State v. Santiago

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STATE v. SANTIAGO—SECOND DISSENT
ZARELLA, J., with whom ESPINOSA, J., joins, dis-
senting. The majority claims that it is not deciding that
the death penalty is per se unconstitutional;1 nor is it
deciding that Public Acts 2012, No. 12-5 (P.A. 12-5),
is unconstitutional. Rather, the majority claims that,
following the passage of P.A. 12-5, the death penalty
is unconstitutional under the Connecticut constitution
because it ‘‘no longer comports with contemporary
standards of decency [in this state] and no longer serves
any legitimate penological purpose.’’ The majority thus
treats the claim of the defendant, Eduardo Santiago, as
a ‘‘hybrid’’ claim, falling somewhere between a per se
challenge and a statutory challenge, in order to avoid
the tests we long ago adopted to determine whether
the death penalty is unconstitutional on per se grounds
or whether a particular death penalty statute is uncon-
stitutional on due process grounds. For example, when
determining whether the death penalty is per se uncon-
stitutional, we have applied the six-pronged test set
forth in State v. Geisler, 222 Conn. 672, 684–85, 610
A.2d 1225 (1992). See State v. Ross, 230 Conn. 183, 249,
646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115
S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see also State v.
Rizzo, 303 Conn. 71, 185, 31 A.3d 1094 (2011), cert.
denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64
(2012). In contrast, when determining whether a death
penalty statute is unconstitutional, we have applied the
due process principles relevant to the resolution of a
statutory claim;2 see State v. Ross, supra, 253; except
when a Geisler analysis is required to determine
whether the state constitution provides broader protec-
tions under our capital sentencing scheme than the
federal constitution. See, e.g., State v. Rizzo, supra, 136;
see also State v. Colon, 272 Conn. 106, 327, 382–83, 864
A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct.
102, 163 L. Ed. 2d 116 (2005); State v. Ross, 269 Conn.
213, 257–60, 849 A.2d 648 (2004). The advantage of
treating the defendant’s claim as a hybrid claim, as
opposed to a per se claim or a statutory claim, is that
the majority frees itself to create a new and different
hybrid test to determine the constitutionality of the
death penalty. The majority does this by claiming that
the question is not whether P.A. 12-5 is unconstitutional
but whether the prospective repeal provision in P.A.
12-5 makes the death penalty unconstitutional. In my
view, this is a distinction without a difference. The
majority nonetheless relies on it to conjure up a new
test, a test this court has never previously applied before
in any death penalty case.
The majority’s new hybrid test is a confusing combi-
nation of the six factor test set forth in Geisler, a test
we routinely have used to determine whether the death
penalty is per se unconstitutional, and a legal standard
derived from federal law that the majority incorrectly
claims was adopted by this court in Ross and applied
in Rizzo.3 In applying this new hybrid test, however,
the majority pays only lip service to the Geisler factors
because it focuses on cruel and unusual punishment
instead of on capital punishment. It also disregards the
sixth Geisler factor and does not consider the relative
importance of each Geisler factor. This is apparently
because the majority wishes to avoid weighing repeated
references to capital punishment in the text of our state
constitution, the historical roots of capital punishment,
Connecticut precedent upholding the constitutionality
of capital punishment, and precedent from other state
and federal jurisdictions against the federal evolving
standards of decency standard on which it relies to
determine whether capital punishment is constitu-
tional. The only federal case in which the evolving stan-
dards of decency standard has been used to determine
whether capital punishment is constitutional, however,
is Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909,
49 L. Ed. 2d 859 (1976) (opinion announcing judgment),
and the standard was applied in that case only after
the court examined the text of the federal constitution,
the history of capital punishment, and federal prece-
dent. See id., 176–79 (opinion announcing judgment).
The majority thus disregards Gregg as well as our own
precedent in refusing to weigh and balance all of the
Geisler factors in the context of capital punishment.
Accordingly, because I strongly protest the majority’s
unorthodox reasoning in this case, I emphatically
dissent.4
I
IMPROPER LEGAL STANDARD
The majority first conducts an abbreviated Geisler
analysis that focuses on the meaning of cruel and
unusual punishment. It then adopts a new legal standard
derived from federal law to determine whether the
death penalty is cruel and unusual punishment. In the
discussion that follows, I explain why I strongly dis-
agree with each step in the majority’s analysis.
A
The Majority’s Application of Geisler
The majority’s application of the test set forth in
Geisler is problematic for two reasons. First, this court
has applied the Geisler test in other capital cases only
when a defendant has challenged the facial validity of
the death penalty; see, e.g., State v. Rizzo, supra, 303
Conn. 185; State v. Ross, supra, 230 Conn. 249; which
the defendant in the present case has not done, or when
the defendant has challenged our capital sentencing
statutes and it has been necessary to assess whether
the state constitution affords broader protection under
those statutes than the federal constitution; see, e.g.,
State v. Rizzo, supra, 136–45; State v. Webb, 252 Conn.
128, 146–47, 750 A.2d 448, cert. denied, 531 U.S. 835,
121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); State v. Ross,
supra, 230 Conn. 253–54; which the defendant also has
not done. The defendant instead challenges the consti-
tutionality of P.A. 12-5. This is clear not only from the
defendant’s briefs, but from the parties’ oral arguments,
in which the defendant’s appellate counsel repeatedly
described his claim as a statutory claim, and various
members of the panel, including Justice Palmer, asked
numerous questions regarding the issue of severability
if this court should deem the retention provision of P.A.
12-5 unconstitutional.5 Thus, the majority’s decision to
review the defendant’s challenge to P.A. 12-5 by
applying the type of analysis usually reserved for a claim
that capital punishment is unconstitutional on per se
grounds, even though no such claim has been raised,
creates a disturbing anomaly in Connecticut’s capital
punishment jurisprudence that cannot be lightly dis-
missed.
Having chosen to apply the incorrect legal standard
to review the defendant’s claim, the majority then com-
pounds this error by focusing its Geisler analysis on
the ‘‘scope, nature, and history of the protections from
cruel and unusual punishment’’ instead of on capital
punishment. As with the majority’s initial decision to
apply Geisler, this is a clear departure from our prece-
dent in capital cases. See State v. Ross, supra, 230 Conn.
245–48; see also State v. Rizzo, supra, 303 Conn. 186.
The majority acknowledges this deviation, observing
that, although this court ‘‘used the Geisler framework
to perform the actual substantive legal analysis’’ in Ross
and Rizzo, it prefers to follow a different approach in
the present case because ‘‘the constitutionality of a
criminal sanction . . . is governed by its own distinct
legal rules and standards,’’ apparently unaware that the
‘‘rules and standards’’ developed for this purpose are
embodied in Geisler. Footnote 14 of the majority opin-
ion. The problem is not simply that the majority rejects
well established Connecticut precedent but that the
majority’s misapplication of Geisler fails to achieve the
objective for which the test was intended when the
court adopted it in Ross to review challenges to the
validity of capital punishment under the state consti-
tution.
Cruel and unusual punishment is a legal concept
intended to describe punishment deemed morally unac-
ceptable by society. See, e.g., State v. Rizzo, supra, 303
Conn. 188 (‘‘[t]he standard of extreme cruelty is not
merely descriptive, but necessarily embodies a moral
judgment’’ [internal quotation marks omitted]); State
v. Ross, supra, 230 Conn. 251 (whether death penalty
constitutes cruel and unusual punishment requires
court to determine whether it is ‘‘so inherently cruel
and so lacking in moral and sociological justification
that it is . . . fundamentally offensive to evolving stan-
dards of human decency’’). Thus, when a court is pre-
sented with the issue of whether a particular punish-
ment is cruel and unusual, it must develop a set of
principles to guide its analysis. Ross was the first case
in which this court was asked to decide whether a
punishment was cruel and unusual under the state con-
stitution. Consequently, the court in Ross was required
to develop a principled approach to resolving this ques-
tion, an approach it rightly expected would be followed
in subsequent cases. In so doing, the court first observed
that, although the Connecticut constitution contains no
cruel and unusual punishment clause, the due process
clauses of article first, §§ 8 and 9, of the Connecticut
constitution ‘‘impliedly prohibit punishment that is
cruel and unusual.’’ State v. Ross, supra, 230 Conn. 246.
It then adopted the six factor test articulated in Geisler
as the most principled means of determining whether
capital punishment is cruel and unusual. Id., 249; see
also State v. Rizzo, supra, 184–86. Applying this test,
the court examined (1) the text of the constitutional
provisions, (2) related Connecticut precedents, (3) per-
suasive federal precedents, (4) persuasive precedents
of other state courts, (5) historical insights into the
intent of our constitutional forbearers, and (6) contem-
porary understandings of applicable economic and
sociological norms6 in order to obtain a proper under-
standing of whether the people of Connecticut deemed
capital punishment morally acceptable. State v. Ross,
supra, 230 Conn. 249.
Instead of conducting a substantive analysis of
whether capital punishment offends our state constitu-
tion under Geisler, however, as the court did in Ross
and Rizzo, the majority applies the Geisler factors to
examine the meaning of cruel and unusual punish-
ment. Not unexpectedly, this analysis provides no
insights into whether capital punishment is deemed
morally acceptable in Connecticut because, with the
exception of a small portion of the relevant constitu-
tional history, the majority makes few, if any, references
to capital punishment or capital offenses.
The majority also fails to address the sixth Geisler
factor. The majority explains that, ‘‘when construing
the state constitutional freedom from cruel and unusual
punishment, we broadly adopt the framework that the
federal courts have used to evaluate eighth amendment
challenges.’’ The majority adds that it will consider the
sixth Geisler factor—contemporary understandings of
applicable economic and sociological norms—only to
the extent this factor may be relevant in determining
whether capital punishment comports with contempo-
rary standards of decency in Connecticut. It thus
becomes clear that the majority’s Geisler analysis of
cruel and unusual punishment is wholly unnecessary
to the substantive analysis of capital punishment that
follows.
B
The Majority’s Application of Federal Law
When the majority finally considers whether capital
punishment is constitutional, it substitutes federal
eighth amendment jurisprudence in place of the frame-
work adopted in Ross. The majority’s rationale for creat-
ing an independent test derived from federal law,
however, makes no legal sense, and its attempt to find
support for doing so in Ross and Rizzo necessarily fails.
The majority relies on State v. Linares, 232 Conn.
