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STATE OF CONNECTICUT v. EDUARDO SANTIAGO*

(SC 17413)

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh,

McDonald and Espinosa, Js.**

Argued April 23, 2013—officially released August 25, 2015

Mark Rademacher, assistant public defender, for the

appellant (defendant).

Harry Weller, senior assistant state’s attorney, with

whom were Matthew A. Weiner, deputy assistant state’s

attorney, and, on the brief, Kevin T. Kane, chief state’s

attorney, Gail P. Hardy, state’s attorney, Susan C.

Marks, supervisory assistant state’s attorney, and Marjorie Allen Dauster, Donna Mambrino and John F.

Fahey, senior assistant state’s attorneys, for the appellee (state).

Constance de la Vega, pro hac vice, and Hope R.

Metcalf filed a brief for experts on international human
rights and comparative law as amicus curiae.

Alex V. Hernandez and Brian W. Stull filed a brief

for legal historians and scholars as amicus curiae.

Sandra J. Staub, David J. McGuire and Lauren R.

Masotta filed a brief for the American Civil Liberties

Union Foundation of Connecticut as amicus curiae.

Kent S. Scheidegger, pro hac vice, and Judith Rossi

filed a brief for the Criminal Justice Legal Foundation

as amicus curiae.
Opinion

TABLE OF CONTENTS

Page

I. STATE CONSTITUTIONAL PROHIBITIONS

AGAINST CRUEL AND UNUSUAL PUNISHMENT . . . . . . . . . . . . . . . . . . . . . .

A. Federal Constitutional Standards. . . .

1. Inherently Barbaric Punishments . .

2. Excessive and Disproportionate Punishments . . . . . . . . . . . . . . . .

3. Arbitrary or Discriminatory Punishments . . . . . . . . . . . . . . . . . .

B. Relevant State Constitutional History .

1. Preconstitutional Legal Traditions. .

2. 1818 . . . . . . . . . . . . . . . . . . .

C. Relevant Constitutional Text . . . . . .

D. Relevant Connecticut Precedents . . .

E. Persuasive Sister State Precedents. . .

F. Conclusion . . . . . . . . . . . . . . . .

II. THE DEATH PENALTY FAILS TO COMPORT WITH CONTEMPORARY STANDARDS OF DECENCY. . . . . . . . . . . . .

A. Historical Development . . . . . . . . .

B. Legislative Enactments . . . . . . . . .

C. Current Practice . . . . . . . . . . . . .

D. Laws and Practices of Other Jurisdictions . . . . . . . . . . . . . . . . . . . .

E. Opinions and Recommendations of Professional Associations . . . . . . . . . .

F. Conclusion . . . . . . . . . . . . . . . .

III. THE DEATH PENALTY IS DEVOID OF ANY

LEGITIMATE PENOLOGICAL JUSTIFICATIONS . . . . . . . . . . . . . . . . . . . . . .

A. Deterrence. . . . . . . . . . . . . . . . .

B. Retribution . . . . . . . . . . . . . . . .

1. Legislative Judgments. . . . . . . . .

2. Delays . . . . . . . . . . . . . . . . . .

3. Possibility of Error . . . . . . . . . .

4. Caprice and Bias. . . . . . . . . . . .

C. Vengeance . . . . . . . . . . . . . . . . .

D. Conclusion . . . . . . . . . . . . . . . .

IV. RESPONSE TO THE DISSENTING JUSTICES . . . . . . . . . . . . . . . . . . . . . .

A. Whether the Questions Decided Are

Properly before the Court. . . . . . . .

1. Arguments Allegedly Not Raised by

the Defendant . . . . . . . . . . . . .

2. Opportunity for Briefing . . . . . . .

3. Extra-Record Materials . . . . . . . .

B. Connecticut’s Historical Acceptance of

Capital Punishment. . . . . . . . . . . .

C. Whether Deference to the Legislature

Requires That We Uphold P.A. 12-5 . .

V. CONCLUSION . . . . . . . . . . . . . . . . .
Opinion

PALMER, J. Although the death penalty has been a

fixture of Connecticut’s criminal law since early colonial times, public opinion concerning it has long been

divided. In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No.

09-107 (P.A. 09-107), which would have repealed the

death penalty for all crimes committed on or after the

date of enactment but retained the death penalty for

capital felonies committed prior to that date. Then Governor M. Jodi Rell vetoed P.A. 09-107, however, and it

did not become law. Three years later, in 2012, the

legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts

2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dannel P. Malloy signed it into law. During the public hearings on both P.A. 09-107 and P.A. 12-5, supporters

argued that the proposed legislation represented a measured and lawful approach to the issue. Others raised

serious concerns, however, as to whether, following a

prospective only repeal, the imposition of the death

penalty would violate the state constitutional prohibition against cruel and unusual punishment. Perhaps

most notably, Chief State’s Attorney Kevin T. Kane, who

serves as this state’s chief law enforcement officer and

represents the state in the present case, testified before

the legislature that such a statute could not pass constitutional muster.1 Additionally, the Division of Criminal

Justice submitted written testimony, in which it advised

the legislature that a prospective only repeal would be

a ‘‘fiction’’ and that, ‘‘[i]n reality, it would effectively

abolish the death penalty for anyone who has not yet

been executed because it would be untenable as a matter of constitutional law . . . . [A]ny death penalty that

has been imposed and not carried out would effectively

be nullified.’’2

In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that,

following the decision by the elected branches to abolish capital punishment for all crimes committed on or

after April 25, 2012, it would be unconstitutionally cruel

and unusual to execute offenders who committed capital crimes before that date. Upon careful consideration

ofthe defendant’s claims in light ofthe governing constitutional principles and Connecticut’s unique historical

and legal landscape, we are persuaded that, following

its prospective abolition, this state’s death penalty no

longer comports with contemporary standards of

decency and no longer serves any legitimate penological

purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25,

2012, would violate the state constitutional prohibition

against cruel and unusual punishment.

Following a trial on charges that included capital

felony in violation of General Statutes (Rev. to 1999)

§ 53a-54b (2)3 and General Statutes § 53a-8, a jury found
the defendant guilty as charged, and the trial court,

Lavine, J., rendered judgment accordingly.4 The court

then conducted a penalty phase hearing pursuant to

General Statutes (Rev. to 1999) § 53a-46a, at which the

jury found the existence of an aggravating factor, one

or more jurors found the existence of one or more

mitigating factors, and the jury found that the aggravating factor outweighed the mitigating factor or factors.

The trial court thereupon imposed a sentence of death,5

and the defendant appealed to this court from both the

judgment of conviction and the death sentence. See

State v. Santiago, 305 Conn. 101, 117–18, 49 A.3d 566

(2012) (Santiago I). While the appeal was pending, the

legislature repealed the death penalty for all crimes

committed on or after the effective date of the repeal,

April 25, 2012. See P.A. 12-5. On June 12, 2012, this

court ultimately affirmed the judgment of conviction

but reversed the sentence of death and remanded the

case for a new penalty phase hearing on the ground

that the defendant had been deprived of the opportunity

to review and use certain potentially mitigating evidence. See State v. Santiago, supra, 215, 308. Thereafter, the defendant filed a motion for reconsideration

in which he asked this court to consider, among other

things, whether the prospective repeal leads inexorably

to the conclusion that capital punishment has ceased

to comport with state constitutional requirements. The

adoption of P.A. 12-5, when considered in light of the

history of capital punishment in our state and other

recent legal developments, compels us to conclude that

the death penalty now constitutes cruel and unusual

punishment, in violation of the state constitution. Consequently, we reverse the judgment of the trial court

with respect to the sentence of death on the capital

felony count and remand the case to that court with

direction to sentence the defendant to life imprisonment without the possibility of release on that count.6

The underlying facts of this case, which are set forth

in detail in Santiago I, may be summarized briefly as

follows. In December, 2000, Mark Pascual agreed to

give the defendant a snowmobile from Pascual’s repair

shop if the defendant would kill the victim, Joseph

Niwinski, for whose girlfriend Pascual had developed

romantic feelings. Id., 121. That same month, with the

assistance of Pascual and another friend, the defendant

entered the victim’s apartment and shot and killed the

victim as he slept. Id., 123. The defendant was charged

with, among other things, the capital felony of ‘‘murder

committed by a defendant who is hired to commit the

same for pecuniary gain,’’ in violation of § 53a-54b (2).

In his original appeal to this court, the defendant

raised numerous challenges to his conviction of capital

felony and his conviction on other charges, as well as

his death sentence. Id., 142–46. This court affirmed the

defendant’s conviction on all counts; see id., 118, 143,

308; and declined his invitation to revisit our prior deci-
sions holding that the death penalty is not a per se

violation of the Connecticut constitution.7

Id., 307. We

also concluded, however, that the trial court, Solomon,

J., improperly had failed to disclose to the defendant

certain confidential records in the possession of the

Department of Children and Families that were mitigating in nature. Id., 215, 239–41. Accordingly, we reversed

the trial court’s judgment with respect to the sentence

of death and remanded the case to the trial court for

a new penalty phase hearing. Id., 241, 308.

While the defendant’s appeal was pending in this

court, the legislature passed and the governor signed

P.A. 12-5, which repealed the death penalty for all

crimes committed on or after the date of passage, April

25, 2012. See generally P.A. 12-5. Shortly before we

released our opinion in Santiago I, the defendant filed

a motion for permission to file a supplemental brief in

support of his argument that the prospective abolition

of capital punishment barred the state from seeking the

death penalty at his new penalty phase hearing. See

State v. Santiago, supra, 307–308 n.167. Specifically,

the defendant sought review of what we characterized

as four ‘‘new appellate claims,’’ the first of which was

that, ‘‘although his crimes were committed prior to the

effective date of [P.A. 12-5], that legislation nevertheless

‘represents a fundamental change in the contemporary

standard[s] of decency in Connecticut and a rejection

of the penological justifications for the death penalty,’

rendering the death penalty now cruel and unusual punishment . . . .’’ Id., 308 n.167.

We denied the defendant’s motion, concluding that

his new appellate claims would be more appropriately

addressed in the context of a postjudgment motion. See

id. Thereafter, the defendant filed such a motion, in

which he soughtreconsideration of our decision in Santiago I. In support of his motion, he again maintained,

among other things, 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, eliminating the

constitutional prerequisites to the validity of the death

penalty, such that it is now cruel and unusual punishment forbidden by . . . article first, §§ 8 and 9, of the

[state] constitution . . . .’’ The defendant also urged

this court to order supplemental briefing and further

oral argument on this and related issues, particularly

in light of the fact that the constitutionality of imposing

the death penalty following a prospective only repeal

presents a question of first impression in Connecticut

and one that, to our knowledge, no jurisdiction has

addressed comprehensively in the modern era. See

State v. Santiago, Conn. Supreme Court Records &

Briefs, April Term, 2013, Amicus Brief of the American

Civil Liberties Union Foundation of Connecticut p. 2.

We granted the defendant’s motion for reconsideration

and request for supplemental briefing and further oral
argument without limitation.8

On reconsideration, although the defendant focuses

on the claim that P.A. 12-5 creates an impermissible

and arbitrary distinction between individuals who committed murders before and after April 25, 2012, in light

of the prospective abolition of capital punishment, he

also asks this court to ‘‘exercise its independent judgment as to the current acceptability of the death penalty

in Connecticut.’’ Specifically, he argues that the enactment of P.A. 12-5 means that ‘‘the death penalty is no

longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.’’

That claim is the sole issue that we address herein.9

Public Act 12-5 not only reflects this state’s longstanding aversion to carrying out executions, but also

represents the seminal change in the four century long

history of capital punishment in Connecticut. Accompanying this dramatic departure are a host of other

important developments that have transpired over the

past several years. Historians have given us new chronicles of the history and devolution of the death penalty

in Connecticut. Legal scholars have provided new

understandings of the original meaning of the constitutional prohibition against cruel and unusual punishments. Social scientists repeatedly have confirmed that

the risk of capital punishment falls disproportionately

on people of color and other disadvantaged groups.

Meanwhile, nationally, the number of executions and

the number of states that allow the death penalty continue to decline, and convicted capital felons in this

state remain on death row for decades with every likelihood that they will not be executed for many years to

come, if ever. Finally, it has become apparent that the

dual federal constitutional requirements applicable to

all capital sentencing schemes—namely, that the jury

be provided with objective standards to guide its sentence, on the one hand, and that it be accorded unfettered discretion to impose a sentence of less than death,

on the other—are fundamentally in conflict and inevitably open the door to impermissible racial and ethnic

biases. For all these reasons, and in light of the apparent

intent of the legislature in prospectively repealing the

death penalty and this state’s failure to implement and

operate a fair and functional system of capital punishment, we conclude that the state constitution no longer

permits the execution of individuals sentenced to death

for crimes committed prior to the enactment of P.A.

12-5.

In part I of this opinion, we review the scope, nature,

and history of the protections from cruel and unusual

punishment afforded by article first, §§ 8 and 9, of the

constitution of Connecticut, both as a general matter

and as applied to capital punishment in particular. In

part II of this opinion, we explain why, in view of the

adoption of P.A. 12-5, and the state’s near total morato-
rium on carrying out executions over the past fiftyfive years, capital punishment has become incompatible

with contemporary standards of decency in Connecticut and, therefore, now violates the state constitutional

prohibition against excessive and disproportionate punishments. In part III of this opinion, we explain why

the prospective repeal also means that the death penalty

now fails to satisfy any legitimate penological purpose

and is unconstitutionally excessive on that basis as well.

Finally, in part IV of this opinion, we address certain

general objections raised by the dissenting justices, and

we explain why their arguments are unpersuasive.10

I

STATE CONSTITUTIONAL PROHIBITIONS

AGAINST CRUEL AND UNUSUAL

PUNISHMENT

Since this court first considered the constitutionality

of capital punishment, we have recognized that, ‘‘in the

area of fundamental civil liberties—which includes all

protections of the declaration of rights contained in

article first of the Connecticut constitution—we sit as

a court of last resort. In such constitutional adjudication, our first referent is Connecticut law and the full

panoply of rights Connecticut citizens have come to

expect as their due.’’11 (Internal quotation marks omitted.) State v. Ross, 230 Conn. 183, 247–48, 646 A.2d 1318

(1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130

L. Ed. 2d 1095 (1995); accord State v. Mikolinski, 256

Conn. 543, 547, 775 A.2d 274 (2001).

It is by now well established that the constitution of

Connecticut prohibits cruel and unusual punishments

under the auspices of the dual due process provisions

contained in article first, §§ 8 and 9.12 Those due process

protections take as their hallmark principles of fundamental fairness rooted in our state’s unique common

law, statutory, and constitutional traditions. See State

v. Ross, supra, 230 Conn. 246–47; State v. Lamme, 216

Conn. 172, 178–79, 184, 579 A.2d 484 (1990). Although

neither provision of the state constitution expressly

references cruel or unusual punishments, it is settled

constitutional doctrine that both of our due process

clauses prohibit governmental infliction of cruel and

unusual punishments. See State v. Rizzo, 266 Conn.

171, 206, 833 A.2d 363 (2003) (Rizzo I); State v. Ross,

supra, 246.

In this part of the opinion, we examine the freedoms

from cruel and unusual punishment traditionally

enjoyed by the citizens of this state. Because we have

not previously undertaken a comprehensive review of

these constitutional liberties, we first consider their

scope and nature in full, before considering how they

apply to the defendant’s specific challenge to Connecticut’s current capital punishment scheme. In parts II

and III of this opinion, we turn to that issue, namely,
whether, in light of the enactment of P.A. 12-5, the

Connecticut constitution now forbids the imposition of

the death penalty.

In State v. Geisler, 222 Conn. 672, 610 A.2d 1225

(1992), we identified six nonexclusive tools of analysis

to be considered, to the extent applicable, whenever

we are called on as a matter of first impression to define

the scope and parameters of the state constitution: (1)

persuasive relevant federal precedents; (2) historical

insights into the intent of our constitutional forebears;

(3) the operative constitutional text; (4) related Connecticut precedents; (5) persuasive precedents of other

states; and (6) contemporary understandings of applicable economic and sociological norms, or, as otherwise

described, relevant public policies.13 See id., 684–85; see

also State v. Rizzo, supra, 266 Conn. 208. These factors,

which we consider in turn, inform our application of the

established state constitutional standards—standards

that, as we explain hereinafter, derive from United

States Supreme Court precedent concerning the eighth

amendment—to the defendant’s claims in the present

case.14

A

Federal Constitutional Standards

The eighth amendment to the federal constitution

establishes the minimum standards for what constitutes

impermissibly cruel and unusual punishment.15 See, e.g.,

State v. Rizzo, supra, 266 Conn. 206. Specifically, the

United States Supreme Court has indicated that at least

three types of punishment may be deemed unconstitutionally cruel: (1) inherently barbaric punishments; (2)

excessive and disproportionate punishments; and (3)

arbitrary or discriminatory punishments.16 In Ross, we

broadly adopted, as a matter of state constitutional

law, this federal framework for evaluating challenges

to allegedly cruel and unusual punishments.17 See State

v. Ross, supra, 230 Conn. 252.

1

Inherently Barbaric Punishments

First, the eighth amendment categorically prohibits

the imposition of inherently barbaric punishments. Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L.

Ed. 2d 825 (2010). This prohibition is directed toward

manifestly and unnecessarily cruel punishments, such

as torture and other wanton infliction of physical pain.

See, e.g., Gregg v. Georgia, 428 U.S. 153, 170–72, 96 S.

Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion announcing

judgment); In re Kemmler, 136 U.S. 436, 447, 10 S. Ct.

930, 34 L. Ed. 519 (1890). In the context of capital

punishment, the eighth amendment also bars particular

modes of execution that present a substantial or objectively intolerable risk of inflicting severe pain. Baze v.

Rees, 553 U.S. 35, 50, 52, 128 S. Ct. 1520, 170 L. Ed. 2d

420 (2008) (opinion announcing judgment).
2

Excessive and Disproportionate Punishments

Second, the eighth amendment mandates that punishment be proportioned and graduated to the offense of

conviction. See Graham v. Florida, supra, 560 U.S. 59.

In the capital punishment context, the United States

Supreme Court has held, for example, that the death

penalty is categorically excessive and disproportionate

when imposed on certain classes of offenders. See, e.g.,

Roper v. Simmons, 543 U.S. 551, 568, 125 S. Ct. 1183,

161 L. Ed. 2d 1 (2005)(prohibiting execution of individuals who were under eighteen years of age when they

committed capital crimes); Atkins v. Virginia, 536 U.S.

304, 321, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)(execution of intellectually disabled individuals was held to

be unconstitutional). The court also has concluded that

capital punishment is never warranted for nonhomicide

crimes against individuals. See, e.g., Kennedy v. Louisiana, 554 U.S. 407, 446, 128 S. Ct. 2641, 171 L. Ed. 2d 525

(2008) (death penalty was held to be disproportionate

punishment for child rape); Enmund v. Florida, 458

U.S. 782, 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)

(eighth amendment does not permit execution of defendant who did not kill or intend to kill but who played

minor role in felony in course of which murder was

committed by others); Coker v. Georgia, 433 U.S. 584,

592 and n.4, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)

(plurality opinion) (sentence of death for rape of adult

woman was held to be grossly disproportionate and

excessive punishment).

A reviewing court engages in a two stage analysis in

determining whether a challenged punishmentis unconstitutionally excessive and disproportionate. Enmund

v. Florida, supra, 458 U.S. 788–89. First, the court looks

to ‘‘objective factors’’ to determine whether the punishment at issue comports with contemporary standards

of decency. (Internal quotation marks omitted.) Id., 788.

