crimi-
nal sentence must be directly related to the personal
culpability of the criminal offender.’’ (Internal quotation
marks omitted.) Graham v. Florida, supra, 560 U.S. 71;
see also Atkins v. Virginia, supra, 536 U.S. 319 (‘‘[w]ith
respect to retribution . . . the severity of the appro-
priate punishment necessarily depends on the culpabil-
ity of the offender’’). Retribution is committed to
general principles mandating similar punishment in sim-
ilar circumstances. See R. Nozick, Philosophical Expla-
nations (1981) p. 367. Thus, retribution ‘‘sets an internal
limit to the amount of punishment, according to the
seriousness of the wrong . . . .’’ Id. Retributive justice,
therefore, is concerned with imposing a sentence pro-
portionate to the crime, so that the ‘‘interest in seeing
that the offender gets his ‘just deserts’ ’’ is satisfied.
Atkins v. Virginia, supra, 319; see also Kennedy v.
Louisiana, supra, 554 U.S. 442 (‘‘[t]he goal of retribu-
tion . . . reflects society’s and the victim’s interests in
seeing that the offender is repaid for the hurt he
caused’’).
Under this theory, it is unjust to create a system that
purposefully imposes, or encourages the imposition of,
wholly disproportionate punishment on equally culpa-
ble defendants. Rather, to fulfill a valid retributive pur-
pose, sentences must be handed out evenhandedly;
legislatures and courts cannot simply dole out different
punishments, varying not merely in degrees of severity,
but in kind, for similar crimes. Indeed, the notion that
the death penalty should be reserved for only the most
deserving of offenders and, thus, work to produce even-
handed justice, is embedded in this nation’s capital pun-
ishment jurisprudence. To ensure that only the most
culpable of offenders are sentenced to death, the United
States Supreme Court has ‘‘consistently confined the
imposition of the death penalty to a narrow category
of the most serious crimes.’’ Atkins v. Virginia, supra,
536 U.S. 319; see also Kennedy v. Louisiana, supra,
554 U.S. 442 (‘‘[i]n considering whether retribution is
served . . . we have looked to whether . . . the cul-
pability of the prisoner is so serious that the ultimate
penalty must be sought and imposed’’ [internal quota-
tion marks omitted]). The death penalty, therefore, has
been reserved for certain crimes ‘‘so grievous an affront
to humanity that the only adequate response may be the
penalty of death.’’ (Emphasis added.) Gregg v. Georgia,
supra, 428 U.S. 184.
In written testimony to the Judiciary Committee,
Chief State’s Attorney Kevin Kane acknowledged that
‘‘[p]rospective repeal of the death penalty will create
two classes of people: one will be subject to execution
and the other will not, not because of the nature of the
crime or the existence or absence of any aggravating
or mitigating factor, but because of the date on which
the crime was committed.’’ Conn. Joint Standing Com-
mittee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2937. In
so doing, however, our legislature’s prospective repeal
necessarily establishes that the death penalty is not
the only adequate response to those crimes previously
deemed capital felonies.
What, then, is the real purpose behind executing the
men currently on death row, when the legislature has
completely taken death off of the table for all crimes
committed after April 25, 2012? Although P.A. 12-5 con-
tains no statement of policy or underlying findings, the
legislative history establishes two factors that indicate
that maintaining the death penalty on the basis of an
arbitrary date does not measurably contribute to a valid
retributive purpose. First, the various rationales articu-
lated in support of the death penalty’s repeal applied
to all cases regardless of the date of offense: (1) the
death penalty operates in an incurably arbitrary and
discriminatory manner;36 (2) the risk of executing an
innocent person cannot be eliminated;37 (3) the length of
time required for effective appellate and postconviction
review would make it more likely that the men on death
row would die of old age rather than be executed;38 (4)
the death penalty fails to provide closure for victims’
families;39 and, of course, (5) moral objections to the
state’s taking of a life.40 Second, although the legislative
debate articulated serious concerns as to the legal and
moral propriety of prospective repeal,41 no lawmaker
articulated a legitimate or moral rationale for condition-
ing death upon the date of the offense. The lone com-
ment expressing anything close to such a justification
was a suggestion that the state should not upset the
expectations of victims’ families, a point that I address
subsequently in this concurring opinion. See 55 S. Proc.,
Pt. 3, 2012 Sess., p. 720, remarks of Senator Andrew
Roraback. No other legislator indicated that he or she
shared that particular view. Rather, it was broadly
acknowledged that the decision to repeal the death
penalty only on a prospective basis was driven by a
desire to exact revenge on certain notorious death row
inmates and the fear of the political consequences that
could have accompanied an absolute prohibition.42 For
example, Representative Lawrence Cafero, an oppo-
nent of the prospective nature of the repeal and the
abolition of the death penalty generally, stated: ‘‘It is
no secret that what is weighing over all of us is the
[murder of Jennifer Hawke-Petit, Hayley Petit, and
Michaela Petit in Cheshire]. In fact, it was widely
reported that one of the reasons this General Assembly
didn’t take this bill up earlier was because of the fresh-
ness of those awful crimes.’’ 55 H.R. Proc., Pt. 3, 2012
Sess., p. 1043; see also 55 H.R. Proc., Pt. 4, 2012 Sess.,
p. 1063, remarks of Representative Al Adinolfi (‘‘[t]here
are many people in this room that have changed in their
mind their vote to abolish the death penalty rather than
vote against abolishing the death penalty based on these
[eleven] who are on death row being executed, espe-
cially [Joshua] Komisarjevsky and [Steven] Hayes [who
were convicted of capital felonies in connection with
the murders in Cheshire]’’);43 55 H.R. Proc., Pt. 4, 2012
Sess., p. 1305, remarks of Representative Ernest Hewett
(‘‘for the members who are voting for a prospective bill
so they can make sure that Hayes and Komisarjevsky
get the death penalty, it’s not going to happen’’). Repre-
sentative Cafero later added that, if the legislature
intended to have a debate about the propriety of the
death penalty, ‘‘let’s have that debate. Let’s not have
this one. Let’s not mislead the public. . . . If it is the
will of this [c]hamber that this [s]tate is no longer in
the business of executing people, then let’s say it and
do it. You cannot have it both ways.’’ 55 H.R. Proc., Pt.
4, 2012 Sess., p. 1047. Likewise, Representative Themis
Klarides, herself a supporter of the death penalty,
remarked about the inconsistency inherent in the legis-
lative determination that a select few individuals may
be executed, but that execution is unjustified in any
circumstance going forward: ‘‘I do not get how anybody
can say, I believe killing is wrong. . . . What I don’t
get is, how killing can be wrong for someone else, but
[the men currently on death row], they are bad, so we
can kill them. . . . You either support the death pen-
alty and taking somebody’s life or you don’t.’’ Id., p.
1210. These are, obviously, statements selected from an
extremely extensive legislative history. Nevertheless,
these statements, in my view, accurately reflect the
primary reasons behind the prospective nature of the
repeal: the desire to see the men currently on death
row die, or at least certain of them,44 as well as the
avoidance of the political consequences that would
have accompanied the abolishment of existing death
sentences.
Therefore, I can only conclude that the purpose of
limiting the repeal of the death penalty prospectively is
private vengeance. Private vengeance differs markedly
from retribution, and is an impermissible justification
for punishment. Whereas retribution is concerned with
ensuring that an offender gets his ‘‘ ‘just deserts’ ’’;
Atkins v. Virginia, supra, 536 U.S. 319; revenge,45 on
the other hand, is personal, or private. A person or
society seeking revenge has a personal tie to the victim,
or is personally affected by the harm done to the victim.
Those seeking revenge are motivated by emotion, and
take personal pleasure in the suffering of the offender.
See R. Nozick, supra, p. 367. Most significantly, revenge,
by its nature, carries no limits on the harm that may
be imposed on the offender, whereas retribution sets an
internal limit on punishment according to an offender’s
culpability. See id. Thus, revenge cares not with what
comes of other offenders who commit similar crimes,
but is concerned only with harming a specific offender.46
The state contends, however, that executing prere-
peal death row inmates does serve a valid retributive
purpose because, by carrying out existing death senten-
ces, the state will fulfill promises it has made to the
victims of these crimes and, particularly, their families. I
cannot agree. Although the office of the state’s attorney
may have the ability to promise a victim’s family that
it will seek a sentence of death, it cannot legitimately
promise that the offender will be put to death for numer-
ous reasons. The jury may decide not to convict or not
to impose a sentence of death. Should the jury vote to
impose that punishment, the defendant’s death sen-
tence may be vacated on direct appeal, as in the present
case, or in collateral proceedings even years later. The
board of parole and pardons could commute the death
sentence. See General Statutes § 54-124a (d). More fun-
damentally, selectively executing the men currently on
death row in order to fulfill such promises would
amount to nothing more than exacting revenge on
behalf of the families of the victims.
Simply because society demands a certain punish-
ment does not mean that the state is authorized to carry
it out. ‘‘The mere fact that the community demands the
murderer’s life in return for the evil he has done cannot
sustain the death penalty, for . . . ‘the [e]ighth
[a]mendment demands more than that a challenged
punishment be acceptable to contemporary society.’ ’’
Gregg v. Georgia, supra, 428 U.S. 240 (Marshall, J.,
dissenting). ‘‘It is undoubtedly correct that there is a
demand for vengeance on the part of many persons in
a community against one who is convicted of a particu-
larly offensive act. At times a cry is heard that morality
requires vengeance to evidence society’s abhorrence of
the act. But the [e]ighth [a]mendment is our insulation
from our baser selves. The ‘cruel and unusual’ language
limits the avenues through which vengeance can be
channeled. Were this not so, the language would be
empty and a return to the rack and other tortures would
be possible in a given case.’’ (Footnote omitted.) Fur-
man v. Georgia, supra, 408 U.S. 344–45 (Marshall, J.,
concurring).