345, 379–87, 655 A.2d 737 (1995), to justify its abandon-
ment of Geisler. The majority states that, ‘‘[i]n some of
our decisions, we have utilized the multifactor Geisler
analysis to flesh out the general nature and parameters
of the state constitutional provision at issue. Having
done so, we proceeded to resolve the appellant’s partic-
ular constitutional challenge according to the legal test
and framework relevant and suited to that area of the
law, rather than performing the substantive legal analy-
sis under . . . the six Geisler factors.’’ Footnote 14 of
the majority opinion. The majority explains that the
court in Linares first conducted a Geisler analysis to
determine whether the state constitution affords expan-
sive protections to free speech in public places before
applying a legal test developed in the free speech con-
text to determine whether the challenged statute
infringed impermissibly on those protections. See id.
The majority then declares its intention to follow the
same approach in the present case because ‘‘the consti-
tutionality of a criminal sanction, like the constitutional-
ity of a limitation on the free expression at issue in
Linares, is governed by its own distinct legal rules and
standards.’’ Id.
No meaningful comparison between Linares and the
present case is possible, however. Among other things,
the defendant in Linares challenged the constitutional-
ity of a statute, whereas the defendant in the present
case, according to the majority, raised a general chal-
lenge to the constitutionality of capital punishment fol-
lowing the passage of P.A. 12-5. Linares also is inap-
posite because the purpose of conducting a Geisler
analysis in that case was ‘‘[t]o determine whether our
state constitution affords greater rights than the federal
constitution’’; State v. Linares, supra, 232 Conn. 379;
which the majority repeatedly declares is unnecessary
and thus irrelevant in the present case. See footnotes
11 and 17 of the majority opinion. Finally, insofar as a
specific legal test has been developed to determine the
constitutionality of capital punishment in Connecticut,
it is the six factor test set forth in Geisler. Thus, to the
extent the majority relies on the reasoning in Linares
to justify its substantive analysis in the present case,
its reliance is misplaced.
The majority also claims that this court adopted the
federal evolving standards of decency test in Ross and
Rizzo to evaluate challenges to allegedly cruel and
unusual punishment. Nothing could be further from the
truth. In both decisions, the court made clear that the
standard it was adopting for this purpose was the six
factor Geisler test; see State v. Ross, supra, 230 Conn.
249; see also State v. Rizzo, supra, 303 Conn. 185–86,
188 n.86; which is not a federal standard. To the extent
the court in Rizzo also discussed contemporary eco-
nomic and sociological norms, it did so only after
accepting the court’s analysis of the first five Geisler
factors in Ross. State v. Rizzo, supra, 185–86. The court
explained: ‘‘We undertake, in essence, a partial Geisler
analysis regarding what has occurred since 1994,
because our constitutional text and history remain the
same, and this court repeatedly has sustained the con-
stitutionality of the death penalty generally and our
death penalty statutes in particular. Accordingly, our
focus is on recent federal and state jurisprudence and
contemporary economic and sociological norms.’’ Id.,
188 n.86. The court also noted: ‘‘In so doing . . . we
remain cognizant that our constitution contains explicit
references to capital punishment . . . and, therefore,
expressly sustains the constitutional validity of such a
penalty in appropriate circumstances.’’ (Citation omit-
ted; internal quotation marks omitted.) Id., 188, quoting
State v. Ross, supra, 230 Conn. 249–50. It is therefore
clear that, insofar as Geisler permits an evaluation of
contemporary norms similar to the federal evolving
standards of decency test, it does so only under the
sixth Geisler factor, subject to the qualifications articu-
lated in Ross and to the ultimate weighing and balancing
of all six Geisler factors. Problems with the majority’s
analysis under the federal test are further discussed in
part II F of this opinion.
On the basis of this review, it is difficult to avoid
concluding that the majority’s sole intention is to ignore
all information, regardless of its historical or contempo-
rary relevance, inconsistent with its predetermined con-
clusion that capital punishment is unconstitutional in
Connecticut. In the discussion that follows, I demon-
strate how the majority should have applied Geisler in
accordance with our precedent and why a proper
Geisler analysis, even presuming Geisler applies, does
not support the majority’s conclusion that the death
penalty is cruel and unusual punishment.7
II
GEISLER ANALYSIS
A
Constitutional Text
I begin with the text of the Connecticut constitution.
In an analysis that would mystify anyone intent on
understanding whether the constitutional text sustains
the validity of capital punishment in Connecticut, the
majority completely ignores language in the state con-
stitution referring to capital punishment. The majority
instead indulges in a meandering, speculative and
entirely irrelevant examination of why no cruel and
unusual punishment clause was included in the 1818
constitution. As the majority well knows, however, that
is not what is expected or required under Geisler.
In explaining the textual approach to construing the
contours of our state constitution, Geisler instructs
that, ‘‘[u]nless there is some clear reason for not doing
so, effect must be given to every part of and each word
in the constitution.’’ (Emphasis added; internal quota-
tion marks omitted.) State v. Geisler, supra, 222 Conn.
685; see also State v. Lamme, 216 Conn. 172, 177, 579
A.2d 484 (1990) (‘‘[i]n examining the text of [the state
constitution] to determine the extent to which it sup-
ports the defendant’s claim, we must assume that infi-
nite care was employed to couch in scrupulously fitting
language a proposal aimed at establishing or changing
the organic law of the state’’ [internal quotation marks
omitted]). Consequently, a textual analysis under
Geisler necessarily requires that the court acknowledge
all references in the Connecticut constitution to capital
punishment and capital offenses, as this court has done
each time it has conducted a textual analysis in the past.
In the present case, even a cursory examination of the
text reveals that the Connecticut constitution contains
repeated references to capital punishment and capital
offenses. Article first, § 8, of the constitution of Con-
necticut, as amended by article seventeen of the amend-
ments, provides in relevant part: ‘‘In all criminal
prosecutions, the accused shall have a right to . . .
be released on bail upon sufficient security, except in
capital offenses, where the proof is evident or the pre-
sumption great . . . .’’ (Emphasis added.) Article first,
§ 8, further provides: ‘‘No person shall . . . be
deprived of life, liberty or property without due process
of law,’’ and ‘‘[n]o person shall be held to answer for
any crime, punishable by death or life imprisonment,
unless upon probable cause shown at a hearing in accor-
dance with procedures prescribed by law . . . .’’
(Emphasis added.) Finally, article first, § 19, of the Con-
necticut constitution, as amended by article four of the
amendments, provides in relevant part: ‘‘[N]o person
shall, for a capital offense, be tried by a jury of less
than twelve jurors without his consent. . . .’’ (Empha-
sis added.) Thus, multiple references to capital punish-
ment in the state constitution support the conclusion
that, from a textual standpoint, the death penalty does
not fall within the implied prohibition of cruel and
unusual punishment because it was contemplated not
only in 1818, when the relevant language in article first,
§ 8, was adopted as part of the original constitution;
see Conn. Const. (1818), art. I, § 9; but also in 1972,
when the provision referring to capital punishment in
article first, § 19, was added by article four of the
amendments. This court reached the same conclusion
when it conducted a Geisler analysis of the Connecticut
constitution in Ross and Rizzo. See State v. Ross, supra,
230 Conn. 249–50 (‘‘our state constitution makes
repeated textual references to capital offenses and thus
expressly sustains the constitutional validity of such a
penalty in appropriate circumstances’’); see also State
v. Rizzo, supra, 303 Conn. 185 (same).
Article first, § 1, of the Connecticut constitution,
which describes the constitution as a social compact,8
provides additional textual support for the conclusion
that capital punishment is deemed morally acceptable
in Connecticut. A social compact is an agreement
‘‘between the people and the government they create
[that] binds the agencies of government to respect the
blueprint of government and the rights retained by the
people.’’ L. Henkin, ‘‘The United States Constitution As
Social Compact,’’ in American Philosophical Society,
‘‘A More Perfect Union: Essays on the Constitution,’’
131 Proc. Am. Phil. Society 261, 265 (1987); see also
Moore v. Ganim, 233 Conn. 557, 598, 660 A.2d 742 (1995)
(‘‘The social compact theory posits that all individuals
are born with certain natural rights and that people, in
freely consenting to be governed, enter a social compact
with their government by virtue of which they relinquish
certain individual liberties in exchange ‘for the mutual
preservation of their lives, liberties, and estates.’ J.
Locke, ‘Two Treatises of Government,’ book II [Hafner
Library of Classics Ed. 1961] ¶ 123, p. 184; see also 1 Z.
Swift, A System of the Laws of the State of Connecticut
[1795] pp. 12–13.’’). Accordingly, repeated references
to capital punishment and capital offenses throughout
the constitution, which never have been challenged or
eliminated by constitutional amendment, suggest that
the people of Connecticut always have accepted, and
continue to accept, capital punishment as an integral
part of the social compact for the purpose of main-
taining public order, preserving their freedom to live in
peace and tranquility, and ‘‘perpetuat[ing] the liberties,
rights and privileges which they have derived from their
ancestors . . . .’’9 Conn. Const., preamble.
B
Historical Insights
With respect to the relevant constitutional history,
Geisler explains that the ‘‘historical approach’’ includes
consideration of ‘‘the historical constitutional setting
and the debates of the framers . . . .’’ (Citations omit-
ted; emphasis omitted.) State v. Geisler, supra, 222
Conn. 685. Ross thus examined ‘‘historical insights into
the intent of our constitutional forbearers’’; State v.
Ross, supra, 230 Conn. 249; and observed that ‘‘Connect-
icut’s history has included a death penalty statute since
1650, when it was incorporated into Ludlow’s Code
. . . and such a penalty was considered constitutional
at the time of the adoption of the constitution of 1818.’’
(Citation omitted; footnote omitted.) Id., 250. Neverthe-
less, the majority not only fails to acknowledge the
historical roots of capital punishment in Connecticut,
but diverts the discussion to an expansive and wholly
irrelevant analysis of our state’s ‘‘unique and expansive
constitutional and preconstitutional history’’ relating to
the freedom from cruel and unusual punishment. This
is the same approach the majority employs in its analy-
sis of the relevant constitutional provisions by dismiss-
ing language in the state constitution referring to capital
punishment and capital offenses.
If the majority had conducted the historical analysis
required under Geisler and conducted in Ross, the only
conclusion it could have drawn is that capital punish-
ment has deep roots in Connecticut going back to early
colonial times and that the framers of the Connecticut
constitution in 1818 and the convention delegates in
1965 had no intention of eliminating death as the most
severe penalty in a proportional system of punishments.
In practice, the death penalty has been imposed in
Connecticut from the founding of the colony in 1636
until the first constitutional convention in 1818.
Between 1636 and 1699, when the rationale for the death
penalty was embedded in the religious foundation of
New England and punishment was regarded as divinely
mandated, capital punishment applied at different times
to as few as twelve and as many as twenty-three
crimes,10 and thirty-one persons were executed. L.