These objective indicia include ‘‘the historical development of the punishment at issue,’’ legislative enactments, and the decisions of prosecutors and sentencing

juries. Id.; see also Roper v. Simmons, supra, 543 U.S.

563; Thompson v. Oklahoma, 487 U.S. 815, 821–22, 108

S. Ct. 2687, 101 L. Ed. 2d 702 (1988).

This objective evidence of contemporary social

mores, however, does not wholly determine the issue.

‘‘Although legislative measures adopted by the people’s

chosen representatives provide one important means

of ascertaining contemporary values, it is evident that

legislative judgments alone cannot be determinative of

[e]ighth [a]mendment standards since that [a]mendment was intended to safeguard individuals from the

abuse of legislative power.’’ Gregg v. Georgia, supra,

428 U.S. 174 n.19 (opinion announcing judgment).

Because the eighth amendment imposes ‘‘a restraint
[on] the exercise of legislative power’’; id., 174; the

United States Supreme Court repeatedly has emphasized that courts must conduct a second stage of analysis in which they bring their own independent

judgments to bear, giving careful consideration to the

reasons why a civilized society may accept or reject a

given penalty. See, e.g., Hall v. Florida, U.S. ,

134 S. Ct. 1986, 1993, 1999–2000, 188 L. Ed. 2d 1007

(2014); Atkins v. Virginia, supra, 536 U.S. 312; Thompson v. Oklahoma, supra, 487 U.S. 822–23. ‘‘Although the

judgments of legislatures, juries, and prosecutors weigh

heavily in the balance, it is for [the court] ultimately to

judge whether the [constitution] permits imposition of

the death penalty . . . .’’ Enmund v. Florida, supra,

458 U.S. 797. Our independent analysis must be

informed not only by judicial precedents, but also by

our own understanding of the rights secured by the

constitution. Kennedy v. Louisiana, supra, 554 U.S.

434. This analysis necessarily encompasses the question

of whether the penalty at issue promotes any of the

penal goals that courts and commentators have recognized as legitimate: deterrence, retribution, incapacitation, and rehabilitation.18 E.g., Graham v. Florida,

supra, 560 U.S. 71. A sentence materially lacking any

legitimate penological justification would be nothing

more than the ‘‘gratuitous infliction of suffering’’ and,

by its very nature, disproportionate. Gregg v. Georgia,

supra, 183 (opinion announcing judgment).

3

Arbitrary or Discriminatory Punishments

Third, the eighth amendment prohibits punishments

that are imposed in an ‘‘arbitrary and unpredictable

fashion . . . .’’ (Citations omitted; internal quotation

marks omitted.) Kennedy v. Louisiana, supra, 554 U.S.

436. In the context of capital punishment, the United

States Supreme Court has indicated that there are two

dimensions to this rule.

On the one hand, in Furman v. Georgia, 408 U.S.

238, 239–40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in

which the court held, in a per curiam opinion, that

capital punishment as then applied violated the eighth

amendment, and four years later in Gregg v. Georgia,

supra, 428 U.S. 153, in which the court held that Georgia’s revamped capital punishment statute did not

offend the United States constitution; id., 206–207 (opinion announcing judgment); the court established the

principle that a capital sentencing scheme must provide

the sentencing authority sufficient guidance as to which

crimes and criminals are death worthy to ensure that

the death penalty is not imposed in an arbitrary or

freakish manner. Id., 192–95 (opinion announcing judgment). ‘‘To pass constitutional muster, a capital sentencing scheme must genuinely narrow the class of

persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence
on the defendant compared to others found guilty of

murder.’’ (Internal quotation marks omitted.) Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 98 L.

Ed. 2d 568 (1988). ‘‘This means that if a [s]tate wishes

to authorize capital punishment it has a constitutional

responsibility to tailor and apply its law in a manner

that avoids the arbitrary and capricious infliction of the

death penalty. Part of a [s]tate’s responsibility in this

regard is to define the crimes for which death may

be the sentence in a way that obviates standardless

[sentencing] discretion. . . . It must channel the sentencer’s discretion by clear and objective standards that

provide specific and detailed guidance, and that make

rationally reviewable the process for imposing a sentence of death.’’19 (Citations omitted; footnotes omitted;

internal quotation marks omitted.) Godfrey v. Georgia,

446 U.S. 420, 428, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980)

(plurality opinion).

It goes without saying, moreover, that the eighth

amendment is offended not only by the random or arbitrary imposition of the death penalty, but also by the

greater evils of racial discrimination and other forms of

pernicious bias in the selection of who will be executed.

See, e.g., Tuilaepa v. California, 512 U.S. 967, 973, 114

S. Ct. 2630, 129 L. Ed. 2d 750 (1994) (guarding against

bias or caprice in sentencing is ‘‘controlling objective’’

of court’s review); see also Graham v. Collins, 506 U.S.

461, 484, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993)

(Thomas, J., concurring) (racial prejudice is ‘‘the paradigmatic capricious and irrational sentencing factor’’);

Furman v. Georgia, supra, 408 U.S. 242 (Douglas, J.,

concurring) (one aim of English Declaration of Rights

of 1689, in which eighth amendment language originated, was to forbid discriminatory penalties); Furman

v. Georgia, supra, 310 (Stewart, J., concurring) (‘‘if any

basis can be discerned for the selection of these few

to be sentenced to die, it is the constitutionally impermissible basis of race’’). The eighth amendment, then,

requires that any capital sentencing scheme determine

which defendants will be eligible for the death penalty

on the basis of legitimate, rational, nondiscriminatory

factors.

On the other hand, the United States Supreme Court

also has insisted that, at the sentencing stage, juries

must have unlimited discretion to assess ‘‘the character

and record of the individual offender and the circumstances of the particular offense as a constitutionally

indispensable part of the process of inflicting the penalty of death.’’ Woodson v. North Carolina, 428 U.S.

280, 304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (opinion

announcing judgment). The court in Woodson held that

this sort of individualized sentencing determination is

necessary to arrive at a just and appropriate sentence

and to honor the eighth amendment’s ‘‘fundamental

respect for humanity . . . .’’ Id. The court also has consistently indicated that the government has broad dis-
cretion as to whom to prosecute and what charge to

file. See, e.g., Hartman v. Moore, 547 U.S. 250, 263, 126

S. Ct. 1695, 164 L. Ed. 2d 441 (2006); McCleskey v. Kemp,

481 U.S. 279, 296–97, 107 S. Ct. 1756, 95 L. Ed. 2d 262

(1987); Wayte v. United States, 470 U.S. 598, 607, 105 S.

Ct. 1524, 84 L. Ed. 2d 547 (1985). As currently construed,

then, the federal constitution simultaneously requires

that states narrowly limit and carefully define which

offenders are eligible for capital punishment, while,

paradoxically, also giving prosecutors and juries,

respectively, virtually unfettered discretion whether

actually to charge defendants with capital crimes and

whether to sentence convicted offenders to death.

In response to Furman and Gregg, a majority of the

states, including Connecticut, drafted new capital punishment statutes in the 1970s that attempted to define

with greater precision that small subset of felonies the

commission of which could subject an offender to the

ultimate punishment. During the ensuing four decades,

a majority of the United States Supreme Court has continued to hold—in the face of persistent dissent—that

capital punishment comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly

arbitrary or discriminatory manner. See, e.g., Kansas

v. Marsh, 548 U.S. 163, 181, 126 S. Ct. 2516, 165 L.

Ed. 2d 429 (2006); McCleskey v. Kemp, supra, 481 U.S.

291–92. That court, however, never has addressed the

specific issue raised by the present appeal, namely,

whether a state’s prospective only repeal of its capital

felony statutes renders its continued imposition of the

death penalty unconstitutionally excessive and disproportionate punishment. Indeed, the parties have not

brought to our attention any case in which a federal

court has addressed that question.

B

Relevant State Constitutional History

We next consider our state’s constitutional and preconstitutional history with respect to the freedom from

cruel and unusual punishment.20 We consider, first, the

preconstitutional era and the legaltraditions thatinform

the meaning of the Connecticut constitution and, second, the period leading up to the adoption of the Connecticut constitution of 1818.21

1

Preconstitutional Legal Traditions

We first consider the preconstitutional roots of the

freedom from cruel and unusual punishment in Connecticut. As early as 1672, our colonial code, which

incorporated a quasi-constitutional statement of individual liberties, provided that, ‘‘for bodily punishment,

none shall be inflicted that are Inhumane, Barbarous

or Cruel.’’22 The Book of the General Laws forthe People

within the Jurisdiction of Connecticut (1672) p. 58
(Laws of Connecticut); see also W. Holdsworth, Law

and Society in Colonial Connecticut, 1636–1672 (1974)

p. 484 (unpublished doctoral dissertation, Claremont

Graduate School) (explaining that 1672 code incorporated what were, in essence, constitutional statutes).

The 1672 code also differed from prior Connecticut

statutes in thatit(1)forbade the use oftorture to extract

confessions, (2) placed new restrictions on the use of

corporal punishment, and (3) afforded novel procedural

rights to criminal defendants, especially in capital

cases.23 See Laws of Connecticut, supra, p. 65; W. Holdsworth, supra, pp. 513–14, 527, 539, 581. Many of these

protections, in turn, derived from the Massachusetts

Body of Liberties of 1641; see C. Collier, ‘‘The Common

Law and Individual Rights in Connecticut Before the

Federal Bill of Rights,’’ 76 Conn. B.J. 1, 12 (2002); a

declaration of rights that was far more progressive24

than English law at that time.25 See A. Granucci, ‘‘ ‘Nor

Cruel and Unusual Punishments Inflicted:’ The Original

Meaning,’’ 57 Calif. L. Rev. 839, 851 (1969).

In perhaps the most substantial scholarly account of

the early legal traditions of the Connecticut colony,

William K. Holdsworth offers a window into the original

meaning of Connecticut’s inceptive prohibition of cruel

punishment. Holdsworth describes the years leading up

to the adoption of the 1672 code as a key formative

period in the colony’s legal history. W. Holdsworth,

supra, p. x. ‘‘The decade [of 1662 through 1672] was

a watershed in the early history of Connecticut,’’ he

explains, ‘‘a period of profound intellectual, social, economic, and political change that set the colony on a

course of its own.’’ Id., p. 582. During this period of

‘‘extraordinarily rapid and vital change’’; id., p. 479; a

new generation of leaders restructured the colony’s

political and judicial systems. See id., pp. 479–80, 547–

48. The legislature ‘‘made fairer use of its juries . . .

gave formal recognition to numerous civil liberties, displayed a greater awareness of individual rights, dealt

less severely with most criminal offenders than before,

and, eitherformally orin practice,reduced the penalties

for several capital crimes.’’ Id., pp. 547–48. In the process, Connecticut’s new leaders bequeathed to its citizens a ‘‘legacy of moderation . . . .’’ Id., p. 545.

During the decade, dramatic shifts in public, judicial,

and executive attitudes toward crime and punishment

resulted in fundamental changes in how the criminal

law was applied, changes that directly foreshadowed

the prohibition against cruel punishment and otherfreedoms that the legislature enshrined in the 1772 code.

‘‘[N]ew social conditions and new attitudes on the part

of the people and their leaders’’ that emerged during

the decade of 1662 through 1672 were mirrored by a

growing judicial leniency.26 Id., p. 537. Magistrates

enjoyed considerable latitude in enforcing the nascent

criminal code during this period, and Holdsworth suggests that the penalties that were actually imposed may
provide a more accurate picture of Connecticut’s early

legal landscape, and particularly of public attitudes

regarding what constituted acceptable punishment,

than the first legal codes themselves provided. See id.,

pp. 353–54. Although the punishments prescribed often

were severe, the criminal law generally was enforced

without ‘‘needless cruelty’’ in the 1660s; id., p. 286; and,

over the course of the decade, courts became increasingly lenient in the sanctions they imposed. See id., pp.

286–87, 363, 576. Whipping began to fall out of favor,

for example, with fines—and, in the case of fornication,

mandatory marriage—emerging as the primary sanction

for many sexual crimes and crimes against property.

See id., pp. 292, 295–300, 313–17. More brutal forms of

corporal punishment ‘‘all but disappeared . . . .’’ Id., p.

364. Christopher Collier, Connecticut’s state historian,

observed that, ‘‘through the imposition of lenient punishments outside of statutory specifications, nonenforcement of restrictive statutes, a tendency to let local

consensus be their guide, and a punctilious regard for

due process . . . Connecticut’s jurists lightened the

load of ancient oppressive laws . . . .’’ C. Collier,

supra, 76 Conn. B.J. 49–50.

‘‘[This unmistakable] tendency toward judicial moderation in the use of physical punishments in the years

[1662 through 1675] . . . is all the more pronounced

when we consider capital crimes and capital punishment.’’ W. Holdsworth, supra, p. 365. As public attitudes

evolved, magistrates grew more reluctant to inflict capital punishment and came to believe that the death penalty should be reserved for only the most heinous and

universally condemned offenses. See id., pp. 382, 431.

Before adultery was demoted from a capital offense to

a lesser crime in 1672; C. Collier, supra, 76 Conn. B.J.

19; for example, ‘‘magistrates displayed marked reluctance to inflict death for the offense’’; W. Holdsworth,

supra, p. 533; and courts found ways to avoid imposing

the statutory death penalty on adulterers. C. Collier,

supra, 19 n.42. By the 1670s, courts also were demonstrating less willingness ‘‘to exact the full measure of

retribution’’ for sodomy and other capital crimes. W.

Holdsworth, supra, p. 418; see also id., pp. 371, 519. In

1677, for example, a jury declined to convict Nicholas

Sension of capital sodomy, despite what Holdsworth

suggests was clear evidence of his guilt. See id., pp.

418–19.

Even more than the courts, however, it was Connecticut’s forward thinking governor, John Winthrop, Jr., a

leading colonial physician and scientist, who was

responsible for the restraint that the colony began to

exercise in the 1660s with respect to capital crimes

ranging from witchcraft and blasphemy, on the one

hand, to adultery, sodomy, and rape, on the other. See

id., pp. 522–25, 579–80. Governor Winthrop’s ‘‘legendary

toleration and the force of his moderating influence

over the affairs of his colony’’ effectively extinguished
the colony’s hysteria over witchcraft, and ultimately

resulted in the delisting of adultery as a capital crime

in 1672.27 Id., p. 580. Holdsworth concludes that this

dramatic evolution in public and judicial attitudes

toward crime and penology during the 1660s directly

influenced the decision in 1672 to adopt key freedoms

that Massachusetts afforded its criminal defendants,

including the freedoms from inhumane, barbarous and

cruel punishments, in addition to torture, when formulating the new colonial statutes. See id., pp. 513, 537,

539, 582. ‘‘The [c]ode of 1672 expounded in the language

of law the new ideal of a new generation, a more moderate, more explicit, more progressive conception’’ of

crime and punishment. Id., p. 582. ‘‘By giving formal

legal recognition to many of the changes that had transpired during the preceding decade,’’ Holdsworth

explains, ‘‘the [c]ode of 1672 reflected to a greater

extent than its predecessor the essential institutional

character that was to mark Connecticut for the remainder of the colonial period.’’ Id., p. 583.

In addition to abolishing such brutal forms of capital

punishment as flogging to death and breaking on the

wheel, the 1672 code lessened the severity of many

criminal sanctions, reducing the maximum number of

lashes that could be imposed for noncapital crimes and

replacing whipping with imprisonment as the penalty

for others. See id., pp. 513, 537–39, 576. Moreover,

although legislators did retain severe corporal punishments such as branding, which replaced death as the

penalty forthose crimes that were decapitalized in 1672,

court records indicate that such punishments were

rarely if ever inflicted. See id., pp. 535, 576.

It is apparent from this history that, long before the

adoption of eitherthe federal or state constitution, Connecticut citizens enjoyed a quasi-constitutional freedom

from cruel punishment, one that reflected our unique

social and political traditions and that far exceeded the

protections recognized in England at the time. These

protections were enshrined in Connecticut’s early constitutional statutes and common law, and, from the

start, were intimately tied to the principles of due

process.

2

1818

We next consider the historical circumstances leading up to the adoption of the state constitution in 1818.

The late eighteenth and early nineteenth centuries witnessed the twilight of a premodern system of criminal

justice in the United States. See generally note, ‘‘The

Eighth Amendment, Proportionality, and the Changing

Meaning of ‘Punishments,’ ’’ 122 Harv. L. Rev. 960

(2009). The rapid evolution in penology that occurred

in the decades following the founding was especially

pronounced in Connecticut. The late eighteenth and
early nineteenth centuries in Connecticut witnessed a

pronounced liberalization in public, legislative, and judicial attitudes toward crime and punishment. The period

has been described as one characterized by penological

reform, a broader commitment to human rights, and

the first serious public questioning of the moral legitimacy of capital punishment. See L. Goodheart, The

Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 69–70. This time between the adoption of the federal and state constitutions also saw an

emerging awareness of and compassion for ‘‘the fate of

the condemned perpetrator.’’ Id., p. 85. These changes

coincided with the reopening of the newly established

Newgate Prison (Newgate) in 1790, which provided the

opportunity to impose incarceration as an alternative

to more severe traditional punishments. See id., p. 75.

During this period, Connecticut’s legislators, jurists,

and citizens refined their understanding of what constituted cruel and unusual punishment. Nowhere was this

more apparent than in the repudiation of corporal punishment as a legitimate penal sanction. ‘‘With the establishment of a [s]tate prison, many of the barbarous

punishments [began] to disappear from the statute

book, replaced by confinement for a term of years.’’

Judicial and Civil History of Connecticut (D. Loomis &

J. Calhoun eds., 1895) p. 98. In 1808, for instance, ‘‘legislators crafted a less draconian statute for the regulation

of female sexuality’’; L. Goodheart, supra, p. 77; and,

by the middle of the next decade, a broad consensus

had emerged in the state that corporal punishment of

any sort was degrading and debasing. See id., pp. 77–78.

When the criminal code was revised in 1821 to comport

with the state constitution of 1818, bodily punishment

was largely abolished. See Judicial and Civil History of

Connecticut, supra, pp. 98–99. The last vestige of the

old system, the whipping post, survived only one decade

more as a punishment for theft.28 Id., p. 99.

Connecticut’s earliest reported judicial decisions

indicate that the courts, like the legislature, had begun

to adopt a broader conception of cruel and unusual

punishment in the years leading up to the adoption of

the 1818 constitution. In State v. Smith, 5 Day (Conn.)

175 (1811), for example, the defendant argued that

imposing successive terms of imprisonment in Newgate

for multiple incidents of counterfeiting was ‘‘novel,

without precedent, cruel and illegal.’’ Id., 178.A majority

of this court ultimately denied the requested relief, but

only because it concluded that ‘‘[n]o injustice [was]

done to the prisoner; and this proceeding [was] neither

new, nor without precedent; such [had] been the usage

of our courts, for many years past, in this state.’’ Id.,

179. Indeed, the majority went out of its way to note

that courts ‘‘are bound to become acquainted with the

situation and circumstances of the prisoner, when they

pronounce the sentence. If through infirmity, it should

appear to be inhuman or improper to confine him to
hard labor, in Newgate, immediately upon conviction,

it would be the duty of the court to postpone the commencement of his confinement, to a future day.’’ Id.

That Connecticut had developed by the turn of the

nineteenth century a more expansive conception of

what constituted impermissibly cruel punishment is further revealed in the writings of former Chief Justice

Zephaniah Swift. Swift did not hesitate to condemn as

‘‘cruel and illiberal’’ not only corporal punishment and

the like, but also what he saw as outmoded and unjust

common-law traditions. 2 Z. Swift, A System of the Laws

of the State of Connecticut (1796) p. 398. Practices

ranging from false imprisonment, to the denial of

defense counsel in capital cases, to punishing a parent

for harboring a fugitive child were all, to Swift, examples of cruelties that the law ought not countenance.