Thus, society’s desire to see the men on death row
executed cannot alone legitimize executing the prere-
peal defendants in light of the death penalty repeal. See
State v. Santiago, supra, 305 Conn. 319 (Harper, J.,
concurring in part and dissenting in part) (‘‘[i]f it is
upon . . . rage that the death penalty depends, then
that penalty cannot stand’’). Indeed, it is wholly incon-
sistent to justify an execution by our society’s moral
outrage at the offender’s conduct when our state no
longer sanctions a sentence of death for any crime
committed today. I therefore conclude that the reten-
tion of the death penalty for the men currently on death
row, after the legislature has declared that the death
penalty is no longer a proper punishment for any mur-
derer going forward, serves no valid penological pur-
pose, and marks this state’s ‘‘sudden descent into
brutality, transgressing the constitutional commitment
to decency and restraint.’’47 Kennedy v. Louisiana,
supra, 554 U.S. 420.
In light of the foregoing principles, I therefore con-
clude that the execution of prerepeal death row inmates
while a death penalty repeal is in effect does not measur-
ably contribute to a valid retributive purpose. Public
Act 12-5 ensures that no murderer will be sentenced to
death in the future, irrespective of his or her culpability.
Thus, the act completely unravels the thread that links
the imposition of the death penalty and the culpability
of individual offenders. No longer can death be imposed
for crimes virtually identical to, similar to, or even more
heinous than the crimes committed by prerepeal death
row inmates. By repealing the death penalty going for-
ward, the legislature has made a determination that the
internal limit of punishment, or the most appropriate
penalty, for even the most egregious of crimes is life
imprisonment without the possibility of parole. In other
words, the legislature has rejected the notion that death
is the only adequate response for even the most culpable
of offenders; see Gregg v. Georgia, supra, 428 U.S. 184;
and, instead, has determined that a sentence of life
imprisonment without the possibility of parole will suf-
fice to satisfy the interest in seeing that such an offender
gets his just deserts.
C
Applying the Death Penalty on the Basis of the Date of
the Offense in Relation to the Effective Date
of P.A. 12-5 is Unconstitutionally Arbitrary
It is also my view that, as amended by P.A. 12-5,
Connecticut’s statutory capital sentencing scheme is
unconstitutional because, as currently structured, it suf-
fers from the same inequities that plagued the capital
sentencing schemes that were declared unconstitu-
tional by the United States Supreme Court in Furman.
See Furman v. Georgia, supra, 408 U.S. 238–40. In Fur-
man, a majority of United States Supreme Court jus-
tices each came to the independent conclusion that the
penalty of death, as it was then currently administered,
was so cruel and unusual as to violate the eighth amend-
ment. Id., 240. Although no justice’s reasoning could
command a clear majority, by examining the decision
in Furman in light of two other cases decided in that
time period by the United States Supreme Court,
namely, McGautha v. California, 402 U.S. 183, 91 S.
Ct. 1454, 28 L. Ed. 2d 711 (1971), and Gregg v. Georgia,
supra, 428 U.S. 153, one comes to understand that the
death penalty is in accord with the eighth amendment
only when it is imposed on the most culpable offenders
for the commission of the most grave homicides and,
importantly, only when this most extreme punishment
is imposed fairly, consistently, and based solely on the
individual and unique circumstances of each case. What
Connecticut has done, by prospectively repealing the
death penalty for all types of homicide that previously
were defined as ‘‘capital felonies’’ by §§ 53a-35a and
53a-54b, is to remove any assurance that only the most
deserving offenders will be selected by our statutory
scheme to receive the death penalty on the basis of
their individual circumstances.
The United States Supreme Court decision in McGau-
tha reveals the problems that occurred under the older
versions of our nation’s capital sentencing schemes. In
McGautha, two men who had been sentenced to death
claimed that ‘‘the absence of standards to guide the
jury’s discretion on the punishment issue is constitu-
tionally intolerable. . . . [The] petitioners contend that
to leave the jury completely at large to impose or with-
hold the death penalty as it sees fit is fundamentally
lawless and therefore violates the basic command of the
[f]ourteenth [a]mendment that no [s]tate shall deprive a
person of his life without due process of law.’’ McGau-
tha v. California, supra, 402 U.S. 196. At that point in
time, the United States Supreme Court was unwilling
to recognize the unconstitutionality of the outdated sen-
tencing schemes that permitted juries to exercise
unchanneled discretion in determining a capital defen-
dant’s sentence. See id., 203–208.
The United States Supreme Court would reverse
course only one year later in Furman. In that case, five
justices separately concluded that the death penalty as
currently administered was unconstitutional under the
eighth and fourteenth amendments. Furman v. Geor-
gia, supra, 408 U.S. 238–40. Justice Stewart’s opinion,
which focused on the random and arbitrary manner in
which the death penalty was imposed, heavily influ-
enced the development of modern capital sentencing
schemes. Id., 309–10. More than anything else, Justice
Stewart was concerned with the unprincipled manner
in which the death penalty was being imposed at the
time: ‘‘These death sentences are cruel and unusual in
the same way that being struck by lightning is cruel
and unusual. For, of all the people convicted of . . .
murders in 1967 and 1968, many just as reprehensible
as these, the petitioners are among a capriciously
selected random handful upon whom the sentence of
death has in fact been imposed.’’ (Emphasis added;
footnote omitted.) Id. Thus, although Justice Stewart
did not determine that the death penalty itself is a viola-
tion of the eighth amendment; see id., 307–308; one can
only conclude that whenever randomness, arbitrari-
ness, or capriciousness exert their influence on the
imposition of the death penalty, the eighth and four-
teenth amendments of the constitution of the United
States have been violated.
The plurality opinion in Gregg serves as a guide to
legislatures that wish to continue to constitutionally
impose the death penalty. In Gregg, the United States
Supreme Court approved of a Georgia capital sentenc-
ing statute passed in response to Furman: ‘‘The basic
concern of Furman centered on those defendants who
were being condemned to death capriciously and arbi-
trarily. Under the procedures before the [c]ourt in that
case, sentencing authorities were not directed to give
attention to the nature or circumstances of the crime
committed or to the character or record of the defen-
dant. Left unguided, juries imposed the death sentence
in a way that could only be called freakish. The new
Georgia sentencing procedures, by contrast, focus the
jury’s attention on the particularized nature of the crime
and the particularized characteristics of the individual
defendant. . . . In this way the jury’s discretion is
channeled. No longer can a jury wantonly and freakishly
impose the death sentence; it is always circumscribed
by the legislative guidelines.’’ Gregg v. Georgia, supra,
428 U.S. 206–207.48
Public Act 12-5 amends Connecticut’s statutory death
penalty scheme in a manner that, in my view, runs afoul
of the principles expressed in Furman. The United
States Supreme Court has repeatedly found that death
is different. ‘‘There is no question that death as a punish-
ment is unique in its severity and irrevocability.’’ Id.,
187; see also Furman v. Georgia, supra, 408 U.S. 305
(Brennan, J., concurring) (‘‘death is an unusually severe
and degrading punishment’’); Furman v. Georgia,
supra, 346 (Marshall, J., concurring) (death is ‘‘the ulti-
mate sanction’’). It cannot fairly be denied that ‘‘death
is a punishment different from all other sanctions in
kind rather than degree.’’ Woodson v. North Carolina,
428 U.S. 280, 303–304, 96 S. Ct. 2978, 49 L. Ed. 2d 944
(1976). ‘‘When a defendant’s life is at stake, the [United
States Supreme Court] has been particularly sensitive
to insure that every safeguard is observed. . . . It is
an extreme sanction, suitable to the most extreme of
crimes.’’ (Citations omitted; footnote omitted.) Gregg
v. Georgia, supra, 428 U.S. 187.
Instead of resulting from the unfettered discretion of
a jury, as in Furman, the arbitrariness in the present
case stems from the effective date provision of the act,
which, in effect, renders the date on which a defendant
commits his crime an eligibility factor for the death
penalty. I fail to see how this scheme, which permits
the imposition of the death penalty for a capital felony
committed at any time prior to 11:59 p.m. on April 24,
2012, but rejects categorically the imposition of the
death penalty for the same conduct or even substan-
tially more heinous acts carried out two minutes later,
is in any way distinct from the constitutionally infirm
schemes rejected by the United States Supreme Court
in Furman. The circumstances that I describe strike me
as exactly the sort of wanton and freakish imposition of
the death penalty that runs afoul of the eighth amend-
ment of the United States constitution. See Furman v.
Georgia, supra, 408 U.S. 310 (Stewart, J., concurring);
Callins v. Collins, 510 U.S. 1141, 1152, 114 S. Ct. 1127,
127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from
denial of certiorari) (‘‘[t]he demands of Furman are
met by ‘narrowing’ the class of death-eligible offenders
according to objective, fact-bound characteristics of
the defendant or the circumstances of the offense’’
[emphasis added]).
In my view, the understanding that, today, only this
subset of criminal offenders—those defendants who
committed capital felonies prior to the effective date
of P.A. 12-5, regardless of individual culpability—will
be subject to this punishment causes an arbitrary,
anomalous impact on this subset of criminal offenders
and therefore causes Connecticut’s capital sentencing
scheme as amended by P.A. 12-5 to violate the eighth
amendment.
II
SEVERABILITY OF UNCONSTITUTIONAL
PARTS OF P.A. 12-5
Having concluded that the execution of prerepeal
death row inmates violates the constitutional ban on
cruel and unusual punishment, and although the major-
ity opinion decides today that capital punishment is
unconstitutional, in view of the dissents’ claims about
the appropriateness of the majority’s reaching the issue,
I now examine the effect that this conclusion has on
the continued viability of P.A. 12-5. My conclusion as
to the constitutionality of the act relates solely to the
effective date provision of the act, which is the mecha-
nism by which the death penalty is retained for capital
felonies committed before the act and abolished for all
identical future crimes.49 The issue, therefore, is
whether the unconstitutional provisions are severable
from the remainder of the act. I would conclude that
they are and, thus, would allow the constitutional por-
tions of the act to stand—namely, those portions that
effectuate the repeal of the death penalty.