Goodheart, The Solemn Sentence of Death: Capital Pun-
ishment in Connecticut (2011), pp. 4, 7, 10–13. There-
after, during the first seven decades of the eighteenth
century, when a more worldly society emerged and the
legal culture was transformed to reflect an increasingly
secular ethic; id., p. 39; capital punishment applied to
between twelve and nineteen crimes,11 and seventeen
persons were executed. Id., pp. 4, 45, 49. Even when the
legal system experimented unsuccessfully with reform
from 1773 to 1827, capital punishment applied at differ-
ent times to between six and eleven crimes,12 and six-
teen persons were executed. Id., pp. 4, 75, 79. Thus,
when Connecticut held its first constitutional conven-
tion in 1818, capital punishment was firmly entrenched
and thoroughly accepted as the most severe penalty
available to punish criminal offenders.
Public support for capital punishment also was
reflected in the views of Zephaniah Swift, who was
the chief justice of the Connecticut Supreme Court of
Errors from 1815 to 1819, the state’s ‘‘leading jurist [at
the time of the 1818 constitutional convention] and
the person most responsible for the major reform of
Connecticut’s judicial system during’’ the late eigh-
teenth and early nineteenth centuries. Id., p. 71. Because
of Swift’s role as ‘‘[a] pioneer in the development of
an American common law distinct from England’’; W.
Horton, ‘‘Connecticut Constitutional History 1776–
1988,’’ 64 Conn. B.J. 355, 358 (1990); his ideas on the
law ‘‘take on great significance in determining what the
framers had in mind when adopting the language of the
constitution.’’ State v. Joyner, 225 Conn. 450, 490, 625
A.2d 791 (1993) (Berdon, J., dissenting). These ideas are
principally understood through his two legal treatises,
published in 1796 and 1823,13 respectively, ‘‘setting forth
the common law of Connecticut based on the actual
practices of local judges.’’ W. Horton, The Connecticut
State Constitution (2d Ed. 2012) p. 23. Both treatises
are relevant because they describe Swift’s views on
capital punishment, as well as those of the framers,
both before and directly after the 1818 constitutional
convention.
In his 1796 treatise, Swift expressed strong support
for the death penalty if properly imposed within a pro-
portional system of punishments, explaining that ‘‘[i]t
is a fundamental principle, that the sole end of punish-
ment is the prevention of crimes, and that every punish-
ment ought to be proportioned to the [offense].’’ 2 Z.
Swift, A System of the Laws of the State of Connecticut
(1796) p. 293. He thus approved of the legislature’s
attempt to create the type of proportional system he
advocated by establishing three grades of punishment,
these being death, confinement to hard labor and coarse
fare, and corporal and pecuniary pains and penalties.
Id., p. 296. He disapproved, however, of the number
of crimes the legislature had deemed deserving of the
ultimate punishment, which included ‘‘treason, murder,
rape, the crime against nature, mayhem, and arson,
where some life is endangered’’; id.; believing instead
that ‘‘[t]he dreadful punishment of death, ought only
to be inflicted [for] those crimes which directly and
immediately tend to the destruction of society and the
human race, as treason, and murder.’’ Id.
When Swift updated his 1796 treatise in the early
1820s, immediately following the constitutional conven-
tion, he maintained his belief that punishments should
be proportional to the offense and continued to support
the death penalty,14 contending that it should apply not
only to treason and murder, but to other crimes as
well.15 2 Z. Swift, A Digest of the Laws of the State of
Connecticut (1823) p. 262. He wrote: ‘‘Treason, murder,
rape, and arson, where life is destroyed or endangered,
ought to be punished with death. These crimes are
of such an atrocious nature, that the interest of the
community requires they should not only be punished
in the severest manner, but the offender ought to be
deprived of the power of repeating the crime. The pun-
ishment of death will not only be sanctioned by public
opinion, but there is no probability that executions will
be so frequent in such cases, as to weaken their effect
on the community.’’ Id. Accordingly, to the extent the
majority suggests that Swift and other reformers
rejected harsh punishments and became increasingly
uneasy with capital punishment by the time of the con-
stitutional convention, it indulges in revisionist think-
ing.
Approval of capital punishment by our constitutional
forbearers is also reflected in their handling of an event
that led directly to the calling of the 1818 constitutional
convention, namely, legislative interference with a crim-
inal conviction and sentence of death in Lung’s Case,
1 Conn. 428 (1815). See W. Horton, The Connecticut
State Constitution, supra, p. 12. In response to the legis-
lature’s action, ‘‘Swift convened a special court to try
Peter Lung for murder. After being duly convicted and
sentenced to die, Lung filed a petition with the General
Assembly claiming that the trial had been procedurally
improper. The General Assembly agreed, set aside the
conviction, and ordered a new trial, at which Lung was
promptly convicted, and he was hanged.’’ Id. ‘‘The case
outraged the Connecticut judges, who were Federalist
to a man. Led by Swift, who wrote a pamphlet in 1816
attacking legislative interference with a judicial deci-
sion, the judiciary demanded separation of powers.’’
Id., citing Z. Swift, ‘‘A Vindication of the Calling of
the Special Superior Court, at Middletown, on the 4th
Tuesday of August, 1815, For the Trial of Peter Lung,
Charged with the Crime of Murder. With Observations
on the Constitutional Power of the Legislature to Inter-
fere with the Judiciary in the Administration of Justice’’
(1816) p. 42 (A Vindication of the Calling of the Special
Superior Court).
What is striking about this case, in addition to the
fact that it led in part to the 1818 constitutional conven-
tion and the adoption of a new state constitution formal-
izing the separation of powers in Connecticut, is the
lack of any suggestion by the legislature or judiciary
that the imposition of the death penalty was wrong.
Connecticut judges were inflamed because the legisla-
ture had interfered with Lung’s conviction and verdict
due to perceived procedural irregularities, and the fact
that he had been condemned to die was simply not
an issue.16
To the extent the majority disagrees and cites a news-
paper article published after Lung’s execution ‘‘remark-
ing on the ‘infrequency of capital punishment’ and
observing that the ‘[behavior] of this unfortunate suf-
ferer on this trying occasion, was such as to attract
the tenderest sympathy of every rational beholder,’ ’’ it
misunderstands the context in which the article was
written. In his pamphlet on Lung’s Case, Swift effec-
tively countered any notion that capital punishment
lacked broad public support when he observed that
public sympathy for a capital offender as the execution
drew near was ‘‘probably owing to the weakness inci-
dent to human nature.’’ A Vindication of the Calling of
the Special Superior Court, supra, p. 11. Swift further
explained: ‘‘When a crime has been committed, public
indignation is awakened, and all unite to bring about
the conviction of the offender. But as soon as he is
convicted, especially in capital cases—when the awful
sentence of death is pronounced, then a sentiment of
compassion begins to operate in [favor] of the unfortu-
nate convict: the sense of justice is drowned in the
feelings of compassion; and false humanity begins to
run riot. His case will then be viewed in the most favor-
able light. Some will doubt about the evidence of his
guilt—some will question the propriety of capital pun-
ishments in any case, and some will hint at the possible
unfairness of the trial. Prejudice will be excited even
against the triers, who are then considered as having
sought the blood of a fellow creature, and many will
find fault with [everything] that has been done from a
secret aversion to the law, and a natural disposition to
pull down courts, and prostrate government. Artful and
designing men well know how to fan the flame and
profit by it. Such was the course of things in the case
of Lung. As soon as he was removed from the theatre of
his crimes, and the place of trial, the convicted murderer
was transformed into an innocent sufferer, and many
began to take a deep interest in his fate.’’ (Emphasis
added.) Id., pp. 11–12.
Whatever public sympathy may have been extended
to Lung following his conviction, there is no indication
in the annotated debates of the constitutional conven-
tion, two years after the uproar over Lung’s Case, of
decreasing public support for capital punishment. See
generally W. Horton, ‘‘Annotated Debates of the 1818
Constitutional Convention,’’ 65 Conn. B.J. SI-7 through
SI-84 (1991). Nor is there evidence that any convention
delegates sought to ban capital punishment or objected
to the inclusion of language in the constitution referring
to capital punishment. See id. The convention appointed
a committee of twenty-four delegates to draft the new
constitution. See id., SI-14 through SI-15. The commit-
tee’s proposed language in article first referring to capi-
tal offenses and to the deprivation of life without due
process of law was based on language in the 1817 Missis-
sippi Bill of Rights; see id., SI-102 through SI-103; and
was adopted by the convention delegates without com-
ment. See id., SI-31 through SI-32. Thereafter, language
in article first referring to punishment by death that was
proposed on the convention floor also was accepted
without significant comment or debate. See id.
Directly following the constitutional convention, pub-
lic support for capital punishment continued unabated
when the legislature endorsed the proportional system
of punishment advocated by Swift, including the contin-
ued use of the death penalty, in revisions to the General
Statutes for the purpose of ensuring their conformance
with the new constitution.17 See State v. Ellis, 197 Conn.
436, 450–51 n.13, 497 A.2d 974 (1985). A note in the
crimes and punishments section of the revised statutes
explained that ‘‘the object has been . . . to proportion
the punishment according to the nature and grade of
the crime’’ and that ‘‘[t]he experience of this state has
[shown], not only that mild punishments are better cal-
culated to prevent crimes, than those which are sangui-
nary; but that punishments must be attended with
considerable severity, to operate as examples to others
. . . .’’ General Statutes (1821 Rev.) tit. 22, § 118, p. 177
n.5. To that effect, capital punishment, which had been
imposed in 1805 for crimes such as bestiality, sodomy,
false witness, arson resulting in death, treason, destruc-
tion of military property, dismemberment, murder and
rape; see Acts and Laws of the State of Connecticut in
America (1805), pp. 182, 321, 349, 419; was retained for,
among other crimes, treason, murder, maiming, arson
and rape. See General Statutes (1821 Rev.) tit. 22, §§ 1,
3, 6, 8, 10, pp. 151–52. The revised statutes also author-
ized the governor to reward persons who provided
authorities with information leading to the timely cap-
ture of capital offenders. General Statutes (1821 Rev.)
tit. 22, § 118, p. 176.
Almost 150 years later, Connecticut revisited its com-
mitment to capital punishment when an amendment
proposing abolition of the death penalty was submitted
but soundly defeated at the 1965 constitutional conven-
tion, which adopted the state’s present constitution. The
record of the 1965 proceedings reveals that a Greenwich
delegate submitted a resolution entitled ‘‘Resolution
Proposing an Amendment to the Constitution Concern-
ing Capital Punishment’’ for the purpose of abolishing
the death penalty. Constitutional Convention Record
Index, Constitutional Convention of 1965 (August, 1965)
p. 5. The resolution received an unfavorable report by
the committee on resolutions, however, and was sum-
marily rejected by the convention delegates. Journal of
the Constitutional Convention of Connecticut 1965, p.