See id., pp. 58, 371–72, 398–99. Swift was especially

troubled by the traditional English punishment for suicide—forfeiture of the deceased’s estate and burial on

a public highway with a stake driven through the body—

which he characterized as the product of a ‘‘barbarous

period of superstition, and cruelty.’’ Id., p. 304.29

Nor was capital punishment immune from these

broader currents in Connecticut’s criminal justice system. Opposition to capital punishment gained traction

in the decade before the adoption of the 1818 state

constitution. In 1808, then Judge Swift instructed a

grand jury that courts were adopting a ‘‘milder practice’’

in applying the capital law. (Internal quotation marks

omitted.) L. Goodheart, supra, p. 76; see also id., p.

71. The following year, in a speech to the legislature,

Lieutenant Governor John Treadwell shared his view

that ‘‘[c]onfinement in Newgate . . . [was] terrible, but

not cruel; and it [was] probably more effectual to prevent [atrocious] crimes, than capital punishment

. . . .’’ J. Treadwell, ‘‘Lieutenant Governor Treadwell’s

Speech to the Legislature of Connecticut: October,

1809,’’ The American Register, January 1, 1810, p. 6.

Although he lamented that there were few penitents

among the inmates housed at Newgate, Treadwell proposed that providing them with Bibles and religious

instruction might have a beneficial effect. See id.

Finally, in a series of events that culminated in the

decision to convene a constitutional convention, the

legislature voted in 1816 to grant a new trial for Peter

Lung, who had been condemned to die for the murder

of his wife. J. Zeldes, ‘‘Connecticut’s Most Memorable

‘Good for Nothing Rascal’ in This ‘Land of Steady Habits,’ ’’ 80 Conn. B.J. 367, 380–81, 393–94 (2006). The

deciding vote in favor of a retrial was cast by a member

of the governing council who ‘‘was not willing that a

man should be [hanged as a result of] his vote.’’30 (Internal quotation marks omitted.) Id., 394. Following his

conviction upon retrial, Lung was in fact hanged. The

following week, the Middlesex Gazette published an
article remarking on the ‘‘infrequency of capital punishment’’ and observing that the ‘‘[behavior] ofthis unfortunate sufferer on this trying occasion, was such as to

attract the tenderest sympathy of every rational

beholder.’’ ‘‘Execution,’’ Middlesex Gazzette, reprinted

in The Weekly Recorder: A Newpaper Conveying

Important Intelligence and Other Useful Matter Under

the Three General Heads of Theology, Literature and

National Affairs, July 31, 1816, p. 8.

In summary, it is clear that, from the earliest days of

the colonies, and extending until the adoption of the

state constitution in 1818,31 the people of Connecticut

saw themselves as enjoying significant freedoms from

cruel and unusual punishment, freedoms that were safeguarded by our courts and enshrined in our state’s preconstitutional statutory and common law. That our

history reveals a particular sensitivity to such concerns

warrants our scrupulous and independent review of

allegedly cruel and unusual practices and punishments,

and informs our analysis thereof.

C

Relevant Constitutional Text

We next consider the relevant provisions of the state

constitution. In light of our state’s firm and enduring

commitment to the principle that even those offenders

who commit the most heinous crimes should not be

subjected to inhumane, barbarous, or cruel punishment,

the question naturally arises why the framers of the

1818 constitution decided to embed these traditional

liberties in our dual due process clauses; see Conn.

Const. (1818), art. I, §§ 9 and 10; rather than in an

express punishments clause. Although there is no indication that that question was debated during the 1818

constitutional convention, we find guidance in the

broaderlegal history of turn of the century Connecticut.

Connecticut was among three of the original thirteen

states that chose not to officially ratify the eighth

amendment or, indeed, any of the first ten amendments

to the federal constitution.32 C. Leedham, Our Changing

Constitution (1964) p. 41. In 1787, the state’s representatives to the federal constitutional convention had

argued vehemently against the need for a bill of rights.

See C. Collier, supra, 57, 67. ‘‘In Connecticut, unlike

those states that had recently been under the domination of royal and proprietary governors and appointed

upper houses, limited government was taken for

granted. Calvinist theory described limited government,

[Connecticut’s] Fundamental Orders [of 1639] proclaimed it, the [Connecticut] Charter [of 1662] established it, tradition demanded it, common law enforced

it, and frequent elections guaranteed it.’’ Id., 53. During

the late eighteenth and early nineteenth centuries, for

example, Connecticut courts routinely safeguarded the

basic rights enshrined in the federal Bill of Rights on
the basis of natural rights or common law, without the

need for any formal constitutional sanction. See id., 31,

65. Moreover, there was a particular fear in Connecticut

that the adoption of a written bill of rights would imply,

by negative inference, that citizens were no longer entitled to unenumerated protections long enshrined in the

state’s common law.33 See id., 56–59. ‘‘A strong statewide consensus, then, held that no bill of rights was

necessary and, indeed, might even limit individual liberty.’’ Id., 57.

Although this viewpoint had become less prevalent

by 1818, when Connecticut adopted its first formal constitution; see id., 68–69; it retained many ‘‘influential

adherents . . . .’’ Id., 69. This likely accounts for the

fact that certain protections long entrenched in the

state’s constitutional common law were not expressly

enumerated in the new written constitution. Indeed,

in an 1821 speech, Governor Oliver Wolcott called on

Connecticut’s courts to articulate and protect the many

natural rights that remained unenumerated by either

constitution or statute. See id., 37–38.

Accordingly, in Moore v. Ganim, 233 Conn. 557, 660

A.2d 742 (1995), we ‘‘assume[d] that the framers

believed that individuals would continue to possess

certain natural rights even if those rights were not enumerated in the written constitution. On the basis of this

assumption, we [would] not draw firm conclusions from

the silence of the constitutional text. . . . Rather, in

determining whether unenumerated rights were incorporated into the constitution, we must focus on the

framers’ understanding of whether a particular right

was part of the natural law, i.e., on the framers’ understanding of whether the particular right was so fundamental to an ordered society that it did not require

explicit enumeration. We can discern the framers’

understanding, of course, only by examining the historical sources.’’ (Emphasis omitted.) Id., 601.

In her dissenting opinion, Chief Justice Rogers cites

to Cologne v. Westfarms Associates, 192 Conn. 48, 60,

469 A.2d 1201 (1984), for the proposition that, by the

time the 1818 constitution was adopted, the view that

the basic liberties of the people should be enshrined

in a written constitution had come to prevail in Connecticut. See footnote 6 of Chief Justice Rogers’ dissenting

opinion. Chief Justice Rogers, however, neglects to consider an adjacent passage in Cologne that recognizes

that ‘‘[a]n opposing view was expressed that such a

detailed specification of individual rights was superfluous and tended to abridge them, because all governmental powers not granted by the constitution were

reserved to the people.’’ Cologne v. Westfarms Associates, supra, 60. In fact, history reveals that article first

of the 1818 constitution was born of and reflected a

compromise between these two constitutional philosophies. See R. Purcell, Connecticut in Transition: 1775–
1818 (New Ed. 1963) pp. 241–42 (discussing opposition

to bill of rights at constitutional convention and

implying that ultimate decision of which freedoms to

enshrine and which to exclude was somewhat haphazard); J. Trumbull, Historical Notes on the Constitutions

of Connecticut and on the Constitutional Convention

of 1818 (1873) p. 53 (identifying prominent delegates

to convention who opposed incorporation of any bill

of rights in state constitution); J. Trumbull, supra, p.

56 (recognizing ultimate compromise). For these reasons, we find little merit in the argument that the decision of the framers of the Connecticut constitution not

to include an express bar on cruel and unusual punishment somehow suggests that this liberty was uncherished.

D

Relevant Connecticut Precedents

Turning to the next Geisler factor, namely, relevant

Connecticut precedents, we write on a relatively blank

slate with respect to cruel and unusual punishment.

Nevertheless, since this court first recognized in Ross

that our due process clauses independently prohibit

cruel and unusual punishment; see State v. Ross, supra,

230 Conn. 246–47; we have begun to carve out the broad

contours of that prohibition. In Ross itself, as we have

noted, we adopted the aforementioned federal framework for evaluating challenges to allegedly cruel and

unusual punishments. See id., 252. Specifically, we recognized that, under the state constitution, whether a

challenged punishment is cruel and unusual is to be

judged according to the ‘‘evolving standards of human

decency’’; id., 251; and thatthose standards are reflected

not only in constitutional and legislative text, but also

‘‘in our history and in the teachings of the jurisprudence

of our sister states as well as that of the federal courts.’’

Id. In Ross, we also rejected the theory that ‘‘article first,

§ 9, confers the authority to determine what constitutes

cruel and unusual punishment solely on theConnecticut

legislature and not on the courts.’’ Id., 248. ‘‘Although

we should exercise our authority with great restraint,’’

we explained, ‘‘this court cannot abdicate its nondelegable responsibility for the adjudication of constitutional

rights.’’ Id., 249.

Subsequently, in Rizzo I, we characterized it as ‘‘settled constitutional doctrine that, independently of federal constitutional requirements, our due process

clauses, because they prohibit cruel and unusual punishment, impose constitutional limits on the imposition

of the death penalty.’’ State v. Rizzo, supra, 266 Conn.

206. In that case, we recognized that there is an ‘‘overarching concern for consistency and reliability in the

imposition of the death penalty’’ under our state constitution. (Emphasis omitted.) Id., 233. Accordingly, in

order to avoid having to resolve the state constitutional

question raised in that case, we construed General Stat-
utes (Rev. to 1997) § 53a-46a to require that a jury must

find beyond a reasonable doubt that the death penalty

is the appropriate penalty.34 See id., 234.

Most recently, in State v. Rizzo, 303 Conn. 71, 184–

201, 31 A.3d 1094 (2011) (Rizzo II), cert. denied,

U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), we

engaged in a full analysis of the constitutionality of the

death penalty pursuant to the state constitution. At that

time, we reiterated that, ‘‘in determining whether a particular punishment is cruel and unusual in violation of

[state] constitutional standards, we must look beyond

historical conceptions to the evolving standards of

decency that mark the progress of a maturing society.’’35

(Internal quotation marks omitted.) Id., 187–88. We also

‘‘recognize[d] that assessing the propriety of [a punishment] is not exclusively the domain of the legislature,

and that this court has an independent duty to determine that the penalty remains constitutionally viable

as the sensibilities of our citizens evolve.’’ Id., 197. We

return to these well established principles in parts II

and III of this opinion.

E

Persuasive Sister State Precedents

The unique structure and text of the Connecticut

constitution of 1965, in which the freedom from cruel

and unusual punishment is embeded in our dual due

process clauses rather than in a distinct punishments

clause, mean that sister state authority is less directly

relevant than in cases in which we have construed other

constitutional provisions. We do agree with our sister

courts, however, that, under the state constitution, the

pertinent standards by which we judge the fairness,

decency, and efficacy of a punishment are necessarily

those of Connecticut. Although regional, national, and

international norms may inform our analysis; see, e.g.,

State v. Rizzo, supra, 303 Conn. 188–96; the ultimate

question is whether capital punishment has come to

be excessive and disproportionate in Connecticut. Cf.

Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989)

(‘‘[t]he standard of decency that is relevant to the interpretation of the prohibition against cruel and unusual

punishment found in the Georgia [c]onstitution is the

standard of the people of Georgia, not the national

standard’’ [internal quotation marks omitted]); District

Attorney v. Watson, 381 Mass. 648, 661, 664–65, 411

N.E.2d 1274 (1980) (holding that death penalty violated

state constitution on basis of contemporary standards

of decency in Massachusetts);36 J. Acker & E. Walsh,

‘‘Challenging the Death Penalty under State Constitutions,’’ 42 Vand. L. Rev. 1299, 1325 (1989) (‘‘[e]ven if

state courts are guided by the doctrinal analysis now

associated with the eighth amendment, their frame of

reference for measuring evolving standards of decency

must be within state borders’’ [internal quotation marks

omitted]); cf. also Kerrigan v. Commissioner of Public
Health, 289 Conn. 135, 188–213, 957 A.2d 407 (2008) (in

context of determining whether gay persons are entitled

to heightened protection for equal protection purposes

under state constitution, court assessed their political

power or lack thereof in Connecticut). Justice Zarella’s

arguments to the contrary notwithstanding, we also

agree with those courts that have determined that it

is perfectly reasonable to apply the federal evolving

standards of decency rubric to cruel and unusual punishment claims brought under a state constitution. See,

e.g., People v. Anderson, 6 Cal. 3d 628, 647–48, 493 P.2d

880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S.

Ct. 2060, 32 L. Ed. 2d 344 (1972);37 Fleming v. Zant,

supra, 689–90; District Attorney v. Watson, supra, 661–

62. Indeed, we are not aware of any court that has

concluded that the federal evolving standards of

decency rubric is inapplicable to state constitutional

claims.

F

Conclusion

To summarize our analysis of the first five Geisler

factors, when construing the state constitutional freedom from cruel and unusual punishment, we broadly

adopt the framework that the federal courts have used

to evaluate eighth amendment challenges. We apply this

framework, however, with respect to the constitutional

facts as they exist in Connecticut and mindful of our

state’s unique and expansive constitutional and preconstitutional history. To the extent that the sixth Geisler

factor—economic and sociological norms and policy

considerations—is relevant, we take such considerations into account in parts II and III of this opinion, in

which we address the defendant’s specific constitutional challenge.38

II

THE DEATH PENALTY FAILS TO COMPORT

WITH CONTEMPORARY STANDARDS

OF DECENCY

We next consider whether the death penalty, as currently imposed in Connecticut, and following the enactment of P.A. 12-5, is so out of step with our contemporary standards of decency as to violate the state constitutional ban on excessive and disproportionate punishment. We conclude that it is.

As we previously noted, both the federal and state

constitutions prohibit the imposition of any punishment

that is not proportioned and graduated to the offense

of conviction. Whether a punishment is disproportionate and excessive is to be judged by the contemporary,

‘‘evolving standards of decency that mark the progress

of a maturing society.’’ Trop v. Dulles, supra, 356 U.S.

101 (plurality opinion); accord State v. Rizzo, supra,

303 Conn. 187–88. In other words, the constitutional

guarantee against excessive punishment is ‘‘not fas-
tened to the obsolete but may acquire meaning as public

opinion becomes enlightened by a humane justice.’’

Weems v. United States, 217 U.S. 349, 378, 30 S. Ct. 544,

54 L. Ed. 793 (1910); see also Hall v. Florida, supra, 134

S. Ct. 1992 (‘‘[t]he [e]ighth [a]mendment’s protection of

dignity reflects the [n]ation we have been, the [n]ation

we are, and the [n]ation we aspire to be’’). Because the

legal standard is an evolving one, it is both necessary

and appropriate for us to consider the issue anew, in

light of relevant recent developments, when it is

raised.39 See State v. Rizzo, supra, 303 Conn. 187–88.

On only two prior occasions has this court considered

in any depth whether capital punishment violates the

state constitutional ban on cruel and unusual punishment. See State v. Rizzo, supra, 303 Conn. 184–201;

State v. Ross, supra, 230 Conn. 248–52. In those cases,

we considered—and at times blurred the lines

between—two distinct constitutional challenges: (1)

the claim that capital punishment is inherently barbaric

punishment and, therefore, offends the constitution at

all times and under all circumstances; and (2) the claim

that, although capital punishment may once have comported with constitutional requirements, our state’s

standards of decency have evolved such that execution

now constitutes excessive and disproportionate punishment. See State v. Rizzo, supra, 303 Conn. 187–88; State

v. Ross, supra, 248, 250. The dissenting justice in Ross

likewise challenged capital punishment along both

parameters. Compare State v. Ross, supra, 298 (Berdon,

J., dissenting in part) (‘‘[t]he punishment of death is

inherently degrading to the dignity of a human being’’),

with id., 301–313 (Berdon, J., dissenting in part)

(arguing that, inter alia, public no longer supports death

penalty, penalty is unfairly applied, and recent evidence

does not bear out deterrent effect).

The majority in Ross—consisting of two members of

this court and two Appellate Court judges sitting by

designation—focused its attention on the per se question of whether the ‘‘imposition of the death penalty

invariably constitutes cruel and unusual punishment.’’

Id., 245. The majority evaluated the constitutionality of

the death penalty under the rubric of the six Geisler

factors. Id., 249–52. Dispensing with five of the factors

in a single paragraph, the majority in Ross afforded each

consideration no more than one sentence of attention.40

See id., 249–50. The sixth Geisler factor, which encompasses the full panoply of economic and sociological

norms and policy considerations, received only slightly

more attention. See id., 251–52.

With respect to the contention that the death penalty

is fundamentally offensive to evolving standards of

decency, the majority dismissed the claim of the defendant, Michael B. Ross, with a one sentence quote from

the New Jersey Supreme Court: ‘‘When, in the course

of a decade, thirty-seven states call for the death pen-
alty, the probability that the legislature of each state

accurately reflects its community’s standards

approaches certainty.’’ (Internal quotation marks omitted.) Id., 251, quoting State v. Ramseur, 106 N.J. 123,

173, 524 A.2d 188 (1987). In his lengthy dissent, Justice

Berdon lamented that the majority had given so novel

and weighty a question such ‘‘cursory analysis . . . .’’41

State v. Ross, supra, 230 Conn. 295 (Berdon, J., dissenting in part).

Subsequently, this court reiterated the holding of, or

merely cited to Ross, without any further elaboration,

in one-half dozen cases presenting facial challenges to

the death penalty under the state constitution. See State

v. Colon, 272 Conn. 106, 383, 864 A.2d 666 (2004), cert.

denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116

(2005); State v. Breton, 264 Conn. 327, 418, 824 A.2d

778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 157 L.

Ed. 2d 708 (2003); State v. Reynolds, 264 Conn. 1, 236,

836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.

Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Cobb, 251

Conn. 285, 497, 743 A.2d 1 (1999), cert. denied, 531 U.S.

841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); State v.

Webb, 238 Conn. 389, 402–405, 680 A.2d 147 (1996);42

State v. Breton, 235 Conn. 206, 217–18, 663 A.2d 1026

(1995). Accordingly, it was not until 2011, in Rizzo II,

that we first seriously explored the scope of the state

constitutional ban on cruel and unusual punishment

with regard to the modern death penalty. See State v.

Rizzo, supra, 303 Conn. 184–201.

In Rizzo II, as in Ross, we had no difficulty rejecting

the defendant’s facial challenge, reasoning that a penalty that is referenced explicitly in the state constitution

cannot have been unconstitutional at all times and

under all circumstances. See id., 188. In that case, however, we also recognized that the fact that capital punishment has been practiced throughout much of our

state’s history and was considered constitutional in

1818 says little about its legal status two centuries later.

See id., 187–88. Rather, underthe governing legal framework, ‘‘we must look beyond historical conceptions to

the evolving standards of decency that mark the progress of a maturing society. . . . This is because [t]he

standard of extreme cruelty is not merely descriptive,

but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must

change as the basic mores of society change.’’ (Internal

quotation marks omitted.) Id.; see also People v. Anderson, supra, 6 Cal. 3d 637–39 (incidental references to

death penalty in state constitution merely acknowledge

that penalty was in use at time of drafting and do not

enshrine its constitutional status as standards of

decency evolve); District Attorney v. Watson, supra,

381 Mass. 660–62 (interpretation of state constitutional

prohibition against cruel and unusual punishment is not

static and depends on contemporary moral standards).
In Rizzo II, we also recognized that whetherthe death

penalty constitutes excessive and disproportionate punishment is a subtler and more nuanced question than

the majority in Ross had acknowledged. Our understanding of what constitutes excessive punishment is

informed not only by the laws on the books, both in

Connecticut and elsewhere, but also by developments

in how those laws are applied by prosecutors and sentencing juries. See State v. Rizzo, supra, 303 Conn.