In determining the appropriate remedy when a por-
tion of a statute has been found to be unconstitutional,
‘‘[w]e seek to determine what [the legislature] would
have intended in light of the [c]ourt’s constitutional
holding. . . . Thus, [g]uiding the solution is the maxim
that this court will strive to interpret a statute so as to
sustain its validity . . . and [to] give effect to the inten-
tion of the legislature. . . . [In enacting] General Stat-
utes § 1-3 the legislature has shown its intention that
there is to be a presumption of separability of the provi-
sions and of the applications of statutes. . . . With
regard to the separability of provisions, to overcome
the presumption it must be shown that the portion
declared invalid is so mutually connected and depen-
dent on the remainder of the statute as to indicate an
intent that they should stand or fall together . . . and
this interdependence would warrant a belief that the
legislature would not have adopted the remainder of
the statute independently of the invalid portion. . . .
‘‘[U]pon finding a portion of a statute to be unconsti-
tutional, this court does not ask whether, if the legisla-
ture had known about the constitutional flaw at the
time of enactment, it might have preferred some other
form of legislation over the remaining constitutional
portion of the statute, a question that might well engage
the court in speculation. Rather, this court asks the
much narrower question of whether the legislature, at
the time that the statute is invalidated, would prefer
the continued operation of the constitutional portion of
the statute or the complete invalidation of the statute.’’
(Citations omitted; emphasis omitted; footnote omitted;
internal quotation marks omitted.) State v. Bell, 303
Conn. 246, 260–61, 33 A.3d 167 (2011). Moreover, I
acknowledge that, ‘‘even with the presumption of divisi-
bility, we cannot rewrite a statute and give it an effect
altogether different from that sought by the measure
viewed as a whole especially where offending portions
so affect the dominant aim of the whole statute as to
carry [the whole statute] down with them.’’ (Internal
quotation marks omitted.) In re Robert H., 199 Conn.
693, 704, 509 A.2d 475 (1986), quoting Railroad Retire-
ment Board v. Alton Railroad Co., 295 U.S. 330, 362,
55 S. Ct. 758, 79 L. Ed. 1468 (1935).
In attempting to discern the legislature’s intent
regarding the severability of a statute, this court gener-
ally looks to the level of interdependence between the
unoffending language and the unconstitutional lan-
guage of the statute, and seeks to determine whether,
if the unconstitutional portion is excised, the remainder
still gives effect to the ‘‘dominant aim of the whole
statute . . . .’’ (Internal quotation marks omitted.) In
re Robert H., supra, 199 Conn. 704. Thus, the analysis
does not involve speculation as to how the legislature
would have voted had it been aware of the court’s
constitutional ruling, but rather whether the language
chosen by the legislature renders the statute insever-
able. For example, in State v. Menillo, 171 Conn. 141,
368 A.2d 136 (1976), this court examined the severability
of language contained in General Statutes (Rev. to 1975)
§ 53-29, which criminalized behavior intended to induce
a miscarriage or abortion of a pregnancy. In an earlier
decision concerning the same statute, the court con-
cluded that the entirety of the statute was unconstitu-
tional in light of the decisions of the United States
Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct.
705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S.
179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), which upheld
a woman’s right to an abortion by medically competent
personnel. See State v. Menillo, 168 Conn. 266, 269,
362 A.2d 962 (1975). The United States Supreme Court
subsequently vacated this court’s decision holding the
statute unconstitutional in its entirety, and concluded
that neither its decision in Roe nor Doe mandated the
total invalidation of the statute. See Connecticut v. Men-
illo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975).
On remand, this court reconsidered its earlier decision,
and sought to determine whether the language of § 53-
29 could be limited to exclude physicians from its opera-
tion, and thus ensure a woman’s right to an abortion
by medically competent personnel. State v. Menillo,
supra, 171 Conn. 145. With the foregoing principles on
severability in mind, this court concluded that ‘‘[t]he
exclusion of physicians from the prohibitions of the
statute would in no way destroy its effectiveness as
to other classes of persons. The invalid inclusion of
physicians is not so mutually related to and intrinsically
connected with the remainder of the statute as to indi-
cate that the statute would never have been adopted
without the inclusion of physicians.’’ Id., 146. Thus, the
court concluded that the presumption of severability
was not overcome, and that the legislature intended to
criminalize the covered behavior when engaged in by
a person who was not a physician.
Similarly, in In re Robert H., supra, 199 Conn. 693,
this court examined statutory language to discern the
legislature’s dominant purpose in enacting the statute.
The defendants in that case had been adjudicated delin-
quents and committed to state custody after being
charged with sexual assault. Id., 695. At trial, the defen-
dants sought to introduce records from the rape crisis
center visited by the victim, but the court granted a
motion to quash the subpoena because of General Stat-
utes (Rev. to 1985) § 52-146k, which, inter alia, created
a testimonial privilege for communications between a
sexual assault counselor and a sexual assault victim.
Id., 698. The defendants appealed an order by the trial
court quashing a subpoena for records from the rape
crisis center visited by the victim based on a determina-
tion that information contained therein was privileged.
Id., 694–701. Specifically, the defendants claimed that
the statutory privilege created by § 52-146k was improp-
erly invoked because other language prevented the
identity of the sexual assault counselor from being dis-
closed in a civil or criminal proceeding; General Stat-
utes (Rev. to 1985) § 52-146k (b); and, thus, the
definitional elements necessary to qualify an individual
as a ‘‘sexual assault counselor,’’ which determine
whether the privilege applied under the statute, could
not be established because the counselor could not be
called to testify at trial. Id., 698–701; General Statutes
(Rev. to 1985) § 52-146k (a) (5).
On appeal, this court agreed that the statute con-
tained conflicting language, stating, ‘‘if the identity of
the sexual assault counselor cannot be disclosed under
. . . § 52-146k (b), then it would always be impossible
to determine whether the statutory criteria set out in
§ 52-146k (a) (5) were satisfied with respect to that
sexual assault counselor.’’ In re Robert H., supra, 199
Conn. 701. After analyzing the language of the statute,
the court concluded that ‘‘[t]he obvious intent and the
dominant purpose of this statute is to grant a privilege to
confidential communications between a sexual assault
counselor . . . and a victim.’’ Id., 703. Then, instead of
striking down the entire statute, the court determined
that the ‘‘portion of § 52-146k (b) which prohibits the
disclosure of the identity of a sexual assault counselor
is separable and independent from the balance of the
statute given [the statute’s] dominant purpose of creat-
ing the privilege . . . .’’ Id., 704. Accordingly, the court
remanded the case to the trial court for a determination
of whether the sexual assault counselor who treated
the victim satisfied the necessary criteria to claim the
testimonial privilege. Id., 704–705. The court similarly
directed that the counselor’s identity be disclosed to
the defendants for purposes of cross-examination con-
cerning her statutory qualifications. Id., 705.
Similarly, in State v. Bell, 283 Conn. 748, 784–86, 931
A.2d 198 (2007), this court was tasked with determining
whether General Statutes (Rev. to 2007) § 53a-40 (h),
violated the sixth amendment. The statutory subsection
at issue authorized the trial court to impose a substan-
tially harsher sentence on a defendant if: (1) a jury
had determined he qualified as a persistent dangerous
felony offender and; (2) the trial court concluded that
the public interest would be best served by subjecting
the defendant to a harsher sentence. See id., 796.
Although in that case, the court did look to the legisla-
tive history to determine the actual intent of the legisla-
ture in amending the statute at issue; see id., 802–803,
812; the court ultimately concluded that, as worded,
the statute did violate the sixth amendment because it
authorized a sentence enhancement greater than the
maximum sentence authorized by the jury verdict. Id.,
803–804. Instead of striking the statute in its entirety,
however, the court noted that if a phrase were excised
from the statute, it would be rendered constitutional
while still keeping with the legislature’s dominant pur-
pose behind enacting the statute. See id., 811–12. The
court did so even though its separation had the effect
of altering the legislature’s chosen process required for
a persistent dangerous felony offender to receive an
enhanced sentence. See id., 811–13.
With the foregoing principles in mind, I would con-
clude that the statute in the present case is separable.50
As in In re Robert H., the statutory language in the
present case evinces two separate legislative goals: the
prohibition of the death penalty for all crimes commit-
ted after the effective date of P.A. 12-5; and the retention
of the death sentences of the prerepeal defendants.51 It
would be anomalous and alarming to conclude that,
in enacting a statute repealing the death penalty, the
legislature was primarily concerned with seeing a hand-
ful of men executed. Thus, it is clear to me that the
dominant purpose of P.A. 12-5 was to prohibit the death
penalty for future crimes. The retention of existing
death sentences was incidental to the primary purpose
of abolition. Indeed, if the obvious intent of the legisla-
ture was to retain the death penalty for prerepeal defen-
dants, then why would the legislature have enacted the
statute? Connecticut, after all, already authorized the
death penalty prior to P.A. 12-5 and, therefore, legisla-
tive inaction would have ensured the retention of
existing death sentences. Likewise, it is noteworthy that
the abolition of the death penalty will affect all future
defendants, an unquantifiable and obviously large num-
ber, whereas the portion of P.A. 12-5 retaining the death
penalty for crimes committed prior to the effective date
will affect only those defendants who have committed
capital felonies prior to the effective date. Thus, striking
down P.A. 12-5 in its entirety would thwart its primary
purpose—the abolition of the death penalty.52
The state claims, however, that an examination of the
legislative history of P.A. 12-5 shows that the legislature
would not have repealed the death penalty without
retaining preexisting death sentences and, therefore,
that the statute is not severable. I disagree. In certain
instances, when legislative intent is not readily apparent
from the plain language of the statute, this court has
examined the legislative history of a statute when
determining whether a statute is severable. See State
v. Bell, supra, 303 Conn. 261–63; State v. Bell, supra,
283 Conn. 802–803. Even if one examines the legislative
history of the act, the state’s argument lacks merit.