111. This explicit rejection of a direct attempt to abolish
capital punishment in 1965 demonstrates, first, that the
death penalty, which had been operative in this state
since colonial times, always had been deemed constitu-
tional and, second, that the convention delegates in
1965, like the framers in 1818, did not want to change
the status quo. The state’s commitment to capital pun-
ishment was renewed a second time on December 22,
1972, when article first, § 19, of the Connecticut consti-
tution was amended to provide that ‘‘no person shall,
for a capital offense, be tried by a jury of less than
twelve jurors without his consent.’’ (Emphasis added.)
Conn. Const., amend. IV. There appears to have been
no other attempt to amend the constitution for the
purpose of abolishing capital punishment during the
last 200 years.
To conclude, any suggestion that there was little or
diminishing support for the death penalty before, during
or directly after the constitutional conventions of 1818
and 1965 is a gross mischaracterization of the historical
record. An examination of Connecticut’s history reveals
that, although the number of crimes to which capital
punishment was applied diminished over the years, the
punishment was accepted in Connecticut as the most
severe penalty for a criminal offense not only in 1818,
at the time of the first constitutional convention, but
in 1972, as well, when the most recent constitutional
amendment referring to capital offenses was adopted.
Accordingly, a historical analysis under Geisler sup-
ports the conclusion that capital punishment was not
deemed morally unacceptable by our constitutional for-
bearers.
C
Related Connecticut Precedents
A Geisler analysis also includes an examination of
the ‘‘holdings and dicta of this court, and the Appellate
Court . . . .’’ (Citations omitted; emphasis omitted.)
State v. Geisler, supra, 222 Conn. 685. The majority
nonetheless continues to disregard Geisler by failing
to acknowledge this court’s recent holdings rejecting
challenges to capital punishment under the state consti-
tution. Rather, the majority engages in a brief discussion
regarding the degree of protection from cruel and
unusual punishment provided under the due process
clauses of the state constitution. In addition to funda-
mentally changing the required analysis, the conse-
quence of this attempt to avoid revealing Connecticut’s
well established precedent upholding capital punish-
ment is the majority’s misrepresentation of the reason-
ing in Ross and Rizzo, neither of which adopted a
federal evolving standards of decency test to evaluate
challenges to allegedly cruel and unusual punishment,
as the majority claims. See part I B of this opinion.
When the court considered a constitutional challenge
to capital punishment in Ross, it relied on State v. Davis,
158 Conn. 341, 358, 260 A.2d 587 (1969), vacated on
other grounds, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed.
2d 750 (1972), in concluding that ‘‘Connecticut case law
has recognized the facial constitutionality of the death
penalty under the eighth and fourteenth amendments
to the federal constitution.’’ State v. Ross, supra, 230
Conn. 250. Since Ross, capital punishment has been
deemed facially constitutional in many other cases as
well. See State v. Santiago, 305 Conn. 101, 307, 49 A.3d
566 (2012); State v. Rizzo, supra, 303 Conn. 184, 201;
State v. Colon, supra, 272 Conn. 383; State v. Reynolds,
264 Conn. 1, 236–37, 836 A.2d 224 (2003), cert. denied,
541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004);
State v. Cobb, 251 Conn. 285, 496–97, 743 A.2d 1 (1999),
cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d
64 (2000); State v. Webb, 238 Conn. 389, 401–402, 411–12,
680 A.2d 147 (1996); State v. Breton, 235 Conn. 206,
218, 663 A.2d 1026 (1995).
This court also has implicitly endorsed the constitu-
tionality of capital punishment under the social com-
pact clause of the state constitution. In Webb, the court
determined that the social compact clause does not
preclude death penalty legislation in Connecticut
because Connecticut’s social compact does not confer
on convicted offenders a natural and unenumerated
right to life. State v. Webb, supra, 238 Conn. 411–12.
The court explained: ‘‘Unenumerated rights [such as a
citizen’s right to be protected from capital punishment]
exist, if at all . . . only if they are grounded in or
derived from the constitutional text or Connecticut’s
unique historical record’’; id., 410; and ‘‘the constitu-
tional text and historical record support the constitu-
tionality of the death penalty statutes [in Connecticut].’’
Id., 411 n.21. Accordingly, relevant Connecticut prece-
dent overwhelmingly supports the conclusion that capi-
tal punishment has continued to receive strong public
support in Connecticut in recent years.
D
Persuasive Federal Precedents
Geisler further instructs the court to consider ‘‘fed-
eral constitutional precedents that appropriately illumi-
nate open textured provisions in our own organic
document . . . .’’ (Internal quotation marks omitted.)
State v. Geisler, supra, 222 Conn. 685. Although none
of the provisions in the Connecticut constitution refer-
ring to capital punishment is open textured, the court
in Ross cited to Gregg v. Georgia, supra, 428 U.S. 153,
for the proposition that federal constitutional law does
not forbid the death penalty outright and that federal
constitutional law is consistent with the repeated recog-
nition of capital punishment in our own constitution.
State v. Ross, supra, 230 Conn. 250. Nonetheless, the
majority disregards federal precedent holding that capi-
tal punishment is constitutional and directs its attention
to the ‘‘minimum standards for what constitutes imper-
missibly cruel and unusual punishment’’ under the fed-
eral constitution. Text accompanying footnote 15 of the
majority opinion.
The majority claims that the United States Supreme
Court has identified as unconstitutionally cruel those
punishments that are (1) inherently barbaric, (2) exces-
sive and disproportionate, and (3) arbitrary or discrimi-
natory, and contends that the court in Ross ‘‘broadly
adopted, as a matter of state constitutional law, this
federal framework for evaluating challenges to alleg-
edly cruel and unusual punishments.’’ Text accompa-
nying footnote 17 of the majority opinion. This is not
the case. There is no reference in Ross to this federal
framework as the basis for evaluating the constitution-
ality of capital punishment. The only references in Ross
to capital punishment as being excessive or arbitrarily
imposed are in the context of as applied challenges
to the constitutionality of Connecticut’s death penalty
statutes. See State v. Ross, supra, 230 Conn. 231, 232,
239. As for the barbarity of capital punishment, the
author of the dissenting opinion in Ross was the only
member of the court to use that term. Id., 298 (Berdon,
J., dissenting in part). Furthermore, as repeatedly noted
in this opinion, the court in Ross adopted the framework
established in Geisler to evaluate challenges to alleg-
edly cruel and unusual punishments. Accordingly,
because the United States Supreme Court has not modi-
fied or rejected its conclusion in Gregg that capital
punishment is not forbidden in all circumstances under
federal constitutional law, federal precedent continues
to support the constitutional validity of capital punish-
ment under the Connecticut constitution.
E
Persuasive Precedents of Other State Courts
Geisler next requires an examination of ‘‘sister state
decisions . . . .’’ (Citations omitted; emphasis omit-
ted.) State v. Geisler, supra, 222 Conn. 685. In Ross, the
court followed this directive by observing that ‘‘[c]ourts
in the overwhelming majority of our sister states have
rejected facial challenges to the death penalty under
their state constitutions.’’ State v. Ross, supra, 230 Conn.
250. The court specifically noted that, between 1972
and 1994, thirty-seven states had passed death penalty
statutes, and, in the only two jurisdictions in which
the state’s highest court had deemed the death penalty
facially unconstitutional, California and Massachusetts,
subsequent constitutional amendments promptly abro-
gated those decisions. Id., 250 n.30. Although the major-
ity does not address this question as part of its Geisler
analysis but, rather, as part of its subsequent discussion
of evolving standards of decency, I note for the record
the majority’s concession that ‘‘capital punishment
remains legal in a majority of jurisdictions within the
United States . . . .’’ An analysis of persuasive state
precedents thus supports the continued validity of capi-
tal punishment under the Connecticut constitution.
F
Economic and Sociological Considerations
The last Geisler factor, economic and sociological
considerations, is the most challenging factor to inter-
pret and apply. See State v. Geisler, supra, 222 Conn.
285. The court in Geisler provided little guidance as
how to conduct this analysis and merely cited to State
v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), in which the
court observed that ‘‘[c]onstitutional provisions must be
interpreted within the context of the times’’; id., 114;
and that the state constitution ‘‘should not be interpre-
ted too narrowly or too literally so that it fails to have
contemporary effectiveness for all of our citizens.’’ Id.,
115. Accordingly, the court in Ross determined that this
factor requires an examination of ‘‘whether contempo-
rary understandings of applicable economic and socio-
logical norms compel the conclusion that any death
penalty constitutes cruel and unusual punishment.’’
State v. Ross, supra, 230 Conn. 251. The court explained:
‘‘The question is not whether any one of us would vote
to enact a death penalty if our role were that of a
legislator. It is, rather, whether the defendant is correct
in his contention that the death penalty is so inherently
cruel and so lacking in moral and sociological justifica-
tion that it is unconstitutional on its face because it is
fundamentally offensive to evolving standards of human
decency.’’ Id. The court then advised: ‘‘Judicial evalua-
tion of evolving standards of human decency cannot
proceed in a vacuum. Community standards of accept-
able legislative policy choices are necessarily reflected
in the text of our constitutional document, in our history
and in the teachings of the jurisprudence of our sister
states as well as that of the federal courts.’’18 Id.
In an apparent attempt to circumvent this analysis,
the majority replaces it with an entirely new standard,
derived from federal law, that requires a determination
as to whether capital punishment comports with evolv-
ing standards of decency. Apparently searching for
precedent in Connecticut’s own capital punishment
jurisprudence, the majority suggests that the federal
standard pertaining to evolving standards of decency
was adopted in Ross and followed in Rizzo. This is not
the case.