188–98. Accordingly, we undertook a more sweeping

review of contemporary social mores and the actual

implementation of capital punishment at the state,

national and even international levels. See id. We ultimately concluded, however, that ‘‘there remain[ed]

powerful evidence of strong public support for the

death penalty in the form of long-standing laws enacted

by the democratically elected representatives of this

state and other jurisdictions within the United States

. . . .’’ Id., 198. Notwithstanding various indications

that there had been a drop off in support for the death

penalty, we perceived no ‘‘dramatic shift’’ in the constitutional or legislative landscape. (Internal quotation

marks omitted.) Id., 191.

We first take this opportunity to clarify that, although

a sudden sea change in public opinion would be sufficient to demonstrate a constitutionally significant shift

in contemporary standards of decency, such a dramatic

shift is not necessary for us to recognize that a punishment has become repugnant to the state constitution.

If the legally salient metaphor is the evolution of our

standards of decency, then a gradual but inexorable

extinction may be as significant as the sociological

equivalent of the meteor that, it is believed, suddenly

ended the reign of the dinosaurs. In any event, new

insights into the history of capital punishment in Connecticut, in tandem with the legislature’s 2012 decision

to abolish the death penalty prospectively, persuade us

that we now have not only a clear picture of the long,

steady devolution of capital punishment in our state,

and, indeed, throughout New England, but also a dramatic and definitive statement by our elected officials

that the death penalty no longer can be justified as a

necessary or appropriate tool of justice.

This court and the United States Supreme Court have

looked to five objective indicia of society’s evolving

standards of decency: (1) the historical development

of the punishment at issue; (2) legislative enactments;

(3) the current practice of prosecutors and sentencing

juries; (4) the laws and practices of other jurisdictions;

and (5) the opinions and recommendations of professional associations.43 See, e.g., Graham v. Florida,

supra, 560 U.S. 61–67; Atkins v. Virginia, supra, 536

U.S. 311–16; Thompson v. Oklahoma, supra, 487 U.S.

830; Enmund v. Florida, supra, 458 U.S. 788–89; State

v. Rizzo, supra, 303 Conn. 187–96. We consider each
factor in turn.

A

Historical Development

We begin by considering ‘‘the historical development

of the punishment at issue . . . .’’ Enmund v. Florida,

supra, 458 U.S. 788. The history of capital punishment

in Connecticut is especially important both because

substantial new historical information has become

available in recent years and because the ultimate legal

question—whether the death penalty remains consonant with our evolving standards of decency following

the enactment of P.A. 12-5—necessarily requires that

we consider the broader historical perspective. We cannot ascertain how our moral standards have evolved

without first understanding what they once were.44

Our task in this regard has been greatly facilitated

by Professor Lawrence B. Goodheart, who recently published the first comprehensive history of capital punishment in Connecticut in ‘‘The Solemn Sentence of Death:

Capital Punishment in Connecticut.’’ Beginning with the

founding of the Connecticut and New Haven colonies

in the 1600s, and proceeding methodically through the

first decade of the current millennium, Goodheart’s

award winning45 book traces nearly 400 years of the

state’s implementation and public perception of the

death penalty. Two recurring themes emerge from this

survey. First, the acceptability of imposing death as a

form of judicial punishment has declined steadily over

Connecticut’s nearly 400 year history. Secularization,

evolving moral standards, new constitutional and procedural protections, and the availability of incarceration as a viable alternative to execution have resulted

in capital punishment being available for far fewer

crimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public

acceptance. Second, what has not changed is that,

throughout every period of our state’s history, the death

penalty has been imposed disproportionately on those

whom society has marginalized socially, politically, and

economically: people of color, the poor and uneducated, and unpopular immigrant and ethnic groups. It

always has been easier for us to execute those we see

as inferior or less intrinsically worthy.

Beginning with the seventeenth century, Goodheart

explains that early Connecticut penal statutes reflected

the Puritans’ deep-seated commitment to the Mosaic

legal code of the Old Testament. See L. Goodheart,

supra, pp. 10–12. In 1656, the New Haven colony recognized twenty-three different capital crimes. Id., p. 12.

An individual could be executed for conduct offending

the colony’s strict religious sensibilities (e.g., idolatry,

witchcraft, blasphemy, cursing or smiting a parent, defiance by a rebellious son, profaning the Sabbath); for

behavior deemed to be sexually deviant (adultery, mas-
turbation, bestiality, heterosexual and homosexual sodomy, incest); for repeated incidents of burglary or

robbery; as well as for rape, rebellion, and killing of

various sorts. See id. From the founding of the colonies

through the end of the seventeenth century, more people were executed in Connecticut for witchcraft

(eleven) and for sexual infractions, such as bestiality

and sodomy (eleven, including one rape), than for homicide (ten). See id., pp. 17, 22, 33.

Even in that era, however, judges and juries often

hesitated to enforce the capital laws as written. See,

e.g., C. Collier, supra, 76 Conn. B.J. 19 n.42. In many

adultery cases, for example, courts avoided imposing

the ultimate punishment by finding the parties not guilty

but ‘‘highly suspicious,’’ and thus imposing a sentence

of something other than death. Id.

Commencing with the Age of Enlightenment in the

late 1600s, and continuing for the next three plus centuries, Connecticut’s courts and elected officials have

steadily pared back the number and types of crimes

deemed worthy of the ultimate punishment. See generally L. Goodheart, supra, cc. 2–7. By the early 1660s,

juries, magistrates, and the governor himself all were

taking steps to, in essence, decapitalize crimes such as

sodomy, blasphemy, and witchcraft, in keeping with

the public’s increasingly secular attitudes toward crime

and punishment. See part I B 1 of this opinion. The last

executions for bestiality and witchcraft were carried

out in 1662 and 1663, respectively. L. Goodheart, supra,

pp. 33, 97. Adultery was delisted as a capital offense in

1672, the same year Thomas Rood was executed for

incest, and, since then, no one has been executed in

Connecticut for any nonviolent sexual crime. See id.,

p. 31. The revised Connecticut laws of 1750 removed

the capital crimes of idolatry, man stealing, and various

offenses of rebellious offspring from the books; id., pp.

38, 45–49; and, two years later, the General Assembly

blocked an execution for the crime of blasphemy, effectively decapitalizing that crime. Id., pp. 49, 68. The last

execution in Connecticut forinfanticide, a charge under

which married and unmarried mothers were treated

differently,46 took place in 1753; id., p. 57; followed in

1768 by the last hanging for burglary or any purely

economic crime. Id., pp. 65–66.

The colonialists’ commitment to Mosaic eye for an

eye justice had been grounded not only in theirreligious

convictions, but also in the fact that they lacked any

viable alternatives to execution. See W. Holdsworth,

supra, pp. 356–57. That changed with the advent of

modern correctional facilities. Although one dozen capital crimes remained on the books through the end of

the eighteenth century, after Newgate opened in East

Granby in 1773, no one was executed in Connecticut

for any crime other than homicide or rape. See L. Goodheart, supra, pp. 68, 75. Moreover, the last execution
for rape, in 1817; id., p. 94; was carried out just one

decade before the opening of the state prison in Wethersfield; id., p. 101; which Goodheart characterizes as

reflecting ‘‘more hopeful, even utopian, assumptions

about penology.’’ Id. With the ideal and means of achieving rehabilitation well established, in 1846, the legislature, for the first time, created a distinction between

first and second degree murder to further limit the

application of the death penalty. Id., pp. 104–105. One

century later, ‘‘[i]n 1951, the legislature enacted a statute

that allowed the jury to recommend life imprisonment

rather than death for individuals convicted of first

degree murder, making it even easier for the jury to

avoid imposing the death penalty. See Public Acts 1951,

No. 369.’’ State v. Ross, supra, 230 Conn. 303 (Berdon,

J., dissenting in part).

Connecticut’s steadily waning commitment to capital

punishment also has been evidenced in the narrowing

range of offenders who have been subject to the ultimate punishment. No female has been executed in the

state since 1786, and no male under the age of eighteen

at the time of the offense since 1904. See L. Goodheart,

supra, pp. 81–82, 136. Indeed, our legislature has ‘‘acted

ahead of the United States Supreme Court’’; State v.

Rizzo, supra, 303 Conn. 189; in prohibiting the execution of persons with intellectual disabilities; Public Acts

1973, No. 73-137, § 4; of offenders who committed their

capital crimes when they were under eighteen; Public

Acts 1973, No. 73-137, § 4; and for any crime not involving the death of a victim. State v. Rizzo, 303 Conn.

supra, 189.

Although the past 380 years have witnessed an ongoing decline in our state’s commitment to the death penalty as a legitimate form of punishment, it is noteworthy

that Connecticut’s two constitutions, adopted in 1818

and 1965, were drafted during periods of particularly

dramatic change. As we previously discussed, the late

eighteenth and early nineteenth centuries were characterized by penological reform, an emerging commitment to human rights, and the first widespread public

questioning of the moral legitimacy of capital punishment in Connecticut. See L. Goodheart, supra, pp. 69–

70. Throughout the first half of 1786, the New Haven

Gazette had reprinted Cesare Beccaria’s entire 1764

treatise ‘‘On Crimes and Punishments,’’ a seminal

Enlightenment era work that condemned torture and

the death penalty, and that led to widespread questioning of the latter throughout Europe and the United

States. See id., pp. 67–70. The impact of Beccaria’s progressive approach to penology may be seen in the case

of Henry Wilson, a convicted rapist whose death sentence the General Assembly commuted in 1822. See id.,

pp. 96–97. Goodheart implies that the decision reflected

the fact that neighboring states, such as Rhode Island,

already had decapitalized that crime. See id., p. 97.
One hundred and fifty years later, when Connecticut

adopted the 1965 constitution, there was an ‘‘unofficial

moratorium’’ on the death penalty in the state. Id., p.

196. The last execution in the state had taken place in

1960, and that only after the condemned man, Joseph

Taborsky, ‘‘volunteered to die . . . .’’ Id., p. 193. Goodheart attributes the unofficial moratorium that began

in the early 1960s to a myriad of factors: the expansion

of defendants’ federal constitutional rights; declining

popular support for the death penalty; opposition from

organized religion, which originally had championed

capital punishment in Connecticut; and research indicating that, since 1930, ‘‘the death penalty [had fallen]

inordinately on those at the bottom of society,’’ including the poor, uneducated, and mentally disabled. Id.,

p. 202.

Another Connecticut execution would not occur until

forty-five years later, in 2005, when Ross, like Taborsky,

waived his right to further appeals and habeas remedies.

Id., pp. 228, 230–31, 244–46. No capital sentences have

been carried out in the decade since Ross was executed.

Over the past fifty-five years, then, during which time

thousands of murders have been committed in the state,

our criminal justice system has conducted but a single

execution, and that only after the condemned man all

but forced the state to carry out his sentence. See id.,

pp. 230–31. The eleven men currently on death row in

Connecticut are, at the least, many years, and most

likely decades, away from exhausting all of their state

and federal appeals and habeas remedies. Even if the

legislature never had enacted P.A. 12-5, if past is prologue, there simply is no reason to believe that any

Connecticut executions would be carried out in the

foreseeable future.

As Justice Berdon observed in his dissent in Ross,

this ‘‘whole state history demonstrates a reluctance to

impose the death penalty.’’ State v. Ross, supra, 230

Conn. 302 (Berdon, J., dissenting in part). ‘‘[O]ur early

capital laws were seldom enforced, and, indeed, the

cases in which capital punishment has been inflicted

have been exceedingly rare, some counties hardly having known an execution.’’ (Internal quotation marks

omitted.)Id., 303 (Berdon, J., dissenting in part). ‘‘There

have been, it is believed, within the last [220] years,

fewer executions in Connecticut for crime, than in any

other state of equal size in the world. The records of

our courts have scarcely the stain of blood upon them

. . . .’’ (Internal quotation marks omitted.) Id.

Connecticut’s historical ambivalence toward the

death penalty also has manifested in persistent efforts

to abolish capital punishment. As we previously discussed, the first serious organized opposition to the

death penalty emerged in the early nineteenth century,

and, by the mid-1800s, two governors and a majority

of the state Senate had signed petitions for its repeal.
L. Goodheart, supra, pp. 130–31. Abolition efforts persisted throughout the nineteenth and twentieth centuries. See id., pp. 163–64, 178, 191, 195. In 2009, the

General Assembly passed P.A. 09-107, which would

have repealed the death penalty for crimes committed

after the passage of that act. See State v. Rizzo, supra,

303 Conn. 198. Governor Rell vetoed P.A. 09-107, however, and the legislature did not muster the two thirds

vote necessary to override the governor’s veto. Id. Similar legislation was introduced in 2011, which advanced

through the Judiciary Committee but failed to achieve

a full vote in either the House or the Senate. See id.,

199. Finally, on April 25, 2012, Governor Malloy signed

P.A. 12-5, which abolished the death penalty for all

crimes committed on or after that date. Connecticut’s

history, then, evinces a steady, inexorable devolution

in the popularity and legitimacy of the death penalty,

culminating in its prospective abolition in 2012.

B

Legislative Enactments

With respect to the second indicator of our evolving

standards of decency, both this court and the United

States Supreme Court have stated that ‘‘the clearest

and most reliable objective evidence of contemporary

values is the legislation enacted by the country’s legislatures.’’47 (Internal quotation marks omitted.) Atkins v.

Virginia, supra, 536 U.S. 312; accord State v. Rizzo,

supra, 303 Conn. 191. We last examined the constitutionality of the death penalty in Rizzo II. See State

v. Rizzo, supra, 303 Conn. 184–201. At that time, we

recognized that, during the preceding decade, (1) the

United States Supreme Court had imposed additional

restrictions on the range of offenses and offenders constitutionally subject to capital punishment; id., 188; (2)

several additional sister states had abolished the death

penalty; id., 190; and (3) the number of death sentences

imposed and executions carried out in the United States

had continued to decline. Id., 192–93. Nevertheless, we

concluded ‘‘that, as long as there remains powerful evidence of strong public support for the death penalty in

the form of long-standing laws enacted by the democratically elected representatives of this state and other

jurisdictions within the United States, we will not

attempt to discern a contrary view of the public will,

or to answer complex policy questions best answered

by the legislative process . . . .’’ Id., 198.

Public Act 12-5 pulled that linchpin out of our decision in Rizzo II. For the first time in our state’s history,

the governor and a majority of both legislative chambers

have now rejected state sanctioned killing and agreed

that life imprisonment without the possibility of release

is a just and adequate punishment for even the most

horrific crimes. For any future crimes, the death penalty

has been removed from the list of acceptable punishments that may be imposed in accordance with law.
Public Act 12-5 thus represents the terminus of the

four century long devolution of the death penalty in

Connecticut. Although the prospective nature of P.A.

12-5 reflects the intent of the legislature that capital

punishment shall die with a whimper, not with a bang,

its death knell has been rung nonetheless. Our elected

representatives have determined that the machinery of

death48 is irreparable or, at the least, unbecoming to a

civilized modern state. As a ranking member of the

Judiciary Committee recognized in 2012, ‘‘this law is the

best and most recent indication of evolving standards in

our society of human decency.’’49 55 S. Proc., Pt. 2, 2012

Sess., p. 574, remarks of Senator John A. Kissel. The

prospective abolition of the death penalty thus provides

strong support for the conclusion that capital punishment no longer comports with contemporary standards

of decency and, therefore, constitutes cruel and

unusual punishment.

In her dissenting opinion, Chief Justice Rogers takes

issue with the conclusion that the prospective repeal

of the death penalty indicates that capital punishment

no longer comports with our state’s evolving standards

of decency. She argues that, as a matter of common

sense, legislators would not have voted to retain capital

punishment on a retroactive basis if they had believed

such punishment to be immoral, indecent, or unnecessary. Rather, she speculates that ‘‘the reason for the

prospective repeal was not that a majority of legislators

found the death penalty morally repugnant even for the

worst crimes, or that they found life imprisonment an

adequate substitute for the death penalty, but that they

had determined that the death penalty simply had

become impracticable.’’ Text accompanying footnote

19 of Chief Justice Rogers’ dissenting opinion. The most

reasonable interpretation of P.A. 12-5, Chief Justice

Rogers posits, is that the legislature continues to believe

that death is the appropriate punishment for certain

crimes but that, for financial and other pragmatic reasons, our elected representatives were forced to accept

a less severe form of punishment for the future.

We begin by observing that the United States

Supreme Court, in Atkins v. Virginia, supra, 536 U.S.

304, considered and rejected Chief Justice Rogers’ argument that a prospective only repeal of a punishment

does not indicate that the punishment no longer comports with society’s evolving values. See id., 313–16

(recognizing emergence of national consensus against

executing intellectually disabled, based on decisions of

eighteen states to amend their death penalty statutes

to exempt such persons from capital punishment, even

though majority of those states had done so prospectively only); see also id., 342–43 (Scalia, J., dissenting)

(criticizing majority for counting among those jurisdictions that no longer permitted execution of intellectually disabled eleven states that had abolished practice
only prospectively). Similarly, in Fleming v. Zant,

supra, 259 Ga. 687, the Supreme Court of Georgia concluded that a statute that prohibited the death penalty

for mentally disabled individuals on a prospective only

basis nevertheless evidenced an evolving societal consensus that the execution of such individuals was inappropriate. See id., 690 and n.3. Accordingly, that court

concluded that execution of mentally disabled individuals sentenced prior to the effective date of the Georgia

statute would be cruel and unusual punishment, in violation of the Georgia constitution. Id., 690; see also

Van Tran v. State, 66 S.W.3d 790, 805 (Tenn. 2001)

(concluding that statute prohibiting execution of mentally disabled offenders was not intended to apply retroactively but also concluding, under Tennessee constitution, in light of Fleming, that statute evidenced evolving consensus that carrying out any such executions

would be cruel and unusual).

More importantly, the voluminous legislative history

of P.A. 12-5 simply does not bear out Chief Justice

Rogers’ interpretation of that act. During the legislative

debates, of the three dozen senators and representatives who spoke in favor of P.A. 12-5, nearly every legislator stated that he or she had come to oppose capital

punishment as a matter of conscience or principle. Notwithstanding the solely prospective application of P.A.

12-5, numerous legislators declared that they categorically opposed state sanctioned killing or, in a few cases,

that they had concluded that life imprisonment without

the possibility of release is a more appropriate punishment for capital felons.50 They cited a range of principled objections to the death penalty. Many found

unacceptable the possibility that the state might mistakenly execute an innocent person.51 Others condemned

capital punishment as incurably arbitrary and discriminatory,52 or came to believe that death sentences retraumatize the families of murder victims.53 In his own

remarks, one of the cochairmen of the Judiciary Committee left little doubt as to the primary rationale for

the legislation: ‘‘This was a matter of conscience for

me and I think it’s a matter of conscience for everyone

in this body, proponents and opponents alike. I want

to make that very clear.’’ 55 S. Proc., Pt. 3, 2012 Sess.,

pp. 791–92, remarks of Senator Eric D. Coleman.

Indeed, many of the senators and representatives who

opposed P.A. 12-5 acknowledged that its supporters

voted out of a conscientious and moral rejection of

capital punishment.54

Notably, although Chief Justice Rogers repeatedly

chides the majority for failing to afford adequate deference to the legislative process, she herself is dismissive

of legislators’ own characterizations of their votes,

favoring instead a narrative that is contradicted by the

legislative record. It is certainly true, as Chief Justice

Rogers emphasizes, that some proponents of the repeal

also expressed concerns over monetary or practical
challenges facing our state’s capital punishment system.