This court does not seek to determine whether, if the
legislature had known about the constitutional flaw
at the time of enactment, it would have enacted the
remaining constitutional portion of the statute, an exer-
cise that would engage this court in speculation. See
State v. Bell, supra, 303 Conn. 261. Rather, the question
this court must answer is whether the legislature, at
the time that a portion of the statute is declared uncon-
stitutional, would prefer the continued operation of the
constitutional portion of the statute or the complete
invalidation of the statute. Id. In answering this ques-
tion, the court must keep in mind that there is a pre-
sumption in favor of severability. See General Statutes
§ 1-3. Moreover, this court should keep in mind that, if
only a portion of a statute is found to be constitutional, it
should be severed from the offending remainder ‘‘unless
this court determines that the legislature would have
enacted it in precisely the same form if it had known
of the constitutional flaw at the time of enactment.’’
(Emphasis in original.) State v. Bell, supra, 303 Conn.
261 n.12. As this court explained in Bell, this means
that this court would have to find that the legislature
would not have repealed the death penalty if it had
been aware of the constitutional flaw in P.A. 12-5. See id.
Although I consider the dominant purpose of the
statute to be evident from its plain language, an exami-
nation of the relevant legislative history bolsters my
conclusion that the offending portion of the statute is,
in fact, severable from the constitutional remainder.
Although the state points to select portions of the legis-
lative history that highlight an insistence that the repeal
be prospective,53 there is also evidence that many legis-
lators were in favor of a complete repeal of the death
penalty. More importantly, the legislature was warned,
in no uncertain terms, that an attempt to repeal the
death penalty only prospectively was likely to run afoul
of both the federal and state constitutions. Consider,
for example, a portion of Chief State’s Attorney Kevin
Kane’s testimony before the Judiciary Committee: ‘‘If
it is passed in this form and it’s prospective and a crime
occurs the day before it becomes effective my feeling
is [that] there’s—I know I wouldn’t, I know I won’t seek
the death penalty for a crime that occurs the day before
it becomes effective. I think that would be arbitrary.
And I wouldn’t—just wouldn’t plain feel right doing it.
That’s my opinion.’’54 (Emphasis added.) Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 8, 2012
Sess., p. 2633. Asked point-blank by a legislator ‘‘does
this law, this bill stop [offenders who committed capital
felonies prior to the effective date] from receiving the
death penalty?’’ Id., p. 2646. Chief State’s Attorney Kane
responded: ‘‘the wording of the bill itself does not but
my prediction is . . . that as a result of . . . this bill
passing people won’t be executed whether [they have]
been sentenced or not.’’ (Emphasis added.) Id.
Similarly, another legislator urged the House of Rep-
resentatives to adopt an amendment to the bill that
became P.A. 12-5 that would have reinstated the death
penalty for all offenders if this court were to determine
that the repeal of the death penalty was constitutionally
required to apply to those currently sentenced to death:
‘‘This amendment, Madam Speaker . . . now is very
appropriate. There are many people in this room that
have changed in their mind their vote to abolish the
death penalty rather than vote against abolishing the
death penalty based on these [eleven] who are on death
row being executed, especially, Komisarjevsky and
Hayes . . . . And what I’m saying is that we will be
misleading the people in this room that have changed
their decision because the death penalty will still stay
in place for those that are on death row if we do not pass
this . . . amendment . . . we would be doing them a
wrong. And I think those people would . . . have been
misled by this coming out, because I believe that those
who put in this bill, with the prospective in there, know
that eventually this is going to go away, and they’re
misleading the rest of the [r]epresentatives that will be
voting here today; therefore, I urge all my colleagues
in this room to support this amendment.’’ 55 H.R. Proc.,
Pt. 4, 2012 Sess., p. 1063, remarks of Representative
Adinolfi. The amendment, which was described by its
sponsor, Representative John Hetherington, as ‘‘the
opposite of a severability clause . . . think of it that
way’’; id., p. 1061; failed by a vote of fifty-four to eighty-
eight, with nine votes not present or abstaining. Id.,
p. 1066.
A matching amendment failed in the Senate. The
amendment’s sponsor explained the need for it as fol-
lows: ‘‘[T]he intent is—Senator [Eric] Coleman had indi-
cated that the bill he believes not to be unconstitutional.
Therefore this amendment does not have to go forward.
And I guess I look at it as a spare tire in your trunk.
You may not need it. But if it is unconstitutional, you
have it. And you’ve protected the intent of the [l]egisla-
ture, which is not, clearly not to let the [eleven] cur-
rently on death row to get a different sentence. And if
that’s clearly what we want to do this amendment will
ensure that takes place. And there’s many of us around
the [c]ircle who, at least I understand, were debating
whether to vote in favor of getting rid of the death
penalty or not. But clearly an effort to change their
mind was the relief or satisfaction that the [eleven] who
are currently on death row would continue to be on
death row absent—even with this legislation. All this
does is say absolutely true. And if your wishes are
not upheld, and if those [eleven] end up with a lesser
sentence, which was not our intent, we will do away
with getting rid of the death penalty. It’s just protection
that gets what we all wanted. And if that’s a major
factor, this is how you protect it.’’ (Emphasis added.)
55 S. Proc., Pt. 3, 2012 Sess., p. 668, remarks of Senator
Leonard Fasano. This proposed amendment also failed
to pass, receiving fifteen votes in favor and twenty
against, with one vote not present or abstaining. Id.,
p. 669. All of the legislators who voted against this
amendment were presumably aware of the statutory
presumption codified at § 1-3 in favor of severing invalid
provisions from the remaining inoffensive language of a
statute at the time that they rejected these amendments.
See, e.g., State v. Fernando A., 294 Conn. 1, 21, 981
A.2d 427 (2009) (‘‘the General Assembly is always pre-
sumed to know all the existing statutes and the effect
that its action or non-action will have upon any one of
them’’ [internal quotation marks omitted]).
Further, other legislators plainly believed that there
might be constitutional issues associated with a purely
prospective repeal: for example, Senator John Kissel
stated the following in response to testimony that
sought to assure the legislature that a prospective only
repeal could be accomplished: ‘‘[T]his is Connecticut,
this is New England, this is a debate that’s not going
away any time soon and I really do believe once this
step is made, the other shoe’s going to fall, inevitably,
if not sooner than we all think. And whether it’s driven
by a Supreme Court decision, appeals, or whether a
future legislature a few years from now says, wow,
we can’t have [eleven] people on death row and have
everybody else—or some horrible, horrific criminal
commits a crime and because it’s a few days after this
goes into effect then the argument is we’ve got this
individual here who can only face life without [the]
possibility of release, that is fundamentally unfair to
these other individuals and that’s—that becomes much
more difficult for folks such as myself who are advo-
cates and proponents of the death penalty.’’ Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 9, 2012
Sess., p. 2768.
Accordingly, I conclude that the portions of P.A. 12-
5 that render it unconstitutional are not so mutually
connected to the constitutional remainder so as to indi-
cate a legislative intent that the entire act should fall
and that, therefore, the provision of P.A. 12-5 requiring
prospective application is severable.
III
CONCLUSION
The effective date provision of P.A. 12-5 is patently
unconstitutional under the federal constitutional ban
on cruel and unusual punishment. Moreover, our state
constitution’s prohibition of excessive and dispropor-
tionate punishment renders capital punishment uncon-
stitutional. If our state had executed one person while
the prospective repeal is in effect, it would have sepa-
rated itself from not only all of the states in our own
country, but from all of the countries in the modern
world. Instead of continuing its tradition as a paradigm
for the elimination of the death penalty for certain
classes of individuals, Connecticut would have
descended into the murky depths of the uncharted
waters of death penalty executions postrepeal of the
death penalty statute. The majority’s decision today
derives from the strength of our collective moral ethos.
Our laws should never succumb to the inherent inde-
cency associated with a vengeful purpose directed
toward a few isolated individuals. I do not believe that
this is the legacy which Connecticut wishes to leave to
its future generations.
Therefore, I respectfully join in the majority opinion
and issue this concurring opinion.
1
The eighth amendment to the United States constitution provides:
‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.’’ The cruel and unusual punishments
clause of the eighth amendment is made applicable to the states through
the due process clause of the fourteenth amendment to the United States
constitution. See State v. Taylor G., 315 Conn. 734, 737 n.4, 110 A.3d 338
(2015).
Article first, § 8, of the constitution of Connecticut provides in relevant
part that in all criminal prosecutions: ‘‘No person shall . . . be deprived of
life, liberty or property without due process of law . . . .’’ Article first, § 9,
of the constitution of Connecticut provides in relevant part: ‘‘No person
shall be . . . punished, except in cases clearly warranted by law.’’ This
court has previously held that these provisions of our state constitution
‘‘impliedly prohibit punishment that is cruel and unusual.’’ State v. Rizzo,
303 Conn. 71, 130 n.52, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S.
Ct. 133, 184 L. Ed. 2d 64 (2012); see also State v. Ross, 230 Conn. 183, 246–47,
646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed.
2d 1095 (1995).
2
Connecticut has previously acted ahead of the United States Supreme
Court and other states in this nation in prohibiting the execution of mentally
handicapped individuals; see Public Acts 2001, No. 01-151, § 2; minors; see
Public Acts 1973, No. 73-137, § 4 (f); and perpetrators of nonhomicide
offenses. See Public Act 73-137, § 3; Public Acts 2001, No. 01-151, § 3; see
also State v. Rizzo, 303 Conn. 71, 189, 31 A.3d 1094 (2011) (noting that
Connecticut had acted to ban these practices ahead of United States Supreme
Court, and stating, ‘‘over time, the national landscape has become more
closely aligned with Connecticut’’), cert. denied, U.S. , 133 S. Ct. 133,
184 L. Ed. 2d 64 (2012).
3
I note that neither the majority nor the dissents in Atkins focused their
analysis on the legislative history of the repeal statutes referenced therein.
See Atkins v. Virginia, supra, 536 U.S. 313–17; id., 321–23 (Rehnquist, C.