The majority initially contends that, when the court
in Ross and Rizzo considered whether the death penalty
was cruel and unusual punishment under the state con-
stitution, it did not address the issue as a single constitu-
tional claim but as ‘‘two distinct constitutional
[claims],’’ the first being a per se claim that capital
punishment violates the state constitution under all cir-
cumstances, and the second being a claim that capital
punishment no longer comports with Connecticut’s
evolving standards of decency. The majority thus
appears to rely on the existence of this purported sec-
ond claim in Ross and Rizzo as precedent for framing
the defendant’s claim in the present case as a claim
that capital punishment is unconstitutional because it
no longer comports with evolving standards of decency
in Connecticut. Having identified Ross and Rizzo as
precedent for the defendant’s claim, the majority next
contends that, although the court addressed the evolv-
ing standards of decency claim only briefly in Ross, it
conducted ‘‘a more sweeping review’’ of a similar claim
in Rizzo before concluding that there remained strong
public support for capital punishment in this and other
jurisdictions. The majority then adopts ‘‘five objective
indicia of society’s evolving standards of decency,’’
based on federal eighth amendment jurisprudence, to
review the defendant’s claim. These include (1) the
historical development of the punishment at issue, (2)
legislative enactments, (3) the current practice of prose-
cutors and sentencing juries, (4) the laws and practices
of other jurisdictions, and (5) the opinions and recom-
mendations of professional associations. See text
accompanying footnote 43 of the majority opinion. For
the following reasons, I strongly disagree with the
majority’s misrepresentation of the reasoning in Ross
and Rizzo for the apparent purpose of legitimizing its
adoption of a wholly independent test derived from
federal law and of avoiding the analysis required under
the sixth Geisler factor.
First, in Ross and Rizzo, the court considered and
decided only one claim challenging the constitutionality
of capital punishment under the state constitution. In
both cases, that claim was brought on per se grounds.
State v. Rizzo, supra, 303 Conn. 184; State v. Ross,
supra, 230 Conn. 245. There was no second claim in
either case challenging the constitutionality of capital
punishment on the ground that it failed to comport with
evolving standards of decency.
Second, to the extent the court considered evolving
standards of decency in Ross and Rizzo, it did so in
the context of the sixth Geisler factor, which Ross
described as requiring an examination of contemporary
understandings of applicable economic and sociologi-
cal norms. See State v. Ross, supra, 230 Conn. 251; see
also State v. Rizzo, supra, 303 Conn. 186–88. There is
no room for debate regarding these facts.
Third, although the court conducted a more expan-
sive analysis in Rizzo than it did in Ross under the sixth
Geisler factor, it did not go nearly as far as the majority
contends. As previously discussed, Ross stated that evi-
dence of contemporary understandings of applicable
economic and sociological norms, or evolving stan-
dards of human decency, ‘‘are necessarily reflected in
the text of our constitutional document, in our history
and in the teachings of the jurisprudence of our sister
states as well as that of the federal courts.’’ State v.
Ross, supra, 230 Conn. 251. Thus, the court in Rizzo
began its analysis of the sixth Geisler factor by noting
that the ‘‘constitution contains explicit references to
capital punishment . . . and, therefore, expressly sus-
tains the constitutional validity of such a penalty in
appropriate circumstances.’’ (Citation omitted; internal
quotation marks omitted.) State v. Rizzo, supra, 303
Conn. 188. The court then examined developments in
the capital punishment jurisprudence of the United
States Supreme Court and our sister states, as
instructed by Ross. See id., 188–90. In a departure from
Ross, however, the court in Rizzo also considered
actual practices in other states and determined that,
because several thousand inmates were being held on
death row in thirty-six states, the death penalty contin-
ued to be accepted in the nation generally. See id.,
190–92. All of the remaining discussion in Rizzo, which
concerned a decline in the number of executions and
in new death sentences, the results of public opinion
polls, international norms, whether capital punishment
continues to serve a legitimate penological purpose,
and the passage but subsequent veto of legislation in
Connecticut repealing capital punishment, was in
response to arguments by the defendant in that case,
and was not initiated by the court or necessary to the
court’s analysis under the sixth Geisler factor. See
id., 192–201.
Fourth, the majority concedes that the ‘‘five objective
indicia of society’s evolving standards of decency’’ are
largely derived from eighth amendment jurisprudence
rather than Connecticut law. In addition to the fact that
this is contrary to the majority’s claim that it is deciding
this case after ‘‘careful consideration of the defendant’s
claims in light of the governing constitutional principles
and Connecticut’s unique historical and legal land-
scape’’; (emphasis added); the five indicia are drawn
from four federal cases, each of which articulated a
slightly different set of criteria in determining whether
the penalty in question was constitutional. See Graham
v. Florida, 560 U.S. 48, 61–62, 130 S. Ct. 2011, 176 L.
Ed. 2d 825 (2010) (legislative enactments and actual
sentencing practices); Atkins v. Virginia, 536 U.S. 304,
313–16, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (legisla-
tive enactments); Thompson v. Oklahoma, 487 U.S. 815,
822–23, 830, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988)
(legislative enactments, jury determinations, views of
respected professional organizations and views of other
nations); Enmund v. Florida, 458 U.S. 782, 788–89, 102
S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (historical develop-
ment of punishment, legislative enactments, interna-
tional opinion, and sentencing decisions of juries).
Moreover, a comparison of the majority’s five indicia
with those discussed in Ross shows that only two of
the five overlap. These two common indicia are the
history of the punishment in question and the laws and
practices of other jurisdictions. The other three indicia,
legislative enactments, the current practices of prosecu-
tors and sentencing juries, and the opinions and recom-
mendations of professional associations were not
recognized in Ross. Correspondingly, the majority does
not recognize the first and most important indicium
recognized in Ross, the constitutional text, as one of
the five indicia in its analysis. This discrepancy between
the five indicia that the majority adopts in the present
case and the indicia described in Ross is significant.
As previously discussed, Ross advised that ‘‘[j]udicial
evaluation of evolving standards of human decency can-
not proceed in a vacuum. Community standards of
acceptable legislative policy choices are necessarily
reflected in the text of our constitutional document, in
our history and in the teachings of the jurisprudence
of our sister states as well as that of the federal courts.’’
State v. Ross, supra, 230 Conn. 251. Ross thus viewed
evolving standards of human decency in the broadest
possible sense. Given this understanding, the current
practices of prosecutors and sentencing juries, and the
opinions and recommendations of professional associa-
tions, are not particularly relevant because they are
not representative of the community as a whole.19 In
contrast, because the state constitution is a social com-
pact that incorporates the principles by which an entire
society is governed, it is far more likely to reflect the
views of the general population. In Connecticut, for
example, the state constitution was amended fifty-nine
times between 1818 and 1965, and thirty-one times since
1965; W. Horton, The Connecticut State Constitution,
supra, pp. 17, 22; and thus reflects not only the beliefs
of the original framers but those of the people of Con-
necticut over the course of 200 years. Historical infor-
mation, including events of more recent origin, likewise
provides a broad view of social change within the state
and is not unduly reflective of a single perspective. As
for the jurisprudence of other jurisdictions, the court
in Ross understood that Connecticut is not a self-con-
tained entity that exists in a vacuum but is inextricably
linked to other federal and state jurisdictions. Accord-
ingly, the capital punishment jurisprudence of other
jurisdictions may be influenced to some degree by the
same events and historical developments that inform
our own. I therefore do not take issue with the majority’s
reliance on the historical development of the punish-
ment at issue or on the laws and practices of other
jurisdictions, although I strongly disagree with the
majority’s analysis and conclusions.
I also disagree with the majority’s reliance on legisla-
tive enactments as one of the five indicia of evolving
standards of decency and with its specific reliance on
the passage of P.A. 12-5 as the principal basis for
determining that capital punishment is impermissible
under the Connecticut constitution. The majority con-
cedes at the outset that this is the most important part
of its analysis, stating that, ‘‘[u]pon careful consider-
ation of the defendant’s claims in light of the governing
constitutional principles and Connecticut’s unique his-
torical and legal landscape, we are persuaded that, fol-
lowing its prospective abolition, this state’s death
penalty no longer comports with contemporary stan-
dards of decency and no longer serves any legitimate
penological purpose.’’ In my view, this is a serious mis-
take, not only because it is inconsistent with Connecti-
cut precedent but because it places the legislature in
a legally untenable position.
I note initially that the court in Ross did not contem-
plate judicial reliance on state legislation as a basis
for determining evolving standards of decency in the
context of a state constitutional claim. Rather, the court
deliberately steered clear of this potential quagmire and
made no reference to legislative enactments as one of
the indicia of community standards in Connecticut,
most likely because of the legal predicament that would
have resulted from relying on legislative enactments to
deem a criminal penalty unconstitutional.
The majority seems to believe that relying on legisla-
tion to determine evolving standards of decency is
appropriate in a state constitutional analysis because
the court in Rizzo quoted language by the United States
Supreme Court declaring that ‘‘the clearest and most
reliable objective evidence of contemporary values is
the legislation enacted by the country’s legislatures
. . . .’’ (Internal quotation marks omitted.) State v.
Rizzo, supra, 303 Conn. 191, quoting Atkins v. Virginia,
supra, 536 U.S. 312. The majority, however, takes this
language out of context. In Rizzo, the court did not
recognize legislative enactments in Connecticut as a
source of community standards in this state but cited
Atkins in discussing recent developments in our sister
states, which Ross had recognized as relevant under
the sixth Geisler factor. See State v. Rizzo, supra,
191–93; State v. Ross, supra, 230 Conn. 251.
The majority also fails to understand the difference
between examining legislative enactments in a federal
and a state constitutional analysis, and why it is appro-
priate in the former but makes no sense in the latter.
The answer, however, is simple. In a federal analysis
of a death penalty statute, the statute is compared to
all of the other state statutory schemes in order to
determine whether the statute under review is out of
step with contemporary norms. When analyzing the
constitutionality of the death penalty under the state
constitution, however, the majority reviews the state
statute by comparing it against itself. This makes no
sense. Thus, if P.A. 12-5 authorized drawing and quarter-
ing for those convicted of murder, the majority would
conclude that the standards of decency in Connecticut
are established by the public act and are therefore con-
stitutional. This logical incoherence is why the court in
Ross did not rely on legislative enactments to determine
contemporary norms.
In my view, if the legislature decides to eliminate
capital punishment, it is because it is authorized to do
so under the state constitution; see State v. Darden,
171 Conn. 677, 679–80, 372 A.2d 99 (1976); and its deci-
sion has no implications regarding the constitutionality
of the punishment itself. If, on the other hand, the legis-
lature establishes capital punishment as the most severe
penalty in a proportional system of punishments, it is
because the Connecticut constitution expressly recog-
nizes death as a viable penalty. Thus, the only way
capital punishment may be deemed unconstitutional
in Connecticut is by the approval of a constitutional
amendment to that effect. Capital punishment also may
be eliminated by legislative repeal of the death penalty
in its entirety, but a legislative act eliminating capital
punishment is not an indication that the punishment is
unconstitutional. If social values have changed such
that capital punishment no longer comports with con-
temporary standards of decency in Connecticut, this
will be reflected in legislative action or a constitutional
amendment banning capital punishment. In the absence
of a constitutional amendment, neither an act of the
legislature nor a judicial edict can nullify explicit consti-
tutional provisions expressly recognizing capital pun-
ishment or erase from the historical record the
relatively recent rejection of a proposed abolition
amendment during the 1965 constitutional convention.
