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******************************************************STATE v. PEELER—FIRST CONCURRENCE ROGERS, C. J., concurring. Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason—my respect for the rule of law. To
reverse an important constitutional issue within a period ofless than one year solely because ofa change injustices onthepanelthatis chargedwith decidingthe issue, inmyopinion, wouldraiselegitimate concernsby the people we serve about the court’s integrity and the rule of law in the state of Connecticut. Havingcarefullyconsideredtheargumentspresented by the parties, I am not persuaded by the state’s contention that principles of stare decisis should not control the outcome of this case. Although I agree that ‘‘stare decisis is aprinciple ofpolicyandnotamechanical formula of adherence to the latest decision, Boys Markets, Inc. v. [Retail Clerks Union, Local 770], 398 U.S. 235, 241 [90 S. Ct. 1583, 26 L. Ed. 2d 199] (1970), it isindisputablethatstaredecisisisabasicself-governing principle withinthe Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon an arbitrary discretion. The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton). See also Vasquez

v. Hillery, 474 U.S. 254, 265 [106 S. Ct. 617, 88 L. Ed. 2d 598] (1986) (stare decisis ensures that the law will not merely change erratically and permits society to presume thatbedrockprinciples are founded inthe law ratherthan in the proclivities ofindividuals).’’ (Internal quotation marks omitted.) Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). ‘‘[N]o judicial system could do society’s work if it eyed each issue afresh in every case that raised it.

. . . Indeed, the very concept of the rule of law underlying our own [c]onstitution requires such continuity over time that a respect for precedent is, by definition, indispensable.’’ (Citation omitted.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992); see also George v. Ericson, 250 Conn. 312, 318, 736 A.3d 889 (1999) (‘‘Stare decisis isjustified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.

. . . It is the most important applicationofatheoryof[decision-making] consistency in our legal culture and it is an obvious manifestation of the notion that [decision-making] consistency itself has normative value.’’ [Citation omitted; internal quotation marks omitted.]). ‘‘While stare decisis is not an inexorable command

. . . particularly when we are interpreting the [c]onsti-tution

. . . even in constitutional cases, the doctrine carries such persuasive force that we have always requiredadeparture fromprecedenttobe supportedby
some specialjustification.’’ (Citations omitted; internal quotation marks omitted.) Dickerson v. United States, 530 U.S. 428, 443, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). ‘‘Suchjustifications include the advent ofsubsequent changes or development in the law that undermine a decision’s rationale

. . . the need to bring [a decision] intoagreementwithexperienceandwithfacts newly ascertained

. . . and a showing that a particular precedent has become a detriment to coherence and consistency in the law

. . . .’’ (Citations omitted; internal quotation marks omitted.) Payne v. Tennessee, 501 U.S. 808, 849, 111 S. Ct. 2579, 115 L. Ed. 2d 720 (1991) (Marshall, J., dissenting).
When neither the factual underpinnings of the prior decision nor the law has changed, ‘‘the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to
come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason
over and above the beliefthat aprior case was wrongly decided.’’ Planned Parenthood ofSoutheastern Pennsylvania v. Casey, supra, 505 U.S. 864.
I cannot identify any change or development in the law since the decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), was issued oranynew experiences
or facts that have come to light. Because there also has been no showing that the substance ofthe opinion has
or will become a detriment to coherence and consistency in the law, applying the doctrine of stare decisis is appropriate. Moreover, although the state has now had an opportunity to present new arguments in the presentcasethatithadnoreasontopresentinSantiago because it was not on notice that this court would consider them, the three members ofthe current court who were in the majority in that case have rejected those arguments on the merits and the fourth member of the majority in Santiago, Justice Norcott, had for many years before that decision expressed his view that the death penalty is unconstitutional per se. See, e.g., State v. Rizzo, 303 Conn. 71, 203, 31 A.3d 1094 (2011) ( Norcott, J., dissenting) (‘‘the death penalty per
se is wrong, violates the state constitution’s prohibition against cruel and unusual punishment [and]

. . . our statutoryschemefortheimpositionofthedeathpenalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state’’ [internal quotation marks omitted]), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would havebeen no different. In fact, the only change that has occurred is a change inthe makeup ofthis court, which occurred after oral argument in Santiago but before the decision was released. I strongly believe that, in and of itself, a change in the membership ofthis court within a relatively short period of time cannot justify
a departure from the basic principle of stare decisis, especially on an issue ofsuch greatpublic importance.1 See Payne v. Tennessee, supra, 501 U.S. 850 (Marshall, J., dissenting) (change in court’s personnel ‘‘has been almost universally understood not to be sufficient to warrantoverrulingaprecedent’’ [emphasisinoriginal]); Taylor v. Robinson, 196 Conn. 572, 578, 494 A.2d 1195 (1985) ( Peters, C. J

., concurring) (‘‘[a] change in the constituency of this court is not a sufficiently compelling reason to warrant departure from a [recent decision]’’), appeal dismissed, 475 U.S. 1002, 106 S. Ct. 1172, 89 L. Ed. 2d 291 (1986); Tileston v. Ullman, 129 Conn. 84, 86, 26 A.2d 582 (1942) (‘‘a change in the personnel ofthe court affords no ground for reopening aquestion which has been authoritatively settled’’), appeal dismissed, 318 U.S. 44, 63 S. Ct. 493, 87 L. Ed. 603 (1943). Any other conclusion would send the message that, whenever there is a hotly contested issue in this court that results in a closely divided decision, anyone who disagrees with the decision and has standing to challenge it need only wait until a member of the original majority leaves the court to mount another assault. In my view, that would be a very dangerous message to send. See Planned Parenthood ofSoutheastern Pennsylvania v. Casey, supra, 505 U.S. 854 (‘‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it’’); Wheatfall v. State, 882 S.W.2d 829, 843 (Tex. Crim. App. 1994) (If new personnel were the reason to overrule precedent, ‘‘this [c]ourt would be forced to reconsider every decision of