J., dissenting); id., 342–45 (Scalia, J., dissenting). Thus, it appears that when
examining whether a national consensus against a particular sentencing
practice has emerged for eighth amendment purposes, the relevant inquiry
does not appear to focus on why a statute repealing a particular sentencing
practice was passed, but whether such legislation was passed at all. Further,
the fact that the issue in Atkins was whether it was considered cruel and
unusual to sentence a particular subset of criminal defendants who were
less culpable than a typical capital defendant does not affect the relevance
of that analysis to the present case. The majority in Atkins provided courts
with a rosetta stone for use in deciphering whether a national consensus
exists against a particular sentencing practice—whatever it may be. Using
Atkins and its sister cases as an indicator of the sources that the United
States Supreme Court has looked to when it has sought to determine whether
a national consensus against a particular sentencing practice exists is
entirely relevant to the present case. In this respect, the present case is
indistinguishable from Atkins. In Atkins, it was no mere oversight or acci-
dent that the majority’s approach to determining the existence of a national
consensus differed from the approach adopted in Justice Scalia’s dissent.
Indeed, Justice Scalia spent paragraphs castigating the majority in Atkins
for its approach, some of which I quote here: ‘‘The [c]ourt pays lipservice
to these precedents as it miraculously extracts a ‘national consensus’ forbid-
ding execution of the mentally retarded . . . from the fact that [eighteen]
[s]tates—less than half (47 [percent]) of the [thirty-eight] [s]tates that permit
capital punishment (for whom the issue exists)—have very recently enacted
legislation barring execution of the mentally retarded. Even that 47 [percent]
figure is a distorted one. If one is to say, as the [c]ourt does today, that all
executions of the mentally retarded are so morally repugnant as to violate
our national ‘standards of decency,’ surely the ‘consensus’ it points to
must be one that has set its righteous face against all such executions.
Not [eighteen] [s]tates, but only [seven]—18 [percent] of death penalty
jurisdictions—have legislation of that scope. Eleven of those that the [c]ourt
counts enacted statutes prohibiting execution of mentally retarded defen-
dants convicted after, or convicted of crimes committed after, the effective
date of the legislation; those already on death row, or consigned there before
the statute’s effective date, or even (in those [s]tates using the date of
the crime as the criterion of retroactivity) tried in the future for murders
committed many years ago, could be put to death. That is not a statement
of absolute moral repugnance, but one of current preference between two
tolerable approaches. Two of these [s]tates permit execution of the mentally
retarded in other situations as well: Kansas apparently permits execution
of all except the severely mentally retarded; New York permits execution
of the mentally retarded who commit murder in a correctional facility.’’
(Citation omitted; emphasis altered; footnotes omitted.) Id., 342–43.
Six justices read those words by Justice Scalia and disagreed, finding that
a national consensus against the sentencing practice at issue in Atkins and
making that conclusion in part because of those states that had instituted
prospective only repeals. An examination of subsequent cases decided by
the United States Supreme Court on similar issues only serves to reinforce
this point. See, e.g., Graham v. Florida, supra, 560 U.S. 62–63 (examining
legislation to determine whether national consensus against sentencing prac-
tice exists, no indication that whether repeal is prospective or total is relevant
to analysis).
4
See generally Death Penalty Information Center, ‘‘Executions in the U.S.
1608–2002: The ESPY File, Executions by State,’’ available at http://
www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August
10, 2015); Death Penalty Information Center, ‘‘States With and Without the
Death Penalty,’’ (2015), available at http://www.deathpenaltyinfo.org/states-
and-without-death-penalty (last visited August 10, 2015); footnotes 16
through 28 of this opinion.
5
See 1957 Hw. Sess. Laws 314; 2010 Ill. Laws 7778; 1965 Iowa Acts 827;
1887 Me. Laws 104; 2013 Md. Laws 2298; 1911 Minn. Laws 572; 2007 N.J.
Laws 1427; 2009 N.M. Laws 141; 1965 Vt. Acts & Resolves 28; 1853 Wis. Sess.
Laws 100; Death Penalty Information Center, ‘‘Michigan,’’ (2015), available at
http://www.deathpenaltyinfo.org/michigan-0 (last visited August 10, 2015).
6
New Mexico prospectively repealed the death penalty for crimes commit-
ted on or after July 1, 2009. See 2009 N.M. Laws 141. Governor Bill Richardson
declined to commute the death sentences of the two prerepeal defendants.
The New Mexico Supreme Court also allowed a death penalty trial for
another defendant charged with a capital felony to go forward after the
prospective repeal took effect, but that court specifically acknowledged
that its decision had not reached the issue of the legality of the prospective
repeal: ‘‘With regard to the issue addressed in briefing and in argument but
not raised in the [p]etition, whether [the prospective repeal of the death
penalty] prohibits the imposition of the death penalty in this case as a matter
of law because [the defendant] was not sentenced prior to the effective
date of [the repeal], this [c]ourt determines it inappropriate to decide the
issue in this writ proceeding and expressly does not do so . . . .’’ (Emphasis
added.) Astorga v. Candelaria, Supreme Court of New Mexico, Docket No.
33, 152 (September 1, 2011). Notably, however, the New Mexico Supreme
Court did allow that defendant to make an argument at his sentencing
regarding ‘‘what consideration, if any, jurors may deem appropriate to give
to the fact that New Mexico has repealed the death penalty for offenses
committed after July 1, 2009,’’ in making their determination whether to
sentence the defendant to death or life imprisonment. Id. The defendant’s
penalty phase of the trial ended in a jury deadlock, and the judge therefore
sentenced the defendant to life imprisonment in accordance with New Mex-
ico law. See State v. Astorga, 343 P.3d 1245, 1249 (N.M. 2015).
7
It is true that this court has previously refused to apply retroactively
other amendments to the statutory capital sentencing scheme then in effect.
See Dortch v. State, 142 Conn. 18, 28–30, 110 A.2d 471 (1954) (finding
that legislature clearly intended for savings statute to apply to legislation
changing punishment for first degree murder conviction from mandatory
death sentence to sentence of either life imprisonment without possibility
of release or death depending on recommendation of jury, no violation of
equal protection to do so); Simborski v. Wheeler, 121 Conn. 195, 198–201,
183 A. 688 (1936) (finding that legislature clearly intended for savings statute
to apply to legislation altering mode of execution from hanging to electrocu-
tion, rendering alteration prospective only in nature). Neither of these cases,
however, involved a challenge to the prospective only nature of the legisla-
tion at issue based on the eighth amendment to the constitution of the
United States. Indeed, both Dortch and Simborski were decided well before
the United States Supreme Court issued its opinions in Furman v. Georgia,
supra, 408 U.S. 238, and Gregg v. Georgia, supra, 428 U.S. 153, the two cases
which serve as the foundation of modern death penalty jurisprudence. I
seriously doubt that our decision in either Dortch or Simborski would
comport with our modern understanding of the cruel and unusual punish-
ment clause of the eighth amendment and, thus, I do not consider these
opinions to hold any precedential value on this point.
8
Cooper was decided prior to the United States Supreme Court’s decision
in Roper v. Simmons, supra, 543 U.S. 551, which concluded that it violates
the federal constitution to execute defendants who had committed their
crime prior to the age of eighteen. Id., 568–71.
9
Van Tran v. State, supra, 66 S.W.3d 790, and Fleming v. Zant, supra,
259 Ga. 687, were decided prior to Atkins v. Virginia, supra, 536 U.S. 321,
wherein the United States Supreme Court concluded that executing mentally
disabled individuals constitutes cruel and unusual punishment in violation
of the eighth amendment to the United States constitution.
10
Furthermore, to the extent that these decisions from our sister states
do support the proposition that legislation prospectively repealing the death
penalty for defendants with specific characteristics that reduce culpability
must also apply to that class of offenders who committed their crimes prior
to the effective date of the legislation, this proposition supports the principle
that similarly culpable defendants deserve similar punishment. See part I
A 2 and part I A 3 of this concurring opinion.
11
The United States Supreme Court has stated that the eighth amendment
demands reliability and consistency in the imposition of the death penalty
in order for a capital sentencing scheme to pass constitutional muster. See
Furman v. Georgia, supra, 408 U.S. 309–10 (Stewart J., concurring). The
question is not one involving rational basis review. The United States
Supreme Court has invalidated modern capital sentencing schemes even
though one could argue that the schemes were rationally related to a valid
legislative purpose. For example, in Woodson v. North Carolina, 428 U.S.
280, 286, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion), the court
invalidated a statutory scheme that imposed a mandatory death sentence
if an offender were convicted of first degree murder. The court made this
ruling in part because the statute’s ‘‘failure to allow the particularized consid-
eration of relevant aspects of the character and record of each convicted
defendant before the imposition upon him of a sentence of death. . . . A
process that accords no significance to relevant facets of the character and
record of the individual offender or the circumstances of the particular
offense excludes from consideration in fixing the ultimate punishment of
death the possibility of compassionate or mitigating factors stemming from
the diverse frailties of humankind.’’ (Citations omitted.) Id., 303–304. The
court continued: ‘‘While the prevailing practice of individualizing sentencing
determinations generally reflects simply enlightened policy rather than a
constitutional imperative, we believe that in capital cases the fundamental
respect for humanity underlying the [e]ighth [a]mendment . . . requires
consideration of the character and record of the individual offender and
the circumstances of the particular offense as a constitutionally indispens-
able part of the process of inflicting the penalty of death.’’ (Citation omitted.)
Id., 304; cf. Callins v. Collins, 510 U.S. 1141, 1144, 114 S. Ct. 1127, 127
L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari)
(‘‘[r]easonable consistency [in imposing the death penalty] requires that the
death penalty be inflicted evenhandedly, in accordance with reason and
objective standards, rather than by whim’’ [emphasis added]).
12
I extend my thanks to the amicus curiae Legal Historians and Scholars
for bringing much of the following information to my attention.