Accordingly, P.A. 12-5 cannot serve as the basis for
concluding that capital punishment is unconstitutional
in Connecticut under the federal test the majority
adopts or, for that matter, under any other test. The
only realistic constitutional claim that can be made
regarding the effect of P.A. 12-5 on the defendant’s
sentence is that the statute is unconstitutional.
Rejecting the standard the majority adopts, and
applying the standard on which the court in Ross relied,
I believe contemporary understandings of applicable
economic and sociological norms do not compel the
conclusion that capital punishment is morally unaccept-
able in Connecticut. As previously discussed, the state
constitutional text contains numerous references to
capital punishment. See part II A of this opinion. Thus,
I agree with Justice Scalia that ‘‘[i]t is impossible to hold
unconstitutional that which the [c]onstitution explicitly
contemplates.’’ (Emphasis in original.) Glossip v. Gross,
U.S. , 135 S. Ct. 2726, 2747, 192 L. Ed. 2d 761
(2015) (Scalia, J., concurring). This is especially true
in Connecticut, where there have been more than
eighty-five amendments to the state constitution since
1818 and the delegates to the 1965 constitutional con-
vention rejected an amendment abolishing capital pun-
ishment. The Connecticut constitution thus reflects
current public attitudes toward capital punishment, as
well as those of the original framers. At this time, state
and federal jurisprudence also supports the conclusion
that capital punishment is morally acceptable under the
state constitution. See part II D and E of this opinion. As
for Connecticut’s history, I disagree with the majority’s
claim that ‘‘new insights into the history of capital pun-
ishment in Connecticut, in tandem with the legislature’s
2012 decision to abolish the death penalty prospectively
. . . [provide] a clear picture of the long, steady devolu-
tion of capital punishment in our state . . . .’’
The majority claims that various developments dur-
ing the past 400 years ‘‘have resulted in capital punish-
ment being available for far fewer crimes and criminals,
and being imposed far less frequently, with a concomi-
tant deterioration in public acceptance.’’ As Chief Jus-
tice Rogers discusses in her dissenting opinion, how-
ever, the historical record does not demonstrate a
decline in public support for the death penalty in Con-
necticut as the most severe form of punishment, even
in contemporary society, where persons accused of cap-
ital crimes are provided with many more legal protec-
tions than similar offenders were provided in the past.
The ‘‘new insights’’ to which the majority refers
appear to come entirely from the author of a recently
published book, Lawrence B. Goodheart, who repeat-
edly demonstrates his bias in favor of abolishing capital
punishment in his commentary, in his selection and
presentation of the historical evidence, and in numer-
ous other published articles. See, e.g., L. Goodheart,
supra, p. 2 (opining that ‘‘the death penalty in Connecti-
cut is contradictory in principle and unworkable in prac-
tice’’); L. Goodheart, ‘‘Changing Use of Death Penalty
Argues For Abolition,’’ Hartford Courant, April 23, 2011,
p. A7 (‘‘[m]y research has convinced me that it’s time
to abolish a law that is unenforceable, unfair and unethi-
cal,’’ and ‘‘I’ve come to the belief that we can no longer
enforce this law, it was never effective and it was
unfairly applied’’); see also M. Kirk, ‘‘The History of the
Death Penalty in Connecticut,’’ UCONN Today, October
24, 2011, available at http://today.uconn.edu/2011/10/
the-history-of-the-death-penalty-in-connecticut/ (last
visited July 27, 2015) (quoting from interview in which
Goodheart expresses opposition to death penalty).
Accordingly, Goodheart does not discuss the historical
facts on which he relies in a completely objective fash-
ion. Nevertheless, even Goodheart concedes that public
support for capital punishment has remained strong in
Connecticut during the past four centuries. For exam-
ple, he observes that, in the more recent past, ‘‘[d]espite
a petition campaign and gubernatorial support, oppo-
nents [of capital punishment] during an era of reform
in the 1840s and 1850s failed to sway the legislature
. . . .’’ L. Goodheart, The Solemn Sentence of Death:
Capital Punishment in Connecticut, supra, p. 3. Simi-
larly, ‘‘[a]fter the horrors of World War II, Governor
Abraham Ribicoff . . . supported broad-based efforts
to end capital punishment, but the General Assembly
voted down abolition . . . .’’ Id., pp. 3–4. Thereafter,
in 1963, ‘‘the House voted overwhelmingly, once again,
to retain capital punishment’’ because of ‘‘popular sup-
port for the execution of hardened criminals’’; id., p.
201; and, ‘‘[i]n 1965, the House voted . . . 167 to 67 to
retain the death penalty.’’ Id., p. 202. Goodheart also
observes that, in the 1970s, following the United States
Supreme Court’s decision in Furman v. Georgia, 408
U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in
which, according to Goodheart, the nation’s highest
court ‘‘found that the arbitrary and inconsistent imposi-
tion of the death penalty violated the [e]ighth and [f]our-
teenth amendments [of the federal constitution] con-
cerning cruel and unusual punishment and due process
of the law’’; L. Goodheart, The Solemn Sentence of
Death: Capital Punishment in Connecticut, supra, p.
196; Connecticut did not abolish capital punishment
but ‘‘was one of thirty-seven states to rewrite its capital
code to comply with the revised standard.’’ Id.
In explaining why the death penalty retains strong
public support in Connecticut, Goodheart states that
‘‘[s]urveys of public opinion provide an answer. A Quin-
nipiac University poll in January [of] 2005 indicated
that 59 percent of Connecticut residents favored the
death penalty,’’ which was ‘‘comparable to national sen-
timent.’’ Id., p. 249. Goodheart also observes that, more
recently, ‘‘[p]ublic opinion, the General Assembly
(except in 2009), most governors, and the courts (state
and federal) sustain the death penalty, at least for partic-
ularly cruel and heinous murders.’’ Id., p. 2. He further
acknowledges that, ‘‘[a]fter nearly four centuries of cap-
ital punishment, Connecticut is exceptional in its region
in still carrying out the [capital punishment] statute. It
appears that a substantial majority of the state’s citizens
wish to preserve the death penalty, at least for multiple
murderers . . . .’’ Id., p. 5. At other times, he explains
that ‘‘[t]he death penalty remains on the books because
enough citizens believe that it is a necessary and just
retribution’’; id., pp. 5–6; and that ‘‘[m]ost citizens in
Connecticut [have] approved the death penalty when
it applie[s] to horrific murders.’’ Id., p. 250. For example,
Goodheart states that 70 percent of those polled sup-
ported the execution of Michael Ross in 2005, the last
person executed in Connecticut, and that ‘‘[o]ne-fourth
of those who had previously indicated they opposed the
death penalty wanted Ross executed.’’ Id. Goodheart
ultimately concludes, without qualification, that,
despite a vocal minority, ‘‘[p]ublic opinion supports the
death penalty for [the worst] killers . . . .’’ Id., p. 252.
Goodheart’s statistics are consistent with statistics
cited by Chief Justice Rogers in her dissenting opinion,
which indicate that 62 percent of Connecticut voters
favored the death penalty in April, 2012, and 59 percent
in March, 2013, for persons convicted of murder. See
footnote 31 of Chief Justice Rogers’ dissenting opinion
and accompanying text. Thus the ‘‘facts’’ cited by the
majority’s own ‘‘historian’’ do not support its claim that
there has been a significant ‘‘deterioration in public
acceptance’’ of the death penalty.
That capital punishment in Connecticut has been
applied to a steadily decreasing number of crimes dur-
ing the past 400 years and has been carried out infre-
quently in more recent decades does not mean that
capital punishment for the most terrible crimes is lack-
ing in significant public support. There always has been
public debate as to the type and number of crimes to
which capital punishment should apply, and the protec-
tions afforded to offenders before the punishment is
carried out have grown over the years, thus extending
the time between sentencing and execution. Capital
punishment nonetheless continues to receive public
support in Connecticut. This was reflected most
recently in the inability of the legislature to override
former Governor M. Jodi Rell’s veto following the pas-
sage of an act intended to repeal the death penalty
prospectively in 2009; see Public Acts 2009, No. 09-107;
in the failure of similar legislation to achieve a full vote
in either chamber of the legislature after advancing
through the Judiciary Committee in 2011; see State v.
Rizzo, supra, 303 Conn. 199; and in the fact that P.A.
12-5 provides only for the prospective repeal of capital
punishment, while retaining it for current death row
inmates.
The majority declares that the passage of P.A. 12-5
is a tipping point in the history of capital punishment
in Connecticut, in that it represents such a significant
change in public mores that capital punishment no
longer comports with contemporary standards of
decency. The majority’s argument, in a nutshell, is that
the passage of P.A. 12-5 is an expression of moral out-
rage against what the majority describes as the barbaric,
excessive, arbitrary and discriminatory penalty of
death. In reaching this conclusion, however, the major-
ity rejects alternative explanations as to why the legisla-
ture may have passed P.A. 12-5, including that the death
penalty is too expensive, that it takes too long to be
carried out, or that it is merely an exercise of the legisla-
tive prerogative to establish penalties for crimes. The
majority’s narrow-minded view, however, is unsup-
ported by the facts. If the legislature, as the majority
claims, had rejected the death penalty only on the
ground that it is barbaric, excessive, arbitrary and dis-
criminatory, then why would it have enacted a retention
provision specifically allowing executions to go forward
for all current death row inmates, and why would it
have permitted future arrests, indictments, the com-
mencement of trials, and executions to be carried out
with respect to those who had not yet been charged
with a capital crime but who had committed such a
crime before the effective date of P.A. 12-5? One need
not be a legal scholar to understand that the majority’s
conclusion is not only out of step with the intent of
P.A. 12-5, but is disrespectful to a coequal branch of gov-
ernment.
In sum, there is no support for the majority’s determi-
nation that capital punishment no longer comports with
evolving contemporary standards of decency or with
understandings of applicable economic and sociologi-
cal norms under the sixth Geisler factor. Nor can any
support for its conclusion be drawn from the passage
of P.A. 12-5. Accordingly, all six Geisler factors support
the conclusion that capital punishment remains morally
acceptable to the people of Connecticut in appropriate
circumstances and is not cruel and unusual punishment
under the state constitution following the passage of
P.A. 12-5.