The fact that supporters voted to abolish capital punishment for both moral and practical reasons, however,

in no way demonstrates that the death penalty continues to comport with contemporary standards of

decency in Connecticut. An indecent punishment is no

less indecent for the fact that it is also costly and ineffectual.

To our knowledge, not a single legislator has publicly

indicated that the decision to repeal the death penalty

prospectively while retaining it for those who offended

prior to April 25, 2012, embodied the sort of grand

financial and pragmatic agreement suggested by Chief

Justice Rogers. In fact, comments by Senator Kissel, a

ranking member of the Judiciary Committee, directly

refute Chief Justice Rogers’ theory that the legislative

history of the act could support such an interpretation:

‘‘[T]his isn’t being driven by cost savings. There [is]

. . . ample testimony, year in and year out, that say[s]

we for moral, philosophical, religious reasons, because

it doesn’t deter crime and all these other factors, say[s]

that people stridently oppose this penalty in Connecticut. People will stand up on the floor of the House and

the floor of the [Senate] and say, if we had a bill in

front of us with complete abolition, I’d support it, but for

political reasons or expediency or for whatever reason,

that’s not the bill the Judiciary Committee gave us. But

because this gets us one step closer to full abolition,

I’m going to support this at this time.’’55 Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 9, 2012

Sess., pp. 2766–67. Ultimately, of the three dozen legislators who spoke in favor of P.A. 12-5 during the legislative hearings and debates, only two indicated that they

personally supported the repeal primarily for pragmatic reasons.56

Why, then, did a legislature committed to abolishing

the death penalty vote to retain it for the handful of

inmates already on death row? It is clear from the legislative history of P.A. 12-5, as well as the record of

other recent attempts to abolish capital punishment in

Connecticut, that, as Senator Kissel indicated, the vast

majority of those legislators who voted for P.A. 12-5

would have supported a full repeal but were forced at

that time to accept half a loaf because there were not

enough votes to pass a full repeal. With regard to the

handful of legislators whose support for a repeal was

contingent on retaining the death penalty for previous

capital felons, the legislative record strongly suggests

that they insisted on a prospective only repeal not for

the pragmatic and financial reasons offered by Chief

Justice Rogers but, rather, for one of two reasons.

First, some legislators opposed retroactive abolition

out of a principled belief that the state had made a

commitment to families of victims murdered before the

passage of P.A 12-5 that the state would pursue the
death penalty in those cases. Those legislators felt that

the state was morally obliged to honor that prior commitment, even if it had foresworn capital punishment

going forward.57 For such legislators,retaining the death

penalty on a retroactive basis represented the lesser of

two evils. Indeed, at least one legislator speculated that

an unwillingness to ‘‘up end’’ victims’ expectations was

the primary rationale for enacting a prospective only

repeal.58 55 S. Proc., Pt. 3, 2012 Sess., p. 720, remarks

of Senator Andrew W. Roraback; see also K. Barry,

‘‘From Wolves, Lambs (Part II): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty,’’

35 Cardozo L. Rev. 1829, 1837 (2014) (‘‘[p]rospectiveonly repeal grants the ‘victim’s mother’ her pound of

flesh and then bids her adieu’’). Indeed, at oral argument

before this court, the state acknowledged that the legislature indicated that ‘‘keeping a promise to the victims’’

was one of the primary rationales for enacting a prospective only repeal.

For other legislators, support for a prospective only

repeal appears to have reflected a calculation that they

could accommodate the public demand that certain

notorious inmates remain on death row; see part III C

of this opinion; with little concern that those death

sentences ever would be carried out.59 During the

debates over P.A. 12-5, many legislators were of the

opinion that, once the death penalty had been prospectively abolished, the official policy of the state would

then disapprove capital punishment, and it would,

therefore, become unconstitutional to execute offenders whose crimes were committed prior to the repeal.

It was widely predicted that the individuals already on

death row would immediately seek appellate or habeas

relief upon passage of a prospective repeal, and that

this court would bar all future executions.60 Although

not all legislators were in agreement on this point, it is

noteworthy that Chief State’s Attorney Kane, who heads

the Division of Criminal Justice and represents the state

in this matter, has himself publicly taken the position

that, following a prospective repeal, any efforts to execute those already on death row would be unlikely to

pass constitutional muster. See Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp.

2601–2602 (‘‘I can’t imagine how we would be executing

somebody who’s on death row today’’); id., pp. 2630–35

(indicating that, after prospective repeal, capital punishment would fail to comport with evolving standards of

decency in Connecticut).61

Some legislators, then, may have seen a prospective

repeal as an opportunity to retain the support of constituents committed to the execution of particular residents of death row, while leaving to this court the task of

abolishing capital punishment retroactively. Professor

Kevin Barry, on whose opinions Chief Justice Rogers

repeatedly relies, has argued that adoption of a prospective only repeal represented precisely this sort of ‘‘stra-
tegic’’ decision on the part of legislators ‘‘to discard the

death penalty going forward . . . while punting the

hard political decisions about what to do with those

on death row . . . .’’ K. Barry, supra, 35 Cardozo L.

Rev. 1836; see also id., 1834 (noting that abolitionists

adopted similar strategy of gradual abolition in movement to end slavery); id., 1836 (prospective only repeal

is politically viable because it removes so-called ‘‘ ‘victim’s mother’ ’’ effect). We do not consider such action

to evidence legislative endorsement ofthe death penalty

as a fitting and acceptable means of punishment in

modern Connecticut.62

Lastly, we note that, if the primary concern of the

legislature had been with the workability of the death

penalty, as Chief Justice Rogers contends, then the legislature certainly could have implemented measures,

short of abolition, aimed at removing some of the

impediments in the state’s capital punishment scheme.63

That option was proposed on several occasions during

the hearings and debates on P.A. 12-5 but ultimately

rejected.64 The only plausible reading of the legislative

history, then, is that the legislature made a principled

determination that capital punishment should no longer

be the policy of Connecticut.

Turning our attention to the other elected branch of

government, we also recognize that the meaning of a

statute is revealed not only in the intent of the legislators

who draft and enact it, but also in the aspirations of

the governor who signs it. As Chief Justice Rogers,

writing for the court in Rizzo II, recently explained:

‘‘The governor, like our legislators, is an elected representative of the people of the state. Additionally, executive approval . . . of legislation is an integral part of

the legislative process . . . and it is axiomatic that

when the governor exercises this power, he or she is

acting in a substantive legislative role. . . . Thus . . .

a governor’s [signing statement issued upon] approval

of legislation may provide evidence of the motivations

underlying that legislation . . . .’’ (Citations omitted.)

State v. Rizzo, supra, 303 Conn. 199–200. In fact, Chief

Justice Rogers observed in this very context that ‘‘it may

be, at some times, on some subjects, that the [governor]

elected by all the people is rather more representative

of them all than are the members of either body of

the [l]egislature whose constituencies are local and not

[statewide] . . . .’’ (Emphasis added; internal quotation marks omitted.)Id., 201. In the present case, Governor Malloy made clear, in signing P.A. 12-5, that his

decision to approve legislation abolishing the death penalty was a principled one: ‘‘Many of us who have advocated for this position over the years have said there

is a moral component to our opposition to the death

penalty. For me, that is certainly the case. . . .

‘‘I [have come] to believe that doing away with the

death penalty [is] the only way to ensure it [will] not
be unfairly imposed.’’65 Gov. Malloy on Signing Bill To

Repeal Capital Punishment (April 25, 2012) (Governor’s Statement).

In conclusion, although support for a legislative compromise as significant and complex as Connecticut’s

prospective abolition of the death penalty is bound to

arise from and reflect a range of sentiments and concerns, the best evidence of legislative intent available

to us strongly suggests that both of the elected branches

were motivated in no small part by a principled belief

that state sanctioned executions are no longer a necessary or appropriate form of punishment, even for the

most heinous crimes.

C

Current Practice

‘‘Although the clearest and most reliable objective

evidence of contemporary values is the legislation

enacted by the country’s legislatures . . . in assessing

whether a punishment is constitutionally sound, it also

is appropriate for us to consider what is occurring in

actual practice.’’ (Citation omitted; internal quotation

marks omitted.) State v. Rizzo, supra, 303 Conn. 191.

‘‘[T]he sentencing decisions that juries have made . . .

[are] a significant and reliable objective index of contemporary values because [juries are] so directly

involved’’ in the administration of criminal justice.

(Internal quotation marks omitted.) Enmund v. Florida, supra, 458 U.S. 794. For example, ‘‘[s]tatistics about

the number of executions may inform the consideration

whether capital punishment . . . is regarded as unacceptable in our society.’’ Kennedy v. Louisiana, supra,

554 U.S. 433; see id. (finding social consensus against

capital punishment for crime of child rape); see also

Graham v. Florida, supra, 560 U.S. 64, 74 (determining

that sentence of life imprisonment without possibility

of parole is cruel and unusual punishment for juvenile

who had committed nonhomicide offense when only

123 people were serving such sentences in eleven jurisdictions nationwide). The number of death sentences

actually imposed and carried out is a key barometer of

social mores because, although ‘‘it is easy for the public

to respond to the conviction of a vicious murderer or

a serial killer by advocating the ultimate penalty of

death, it is far more difficult for society to carry out

that penalty by taking the life of that person.’’ State v.

Ross, supra, 230 Conn. 297; see also D. Garland, Peculiar

Institution: America’s Death Penalty in an Age of Abolition (2010) p. 60. ‘‘Although death penalty statutes do

remain on the books of many jurisdictions, and public

opinion polls show opinion to be divided as to capital

punishment as an abstract proposition, the infrequency

of its actual application suggests that among those persons called [on] to actually impose or carry out the

death penalty it is being repudiated with everincreasing

frequency.’’ People v. Anderson, supra, 6 Cal. 3d 648;
see also District Attorney v. Watson, supra, 381 Mass.

662 (prolonged dearth of executions evidences current

standards of decency).

In the post-Furman era, Connecticut has imposed

sustained death sentences at a rate (taken as a percentage of capital eligible convictions) that is among the

lowest in the nation. See J. Donohue, ‘‘An Empirical

Evaluation of the Connecticut Death Penalty System

Since 1973: Are There Unlawful Racial, Gender, and

Geographic Disparities?,’’ 11 J. Empirical Legal Stud.

637, 638 (2014). Of the 205 capital eligible murders

committed in Connecticut between 1973 and 2007, of

which approximately two thirds were charged capitally,

only 12 resulted in death sentences. Id., 641. Indeed,

since 1973, whereas juries in states such as Texas and

Florida have imposed death sentences at an average

rate of approximately two per month, Connecticut

juries on average have imposed a death sentence only

approximately once every two years.66

Moreover, each of the capital sentences imposed in

Connecticut has, in effect, become the equivalent of

life imprisonment. As we discussed, there has been an

almost complete moratorium on executions in the state

since 1960. Connecticut has put only one offender to

death over the past fifty-five years, and that was a serial

killer who believed that he deserved to die and voluntarily waived his right to further appeals and habeas remedies. L. Goodheart, supra, pp. 228, 230–31, 244–46. Even

then, it took the state more than two decades to carry

out his sentence. See id., p. 248. Nor is there even the

remotest likelihood that any of the inmates currently

on death row in Connecticut will exhaust their federal

and state appeals and habeas remedies any time in the

foreseeable future.

The United States Supreme Court also has recognized

that the willingness orreluctance of prosecutors to seek

a particular punishment constitutes further objective

evidence of whether society considers that punishment

to be excessive or disproportionate. See Enmund v.

Florida, supra, 458 U.S. 796. This is because prosecutors ‘‘represent society’s interest in punishing crime

. . . .’’ Id. In Connecticut, Chief State’s Attorney Kane,

testifying before the legislature prior to the enactment

of P.A. 12-5, strongly suggested that, following the prospective repeal of the death penalty, he no longer would

consider it appropriate to seek the death penalty for

eligible crimes. See Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2602, 2633. At

neither the charging nor the sentencing stages, then,

have the key decision makers in our state’s capital punishment system demonstrated that the death penalty

continues to comport with contemporary standards of

decency in Connecticut.

D
Laws and Practices of Other Jurisdictions

Although trends within Connecticut are the most

direct and relevant indicators of contemporary standards of decency with respect to the state constitution,

we also look to developments in our sister states, and

even the international community, for additional input.

See State v. Rizzo, supra, 303 Conn. 192–96; see also

Roper v. Simmons, supra, 543 U.S. 578 (‘‘[t]he opinion

of the world community [opposing the death penalty

for juveniles], while not controlling our outcome, does

provide respected and significant confirmation for our

own conclusions’’). Globally, 98 countries have now

formally abolished the death penalty for all crimes, up

from just 16 countries in 1977, and 140 countries effectively have renounced the death penalty by law or practice.67 ‘‘The ‘age of abolition’ . . . has made America

an anomaly, the last remaining holdout in a historical

period that has seen the [w]estern nations embrace

abolitionism as a human rights issue and a mark of

civilization.’’ D. Garland, supra, p. 11.

Domestically, although capital punishment remains

legal in a majority of jurisdictions within the United

States, the number of states eschewing the death penalty continues to rise. The United States Supreme Court

has explained that ‘‘[i]t is not so much the number of

these [s]tates that is significant, but the consistency of

the direction of change.’’ Atkins v. Virginia, supra, 536

U.S. 315; see also Hall v. Florida, supra, 134 S. Ct. 1997.

When Nebraska repealed its death penalty in May, 2015,

it became the seventh state in just nine years to have

abolished capital punishment either prospectively or

completely.68 In total, nineteen states and the District

of Columbia no longer permit the imposition of new

capital sentences.69 And, significantly, no state or nation

that has repealed the death penalty prospectively ever

has carried out another execution. See, e.g., State v.

Santiago, Conn. Supreme Court Records & Briefs, April

Term, 2013, Amicus Brief of legal historians and scholars p. 1.

Even within those jurisdictions where it remains

legal, ‘‘use of the death penalty (in terms of executions

and especially death sentences) has declined significantly in recent years.’’ C. Steiker & J. Steiker, Report

to the American Law Institute Concerning Capital Punishment, in A.L.I., Report of the Council to the Membership of the American Law Institute on the Matter of the

Death Penalty (April 15, 2009) annex B, p. 2. The total

number of executions carried out nationally has fallen

by more than 60 percent from the post-Furman peak

of 1999, dropping from 98 in 1999 to 39 in 2013, and

then falling again to 35—a 20 year low—in 2014.70 Of

the 35 executions carried out in 2014, approximately

90 percent occurred in just four states: Texas, Missouri,

Florida, and Oklahoma.71
‘‘Nationwide death sentences have dropped even

more precipitously’’; id.; falling from modern era highs

of more than 300 annually in the mid-1990s to modern

era lows of 85 or fewer since 2011.72 The number of

death sentences imposed in 2014, 73, was by far the

lowest in the post-Furman era.73 That same year, Governor Jay Inslee of the state of Washington imposed a

moratorium on the carrying out of the death penalty in

that state,74 and Governor Martin O’Malley of the state

of Maryland announced his intention to commute all

remaining death sentences for those inmates in the

state’s prison system to life without parole.75 The latter

decision, reached after Maryland’s attorney general

called into question the legality of carrying out previously imposed death sentences, effectively transforms Maryland’s prospective only repeal into a full

abolition of the death penalty. Notably, by 2012, less

than 2 percent of the nation’s counties accounted for

all of the death sentences imposed nationwide. Glossip

v. Gross, U.S. , 135 S. Ct. 2726, 2761, 192 L. Ed.

2d 761 (2015) (Breyer, J., dissenting).

When we interpret the protections afforded underthe

state constitution, trends and norms in our neighboring

New England states, with which Connecticut shares a

cultural and historical affinity, can be especially pertinent. See, e.g., State v. Rizzo, supra, 303 Conn. 204 n.4

(Norcott, J., dissenting) (emphasizing in 2011 that New

Hampshire was only New England state other than Connecticut with death penalty); cf. State v. James, 237

Conn. 390, 452, 678 A.2d 1338 (1996) (Berdon, J., dissenting) (noting that ‘‘[e]very state but one in the northeast ha[d] adopted a standard of proof in excess of

the preponderance of the evidence to determine the

voluntariness of a confession’’).

In the case of capital punishment, the regional disparities are both instructive in their character and striking

in their magnitude. Of approximately 1400 executions

carried out nationwide since 1976, nearly two thirds

have been performed in just 5 states, and Texas alone

accounts for more than 37 percent of the total.76 Ten

states have accounted for 83 percent of the post-Furman executions in the country.77 The geographic concentration of those executions is remarkable. The thirteen states that comprised the Confederacy78 have carried out more than 75 percent of the nation’s executions

over the past four decades.79 Adding in Oklahoma and

Arizona—not yet states at the time of the civil war—

brings the total to nearly 90 percent.80 In stark contrast,

the six New England states have carried out a combined

total of one execution since 1976.81 Adding in New York,

New Jersey, and Pennsylvania, the nine northeastern

states have accounted for less than one-third of 1 percent of the nation’s post-Furman executions.82 Connecticut’s execution of Ross has been the only execution in the entire Northeast in the new millennium.
In fact, only a few northeastern states still permit

capital punishment. The death penalty was abolished

by Maine in 1887, Vermont in 1964, Massachusetts and

Rhode Island in 1984, and New York and New Jersey

in 2007.83 Following Connecticut’s prospective abolition

of the death penalty in 2012, New Hampshire is the

only remaining New England state in which new death

sentences may be imposed.84 No one has been executed

in New Hampshire since 1939, however, and it does not

even have an operational death chamber.85 Accordingly,

Connecticut now stands as an outlier, the sole remaining New England state in which execution remains a

legal and potentially viable option.86

E

Opinions and Recommendations of

Professional Associations

The United States Supreme Court also has looked to

the opinions of ‘‘respected professional organizations,’’

such as the American Law Institute, to help illuminate

‘‘civilized standards of decency’’ in the capital punishment context. Thompson v. Oklahoma, supra, 487 U.S.

830; accord Hall v. Florida, supra, 134 S. Ct. 1994–95

(relying on American Psychological Association).

Indeed, when the United States Supreme Court effectively reinstated the death penalty in Gregg, it relied

heavily on the American Law Institute’s work in developing Model Penal Code § 210.6 for its determination

that juror discretion can be sufficiently cabined to avoid

arbitrary and capricious imposition of the death penalty. See Gregg v. Georgia, supra, 428 U.S. 193–95 (opinion announcing judgment); see also B. Newton, ‘‘The

Slow Wheels of Furman’s Machinery of Death,’’ 13 J.

App. Prac. & Process 41, 47 (2012).

The American Law Institute no longer holds out such

hopes. During the hearings on P.A. 12-5, the legislature

heard testimony that, following a two year study commissioned by the American Law Institute, unequivocal

conclusions were reached regarding the modern death

penalty: ‘‘[A] review of the unsuccessful efforts to constitutionally regulate the death penalty, the difficulties

that continue to undermine its administration, and the

structural and institutional obstacles to curing those

ills forms the basis of our recommendation to the

[American Law] Institute. The [long-standing] recognition of these underlying defects in the capital justice

process, the inability of extensive constitutional regulation to redress those defects, and the immense structural barriers to meaningful improvement all counsel

strongly against the Institute’s undertaking a law reform

project on capital punishment, either in the form of a

new draft of § 210.6 or a more extensive set of proposals. Rather, these conditions strongly suggest that the

Institute recognize that the preconditions for an adequately administered regime of capital punishment
do not currently exist and cannot reasonably be

expected to be achieved.’’ (Emphasis added.) C.