13
North Dakota’s repeal was enacted in 1915, while West Virginia’s repeal
was enacted in 1965. See 1915 N.D. Laws 76; 1965 W. Va. Acts 207; J. Galliher
et al., ‘‘Abolition and Reinstatement of Capital Punishment During the Pro-
gressive Era and Early 20th Century,’’ 83 J. Crim. L. & Criminology 538,
555–56 (1992); see also Death Penalty Information Center, ‘‘Executions in
the U.S. 1608–2002: The ESPY File, Executions by State,’’ pp. 210, 402,
available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf
(last visited August 10, 2015).
In some other states, although the legislation did not contain language
expressly applying the repeal retroactively, the legislation was arguably
retroactive in that the statutes provided, generally, that ‘‘the punishment of
death is hereby abolished.’’ 1852 R.I. Pub. Laws 12; see also 1957 Alaska
Sess. Laws 262.
14
See Editorial, ‘‘Quinn Will Commute Death Term,’’ Honolulu Advertiser,
March 26, 1958, p. A1; Editorial, ‘‘Justice Advances in Illinois,’’ N.Y. Times,
March 10, 2011, p. A30; G. Mills, ‘‘Death Order Is Commuted to Life Term,’’
Des Moines Register, January 10, 1965, p. 1L; J. Wagner, ’’On last full day,
O’Malley issues orders commuting four death-row sentences,’’ Washington
Post, January 20, 2015, available at http://www.washingtonpost.com/local/
md-politics/on-last-full-day-omalley-issues-orders-commuting-four-death-
row-sentences/2015/01/20/0d22c2f4-a10f-11e4-b146-
577832eafcb4_story.html (last visited August 10, 2015); J. Bessler, Legacy
of Violence: Lynch Mobs and Executions in Minnesota (2003) p. 179; J.
Peters, ‘‘Corzine Signs Bill Ending Executions, Then Commutes Sentences of
8,’’ N.Y. Times, December 18, 2007, p. B3; see also Death Penalty Information
Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by
State,’’ pp. 103, 105, 166, 168, 221, available at http://www.deathpenalty
info.org/documents/ESPYstate.pdf (last visited August 10, 2015).
15
United States v. Lee, 489 F.2d 1242, 1246–47 (D.C. Cir. 1973); Common-
wealth v. Colon-Cruz, 393 Mass. 150, 163–72, 470 N.E.2d 116 (1984); People
v. Taylor, 9 N.Y.3d 129, 155, 878 N.E.2d 969, 848 N.Y.S.2d 554 (2007); see
also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002:
The ESPY File, Executions by State,’’ pp. 65, 158, 255, available at http://
www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August
10, 2015).
16
1917 Ariz. Sess. Laws 4 (repeal); 1919 Ariz. Sess. Laws 18 (reinstatement);
see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–
2002: The ESPY File, Executions by State,’’ p. 35 (indicating no executions
took place during period of repeal), available at http://www.deathpenaltyin-
fo.org/documents/ESPYstate.pdf (last visited August 10, 2015).
17
1897 Colo. Sess. Laws 135 (repeal); 1901 Colo. Sess. Laws 153 (reinstate-
ment); Office of the Colorado State Public Defender, ‘‘Catalog of Colorado
Executions,’’ (2009), available at http://pdweb.coloradodefenders.us/index.
php?option=com_content&view=article&id=152<emid=108 (last visited
August 10, 2015) (indicating no executions between repeal of the death
penalty on March 29, 1897, and reinstatement of death penalty on May 2,
1901); see also Death Penalty Information Center, ‘‘Executions in the U.S.
1608–2002: The ESPY File, Executions by State,’’ p. 57, available at http://
www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August
10, 2015).
18
51 Del. Laws 742 (1957) (repeal); 53 Del. Laws 801 (1961) (reinstate-
ment); Delaware Dept. of Corrections, ‘‘Death Row,’’ (2015), available at
http://www.doc.delaware.gov/deathrow/history.shtml (last visited August
10, 2015) (indicating no executions between repeal of death penalty on April
2, 1958, and reinstatement of death penalty on December 18, 1961); see also
Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The
ESPY File, Executions by State,’’ p. 66, available at http://www.deathpenalty
info.org/documents/ESPYstate.pdf (last visited August 10, 2015).
19
1872 Iowa Acts 139 (repeal); 1878 Iowa Acts 150–51 (reinstatement); D.
Haws, Iowa and the Death Penalty: A Troubled Relationship (2010) pp. 289,
298 (indicating no executions following repeal); see also Death Penalty
Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File,
Executions by State,’’ p. 104, available at http://www.deathpenaltyinfo.org/
documents/ESPYstate.pdf (last visited August 10, 2015).
20
1907 Kan. Sess. Laws 299 (repeal); 1935 Kan. Sess. Laws 234 (reinstate-
ment); see also Death Penalty Information Center, ‘‘Executions in the U.S.
1608–2002: The ESPY File, Executions by State,’’ p. 119, available at http://
www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August
10, 2015). We note that the United States government carried out an execu-
tion in 1930 at the federal penitentiary located in Leavenworth, Kansas. See
Federal Bureau of Prisons, ‘‘Capital Punishment,’’ (2015), available at http://
www.bop.gov/about/history/federal_executions.jsp (last visited August 10,
2015); see also Death Penalty Information Center, ‘‘Federal Executions 1927–
2003,’’ (2014), available at http://www.deathpenaltyinfo.org/federal-execu
tions-1927-2003 (last visited August 10, 2015). Obviously, this execution was
for a violation of federal law.
21
1876 Me. Laws 81 (repeal); 1883 Me. Laws 169 (reinstatement); D. Hearn,
Legal Executions in New England: A Comprehensive Reference, 1623–1960
(1999), pp. 255–57 (listing executions, indicating none occurring in Maine
following repeal); see also Death Penalty Information Center, ‘‘Executions
in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 166, available
at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited
August 10, 2015).
22
1917 Mo. Laws 246 (repeal); 1919 Mo. Laws 778 (reinstatement); H.
Frazier, Death Sentences in Missouri, 1803-2005: A History and Comprehen-
sive Registry of Legal Executions, Pardons, and Commutations (2006), p.
209 (indicating no executions during period of repeal); see also Death Penalty
Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File,
Executions by State,’’ p. 174, available at http://www.deathpenaltyinfo.org/
documents/ESPYstate.pdf (last visited August 10, 2015).
23
1969 N.M. Laws 415 (repeal); 1979 N.M. Laws 522 (reinstatement); see
also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002:
The ESPY File, Executions by State,’’ p. 223 (indicating no executions during
period of repeal), available at http://www.deathpenaltyinfo.org/documents/
ESPYstate.pdf (last visited August 10, 2015).
24
1965 N.Y. Laws vol. I, 1021–22 (partial repeal of death penalty); 1995
N.Y. Laws vol. I, 1 (reinstatement); D. Hearn, Legal Executions in New York
State A Comprehensive Reference, 1639-1963 (1997) p. 281–82 (indicating
no executions during period of repeal); see also Death Penalty Information
Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by
State,’’ p. 255, available at http://www.deathpenaltyinfo.org/documents/
ESPYstate.pdf (last visited August 10, 2015).
25
1915 Or. Laws 12 (repeal); 1920 Or. Laws 46 (reinstatement); 1965 Or.
Laws 6 (repeal); 1978 Or. Laws 4 (reinstatement); Death Penalty Information
Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by
State,’’ p. 275 (indicating no executions during period of repeals), available
at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited
August 10, 2015).
26
1915 S.D. Sess. Laws 335 (repeal); 1939 S.D. Sess. Laws 166 (reinstate-
ment); South Dakota Dept. of Corrections, ‘‘Frequent Questions: Capital
Punishment,’’ (2014), available at http://doc.sd.gov/about/faq/capitolpunish
ment.aspx (last visited August 10, 2015) (indicating no executions between
repeal in 1915 and reinstatement in 1939); see also Death Penalty Information
Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by
State,’’ p. 321, available at http://www.deathpenaltyinfo.org/documents/
ESPYstate.pdf (last visited August 10, 2015).
27
1915 Tenn. Pub. Acts 181 (repealing capital punishment for crime of
murder); 1919 Tenn. Pub. Acts 5 (reinstating capital punishment for crime of
murder); Tennessee Dept. of Corrections, ‘‘Tennessee Executions,’’ (2014),
available at http://www.tennessee.gov/correction/article/tdoc-tennessee-
executions (last visited August 10, 2015) (indicating no executions of offend-
ers convicted of murder between repeal date of March 27, 1915, and reinstate-
ment date of January 30, 1919); see also Death Penalty Information Center,
‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p.
327, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf
(last visited August 10, 2015).
28
See also 1913 Wash. Sess. Laws 581 (repeal); 1919 Wash. Sess. Laws
273 (reinstatement); Washington Dept. of Corrections, ‘‘Persons Executed
Since 1904 in Washington State,’’ (2014), available at http://www.doc.wa.gov/
offenderinfo/capitalpunishment/executedlist.asp (last visited August 10,
2015) (indicating no executions between repeal date of March 22, 1913, and
date of reinstitution on March 14, 1919); see also Death Penalty Information
Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by
State,’’ p. 397, available at http://www.deathpenaltyinfo.org/documents/
ESPYstate.pdf (last visited August 10, 2015).
29
This list includes earlier, temporary repeals in Iowa, Maine, New Mexico,
and New York, states that currently have legislation repealing the death
penalty. See supra footnotes 19, 21, 23, and 24 of this concurring opinion.
Similarly, it includes Tennessee and New York, which temporarily repealed
the death penalty only for certain crimes. See footnotes 24 and 27 of this
concurring opinion.
30
The amicus curiae Legal Historians and Scholars note that this occurred
in Oregon in 1914; Arizona in 1917; Missouri in 1918; and again in Oregon
in 1964. See footnotes 16, 22 and 25 of this concurring opinion.
31
New Mexico’s earlier repeal stated: ‘‘Any person currently under penalty
of death shall have such penalty revoked, and a penalty of life imprisonment
substituted.’’ 1969 N.M. Laws 415.
32
In Iowa and Maine, for example, the applicable legislation stated that
the death penalty was ‘‘hereby abolished.’’ 1872 Iowa Acts 139; 1876 Me.