III
SEPARATION OF POWERS
My final concern is that the majority usurps the legis-
lature’s power to define crimes and establish punish-
ments. In Rizzo, this court recognized that ‘‘assessing
the propriety of the death penalty is not exclusively the
domain of the legislature, and that this court has an
independent duty to determine that the penalty remains
constitutionally viable as the sensibilities of our citizens
evolve. See Atkins v. Virginia, supra, 536 U.S. 312–13;
State v. Ross, supra, 230 Conn. 249. In so doing, how-
ever, we must exercise our authority with great
restraint; State v. Ross, supra, [230 Conn.] 249; and
refrain from interfering with democratic processes
unless there is compelling reason to disagree with the
judgment reached by the citizenry and its legislatures.
Atkins v. Virginia, supra, 313. Moreover, it is clear
that [r]easonable people of good faith disagree on the
morality and efficacy of capital punishment; Baze v.
Rees, [553 U.S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420
(2008) (opinion announcing judgment)]; and that the
value of [that sanction], and its contribution to accept-
able penological goals, typically is a complex factual
issue the resolution of which properly rests with the
legislatures . . . . Kennedy v. Louisiana, [554 U.S.
407, 441, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)]; see
also Roper v. Simmons, [543 U.S. 551, 571, 125 S. Ct.
1183, 161 L. Ed. 2d 1 (2005)] ([i]n general we leave to
legislatures the assessment of the efficacy of various
criminal penalty schemes); Gregg v. Georgia, supra, 428
U.S. 175 [opinion announcing judgment] ([i]n a demo-
cratic society legislatures, not courts, are constituted
to respond to the will and consequently the moral values
of the people . . .); cf. Baze v. Rees, supra, 69 (Alito,
J., concurring) ([p]ublic policy on the death penalty, an
issue that stirs deep emotions, cannot be dictated by
the testimony of an expert or two or by judicial findings
of fact based on such testimony). We therefore con-
clude that, as long as there remains powerful evidence
of strong public support for the death penalty in the
form of long-standing laws enacted by the democrati-
cally elected representatives of this state and other
jurisdictions within the United States, we will not
attempt to discern a contrary view of the public will,
or to answer complex policy questions best answered
by the legislative process, by choosing among the com-
peting opinions of interest groups and individuals
whose views are not necessarily in accord with those
of the general population.’’ (Emphasis added; internal
quotation marks omitted.) State v. Rizzo, supra, 303
Conn. 197–98.
The foregoing view was expressed by this court,
including the author of the majority opinion in the pres-
ent case, a mere three and one-half years ago. For the
majority now to ignore the court’s recent precedent
and to decide that capital punishment is impermissible
under the Connecticut constitution, especially when
the legislature has clearly expressed its intent that all
presently sentenced offenders remain subject to the
penalty, is inexplicable. See State v. Darden, supra,
171 Conn. 679–80 (‘‘it must be remembered that the
constitution assigns to the legislature the power to
enact laws defining crimes and fixing the degree and
method of punishment and to the judiciary the power
to try offenses under these laws and [to] impose punish-
ment within the limits and according to the methods
therein provided’’).
The majority’s decision is especially disturbing in
light of the fact that it is essentially a moral decision
rather than a legal one. See, e.g., District Attorney v.
Watson, 381 Mass. 648, 693, 411 N.E.2d 1274 (1980)
(Quirico, J., dissenting). In other words, the majority
determines that capital punishment is unconstitutional
because it is ‘‘so out of step with our contemporary
standards of decency as to violate the state constitu-
tional ban on excessive and disproportionate punish-
ment,’’ even though, only three and one-half years ago,
this court reached the opposite conclusion. As a justice
of the highest court in a neighboring jurisdiction stated
in similar circumstances, foreshadowing the views
expressed in Rizzo: ‘‘If this court is to determine the
constitutionality of the death penalty in light of contem-
porary moral standards, I believe it must, at a minimum,
award great deference to the legislative judgment
implicit in the passage of the statute that contemporary
moral standards support the punishment in certain cir-
cumstances. . . . Judicial inquiry does not extend to
the expediency, wisdom or necessity of the legislative
judgment for that is a function that rests entirely with
the lawmaking department. . . . By substituting its
view of contemporary standards for the view implicitly
expressed by the [l]egislature, the court infringes on the
[l]egislature’s prerogative to define crimes and establish
the terms of punishment.’’ (Citations omitted; internal
quotation marks omitted.) District Attorney v. Watson,
supra, 693–94 (Quirico, J., dissenting). Significantly, the
opinion of the dissenting justice in Massachusetts was
vindicated when the citizens of Massachusetts promptly
rejected the court’s decision that a state statute provid-
ing for the death penalty was unconstitutional on its
face by amending the Massachusetts constitution to
expressly provide that the death penalty was not forbid-
den. See State v. Ross, supra, 230 Conn. 250 n.30. More-
over, to my knowledge, no other state court decision
determining that capital punishment is unconstitutional
under a state constitution has avoided abrogation by
constitutional amendment.20
In State v. Ellis, supra, 197 Conn. 450–51 n.13, the
court noted that Swift had recognized the legislature’s
authority to define crimes and establish punishments
in the early 1800s. The court stated: ‘‘Prior to 1821,
manslaughter was punished by methods which might
be described as medieval. The 1808 statute provided
that ‘whatsoever person shall be guilty of the crime of
man-slaughter . . . shall forfeit to the public treasury
of this state, all the goods and chattels to him or her
belonging . . . and be further punished by whipping
on the naked body, and be stigmatized, or burnt on the
hand with the letter M, on a hot iron, and shall also be
forever disabled from giving any verdict or evidence in
any of the courts within this state.’ . . . General Stat-
utes (1808 Rev.) tit. 66, c. 7.’’ State v. Ellis, supra, 450
n.13. The court then observed that, even though Swift
had ‘‘inveighed against this barbaric form of punish-
ment’’; id.; because ‘‘the ways of committing manslaugh-
ter differed greatly in criminality and . . . the
punishment [should have been] varied and propor-
tioned accordingly . . . [h]e concluded that in this
enlightened period, when reason and science [had] dis-
pelled the gloom of prejudice and superstition, it [was]
to be hoped that the legislature [would] soon enact
more rational and consistent laws on this subject.’’
(Citation omitted; emphasis added; internal quotation
marks omitted.) Id., 451 n.13. The legislature’s authority
to establish punishments, within proper limits, has been
expressly acknowledged in Rizzo and in other cases.
See, e.g., State v. Rizzo, supra, 303 Conn. 197–98; State
v. Williams, 157 Conn. 114, 121, 249 A.2d 245 (1968),
cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d
244 (1969); State v. McNally, 152 Conn. 598, 603, 211
A.2d 162, cert. denied, 382 U.S. 948, 86 S. Ct. 410, 15 L.
Ed. 2d 356 (1965); see also State v. Kreminski, 178
Conn. 145, 153, 422 A.2d 294 (1979); State v. Kyles, 169
Conn. 438, 444, 363 A.2d 97 (1975); State v. Levy, 103
Conn. 138, 148, 130 A. 96 (1925). Accordingly, this court
must proceed with great caution when exercising its
authority to determine that a punishment is unconstitu-
tional.
Finally, the effect of the majority’s decision on the
relevant constitutional provisions and statutes referring
to capital punishment in Connecticut is not their repeal
or elimination, but their unenforceability. As this court
stated in State v. Travelers Ins. Co., 73 Conn. 255, 47
A. 299 (1900), aff’d, 185 U.S. 364, 22 S. Ct. 673, 46 L.
Ed. 949 (1902), ‘‘[n]o court can directly set aside an [a]ct
of the legislature; and the power to indirectly invalidate
legislation is one which in the nature of things can exist
in the judicial department only under a constitution in
the American sense, and is limited by the authority from
which it is derived; it is not a power of veto or revision,
but purely the judicial power of interpretation.’’ Id., 259.
Thus, both the legislature and this court are free to
revisit the issue, as it has been asked to do in several
pending cases in the context of a claim that capital
punishment is per se unconstitutional.
For the foregoing reasons, I dissent.
1
Unless otherwise noted, all future references in this opinion to the consti-
tutionality of capital punishment in Connecticut are to its constitutionality
under the state constitution.
2
In Ross, the court stated that, in reviewing a death penalty statute, ‘‘the
due process clauses of our state constitution incorporate the principles
underlying a constitutionally permissible death penalty statute that the
United States Supreme Court has articulated in [prior] cases . . . . These
principles require, as a constitutional minimum, that a death penalty statute,
on the one hand, must channel the discretion of the sentencing judge or
jury so as to [ensure] that the death penalty is being imposed consistently
and reliably and, on the other hand, must permit the sentencing judge or jury
to consider, as a mitigating factor, any aspect of the individual defendant’s
character or record as well as the circumstances of the particular offense.’’
(Citations omitted.) State v. Ross, supra, 230 Conn. 252.
3
Although I am not convinced that the Geisler test is the proper standard
for assessing state constitutional claims in the first instance; see footnote
7 of this opinion; this court consistently has applied that framework in
prior cases, and there is no reason to depart from that framework in the
present case.
4
I agree with Chief Justice Rogers’ discussion of whether the death penalty
serves any legitimate penological goals and with parts IV through XIV of
her dissenting opinion, in which she addresses the analysis in the concurring
opinion of Justices Norcott and McDonald of whether the death penalty is
arbitrary and discriminatory, as well as the defendant’s other claims. I also
generally agree with Justice Espinosa’s dissenting opinion.
5
The majority claims that the defendant raised a general challenge to the
constitutionality of capital punishment because one of the stated grounds for
reconsideration in his motion was that P.A. 12-5 ‘‘represents a fundamental
change in the contemporary standard[s] of decency in Connecticut and a
rejection of the penological justifications for the death penalty, rendering
the death penalty now cruel and unusual punishment . . . .’’ (Internal quota-
tion marks omitted.) To the extent the defendant relied on the contemporary
standards of decency in Connecticut as a basis for that argument, however,
he did so in the context of his challenge to capital punishment under the
eighth amendment to the federal constitution and not under the Connecti-
cut constitution.
The defendant devoted only four pages in his brief to a claim that, ‘‘even
if an execution following passage of [P.A. 12-5] did not violate the eighth
amendment, it would clearly violate . . . the constitution of Connecticut.’’
In this argument, the defendant relied primarily on cases from other jurisdic-
tions in which the court considered whether the enactment of a statutory
provision prohibiting the imposition of capital punishment on a certain
category of offenders applied retroactively to similar offenders who were
sentenced to death before the statute’s enactment. See Fleming v. Zant, 259
Ga. 687, 690, 386 S.E.2d 339 (1989) (intellectually disabled offender); Saylor
v. State, 808 N.E.2d 646, 647–48 (Ind. 2004) (offender convicted and sen-
tenced to death under procedure subsequently revised so that offender
would no longer be eligible for capital punishment); Cooper v. State, 540
N.E.2d 1216, 1219–20 (Ind. 1989) (offender who committed crime when she
was under sixteen); State v. Bey, 112 N.J. 45, 101–102, 548 A.2d 846 (1988)
(juvenile offender); Van Tran v. State, 66 S.W.3d 790, 792 (Tenn. 2001)
(intellectually disabled offender). In a similar vein, the defendant’s reference
to the views of prior dissenting justices of this court was not in support of
a claim that the death penalty is generally unconstitutional but was intended
to show that ‘‘the concerns expressed in those opinions are increased expo-
nentially here, where any death sentence would rest on [the] wholly arbi-
trary factor’’ of the date of the offense following the passage of P.A. 12-5.