Steiker & J. Steiker, supra, p. 49; see also Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 9, 2012

Sess., p. 2923, written testimony of Chief Public

Defender Susan O. Storey. On the basis of those conclusions, and consistent with the recommendations to the

American Law Institute, in 2009, § 210.6 was withdrawn.

Members of the American Law Institute opted not to

develop a revised or replacement model death penalty

statute, in light of their concerns that ‘‘real-world constraints make it impossible for the death penalty to be

administered in ways that satisfy norms of fairness and

process.’’ A.L.I., supra, p. 5.

We are compelled to agree. In his concurrence in

Furman, Justice Brennan observed that the ‘‘acceptability of a severe punishment is measured, not by its

availability, for it might become so offensive to society

as never to be inflicted, but by its use.’’ Furman v.

Georgia, supra, 408 U.S. 279 (Brennan, J., concurring).

In passing P.A. 12-5, the legislature simply has acknowledged and formalized what has become apparent in

Connecticut, among our sister New England states, and

throughout the industrialized world for more than onehalf century. Although some opinion polls continue to

reflect public support for the death penalty in theory,

in practice, our state has proved increasingly unwilling

and unable to impose and carry out the ultimate punishment.87 ‘‘The evolution of this punishment,’’ Justice

Brennan observed, ‘‘evidences, not that it is an inevitable part of the American scene, but that it has proved

progressively more troublesome to the national conscience.’’ Id., 299 (Brennan, J., concurring).

F

Conclusion

In conclusion, we are aware that the issue of whether

the death penalty is an appropriate punishment for the

most heinous crimes is one about which people of good

faith continue to disagree. Nevertheless, our review of

the five objective indicia that have been deemed relevant under both the federal and state constitutions compels the conclusion that, following the enactment of

P.A. 12-5, Connecticut’s capital punishment scheme no

longer comports with our state’s contemporary standards of decency.88 It therefore offends the state constitutional prohibition against excessive and disproportionate punishment.89

III

THE DEATH PENALTY IS DEVOID OF

ANY LEGITIMATE PENOLOGICAL

JUSTIFICATIONS

As the constitution requires, we next consider

whether, on the basis of our independent review of

the available evidence, executing those individuals who
committed capital felonies prior to the enactment of

P.A. 12-5 would serve any legitimate penological purpose. In light of the history and desuetude of the death

penalty in Connecticut over the past one-half century,

culminating in its prospective abolition in 2012, we conclude that capital punishment no longer measurably

contributes to any legitimate penological goal.

Enforcing the criminal law means marshaling the

awesome coercive power of the state to deprive its own

citizens of the life, liberty, or property to which they

are otherwise naturally entitled. See, e.g., Stutson v.

United States, 516 U.S. 193, 196, 116 S. Ct. 600, 133 L.

Ed. 2d 571 (1996); State v. Vumback, 247 Conn. 929,

933, 719 A.2d 1172 (1998) (Berdon, J., dissenting from

the denial of certification to appeal). The death penalty

represents the most extreme exercise of this power.

See, e.g., State v. Rizzo, supra, 266 Conn. 227. Such a

deprivation must, of course, be justified, and society

traditionally has recognized four principal justifications

forthe imposition of criminal sanctions. Criminal penalties may be imposed (1) to deter the perpetrator and

others from committing crimes (deterrence),(2)to punish the perpetrator and give voice to the moral outrage

experienced by the victim and society at large (retribution), (3) to prevent the perpetrator from committing

additional offenses (incapacitation), or (4) to transform

the perpetrator into a better, more law-abiding citizen

(rehabilitation). See, e.g., Graham v. Florida, supra,

560 U.S. 71–74. ‘‘A sentence lacking any legitimate penological justification is by its nature disproportionate to

the offense.’’ Id., 71. Neither the federal nor the state

constitution will permit the imposition of a sanction ‘‘so

totally without penological justification that it results in

the gratuitous infliction of suffering.’’ Gregg v. Georgia,

supra, 428 U.S. 183 (opinion announcing judgment).

In the case of the death penalty, the punishment itself

terminates any opportunity for rehabilitation. Hall v.

Florida, supra, 134 S. Ct. 1992–93. Moreover, execution,

as compared to life in prison without the possibility

of release, offers minimal additional value by way of

incapacitation.90 See Spaziano v. Florida, 468 U.S. 447,

461, 104 S. Ct. 3154, 82 L. Ed. 2d 340 (1984) (noting that

‘‘incapacitation has never been embraced as a sufficient

justification for the death penalty’’). Accordingly, it is

generally accepted that, if capital punishment is to be

morally and legally justified, it must be based on the

deterrent or retributive value of executions. E.g., Kennedy v. Louisiana, supra, 554 U.S. 441; Gregg v. Georgia, supra, 428 U.S. 183 (opinion announcing judgment).

Unless the imposition of the death penalty ‘‘measurably

contributes to one or both of these goals, it is nothing

more than the purposeless and needless imposition of

pain and suffering, and hence an unconstitutional punishment.’’ (Emphasis added; internal quotation marks

omitted.) Atkins v. Virginia, supra, 536 U.S. 319. ‘‘At

the moment that [the death penalty] ceases realistically
to further these purposes . . . its imposition would

then be the pointless and needless extinction of life with

only marginal contributions to any discernible social or

public purposes. A penalty with such negligible returns

to the [s]tate would be patently excessive and cruel

and unusual . . . .’’ Furman v. Georgia, supra, 408 U.S.

312 (White, J., concurring).

We previously have acknowledged that ‘‘the value of

[a criminal sanction], and its contribution to acceptable

penological goals, typically is a complex factual issue

the resolution of which properly rests with the legislatures . . . .’’ (Internal quotation marks omitted.) State

v. Rizzo, supra, 303 Conn. 197. We also have recognized,

however, that this assessment ‘‘is not exclusively the

domain of the legislature, and that this court has an

independent duty to determine that the penalty remains

constitutionally viable as the sensibilities of our citizens

evolve.’’ Id.; see also part IV C of this opinion. Deference

to legislative assessments is least warranted, and judicial scrutiny must be especially exacting, when, as in

the present case, the policy judgments embodied in

the relevant legislation are ambiguous.91 Upon close

consideration of the arguments and the available

research, and particularly in light of the legislature’s

decision to abolish capital punishment for all future

crimes, we conclude that the death penalty no longer

measurably contributes to the penological goals of

deterrence or retribution. We consider each in turn.

A

Deterrence

Turning first to deterrence, we observe that it is clear

that, with the passage of P.A. 12-5, any deterrent value

the death penalty may have had no longer exists. As

Justice Harper explained in his dissent in Santiago I:

‘‘The ultimate test of this deterrence claim is whether

the state, by executing some of its citizens, better

achieves the unquestionably legitimate goal of discouraging others from committing similar crimes. As a general matter, the empirical evidence regarding deterrence is inconclusive. Following the abolition of the

death penalty for all future offenses committed in Connecticut, however, it is possible to determine the exact

number of potential crimes that will be deterred by

executing the defendant in this case. That number is

zero.’’ (Emphasis omitted; footnote omitted.) State v.

Santiago, supra, 305 Conn. 320–21 (Harper, J., concurring in part and dissenting in part).

In her dissenting opinion, Chief Justice Rogers rejects

Justice Harper’s commonsense conclusion that once

the legislature enacts a high profile repeal of a punishment, that punishment no longer serves as a deterrent.

Rather, she contends, by maintaining capital punishment for offenders sentenced to death before the enactment of P.A. 12-5, the state can send a ‘‘message’’ to
potential offenders that the laws are stable and will be

enforced as written. This, she believes, can strengthen

the deterrent force of all penal laws.92

We very much doubt that the citizens of Connecticut,

learning that the death penalty has been abolished, will

somehow infer that they can now rape, pillage, and

exceed the speed limits with impunity. In fact, during

the legislative hearings on P.A. 12-5, a member of the

Judiciary Committee rejected the suggestion that the

legislature was adopting a prospective only repeal ‘‘to

convince people that the government is really serious

about carrying out its penalties.’’ Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp.

2781–82, remarks of Representative Arthur J. O’Neill

(responding to law student who proposed that solely

prospective repeal could be justified on basis of

deterrence).

In any event, the horse that Chief Justice Rogers

seeks to corral has long since left the barn. Of the more

than 4000 individuals who have committed murder in

Connecticut since the death penalty was reinstated four

decades ago, only one has been executed, and then only

after he demanded that the state carry out his death

sentence. L. Goodheart, supra, pp. 228, 230–31. The

overwhelming majority of killers are not sentenced to

death. As we discuss more fully hereinafter, those who

are sentenced to death routinely spend decades on

death row, and there is every reason to believe that

they would die there, outlived by their various appeals

and habeas petitions. Chief Justice Rogers fails to

explain how it is that this system of unexecuted capital

punishment promotes a respect for the law or leads our

citizens to expect that the state will carry out prescribed

punishments as written.

Even if the legislature had not prospectively abolished the death penalty, it would appear that capital

punishment, as administered in Connecticut in the postFurman era, has failed to demonstrate a sufficient

deterrent effect to justify continued state imposed killing. Although some studies have purported to document

a deterrent effect,93 ‘‘the majority of social science

research on the issue concludes that the death penalty

has no effect on the homicide rate.’’94 D. Beschle, ‘‘Why

Do People Support Capital Punishment? The Death Penalty as Community Ritual,’’ 33 Conn. L. Rev. 765, 768

(2001). A principal reason for this failure of deterrence

appears to be the substantial delays involved in actually

carrying out a sentence of death. The number of potential state and federal postconviction remedies available,

the range and complexity of legal issues involved in

capital appeals, and the multiple stages of review mean

that at least one decade typically passes from capital

crime to execution, and delays of twenty years or more

are not at all uncommon. See, e.g., A. Kozinski & S.

Gallagher, ‘‘Death: The Ultimate Run-On Sentence,’’ 46
Case W. Res. L. Rev. 1, 10–11, 17 (1995). The delays,

moreover, appear to be getting longer. Of the thirtyfive offenders executed in the United States in 2014,

only one had been on death row for less than one

decade, and the average time from sentencing to execution exceeded seventeen years.95 The situation is no

different in Connecticut. Of the eight men sentenced

to death in the state between 1987 and 2007 whose

sentences were not later overturned, only one has been

executed. Ross was executed by lethal injection in 2005,

eighteen years after sentencing, and then only after

he voluntarily abandoned further legal challenges. L.

Goodheart, supra, pp. 228, 230–31, 246. Of the eleven

men currently on death row in Connecticut, one has

been awaiting execution for twenty-five years, two others for nearly that long, and one for twenty years.

‘‘The deterrent value of any punishment is, of course,

related to the promptness with which it is inflicted.’’

Coleman v. Balkcom, 451 U.S. 949, 952, 101 S. Ct. 2031,

68 L. Ed. 2d 334 (1981) (Stevens, J., concurring in the

denial of certiorari); see also Gomez v. Fierro, 519 U.S.

918, 918, 117 S. Ct. 285, 136 L. Ed. 2d 204 (1996)(Stevens,

J., dissenting) (‘‘[d]elay in the execution of judgments

imposing the death penalty frustrates the public interest

in deterrence and eviscerates the only rational justification for that type of punishment’’); Furman v. Georgia,

supra, 408 U.S. 302 (Brennan, J., concurring) (‘‘[a]

rational person contemplating a murder or rape is confronted, not with the certainty of a speedy death, but

with the slightest possibility that he will be executed

in the distant future’’); Jones v. Chappell, 31 F. Supp.

3d 1050, 1064 (C.D. Cal. 2014) (law and common sense

dictate that ‘‘long delays preceding execution frustrate

whatever deterrent effect the death penalty may have’’);

People v. Anderson, supra, 6 Cal. 3d 652 (‘‘capital punishment can have a significant deterrent effect only if

the punishment is swiftly and certainly exacted’’); L.

Powell, commentary, ‘‘Capital Punishment,’’ 102 Harv.

L. Rev. 1035, 1035 (1989) (‘‘years of delay between sentencing and execution . . . [undermine] the deterrent

effect of capital punishment and [reduce] public confidence in the criminal justice system’’). Even prior to

the enactment of P.A. 12-5, the fact that one who commits the most heinous of crimes can expect to spend

decades in prison prior to any execution suggests that

capital punishment promises little if any deterrence

over and above life imprisonment.96 The legislature

heard extensive expert testimony to this effect when

considering P.A. 12-5, and numerous legislators cited

the lack of a deterrent effect as a justification for their

decision to abolish the death penalty.97 Indeed, Chief

State’s Attorney Kane, who represents the state in this

and all other death penalty cases, acknowledged in public testimony that there is insufficient evidence to conclude that capital punishment deters crime. See Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 8,
2012 Sess., p. 2623 (‘‘I don’t know if I’d even go so far

as to say [the death penalty] might well be a deterrent

because the studies are mixed. I’m not ready [to say

that the] . . . answer is clear enough to justify that as

a reason for having the death penalty.’’).

In addition, aside from the inevitable delays, the sheer

rarity with which death sentences are imposed and

carried out in Connecticut—and, indeed, the entire

northeastern United States—suggests that any conceivable deterrent value will be far less than in a state like

Texas, for example, which carries out executions on a

regular basis. ‘‘[C]ommon sense and experience tell us

that seldom-enforced laws become ineffective measures for controlling human conduct and that the death

penalty, unless imposed with sufficient frequency, will

make little contribution to deterring those crimes for

which it may be exacted.’’ Furman v. Georgia, supra,

408 U.S. 312 (White, J., concurring). Judge AlexKozinski

of the Ninth Circuit Court of Appeals puts the problem

most plainly: ‘‘Rather than go through the competing

considerations, let’s cut to the meat of the coconut.

The death penalty, as we now administer it, has no

deterrent value because it is imposed so infrequently

and so freakishly. To get executed in America these

days you have to be not only a truly nasty person, but

also very, very unlucky . . . .’’ A. Kozinski & S. Gallagher, supra, 46 Case W. Res. L. Rev. 25.

Our legislature’s adoption of P.A. 12-5 underscores

this state’s historical and profound ambivalence with

respect to the death penalty, and is further reason to

believe that, even if we were to sustain its constitutionality, the delays in the administration of our capital

sentencing scheme would not abate. On the contrary,

as we previously noted, no state or nation ever has

executed someone after a prospective only repeal of

the death penalty. See, e.g., State v. Santiago, Conn.

Supreme Court Records & Briefs, April Term, 2013,

Amicus Brief of legal historians and scholars p. 1.

Whether death has been belayed by executive clemency

or simple public aversion, it universally has been considered unseemly to carry out an execution after the

people’s representatives have expressed their will that

the sentence of death no longer shall be imposed.

Accordingly, Connecticut’s prospective repeal of capital punishment provides strong reason to believe that

those persons currently on death row never will be

executed. In any event, in light of the passage of P.A.

12-5, and in the absence of any indication that the death

penalty, as administered in this state, has forestalled

the commission of capital crimes, it is apparent that

capital punishment no longer serves any meaningful

deterrent function in Connecticut.98

B

Retribution
The second commonly articulated rationale for the

death penalty is that, regardless of whether capital punishment provides any tangible benefits such as deterrence, incapacitation, or rehabilitation, it is a justified

moral response to a heinous crime such as the one

committed by the defendant in the present case. This

retributive function of the criminal law has been

expressed in varying terms: giving the offender his ‘‘just

deserts’’; providing a sense of restoration and closure

to victims and their families; expressing society’s outrage at the crime and denunciation of the perpetrator;

and, more philosophically, restoring balance to the

moral order.

Both this court and the federal courts have recognized that, as society has evolved and matured, the

erstwhile importance of retribution as a goal of and

justification for criminal sanctions has waned. See, e.g.,

State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183

(1986) (agreeing with observation of United States

Supreme Court that reformation and rehabilitation of

offenders, rather than retribution, has become primary

goal of criminal jurisprudence). Over time, ‘‘our society

has moved away from public and painful retribution

toward ever more humane forms of punishment.’’ Baze

v. Rees, supra, 553 U.S. 80 (Stevens, J., concurring in

the judgment). In addition, the United States Supreme

Court has cautioned that, of the valid justifications for

punishment, ‘‘retribution . . . most often can contradict the law’s own ends. This is of particular concern

. . . in capital cases. When the law punishes by death,

it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and

restraint.’’ Kennedy v. Louisiana, supra, 554 U.S. 420.

Accordingly, ‘‘[r]etribution is no longer the dominant

objective of the criminal law.’’ Williams v. New York,

337 U.S. 241, 248, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

Critics of the death penalty have articulated in passionate and persuasive terms why, in their view, it can

never be morally appropriate for the state to kill one

of its own. See, e.g., District Attorney v. Watson, supra,

381 Mass. 677–86 (Liacos, J., concurring). On the other

hand, we are sympathetic to the view, expressed by

Justice Scalia, among many others, that, however barbaric a modern execution may seem, it pales in comparison to the suffering and trauma experienced by the

victims and their families. See Callins v. Collins, 510

U.S. 1141, 1143, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994)

(Scalia, J., concurring in the denial of certiorari) (‘‘How

enviable a quiet death by lethal injection compared with

that!’’). Regardless of one’s general beliefs about the

morality of the death penalty, however, there are four

reasons why capital punishment, as administered in

Connecticut, simply does not serve a meaningful retributive purpose.

1
Legislative Judgments

First, as we previously discussed; see part II B of this

opinion; the passage of P.A. 12-5 reflects a legislative

judgment that capital punishment no longer serves a

necessary moral function in our state. The retributive

rationale for capital punishment always has been that

the worst of the worst, those who commit especially

heinous crimes, have thereby cut themselves off from

the human community. See Roper v. Simmons, supra,

543 U.S. 568 (‘‘[c]apital punishment must be limited to

those offenders who commit a narrow category of the

most serious crimes and whose extreme culpability

makes them the most deserving of execution’’ [internal

quotation marks omitted]). In other words, execution

is the ultimate form of ostracism. ‘‘[T]he decision that

capital punishment may be the appropriate sanction in

[such] extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous

an affront to humanity that the only adequate response

may be the penalty of death.’’ (Emphasis added.) Gregg

v. Georgia, supra, 428 U.S. 184 (opinion announcing

judgment).

By prospectively repealing the death penalty, however, the legislature necessarily has made a determination that he who lives by the sword need not die by it;

that life imprisonment without the possibility of release

is an adequate and sufficient penalty even for the most

horrific of crimes; and that we can express our moral

outrage, mete out justice, bring some measure of solace

to the families of the victims, and purge the blemish of

murder on our community whilst the offender yet lives.

If this is true, then, although the death penalty still

might serve some minimal retributive function in Connecticut, it lacks any retributive justification. In other

words, to whatever limited extent capital punishment

may still further these retributive purposes, the legislature has determined that the death penalty is no longer

necessary to achieve them. See Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2638,

remarks of Representative Gary A. Holder-Winfield (if

justice can be achieved in capital eligible case without

death penalty, then it is unnecessary). Lacking such

necessity, the death penalty in Connecticut has become

unconstitutionally excessive. Cf. Furman v. Georgia,

supra, 408 U.S. 342 (Marshall, J., concurring) (capital

punishment unjustified when less severe penalties satisfy legitimate legislative goals). As Justice Brennan

explained in his concurrence in Furman, ‘‘[w]hen the

overwhelming number of criminals who commit capital

crimes go to prison, it cannot be concluded that death

serves the purpose of retribution more effectively than

imprisonment. The asserted public belief that murderers and rapists deserve to die is flatly inconsistent with

the execution of a random few.’’ Id., 304–305 (Brennan,

J., concurring).
2

Delays

The second reason the death penalty has lost its

retributive mooring in Connecticut is that the lengthy

if not interminable delays in carrying out capital sentences ‘‘do not just undermine the death penalty’s deterrent

effect; they also spoil its capacity for satisfying retribution.’’ D. Garland, supra, p. 45; see also Jones v.