Laws 81. Although the legislation did not expressly apply to prerepeal death
row inmates, neither state conducted an execution while the repeal was
in effect.
33
I also note that the amicus curiae Experts on International Human Rights
and Comparative Law contends that no country has carried out a death
sentence while a death penalty repeal was in effect. This information was
extracted from reports issued every five years by the United Nations concern-
ing global developments in the law and practice of the death penalty. This
court has recognized that the practices of the international community are
constitutionally relevant, particularly when international practices do not
run counter to relevant case law and practices in this country. See State v.
Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008). I explore this area further
subsequently in part I A 3 of this concurring opinion, but I reiterate here
that the lack of postrepeal executions on a global level, coupled with the
absence of such executions in this nation, lends further support to my
conclusion that there is a consensus against the practice.
34
The Death Penalty Information Center indicates that, currently, ninety-
eight countries have abolished the death penalty for all crimes, while an
additional thirty-five countries have either not executed anyone for more
than ten years or ‘‘have made an international commitment not to use
the death penalty.’’ Death Penalty Information Center, ‘‘Abolitionist and
Retentionist Countries,’’ (2015), available at http://www.deathpenalty
info.org/abolitionist-and-retentionist-countries (last visited August 10, 2015).
Another seven countries have abolished the use of the death penalty for
ordinary crimes. Id.
35
I question whether, even before the prospective repeal, a sentence of
death continued to have any deterrent effect. In his concurring opinion in
Furman, Justice White concluded that the death penalty was cruel and
unusual as it was then being imposed, but only because the death penalty
was imposed so infrequently. See Furman v. Georgia, supra, 408 U.S. 311
(‘‘I begin with what I consider a near truism: that the death penalty could
so seldom be imposed that it would cease to be a credible deterrent or
measurably to contribute to any other end of punishment in the criminal
justice system’’). Justice White went on to explain: ‘‘Most important, a major
goal of the criminal law—to deter others by punishing the convicted crimi-
nal—would not be substantially served where the penalty is so seldom
invoked that it ceases to be the credible threat essential to influence the
conduct of others. . . . [C]ommon sense and experience tell us that seldom-
enforced laws become ineffective measures for controlling human conduct
and that the death penalty, unless imposed with sufficient frequency, will
make little contribution to deterring those crimes for which it may be
exacted.’’ Id., 312. This state has executed one person in the last fifty-five
years. See Connecticut State Library, ‘‘Executions in Connecticut Since
1894,’’ (last modified May 30, 2013), available at http://www.cslib.org/execu
tions.htm (last visited August 10, 2015). That particular defendant, Michael
Ross, withdrew his pending appeals and wrote a letter to Governor M. Jodi
Rell requesting that she not intervene. See L. Tuohy, ‘‘Ross to Rell: Keep
Out of It,’’ Hartford Courant, December 4, 2004, p. B1; L. Tuohy, ‘‘Execution
Set for May 11,’’ Hartford Courant, February 11, 2005, p. A1. Given the
infrequency with which the state carried out executions prior to the repeal
of the death penalty, I am not convinced that the carrying out of the execu-
tions of the defendants who committed their offenses prior to April 25, 2012,
will have any general deterrent effect.
36
See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 533, remarks of Senator Eric
Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 751–52, remarks of Senator Edwin
Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle
Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1257–64, remarks of Represen-
tative Gary Holder-Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74,
remarks of Representative Juan Candelaria; 55 H.R. Proc., Pt. 4, 2012 Sess.,
pp. 1374–76, remarks of Representative Patricia Dillon.
37
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator Edwin
Gomes; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith
Prague; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1279–82, remarks of Representa-
tive Richard Smith.
38
See Death Penalty Information Center, ‘‘Recent Legislation: Governor’s
Signature Makes Connecticut Fifth State in Five Years to End Death Penalty,’’
(2015), available at http://www.deathpenaltyinfo.org/recent-legislation-gov
ernors-signature-makes-connecticut-fifth-state-five-years-end-death-penalty
(last visited August 10, 2015).
39
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 673, remarks of Senator Edward
Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry
Gerrantana; 55 S. Proc., Pt. 3, 2012 Sess., p. 751, remarks of Senator Edwin
Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff;
55 S. Proc., Pt. 3, 2012 Sess., pp. 772–73, remarks of Senator Carlo Leone;
55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91, remarks of Senator Joseph Crisco;
55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1255–57, remarks of Representative
Michael Molgano.
40
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 662, remarks of Senator Eric
Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks of Senator
Anthony Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator
Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1282–86, remarks of
Representative Daniel Rovero; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1340–41,
remarks of Representative Philip Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., p.
1352, remarks of Representative John Thompson; 55 H.R. Proc., Pt. 4, 2012
Sess., pp. 1384–89, remarks of Representative J. Brendan Sharkey.
41
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 725, remarks of Senator Robert
Kane (‘‘I’m a bit confused by how we are able to make it okay for the
existing [eleven] people on death row to be executed but not the future
individuals who may commit some of those very same crimes’’); Id., p. 747,
remarks of Senator Len Suzio (‘‘[i]f you’re going to say that taking human
life in the form of a legal execution is wrong going forward, then it’s wrong
going backwards’’); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1040, remarks of
Representative Lawrence Cafero (‘‘How can you say in your heart and with
your vote that it should no longer be the policy of the state of Connecticut
to commit anyone to death? And yet, at the same time, say except for these
[eleven] guys. How could you say that? How do you justify that?’’); 55 H.R.
Proc., Pt. 4, 2012 Sess., p. 1054, remarks of Representative John Hetherington
(‘‘It says that, prospectively, it operates to spare killers in the future but
not a certain [eleven] who currently occupy death row. So it is a very
curious moral position; that is, the morality changes depend upon when it’s
applied.’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1307 remarks of Representative
Hetherington (‘‘It condemns death going forward, but accepts it in the past.
It’s illogical; it is arguably immoral.’’); see also footnote 43 of this opinion.
42
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 748, remarks of Senator Len
Suzio (‘‘I suspect that one reason why there’s this big gaping hole, moral
hole in this law is because of the political consequences of making it an
absolute both prospectively, as well as retrospectively. And again, that to
me is a moral failure. The end does not justify the means, but if [your]
position is absolute, if you believe the death penalty is always morally
offensive under any and all circumstances going forward then you really
have to honor your commitment even to those on death row today.’’).
43
I note that, while P.A. 12-5 was being considered by the legislature,
eleven people were on death row. On May 22, 2015, Richard Roszkowski
was sentenced to death for crimes committed prior to April 25, 2012. See
footnote 102 of the majority opinion.
44
The animus directed toward the two defendants responsible for the
high profile crimes in Cheshire, the last of whom was sentenced to death
less than three months before the legislature took up P.A. 12-5, is evidenced
in a public statement made by Senator Edith Prague: that ‘‘[t]hey should
bypass the trial and take that second animal and hang him by his penis
from a tree out in the middle of Main Street . . . .’’ B. Connors, ‘‘Prague:
‘Hang the Animal By His . . . .’ ’’ NBC Connecticut (May 12, 2011), available
at http://www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-by-
His-121670559.html (last visited August 10, 2015). In State v. Komisarjevsky,
302 Conn. 162, 179–80, 25 A.3d 613 (2011), this court acknowledged the
notoriety of the cases against the two defendants, which aroused such public
antipathy as to result in threats against both defense counsel and intimidation
of witnesses that had been or might be interviewed by the defense team.
45
I use the terms ‘‘private vengeance’’ and ‘‘revenge’’ interchangeably
throughout this concurrence.
46
The stark differences between retribution and revenge were not lost
on the legislature during the debate of P.A. 12-5. For example, Representative
Cafero, a self-proclaimed supporter of capital punishment, aptly outlined
the differences between the two, and additionally recognized that only retri-
bution is a valid penological justification for punishment: ‘‘A lot of people
say that people are for the death penalty because of revenge. If you look
up ‘revenge’ in the dictionary, you’ll see it has an emotional component. It
is for vengeance. It’s within the word vengeance. Vengeance is an emotion.
Government does not have the luxury of having emotions, whether that be
compassion or vengeance. Government has to seek justice. Justice is the core
definition behind retribution.’’ 55 H.R. Proc., Pt. 3, 2012 Sess., pp. 1040–41.
47
The state also claims that executing prerepeal death row inmates serves
a valid penological purpose simply because those defendants chose to mur-
der at a time in which the death penalty was a constitutionally permissible
penalty for their conduct, and were sentenced prior to the effective date of
the act. I disagree. This claim is merely another reference to deterrence.
Moreover, the state’s view assumes that the full effect of the death penalty
is felt by the defendant at the moment of sentencing. As a practical matter,
this is a faulty presumption. In my view, a sentence of death carries two
parts: the first is a term of years of imprisonment while the defendant is
awaiting execution, and the second is the execution itself. Until a defendant
walks into the death chamber to be executed, his sentence is, in all practical
respects, life imprisonment without the possibility of parole. Thus, although
the prerepeal defendants were sentenced to death under a constitutionally
permissible capital sentencing statute, that, by itself, is not a basis to carry
out the second aspect of a death sentence, execution.
48
Although Gregg and Furman focus on the need to channel the discretion
of a sentence in individual cases to avoid arbitrary results, the United States
Supreme Court’s eighth amendment jurisprudence on arbitrariness in sen-
tencing is not confined to arbitrariness by individual sentencing bodies. See
Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d
944 (1976) (‘‘Death, in its finality, differs more from life imprisonment than
a [100 year] prison term differs from one of only a year or two. Because of
that qualitative difference, there is a corresponding difference in the need
for reliability in the determination that death is the appropriate punishment
. . . .’’). Moreover, although in Furman, the United States Supreme Court’s
decision focused on the unchanneled discretion being wielded by juries in
individual cases, the court concluded that the death penalty as it was then
being imposed was unconstitutional not because in any particular instance,
the jury’s decision was arbitrary, but rather because the capital sentencing
schemes of the states permitted arbitrary decision making in individual
cases. See Gregg v. Georgia, supra, 428 U.S. 188 (‘‘[b]ecause of the uniqueness
of the death penalty, Furman held that it could not be imposed under
sentencing procedures that created a substantial risk that it would be
inflicted in an arbitrary and capricious manner’’ [emphasis added]); Callins
v. Collins, 510 U.S. 1141, 1152–53, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994)
(Blackmun, J., dissenting from denial of certiorari) (‘‘[i]t is the decision to
sentence a defendant to death—not merely the decision to make a defendant
eligible for death—that may not be arbitrary’’).