(Emphasis added.) The defendant’s discussion of policy considerations also
focused on the unfairness of retaining capital punishment for a small number
of offenders while repealing the punishment for future offenders.
During oral argument on the motion for reconsideration, the defendant
continued to argue that P.A. 12-5 was unconstitutional when he contended
that the provision to implement the prospective repeal by the date of the
offense was arbitrary under the state constitution and a violation of eighth
amendment principles. Indeed, Justice Palmer, in particular, queried the
defendant’s appellate counsel repeatedly as to why the distinction in P.A.
12-5 between two classes of people, namely, future offenders who otherwise
might be subject to capital punishment and current death row inmates, did
not require an equal protection analysis. He also asked numerous questions
regarding the severability of the retention provision from the remainder of
the act if this court should deem the retention provision unconstitutional.
Accordingly, a fair reading of the defendant’s brief and oral argument does
not support the majority’s conclusion that the defendant raised a general
challenge to the constitutionality of capital punishment, which, in the past,
has always been treated as a per se challenge.
6
This contrasts with Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33
L. Ed. 2d 346 (1972), in which Justice Brennan suggested in his concurring
opinion that there are four principles by which the United States Supreme
Court should determine whether a particular punishment is cruel and
unusual under the federal constitution. See id., 271–80 (Brennan, J., concur-
ring). These are whether the punishment is ‘‘so severe as to be degrading
to the dignity of human beings’’; id., 271; is inflicted in an arbitrary fashion;
id., 274; is ‘‘unacceptable to contemporary society’’; id., 277; and is clearly
unnecessary because it is excessive. Id., 279.
7
Although I have expressed reservations in recent years regarding the
propriety of applying Geisler in its current form to state constitutional
claims; see, e.g., Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn.
357, 442, A.3d (2015) (Zarella, J., concurring); State v. Rizzo, supra,
303 Conn. 202 (Zarella, J., concurring); Connecticut Coalition for Justice
in Education Funding, Inc. v. Rell, 295 Conn. 240, 400–401 n.2, 990 A.2d
206 (2010) (Zarella, J., dissenting); I review the defendant’s constitutional
claim in the present case under Geisler because it was the legal framework
this court adopted in Ross and applied in Rizzo.
8
Article first, § 1, of the Connecticut constitution provides in relevant
part: ‘‘All men when they form a social compact, are equal in rights . . . .’’
9
The majority relies on People v. Anderson, 6 Cal. 3d 628, 637–39, 493
P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L.
Ed. 2d 344 (1972), in which the Supreme Court of California determined that
the death penalty was per se unconstitutional under the state constitution, for
the proposition that ‘‘incidental references to [the] death penalty in [a] state
constitution merely acknowledge that [the] penalty was in use at [the] time
of drafting and do not enshrine its constitutional status as standards of
decency evolve . . . .’’ The court in Anderson, however, adopted a far more
nuanced position than the majority portrays. Although the court stated that
references in the California constitution to capital punishment ‘‘do no more
than recognize [the] existence [of capital punishment] at the time of their
adoption’’; People v. Anderson, supra, 638; the court also explained that
the references to capital punishment were contained in the original state
constitution in 1849, carried over into the constitution of 1879, and merely
shifted into a different section of the constitution in 1966. Id., 638–39. The
court then added: ‘‘Nothing in the legislative counsel’s analysis, in the argu-
ments for and against the revisions, or in the Secretary of State’s official
description of the ballot measure suggested to the voter that approval of
[p]roposition 1-a [amending and revising various provisions of the state
constitution] in the election of November 8, 1966, would affirm the continu-
ance of capital punishment.’’ Id., 639. The court thereby indicated that, if
the ballot measure had included such a suggestion, it would not have
regarded the constitutional references to capital punishment as merely inci-
dental. In contrast, Connecticut’s constitutional history contains recent evi-
dence of public support for capital punishment. As discussed in part II B
of this opinion, delegates to the 1965 constitutional convention expressly
rejected a constitutional amendment to abolish capital punishment, thus
indicating continued approval of capital punishment almost 150 years follow-
ing the adoption of the 1818 constitution. Anderson thus fails to support
the majority’s contention that the text of the Connecticut constitution is
irrelevant because it does not reflect contemporary values. See Glossip v.
Gross, U.S. , 135 S. Ct. 2726, 2747, 192 L. Ed. 2d 761 (2015) (Scalia,
J., concurring) (‘‘[i]t is impossible to hold unconstitutional that which the
[c]onstitution explicitly contemplates’’ [emphasis in original]).
10
In the colony of Connecticut, capital punishment applied to twelve
crimes in 1642 and seventeen crimes in 1650. L. Goodheart, The Solemn
Sentence of Death: Capital Punishment in Connecticut (2011) pp. 10–11. In
the colony of New Haven, capital punishment applied to twenty-three crimes
in 1656. Id., p. 12. After the two colonies merged in 1665, the punishment
applied to eighteen crimes. Id., p. 13.
11
In Connecticut, capital punishment applied to nineteen crimes in 1702
and to twelve crimes in 1750. L. Goodheart, supra, pp. 45, 49.
12
Capital punishment applied to eleven crimes in 1784 and to six crimes
in 1821. L. Goodheart, supra, pp. 75, 79.
13
Each treatise consisted of two volumes published in successive years.
Swift’s first treatise was published in 1795 (volume I) and 1796 (volume II).
His second treatise was published in 1822 (volume I) and 1823 (volume II).
14
In the preface to the updated treatise, Swift noted that his earlier treatise
was ‘‘imperfect’’ because it had been written at the beginning of his career,
and he had wanted to revise it since the time of its publication. 1 Z. Swift,
A Digest of the Laws of the State of Connecticut (1822) p. 4. He explained
that he thus had devoted his retirement years to ‘‘revis[ing] and enlarg[ing]
the work of [his] early age, with the hope to render it more useful, by the
knowledge acquired by long experience.’’ Id. He added: ‘‘So great have been
the changes and improvements in our jurisprudence since the former work
was written, that I have retained little more than the plan, and this may be
considered as a new work.’’ Id.
15
The majority’s rejection of the views expressed in Swift’s updated trea-
tise as being ‘‘of little moment’’ is another example of the majority’s refusal
to acknowledge the historical facts when they are inconsistent with its
reasoning. Footnote 29 of the majority opinion. Swift’s declaration in the
preface of his updated treatise that he sought to revise his earlier work in
accordance with his ‘‘long experience’’ dispels any notion that Swift changed
his views in the three or four years following the constitutional convention,
especially when one considers that he also served during those years as
the chairman of the committee to revise the General Statutes; see State v.
Ellis, 197 Conn. 436, 451 n.13, 497 A.2d 974 (1985); to ensure conformance
with the new constitution. See General Statutes (1821 Rev.) preface, p. viii.
The majority also ignores this court’s repeated recognition that ‘‘Swift’s
writings are particularly significant to our state constitutional jurisprudence.
He was instrumental in encouraging the public and the legislature to convene
the constitutional convention of 1818. Although he pursued a written consti-
tution in order to achieve separation of powers, his participation as a leader
is significant. . . . [S]ince . . . Swift was the chief [justice] and the state’s
leading judicial scholar at the time of the convention, his views on the law
take on great significance in determining what the framers had in mind
when adopting the language of the constitution.’’ (Citation omitted; internal
quotation marks omitted.) State v. Ross, supra, 230 Conn. 291 (Berdon, J.,
dissenting in part); accord State v. Joyner, supra, 225 Conn. 490 (Berdon,
J., dissenting).
Finally, Justice Palmer himself has quoted extensively from Swift’s trea-
tises and has characterized Swift as an important legal authority of his day.
See, e.g., State v. Courchesne, 296 Conn. 622, 676–77, 684–85 n.41, 998
A.2d 1 (2010) (relying on Swift’s writings, describing Swift as authoritative
commentator and stating that ‘‘ ‘Swift led the development of an American
[as distinct from an English] common law’ ’’ and that ‘‘this court repeatedly
and consistently has relied on Swift for the purpose of ascertaining this
state’s common law in a wide variety of contexts’’). Accordingly, for all of
these reasons, the majority’s dismissal of Swift’s updated treatise as ‘‘of
little moment’’ is incomprehensible. Footnote 29 of the majority opinion.
16
Insofar as the majority suggests that this is not true because ‘‘[t]he
deciding vote in favor of a retrial [in the case] was cast by a member of
the governing council who ‘was not willing that a man should be [hanged
as a result of] his vote’ ’’; text accompanying footnote 30 of the majority
opinion, quoting J. Zeldes, ‘‘Connecticut’s Most Memorable ‘Good for Noth-
ing Rascal’ in This ‘Land of Steady Habits,’ ’’ 80 Conn. B.J. 367, 394 (2006);
the majority simply misunderstands the circumstances. The council member
who cast the deciding vote to retry the case did not do so because he
believed the verdict in the prior trial had been wrong or because he was
against the imposition of capital punishment. Rather, he wanted to give
Lung another opportunity to present his case unclouded by the prior alleged
procedural irregularities stemming from the severity of the punishment.
17
Swift was chosen by the legislature in 1820 to chair the committee
directed to perform this task. State v. Ellis, supra, 197 Conn. 451 n.13.
18
The court nonetheless recognized that its conclusion that the death
penalty is not cruel and unusual punishment did not mean that the penalty
may be imposed without any constitutional constraints. See State v. Ross,
supra, 230 Conn. 251–52; see also footnote 2 of this opinion.
19
Prosecutors, in particular, and sentencing juries in capital cases, are
not randomly selected representatives of the people of Connecticut.
20
Although the California Supreme Court also declared its state’s death
penalty statute unconstitutional under the California constitution; see People
v. Anderson, 6 Cal. 3d 628, 651, 656–57, 493 P.2d 880, 100 Cal. Rptr. 152,
cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (1972), the California
constitution subsequently was amended to reinstate capital punishment.
See People v. Frierson, 25 Cal. 3d 142, 173, 599 P.2d 587, 158 Cal. Rptr.
281 (1979).