Chappell, supra, 31 F. Supp. 3d 1064. Of the eleven

individuals awaiting execution in Connecticut, four

have been there for more than twenty years, and several

others for well over one decade. Noris there any reasonable probability that anyone will be executed in this

state for many years to come, given the availability of

various appellate and postconviction remedies, as well

as the historical reluctance—indeed, unwillingness—

of our sister states and other countries to carry out

executions after prospectively abolishing capital punishment. See State v. Santiago, Conn. Supreme Court

Records & Briefs, April Term, 2013, Amicus Brief of

legal historians and scholars p. 1. ‘‘[W]hen imposition

of the [death] penalty reaches a certain degree of infrequency, it would be very doubtful that any existing

general need for retribution would be measurably satisfied. . . . Nor could it be said with confidence . . .

that community values are measurably reinforced by

authorizing a penalty so rarely invoked.’’ Furman v.

Georgia, supra, 408 U.S. 311–12 (White, J., concurring);

see also Valle v. Florida, U.S. , 132 S. Ct. 1, 2,

180 L. Ed. 2d 940 (2011) (Breyer, J., dissenting from

the denial of stay of execution) (‘‘I would ask how often

[the] community’s sense of retribution would forcefully

insist [on] a death that comes only several decades after

the crime was committed’’); Lackey v. Texas, 514 U.S.

1045, 1045–46, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995)

(mem. respecting the denial of certiorari) (expressing

doubt whether execution following extended imprisonment satisfies state’s interest in retribution); B. Newton,

supra, 13 J. App. Prac. & Process 65 (‘‘systemic delays

have undermined the legitimate purposes of capital punishment’’); L. Powell, supra, 102 Harv. L. Rev. 1041

(observing that retributive value of capital punishment

diminishes as imposition of sentence becomes even

farther removed from time of offense). As one federal

courtrecently observed in holding thatCalifornia’s capital punishment scheme violates the eighth amendment,

‘‘for most [individuals on death row], systemic delay

has made their execution so unlikely that the death

sentence carefully and deliberately imposed by the jury

has been quietly transformed into one no rational jury

or legislature could ever impose: life in prison, with the

remote possibility of death. As for the random few for

whom execution does become a reality, they will have

languished for so long on [d]eath [r]ow that their execution[s] will serve no retributive or deterrent purpose
and will be arbitrary.’’ (Emphasis omitted.) Jones v.

Chappell, supra, 1053.

After such lengthy delays, scholars have questioned

whether there can be any true retribution when the

middle aged inmate who goes to the gallows bears little

resemblance to the individual who offended years

before: ‘‘The man you wanted to kill was the abusive

robber, high on crack, who pistol-whipped and shot

two customers at a [7-Eleven] store in 1984. Instead, in

1990, the state electrocutes a balding, religious, model

prisoner in a neat blue-denim uniform.’’ (Internal quotation marks omitted.) D. Garland, supra, pp. 45–46, quoting S. Gross, ‘‘The Romance of Revenge: Capital

Punishment in America,’’ 13 Stud. L. Pol. & Society

71, 82 (1993); see also L. Powell, ‘‘Unraveling Criminal

Statutes of Limitations,’’ 45 Am. Crim. L. Rev. 115, 130

(2008) (‘‘[t]he passage of time may . . . lead to profound changes in . . . identity, arguably making punishment less deserved’’ [footnote omitted; internal

quotation marks omitted]). Even such staunch advocates of capital punishment as the German philosopher

Immanuel Kant, the deacon of retributive justice, have

recognized that the retributive value of the death penalty is not realized unless and until the actual execution

is carried out. See, e.g., I. Kant, The Metaphysics of

Morals (1991) p. 142; see also Coleman v. Balkcom,

supra, 451 U.S. 960 (Rehnquist, J., dissenting from the

denial of certiorari) (‘‘[t]here can be little doubt that

delay in the enforcement of capital punishment frustrates the purpose of retribution’’).

What then remains of retribution when one who commits a heinous crime is not executed until after he has

spent half a lifetime or more on death row, if ever?

Unlike with deterrence, the retributive value of an execution defies easy definition and quantification,

shrouded as retribution is in metaphysical notions of

moral restoration and just deserts. What is clear, however, is that the most tangible retributive fruit of capital

punishment—providing victims and their families with

a sense ofrespite, empowerment, and closure—is grievously undermined by the interminable delays in carrying

out the sentence imposed. ‘‘[I]n reality, rather than

affording them a quick and final disposition of the case

against the murderer, so that they may finalize the tragedy and begin rebuilding their lives, the capital punishment process often creates a second victimization of

survivors. They must contend with repeated reminders

about the murder during the protracted proceedings in

which the death penalty’s implementation is—usually

unsuccessfully—sought.’’ R. Tabak & J. Lane, ‘‘The Execution of Injustice: A Cost and Lack-of-Benefit Analysis

of the Death Penalty,’’ 23 Loy. L.A. L. Rev. 59, 129 (1989);

see also Nichols v. Heidle, 725 F.3d 516, 559 (6th Cir.

2013) (Martin, J., concurring) (noting, inter alia, protracted nature of death penalty cases, which, in turn,

provides ‘‘no closure for the families of the victims’’),
cert. denied, U.S. , 135 S. Ct. 704, 190 L. Ed.

2d 438 (2014). Psychologically, the capital punishment

system actually may impede the healing process. R.

Tabak & J. Lane, supra, 131.

Legislators heard substantial testimony to this effect

when considering P.A. 12-5, with both mental health

professionals and the relatives of individual murder

victims speaking about the retraumatization that our

capital punishment scheme often inflicts on victims’

families.99 Many legislators cited such testimony as a

basis for their decision to support the repeal of the

death penalty, while at the same time recognizing that

there are, of course, families who continue to seek the

death penalty for the offenders who murdered their

loved ones. Governor Malloy, upon signing the bill,

shared the sentiments of one victim’s survivor: ‘‘Now

is the time to start the process of healing, a process

that could have been started decades earlier with the

finality of a life sentence. We cannot afford to put on

hold the lives of these secondary victims. We need to

allow them to find a way as early as possible to begin

to live again.’’ (Internal quotation marks omitted.) Governor’s Statement, supra.

3

Possibility of Error

The third reason that capital punishment fails to satisfy the demands of retributive justice is the ever present danger of irreversible error. It is axiomatic that

‘‘the execution of a legally and factually innocent person

would be a constitutionally intolerable event.’’ Herrera

v. Collins, 506 U.S. 390, 419, 113 S. Ct. 853, 122 L. Ed.

2d 203 (1993) (O’Connor, J., concurring). Indeed, ‘‘[t]he

execution of a person who can show [that] he is innocent comes perilously close to simple murder.’’ (Internal quotation marks omitted.) State v. Cobb, supra, 251

Conn. 549 (Norcott, J., dissenting), quoting Herrera v.

Collins, supra, 446 (Blackmun, J., dissenting).

Unfortunately, numerous studies have found that

‘‘[e]rrors can and have been made repeatedly in the trial

of death penalty cases because of poor representation,

racial prejudice, prosecutorial misconduct, or simply

the presentation of erroneous evidence.’’ State v. Ross,

supra, 230 Conn. 315 (Berdon, J., dissenting in part).

A study of all death sentences in the United States in

the two decades following Furman found ‘‘extremely

high error rates’’; A. Gelman et al., ‘‘A Broken System:

The Persistent Patterns of Reversals of Death Sentences

in the United States,’’ 1 J. Empirical Legal Stud. 209,

261 (2004); with at least two thirds of capital sentences

eventually overturned on appeal. Id., 209; see also D.

Benson et al., ‘‘Executing the Innocent,’’ 3 Ala. C.R. &

C.L. L. Rev., no. 2, 2013, 9 (placing number of exonerations since reinstatement of death penalty at 140); R.

Tabak, ‘‘Finality Without Fairness: Why We Are Moving
Towards Moratoria on Executions, and the Potential

Abolition of Capital Punishment,’’ 33 Conn. L. Rev. 733,

748 (2001) (capital punishment system is ‘‘collapsing

under the weight of its own mistakes’’ [internal quotation marks omitted]). Statistical analyses have demonstrated to a near certainty that innocent Americans have

been and will continue to be executed in the postFurman era. See Glossip v. Gross, supra, 135 S. Ct.

2756 (Breyer, J., dissenting) (citing ‘‘convincing evidence’’ that, ‘‘in the past three decades, innocent people

have been executed’’); id., 2758 (Breyer, J., dissenting)

(citing evidence that ‘‘about [4 percent] of those sentenced to death are actually innocent’’); see also H.

Bedau & M. Radelet, ‘‘Miscarriages of Justice in Potentially CapitalCases,’’ 40 Stan. L. Rev. 21, 36 (1987)(citing

high rate of error in death penalty cases); D. Benson

et al., supra, 3 Ala. C.R. & C.L. L. Rev. 3 (‘‘We know . . .

that [the] intolerable event [of executing an innocent

person] takes place with some regularity in . . . death

penalty jurisdictions’’ [emphasis omitted]); U. Bentele,

‘‘Does the Death Penalty, by Risking Execution of the

Innocent, Violate Substantive Due Process?,’’ 40 Hous.

L. Rev. 1359, 1365 (2004) (‘‘[s]ince capital punishment

was given a renewed seal of approval in 1976, more

than [100] people have been sentenced to death [and

have been] subsequently found to be innocent’’ [footnote omitted]).

From a retributive standpoint, the problem is simple:

‘‘[m]istakes cannot be corrected after a person is executed.’’ State v. Ross, supra, 230 Conn. 314 (Berdon, J.,

dissenting in part). ‘‘We know that persons have been

condemned who were innocent; we know that future

scientific evidence can overturn the seemingly most

safe of convictions; and we know that we could easily

avoid such problems in adopting an alternative sanction, such as life imprisonment. Therefore, we knowingly, foreseeably, and avoidably sentence innocent

people to death . . . if we continue to endorse capital

punishment . . . .’’ T. Brooks, ‘‘Retribution and Capital

Punishment,’’ in Retributivism: Essays on Theory and

Practice (M. White ed., 2011) p. 238. Of course, all punishment is tainted by the possibility of error. Capital

punishment, however, ‘‘is especially problematic. When

we impose capital punishment on a convicted murderer,

there cannot be any room for error since the murderer

can never be brought back to life afterward if error

is discovered at some later date. If there remains a

substantial risk of error, as demonstrated by advances

in scientific testing in cases [in which] a person has

been sentenced beyond a reasonable doubt in a fair

trial, then we have good reason on retributivist grounds

to reject capital punishment in favor of an alternative

sanction.’’ Id., p. 237.

It was this risk of error that led Illinois Governor

George Ryan in 2003 to commute the death sentences of

that state’s 167 death row inmates to life imprisonment
without the possibility of parole. See J. Wilgoren, ‘‘Citing Issue of Fairness, Governor Clears Out Death Row

in Illinois,’’ N.Y. Times, January 12, 2003, p. 1. Governor

Ryan concluded that ‘‘[o]ur capital system is haunted

by the demon of error . . . .’’ (Internal quotation marks

omitted.) Id. The possibility of executing an innocent

person was also a principal concern voiced by both of

Connecticut’s elected branches in their support of P.A.

12-5.100 We do not suggest that anyone currently on

death row in Connecticut has a potentially viable claim

of actual innocence.101 In concluding that the death penalty is unconstitutional, however, we recognize that the

legal and moral legitimacy of any future executions

would be undermined by the ever present risk that an

innocent person will be wrongly executed.102

4

Caprice and Bias

The fourth reason that our state’s capital punishment

system fails to achieve its retributive goals is that the

selection of which offenders live and which offenders

die appears to be inescapably tainted by caprice and

bias. ‘‘[T]he heart of the retribution rationale is that a

criminal sentence must be directly related to the personal culpability of the criminal offender.’’ (Internal

quotation marks omitted.) Graham v. Florida, supra,

560 U.S. 71. In other words, the death penalty must be

equally available for similarly culpable offenders if a

capital sentencing scheme is to fulfill a valid retributive

purpose. To the extent that the ultimate punishment is

imposed on an offender on the basis of impermissible

considerations such as his, or his victim’s, race, ethnicity, or socio-economic status,ratherthan the severity

of his crime, his execution does not restore but, rather,

tarnishes the moral order. See generally O. Londono,

‘‘A Retributive Critique of Racial Bias and Arbitrariness

in Capital Punishment,’’ 44 J. Soc. Phil. 95 (2013); D.

McDermott, ‘‘A Retributivist Argument against Capital

Punishment,’’ 32 J. Soc. Phil. 317 (2001); S. Nathanson,

‘‘Does It Matter if the Death Penalty Is Arbitrarily

Administered?,’’ 14 Phil. & Pub. Aff. 149 (1985).

The problem is that, as we previously noted, there is

an inherent conflict in the requirements that the eighth

amendment’s ban on cruel and unusual punishment,

as interpreted by the United States Supreme Court,

imposes on any capital sentencing scheme. On the one

hand, Furman and its progeny stand forthe proposition

that any capital punishment statute, to avoid arbitrariness and pass constitutional muster, must cabin the

discretion of prosecutors, judges, and juries by providing clear guidelines as to what specific types of crimes

are eligible for the punishment of death. In the context

of capital murder—the sole remaining crime against an

individual for which capital punishment may be

imposed under the eighth amendment—that requirement has been interpreted to mean that statutes must
identify specific aggravating factors that the fact finder

must find before imposing the death penalty. See Tuilaepa v. California, supra, 512 U.S. 971–73. The ultimate

punishment must be reserved for the very worst offenders, and may not be ‘‘wantonly [or] . . . freakishly

imposed.’’ Furman v. Georgia, supra, 408 U.S. 310

(Stewart, J., concurring). On the other hand, since it

decided Woodson v. North Carolina, supra, 428 U.S.

280, and Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954,

57 L. Ed. 2d 973 (1978), the United States Supreme Court

has not wavered in its commitment to the principle

of individualized sentencing: juries must be afforded

unlimited discretion to consider any mitigating factor—

any unique characteristic of the crime, the criminal,

or the victim—before imposing the death penalty. See

Tuilaepa v. California, supra, 972–73. In other words,

the discretion of the jury to accord the capital defendant

mercy may not be confined or restricted in any way.103

The question is whether this individualized sentencing requirement inevitably allows in through the back

door the same sorts of caprice and freakishness that the

court sought to exclude in Furman, or, worse, whether

individualized sentencing necessarily opens the door

to racial and ethnic discrimination in capital sentencing.104 In other words, is it ever possible to eliminate

arbitrary and discriminatory application of capital punishment through a more precise and restrictive definition of capital crimes if prosecutors always remain free

not to seek the death penalty for a particular defendant,

and juries not to impose it, for any reason whatsoever?

We do not believe that it is.105

We begin by observing that the United States

Supreme Court itself has expressed serious doubts as

to whether its own commandments can be reconciled.

In Tuilaepa, the court recognized that ‘‘[t]he objectives

of these two inquiries can be in some tension . . . .’’

Id., 973. Fourteen years later, in Kennedy, the court

again acknowledged that ‘‘[t]he tension between general rules and case-specific circumstances has produced results not altogether satisfactory.’’ Kennedy v.

Louisiana, supra, 554 U.S. 436. ‘‘Our response to this

case law,’’ the court frankly conceded, ‘‘is still in search

of a unifying principle . . . .’’ Id., 437; see also Turner

v. Murray, 476 U.S. 28, 35, 106 S. Ct. 1683, 90 L. Ed. 2d

27 (1986) (plurality opinion) (‘‘[b]ecause of the range

of discretion entrusted to a jury in a capital sentencing

hearing, there is a unique opportunity for racial prejudice to operate’’).

In fact, in the four decades since the United States

Supreme Court struck down the death penalty (as then

applied) in Furman and then resuscitated it four years

later in Gregg, at least one-half dozen members of that

court—jurists of all jurisprudential stripes—have concluded that the demands of Furman, on the one hand,

and of Woodson and Lockett, on the other, are, ulti-
mately, irreconcilable. In Furman itself, of the five concurring justices, two (Justices Brennan and Marshall)

took the position that capital punishment is so inherently arbitrary as to constitute cruel and unusual punishment under all circumstances, and a third (Justice

Douglas) opined that any nonmandatory capital sentencing scheme would be inherently subject to discrimination and hence unconstitutional. See Furman v.

Georgia, supra, 408 U.S. 255 (Douglas, J., concurring)

(‘‘we know that the discretion of judges and juries in

imposing the death penalty enables the penalty to be

selectively applied, feeding prejudices against the

accused if he is poor and despised, and lacking political

clout, or if he is a member of a suspect or unpopular

minority, and saving those who by social position may

be in a more protected position’’); id., 294 (Brennan,

J., concurring) (‘‘[n]o one has yet suggested a rational

basis that could differentiate . . . the few who die

from the many who go to prison’’); id., 365 (Marshall,

J., concurring)(‘‘committing to the untrammeled discretion of the jury the power to pronounce life or death

in capital cases is . . . an open invitation to discrimination’’ [internal quotation marks omitted]).

Justice Marshall elaborated on this ‘‘fundamental

defect’’ in the court’s eighth amendment jurisprudence

in Godfrey v. Georgia, supra, 446 U.S. 420: ‘‘[A]ppellate

courts are incapable of guaranteeing the kind of objectivity and evenhandedness that the [c]ourt contemplated and hoped for in Gregg. The disgraceful

distorting effects of racial discrimination and poverty

continue to be painfully visible in the imposition of

death sentences. . . . The task of eliminating arbitrariness in the infliction of capital punishment is proving to

be one which our criminal justice system—and perhaps

any criminal justice system—is unable to perform. . . .

‘‘The . . . inability to administer . . . capital punishment . . . in an evenhanded fashion is . . . symptomatic of a deeper problem that is proving to be

genuinely intractable. . . .

‘‘[T]he task of selecting in some objective way those

persons who should be condemned to die is one that

remains beyond the capacities of the criminal justice

system. For this reason, I remain hopeful that even if

the [c]ourt is unwilling to accept the view that the death

penalty is so barbaric that it is in all circumstances

cruel and unusual punishment forbidden by the [e]ighth

and [f]ourteenth [a]mendments, it may eventually conclude that the effort to eliminate arbitrariness in the

infliction of that ultimate sanction is so plainly doomed

to failure that it—and the death penalty—must be abandoned altogether.’’ (Citations omitted; footnotes omitted.) Id., 439–42 (Marshall, J., concurring in the judgment). Both Justices Stevens and Blackmun have

reached similar conclusions. See Baze v. Rees, supra,

553 U.S. 85 (Stevens, J., concurring in the judgment)
(‘‘[a] . . . significant concern is the risk of discriminatory application ofthe death penalty’’); Tuilaepa v.California, supra, 512 U.S. 991–92 (Blackmun, J.,

dissenting) (‘‘One of the greatest evils of leaving jurors

with largely unguided discretion is the risk that this

discretion will be exercised on the basis of constitutionally impermissible considerations—primary among

them, race. . . . For far too many jurors, the most

important ‘circumstances of the crime’ are the race of

the victim or the defendant.’’ [Citations omitted.]).