49
The state claims that P.A. 12-5 contains no constitutionally invalid provi-
sions because ‘‘[i]t is well established that the death penalty does not violate
any provision of the federal constitution’’ and ‘‘[l]ikewise, a statute that
repeals the death penalty also is constitutionally firm.’’ In my opinion, these
arguments have no merit. While it is true that Gregg established that the
death penalty is not, in and of itself, a violation of any provision of the
federal constitution, modern death penalty jurisprudence has made it emi-
nently clear that certain state statutory schemes which impose the death
penalty can be unconstitutional either on their face or as applied in a given
case. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 320–28, 109 S. Ct. 2934, 106
L. Ed. 2d 256 (1989) (finding that, although capital sentencing scheme was
facially valid, in specific case, scheme prevented jury from considering
mitigation evidence presented by defendant), abrogated on other grounds
by Atkins v. Virginia, supra, 536 U.S. 321; Woodson v. North Carolina,
supra, 428 U.S. 301 (rejecting capital scheme that imposed mandatory death
penalty for crime of first degree murder in part because statute ‘‘depart[ed]
markedly from contemporary standards respecting the imposition of the
punishment of death and thus cannot be applied consistently with the
[e]ighth and [f]ourteenth [a]mendments’ requirement that the [s]tate’s power
to punish ‘be exercised within the limits of civilized standards’ ’’).
50
The state relies on Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982),
and Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030 (1912), in its argument
that the unconstitutional portion of P.A. 12-5 is not severable from the
remaining language. I find these cases inapposite to the circumstances in
the case at hand. Seals, for example, involved a statute which permitted a
trial court to deduct from a jury’s award of damages any money received
by a plaintiff pursuant to a covenant not to sue or release of liability
agreement. Seals v. Hickey, supra, 341 n.6. The court noted that the statute,
when the unconstitutional language was excised, ‘‘offer[ed] absolutely no
direction to the court concerning what steps it may take after the verdict
has been returned.’’ Id., 355. In the present case, as I discuss in detail in
footnote 52 of this concurring opinion, language can be excised from P.A.
12-5 in such a way so as to render the constitutional remainder entirely
workable. Similarly, at issue in Beach was the constitutionality of a statute
which sought to provide $30 annually to every ‘‘resident in the [s]tate who
served in the army, navy, marine corps, or revenue marine service of the
United States during the Civil War . . . and received an honorable discharge
therefrom’’ or their close family. Beach v. Bradstreet, supra, 351. The court
noted that, as drafted, the law would provide funds not only to those persons
who served Connecticut in the Civil War, but also those who had served
other states and now happened to reside in Connecticut. Id., 351–52. The
court found that it could not sever the statute, in part because the act could
not be made constitutional either ‘‘by the exclusion or addition of a word
or words . . . but only by rewriting the statute.’’ Id., 353. In the statute at
hand, the constitutional remainder of the statute can be severed from the
unconstitutional portion, solely through the excision of certain language,
as I demonstrate in footnote 52 of this concurring opinion. Thus, the circum-
stances at issue in Beach have little bearing on the present case.
51
It is my position that this court does not examine the legislative history
to determine legislative intent if the dominant purpose of the act can be
gleaned from its plain meaning. See, e.g., Cruz v. Montanez, 294 Conn. 357,
370, 984 A.2d 705 (2009) (‘‘[t]he intent of the legislature, as this court has
repeatedly observed, is to be found not in what the legislature meant to
say, but in the meaning of what it did say’’); see also State v. Watson, 165
Conn. 577, 597, 345 A.2d 532 (1973) (‘‘[i]t is not necessary to find the entire
statute invalid since the presumption and the balance of the statute are not
so mutually connected and dependent as to indicate a legislative intent that
they should stand or fall together’’). Reading the plain text of the act, its
dominant purpose is, unassailably, to eliminate the death penalty. If the
legislature’s dominant purpose was to ensure that the death penalty was to
remain in place for capital offenders who committed their crimes prior to
April 25, 2012, no change to our old capital scheme was necessary. In
footnote 52 of this concurring opinion, I explain in greater detail precisely
how to sever the offending portion of P.A. 12-5 from the constitutional
remainder.
52
My conclusion that P.A. 12-5 is severable would not, as the state claims,
result in an impermissible rewriting of the act. I would simply read out of
the act any references to the effective date of the act, and any references
to ‘‘capital felonies,’’ which relate solely to capital crimes committed prior
to the effective date of the act. For example, § 53a-35a would read as follows:
‘‘For any felony committed on or after July 1, 1981, the sentence of imprison-
ment shall be a definite sentence and, unless the section of the general
statutes that defines or provides the penalty for the crime specifically pro-
vides otherwise, the term shall be fixed by the court as follows:
‘‘(1) For the class A felony of murder with special circumstances a term
of life imprisonment without the possibility of release;
‘‘(2) For the class A felony of murder, a term not less than twenty-five
years nor more than life;
‘‘(3) For the class A felony of aggravated sexual assault of a minor under
section 53a-70c, a term not less than twenty-five years or more than fifty
years;
‘‘(4) For a class A felony other than an offense specified in subdivision
(2) or (3) of this section, a term not less than ten years nor more than
twenty-five years;
‘‘(5) For the class B felony of manslaughter in the first degree with a
firearm under section 53a-55a, a term not less than five years nor more than
forty years;
‘‘(6) For a class B felony other than manslaughter in the first degree with
a firearm under section 53a-55a, a term not less than one year nor more
than twenty years;
‘‘(7) For a class C felony, a term not less than one year nor more than
ten years;
‘‘(8) For a class D felony, a term not more than five years;
‘‘(9) For a class E felony, a term not more than three years; and
‘‘(10) For an unclassified felony, a term in accordance with the sentence
specified in the section of the general statutes that defines or provides the
penalty for the crime.’’
This approach to severance would not leave a statutory void, as the state
claims. The statutory definitions of ‘‘capital felony’’ and ‘‘murder with special
circumstances’’ are identical. By severing the language dealing only with
‘‘capital felony,’’ the act continues to make illegal the conduct which consti-
tuted the definition of ‘‘capital felony’’ but now carries a mandatory sentence
of life imprisonment without the possibility of release. See P.A. 12-5, §§ 1,
2. Read in this way, the act applies to all felonies committed after 1981 and,
because this revision essentially constitutes a relabeling of the offense of
‘‘capital felony’’ as ‘‘murder with special circumstances’’; see P.A. 12-5, § 1;
no offender currently sentenced to death could claim that he should be
released as a result of the elimination of ‘‘capital felony’’—all such conduct
would fall under the umbrella of the definition of ‘‘murder with special
circumstances,’’ which differs from ‘‘capital felony’’ only with regard to the
sentence that might be imposed. See P.A. 12-5, § 2. The only relief that an
offender currently sentenced to death could hope for, if the statute were
severed according to this approach, would be to be resentenced to life
imprisonment without the possibility of release. As in Bell, the defendant
and other prerepeal death row inmates would have no claim that the offense
of ‘‘murder with special circumstances’’ does not apply to them through the
workings of the ex post facto clause, because it does not disadvantage the
defendant in any way—the effect of this revision would solely be ameliora-
tive from a defendant’s perspective, in that it prevents the imposition of a
sentence of death. Cf. State v. Bell, supra, 303 Conn. 256–58 (noting that ex
post facto clause applies to judicial gloss applied to statutes when such law
[1] would have retroactive effect and [2] would operate in such way that
would be unforeseeable and disadvantageous to criminal defendant; finding
change to be ameliorative and procedural and, thus, not in violation of ex
post facto clause). There would also be no need to retry the defendant, as
all the predicate factual findings for convicting the defendant of ‘‘murder
with special circumstances’’ would be satisfied by the jury’s verdict in the
guilt phase of the defendant’s earlier capital trial. See P.A. 12-5, § 1.
Further, this approach would not require further action in amending any
other statutes—by striking all references to the effective date provision and
‘‘capital felony’’ in the act itself, the change would affect all relevant statutes.
This method of revision would not strike any reference to ‘‘murder with
special circumstances’’ and thus would have no impact on the function of
the legislature’s chosen sentencing scheme for serious felonies committed
today or in the future.
53
Specifically, the state points to comments of several representatives
and senators who suggested that, politically speaking, P.A. 12-5 could be
passed only if the repeal were prospective in nature. I observe first that,
for purposes of a severability analysis, this court does not immediately look
to the legislative history for guidance. See footnote 51 of this concurring
opinion. Second, as I describe in detail, these selected statements do not
come close to telling the whole story about the nature of this debate and the
actions of the legislature. Both the House and Senate voted down proposed
amendments that would have expressly required the act to be struck down
in its entirety if this court were to conclude that the prospective only nature
of the repeal violated either the federal or state constitution. See 55 S. Proc.,
Pt. 3, 2012 Sess., p. 669; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1066. The legislature
decided against these proposed amendments in the face of testimony that
warned of the likelihood that the prospective only nature of the repeal was
likely to be found unconstitutional. See, e.g., Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635, remarks of Chief State’s
Attorney Kevin Kane.
54
Pressed further on the issue, Chief State’s Attorney Kane stated: ‘‘My
prediction is that the arguments that I have so far, that we have discussed
in thought I don’t think are likely to prevail in the Supreme Court given
. . . the prior language and several prior opinions about the death penalty.
And I don’t think anybody should be deluding themselves that it’s likely
that this can be prospective. I think that would be—prospective only. I think
that would be a big mistake.’’ (Emphasis added.) Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635.