. . . our [c]ourt upon changes in membership. Such
an endeavorwould defeat one ofthe essentialpurposes of stare decisis.’’), cert. denied, 513 U.S. 1086, 115 S. Ct. 742, 130 L. Ed. 2d 644 (1995). Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect forthe decisions ofthe court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on
an issue ofsuch great public significance as the constitutionalityofthe deathpenalty.2 See Vasquezv.Hillery, supra, 474 U.S. 265 (stare decisis ‘‘ensure[s] that the law will not merely change erratically, but will develop inaprincipledandintelligible fashion’’); Georgev.Ericson, supra, 250 Conn. 318 (‘‘[decision-making] consistency itself has normative value’’ [internal quotation marks omitted]); People v. Hobson, 39 N.Y.2d 479, 491, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976) (It would be ‘‘scandalous for a court to shift within less than two years because ofthe replacement ofone ofthe majorityin the old court by one who now intellectually would have preferred to have voted with the old minority and the new one. The ultimate principle is that a court is
an institution andnotmerely acollection ofindividuals

. . . . This is what is meant, in part, as the rule of law and not of men.’’ [Emphasis added.]). Indeed, I believe that overruling the flawed majority decision in Santiago under these circumstances would inflict far greater damage on the public perception ofthe rule of law and the stability and predictability of this court’s decisions than would abiding by the decision. See Planned Parenthood ofSoutheastern Pennsylvania v. Casey, supra, 505 U.S. 864 (‘‘A basic change in the law upon a ground no firmer than a change in our membershipinvitesthepopularmisconceptionthatthis institution is little different from the two political branches ofthe [g]overnment. No misconception could do more lasting injury to this [c]ourt and to the system of law which it is our abiding mission to serve

. . . .’’ [Citation omitted; internal quotation marks omitted.]), quoting Mitchell v. W. T. Grant Co., 416 U.S. 600, 636, 94 S. Ct. 1895, 40 L. Ed. 2d 406 (1974) (Stewart, J., dissenting).3 Accordingly, I concur with the majority opinion.

1 In their dissenting opinions, Justice Zarella and Justice Espinosa cite

numerous decisions in which this court has overruled one of its decisions. Anyonewhohashadanopportunitytoreadthosedecisionswilldiscoverthat there is no inconsistencybetweenthe position that I took inthe decisions in which Ijoined and the position that I take in the present case. Ofparticular significance, I would emphasize that, in many of the cases relied upon by the dissenting justices in which this court has overruled a recent decision, at least one member of the majority on the original decision that was being overruledreconsidered andjoinedwiththe majorityinthe subsequent overruling decision. In contrast, in the present case, it is perfectly clear that all of the members of the majority in Santiago continue to believe in the correctness of their decision, and the only change is the replacement of Justice Norcott by Justice Robinson. With respect to Justice Espinosa’s account of the panel changes that occurred prior to our decision in Santiago, suffice it to say that this court followed its standard procedures in determining which justices would sit

on all phases of that case.
2 I agreewithmuchofJusticeZarella’s analysisinhis dissentinthepresent case, which, distilled to its essence, argues that, if a past decision was manifestly incorrect and there has been no reliance on it, principles ofstare decisis may not require the court to stand by that decision. In Santiago, however, Justice Zarella, Justice Espinosa and I explained at great length why we believed that the majority decision was incorrect; see State v. Santiago, supra, 318 Conn. 231–341 ( Rogers, C. J., dissenting); id., 341–88 (Zarella, J., dissenting); id., 388–412 ( Espinosa, J., dissenting); andwe were unable to persuade the majority. The three members of that majority who

are also inthe majorityin the present case continue to believe thatSantiago

was not manifestly incorrect, and there is every reason to believe that the fourth member, Justice Norcott, would agree with them because of his unwaveringbeliefthatthe deathpenaltyisperse unconstitutional. SeeState

v. Rizzo, supra, 303 Conn. 202 n.1, 203 ( Norcott, J., dissenting). When it is clear that the same majority in a prior recent decision that this court is considering overruling continues to believe that the case was correctly decided, I cannot conclude that a mere change in membership of the court justifies overruling that decision. When that has been the only intervening change, stability is the overriding consideration. ‘‘For it is an established rule to abide by former precedents, where the same points come again in litigation; as well [as] to keep the scale ofjustice even and steady, and not liable to waver with every newjudge’s opinion

. . . .’’ (Emphasis added.) 1 W. Blackstone, Commentaries on the Laws of England (1775) p. 69.3 I emphasize that I express no view on the question of whether the legislature could constitutionally reinstitute the death penalty by repealing No. 12-5 of the 2012 Public Acts and its prospective abolition of the death penalty andreenacting adeathpenaltystatute that appliedto all defendants, regardless ofthe date oftheir offense. The majority in Santiago also recognized that this is an open question. See State v. Santiago, supra, 318 Conn. 86 n.88 (‘‘[w]e express no opinion as to the circumstances under which a reviewing court might conclude, on the basis of a revision to our state’s capital felony statutes or other change in [the five objective indicia of society’s evolvingstandards ofdecency], thatcapitalpunishmentagain comports with Connecticut’s standards ofdecency and, therefore, passes constitutional muster’’); see id., 52–86 (discussing indicia). In any event, the policy issue of whether to attempt to reinstate a constitutional death penalty is

now in the hands of the legislature.