Justice Scalia, while drawing a different legal conclusion than his more liberal brethren, has been no less

persuaded by the premise that the United States

Supreme Court’s Furman and Woodson/Lockett lines

of jurisprudence are fundamentally incompatible: ‘‘Our

cases proudly announce that the [c]onstitution effectively prohibits the [s]tates from excluding from the

sentencing decision any aspect of a defendant’s character or record, or any circumstance surrounding the

crime: that the defendant had a poor and deprived childhood, or that he had a rich and spoiled childhood; that

he had a great love for the victim’s race, or that he had

a pathological hatred for the victim’s race; that he has

limited mental capacity, or that he has a brilliant mind

which can make a great contribution to society; that

he was kind to his mother, or that he despised his

mother.’’ (Emphasis in original.) Walton v. Arizona, 497

U.S. 639, 663, 110 S. Ct. 3047, 111 L. Ed. 2d 511 (1990)

(Scalia, J., concurring in part and concurring in the

judgment), overruled in part on other grounds by Ring

v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d

556 (2002). ‘‘To acknowledge that there perhaps is an

inherent tension between this line of cases and the line

stemming from Furman,’’ Justice Scalia continued, ‘‘is

rather like saying that there was perhaps an inherent

tension between the [a]llies and the Axis Powers in

World War II. And to refer to the two lines as pursuing

twin objectives . . . is rather like referring to the twin

objectives of good and evil. They cannot be reconciled.

. . . The latter requirement quite obviously destroys

whatever rationality and predictability the former

requirement was designed to achieve.’’ (Citations omitted; internal quotation marks omitted.) Walton v. Arizona, supra, 664–65 (Scalia, J., concurring in part and

concurring in the judgment). ‘‘In short, the practice

which in Furman had been described as the discretion

to sentence to death and pronounced constitutionally

prohibited, was in Woodson and Lockett renamed the

discretion not to sentence to death and pronounced

constitutionally required.’’ Id., 662 (Scalia, J., concurring in part and concurring in the judgment).

Since we decided Ross in 1994, four members of this

court likewise have concluded that the degree of fact

finder discretion required by the federal constitution

means that the death penalty in Connecticut has been

and inevitably will continue to be imposed with a degree
of discrimination that is impermissible under the state

constitution. See State v. Santiago, supra, 305 Conn.

324 (Harper, J., concurring in part and dissenting in

part) (‘‘invidious discrimination . . . pave[s] a

smoother path to execution for a subset of the population’’); State v. Peeler, 271 Conn. 338, 466, 857 A.2d 808

(2004) (Katz, J., dissenting) (‘‘[w]e have not eliminated

the biases and prejudices that infect society generally;

therefore, it should not be surprising that such problems

continue to influence the determination of who is sentenced to death, even within the narrower pool of deatheligible defendants selected according to so-called

objective standards’’), cert. denied, 546 U.S. 845, 126 S.

Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Breton, supra,

264 Conn. 447 (Norcott, J., dissenting) (‘‘[t]he passage

of a few [years’] time has done nothing to blunt the

pervasive and insidious influence of race and poverty

in the administration of the death penalty’’); State v.

Webb, supra, 238 Conn. 557 (Berdon, J., dissenting)

(‘‘the effort to eliminate arbitrariness in the infliction

of that ultimate sanction is so plainly doomed to failure

that it—and the death penalty—must be abandoned

altogether’’ [internal quotation marks omitted]); State v.

Webb, supra, 570 (Norcott, J., dissenting)(‘‘the continual

legislative and judicial efforts to bring about a real sense

of fairness in the imposition of the death penalty are

delusional endeavors’’); see also State v. Breton, 212

Conn. 258, 281, 562 A.2d 1060 (1989) (Glass, J., dissenting) (expressing skepticism that state constitution

‘‘tolerates a certain amount of capriciousness in the

application of the death penalty’’). As Justice Norcott

first put it nearly twenty years ago, there can be no

death penalty scheme ‘‘adequate to cure the influence

of arbitrariness and race in the overall equation that

results in the imposition of death.’’ State v. Webb, supra,

570 (Norcott, J., dissenting).

Similar concerns also have been expressed by legal

scholars. See, e.g., D. Garland, supra, p. 12 (‘‘capital

punishment in the United States subsists—inescapably—in a miasma of race’’ [internal quotation marks

omitted]); S. Bright, ‘‘Discrimination, Death and Denial:

The Tolerance of Racial Discrimination in Infliction of

the Death Penalty,’’ 35 Santa Clara L. Rev. 433, 434

(1995) (‘‘race and poverty continue to determine who

dies’’); G. Dix, ‘‘Appellate Review of the Decision to

Impose Death,’’ 68 Geo. L.J. 97, 161 (1979) (concluding

that Gregg and its companion cases ‘‘mandate pursuit

of an impossible goal’’). In 1973, former Yale Law School

Dean Louis H. Pollak, testifying regarding the legislature’s efforts to craft a new post-Furman capital murder

statute, opined that ‘‘[t]he conclusion that this [b]ill is

unconstitutional is not a criticism of the drafters, it

is rather a recognition that they were undertaking a

constitutional impossibility. Maintaining the idea of a

death sentence while [e]nsuring that it would in practice

almost never be imposed, the result necessarily is not
merely [that] death sentence[s] would be rarities but

that those rarities would occur wantonly and freakishly

and hence, unconstitutionally.’’ (Internal quotation

marks omitted.) 16 S. Proc., Pt. 4, 1973 Sess., p. 1892.

Afterthoroughly reviewing the operation ofConnecticut’s capital sentencing scheme over the past four

decades, we are persuaded that these critiques are well

founded and that the opportunity for the exercise of

unfettered discretion at key decision points in the process has meant that the ultimate punishment has not

been reserved for the worst of the worst offenders.

There is no doubtthat our death row has counted among

its residents the perpetrators of some of the most heinous crimes in Connecticut history. It is equally clear,

however, that the process of selecting offenders for

execution has been both under inclusive and over inclusive. Many who commit truly horrific crimes are spared,

whereas certain defendants whose crimes are, by all

objective measures, less brutal are condemned to death.

The defendant in the present case is, perhaps, the clearest example. He shot the sole victim, an adult white

male, in his sleep, killing him instantly. The defendant

had no prior criminal convictions. And yet, of the seventeen offenders convicted of committing capital eligible

murders for hire in the state since 1973, Eduardo Santiago was the only one sentenced to death.106 To the

extent that the population of death row has been chosen

on grounds other than the atrocity of the offenders’

crimes, this would undermine all confidence that capital

punishment, as applied, is morally proportionate and

serves a legitimate retributive function in Connecticut.107

C

Vengeance

Finally, it bears emphasizing that, to the extent that

the statutory history of P.A. 12-5 reveals anything with

respect to the legislature’s purpose in prospectively

abolishing the death penalty while retaining it for the

handful of individuals now on death row, it is that the

primary rationale for this dichotomy was neither deterrence nor retribution but, rather, vengeance—the Hyde

to retribution’s Jekyll. Vengeance, unlike retribution, is

personal in nature; it is motivated by emotion, and may

even relish in the suffering of the offender. See R. Nozick, Philosophical Explanations (1981) p. 367. Accordingly, vengeance traditionally has not been considered

a constitutionally permissible justification for criminal

sanctions. See Ford v. Wainwright, 477 U.S. 399, 410,

106 S. Ct. 2595, 91 L. Ed. 2d 335 (1986) (finding no

retributive value in ‘‘the barbarity of exacting mindless

vengeance’’). On the contrary, ‘‘[i]t is of vital importance

to the defendant and to the community that any decision

to impose the death sentence be, and appear to be,

based on reason rather than caprice or emotion.’’ Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L.
Ed. 2d 393 (1977) (plurality opinion).

There are, no doubt, cases in which the line between

a principled commitment to retributive justice and an

impermissible acquiescence to private vengeance is a

gray one. There is every indication, however, that P.A.

12-5 was crafted primarily to maintain the possibility of

executing two particular offenders—the much reviled

perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire’s Petit

family. K. Barry, supra, 35 Cardozo L. Rev. 1837–38. In

suggesting that the legislators who voted in favor of a

solely prospective repeal of the death penalty were

equally committed to executing the defendant in the

present case and other inmates on Connecticut’s death

row, Chief Justice Rogers ignores the overwhelming

evidence that the perpetrators in the Cheshire case,

Joshua Komisarjevsky and Steven Hayes, were the principal targets of the decision to retain the death penalty

retroactively.108 There is certainly no question what

motivated one state senator, who opined that ‘‘ ‘[t]hey

should bypass the trial [in the Cheshire case] and take

that second animal and hang him by his penis from a

tree out in the middle of Main Street . . . .’ ’’

109

It has been suggested that it would be a morally

permissible ‘‘sacrifice’’ for Connecticut to allow those

men currently on death row to be executed so as to

hasten the abolition of capital punishment in otherjurisdictions. K. Barry, ‘‘From Wolves, Lambs (Part I): The

Eighth Amendment Case for Gradual Abolition of the

Death Penalty,’’ 66 Fla. L. Rev. 313, 325 (2014). Such

judgments are not for us to make. We can say, however,

that it would not be constitutionally permissible to execute the defendant in the present case, and others similarly situated, without any legitimate penological purpose, merely to achieve the politically popular end of

killing two especially notorious inmates.

D

Conclusion

For all of these reasons, the death penalty no longer

serves any legitimate penological goal in our state. As

Judge Kozinski concludes, ‘‘we have little more than

an illusion of a death penalty in this country. To be

sure, we have capital trials; we have convictions and

death sentences imposed; we have endless and massively costly reviews by the state and federal courts;

and we do have a small number of people executed

each year. But the number of executions compared to

the number of people who have been sentenced to

death is minuscule, and the gap is widening every year.

Whatever purposes the death penalty is said to serve—

deterrence, retribution, assuaging the pain suffered by

victims’ families—these purposes are not served by the

system as it now operates.’’ (Footnotes omitted.) A.

Kozinski & S. Gallagher, supra, 46 Case W. Res. L. Rev.
3–4. We therefore conclude that, following the enactment of P.A. 12-5, capital punishment also violates article first, §§ 8 and 9, of the Connecticut constitution

because it no longer serves any legitimate penological purpose.110

IV

RESPONSE TO THE DISSENTING JUSTICES

Lastly, we take this opportunity to address briefly

certain general arguments that the dissenting justices

have raised. Although we recognize and respect that

their opinions are grounded in a principled and commendable commitment to judicial restraint, we find

them to be unpersuasive and, in a few instances, somewhat troubling.

A

Whether the Questions Decided Are

Properly before the Court

We first address Chief Justice Rogers’ argument that

some of the issues, evidence, and arguments considered

in this opinion are not properly before this court. Specifically, she contends that (1) some of the arguments that

we consider in this opinion never were raised by the

defendant,(2)the parties were not afforded an adequate

opportunity to brief the issues addressed in this opinion,

and (3) the majority relies on research and statistics

that are not properly the subject of judicial notice. We

consider each argument in turn.

1

Arguments Allegedly Not Raised by the Defendant

Chief Justice Rogers first contends that we improperly have considered certain arguments that the defendant himself has not raised. For example, she contends

that the defendant did not adequately preserve the arguments that (1) the death penalty is rarely imposed in

Connecticut, (2) the death penalty has slowly fallen out

of use in Connecticut, and (3) other states recently have

abolished the death penalty, while respected professional organizations, such as the American Law Institute, no longer support its use. We are not persuaded

by this contention.

We begin by noting that the defendant indisputably

preserved the claim that, following the enactment of

P.A. 12-5,the death penalty now offends the state constitution in that it (1) fails to comport with contemporary

standards of decency, and (2) is now devoid of any

legitimate penological value.111 We recognized as much

in our initial decision in this case; see State v. Santiago,

supra, 305 Conn. 307–308 n.167; and, on reconsideration, the defendant dedicates pages of discussion to

this claim in his supplemental briefs. Indeed, his argument on reconsideration begins with the statement that

‘‘[P.A. 12-5] represents the considered judgment of our
legislature and governor that the death penalty is no

longer consistent with standards of decency in Connecticut and does not serve any valid penological objective.’’

That is precisely the issue that we have considered in

parts II and III of this opinion.

Chief Justice Rogers’ objection, then, is merely that

the defendant did not brief the issue in sufficient depth,

and, specifically, that he did not expressly address certain facts and factors—the accuracy of which is not

reasonably in dispute—on which we rely in this opinion.

Her view appears to be that, even though a significant

change in the legal landscape, such as the prospective

repeal of the death penalty, may warrant a full review

of whether that punishment remains consistent with

contemporary standards of decency, and even though

that analysis necessarily encompasses the consideration of various factors and historical developments

that this court and other courts have considered in past

cases involving challenges to the death penalty on other

grounds, we may take those factors into consideration

in the present case only if the defendant fully briefs

each of them anew. This makes little sense.

In the present case, the defendant, in his initial

appeal, submitted an opening brief of nearly 300 pages,

in which he raised more than twenty distinct legal

claims. He also submitted a 122 page reply brief, as

well as more than 2000 pages of appendices. Upon our

grant of reconsideration, he submitted approximately

200 more pages of briefing and appendices, addressing

new legal claims. The state, of course, responded with

many hundreds of pages of its own briefing and

appendices.

Rather than exhaustively brief every aspect of the

question of whether capital punishment now offends

the state constitution, the defendant chose instead to

focus on the impact of the enactment of P.A. 12-5 on

that question, and to incorporate by reference the other

factors that this court has considered at length in previous capital appeals. The state, in rejecting the defendant’s constitutional claim, likewise relied primarily on

references to our prior cases. We can only assume that

this choice represented a calculated decision, by both

parties, that, with their briefs already taking up more

than a ream of paper, resources—both natural and judicial—would be better addressed to the novel issues

presented by the defendant’s case, and that we had

more than sufficient resources at our disposal to allow

us to fully review the present constitutionality of capital

punishment in a thorough and comprehensive manner.

This decision was perfectly reasonable.

The approach that Chief Justice Rogers advocates

would force counsel representing defendants in capital

appeals to make a Hobson’s choice. When, as in the

present case, this court previously has rejected a constitutional claim, counsel either would have to (1) forgo
that and related claims for all subsequent capital defendants, or (2) fully brief each aspect of the issue in each

capital appeal, repeatedly addressing every potential

argument, legal theory, and constitutional fact that this

court might find relevant or persuasive, on the mere

possibility that we might agree that intervening developments warrant a fresh consideration of the issue or

present novel grounds for finding a constitutional violation. If counsel followed the first path, we would be

precluded from ever revisiting important constitutional

questions, even those where, as in the case of cruel and

unusual punishment, the legal standard itself envisions

that punishments once permissible may overtime come

to offend the constitution. If counsel followed the second path, capital appeals, which are already deplorably

prolonged, expensive, and resource intensive, would

grow even more so. Forcing such a choice would be

both unwise and unjust.

Rather, we believe that appellate counsel in the present appeal made a prudent and appropriate decision

to raise, and thereby preserve, the constitutional claim;

to submit thoughtful and informative supplemental

briefing to address those novel questions and key developments for which we concluded that additional briefing would be helpful; and, with respect to paths already

traveled, simply to direct our attention to prior cases

in which potentially relevant factors have been more

fully vetted.112 Under the particular circumstances of

this capital appeal, nothing more was required.

For the same reasons, it would be inappropriate to

arbitrarily restrict our analysis of the constitutionality

of capital punishment to those facts and circumstances

that have been identified expressly by the parties. In

fact, although we generally do not consider claims or

issues that the parties themselves have not raised; see,

e.g., Blumberg Associates Worldwide, Inc. v. Brown &

Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d

840 (2014); in cases too numerous to mention, we have

considered arguments or factors pertaining to those

claims or issues that were not expressly identified by

the parties. See id., 148 (‘‘when [a case] is properly

before the court, the court is notlimited to the particular

legal theories advanced by the parties, butratherretains

the independent power to identify and apply the proper

construction of governing law’’ [internal quotation

marks omitted]); cf. Rowe v. Superior Court, 289 Conn.

649, 661–63, 960 A.2d 256 (2008) (concluding that defendant had preserved issue for appeal because theories

related to single legal claim even though defendant had

not raised each theory at trial); Vine v. Zoning Board

of Appeals, 281 Conn. 553, 569, 916 A.2d 5 (2007)

(addressing alternative ground for affirmance that was

not raised at trial because, inter alia, issue was ‘‘closely

intertwined’’ with certified question); Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 322–23,

714 A.2d 1230 (1998) (considering argument that defen-
dants raised because court already was obliged to perform full and thorough review of trial court’s decision

on contested issue of insurance coverage and defendants’ argument did not raise entirely new issue). This

is especially so when plenary consideration is necessary

to thoroughly address and accurately decide constitutional claims and other matters of substantial public

importance, ourresolution of which will surely redound

to the benefit or detriment of parties not presently

before the court.

Furthermore, the critiques that Chief Justice Rogers

levels are particularly ill suited to the present case. As

Chief Justice Rogers herself acknowledges, it is well

established that, before ruling on the constitutionality

of a challenged mode of punishment, a court must conduct its own independent review to determine whether

that punishment remains suitable to the crime and continues to serve any legitimate penological objective.113

See, e.g., State v. Rizzo, supra, 303 Conn. 197; see also

Graham v. Florida, supra, 560 U.S. 80; Atkins v. Virginia, supra, 536 U.S. 312. It would be difficult, if not

impossible, for us to fulfill our constitutional duty in

this regard if we were barred from considering basic

factual questions such as how frequently the punishment is imposed or whether its ongoing use retains the

approval of our sister states, legal scholars, and other

sources of persuasive authority. We routinely look to

such sources when deciding legal questions of first

impression—often with regrettably sparse assistance

from the parties’ briefing—and we see no reason why

the scope of our review should be more fettered when

deciding significant constitutional questions. This is

especially true in capital cases, in which courts routinely, and quite properly, provide accommodations not

always afforded in other, less compelling circumstances. See State v. Cobb, 234 Conn. 735, 763, 663

A.2d 948 (1995) (‘‘the nature of the defendant’s claim

of systemic racial bias, and the seriousness and finality

of the death penalty, counsel against raising any undue

procedural barriers to review of such a claim’’).

2

Opportunity for Briefing

Chief Justice Rogers next contends that it was

improper for the court to consider the issues that we

have decided without first affording the parties a full

opportunity to brief them. We disagree. The truth is

that the parties did have the opportunity to brief the

issue of whether the death penalty now violates the

state constitution. As we have explained, each party

made what we presume to be a calculated and reasonable decision to focus its argument on the legal consequences of the enactment of P.A. 12-5 and the novel

questions presented thereby, and, in essence, to incorporate by reference our prior decisions, both majority

and dissenting opinions, that address, in the context of
either per se or as applied challenges, other constitutionally relevant factors. The purpose of our preservation requirements—‘‘to ensure fair notice of a party’s

claims to both the trial court and opposing parties’’—

was thereby satisfied. White v. Mazda Motor of

America, Inc., 313 Conn. 610, 620, 99 A.3d 1079 (2014).

Nor do we believe that, in so doing, the parties

deprived this court of the opportunity to perform its

constitutionally mandated independent review of the

death penalty in a fully informed manner. These are

matters about which courts, historians, legal scholars,

and social scientists have written extensively, both in

Connecticut and nationally. The relevant legislative history and constitutional facts are properly subject to

judicial notice. The legal arguments are well trodden

and not unfamiliar to us. After a decade of appeals in

this case, and several previous rounds of supplemental

briefing, our priority now must be to provide the parties,

the victims’ families, and the people of Connecticut

with some measure of clarity and resolution.

3

Extra-Record Materials

Chief Justice Rogers also maintains that we have

relied on extra-record materials that, she argues, are

not properly the subject of judicial notice. Again, we

disagree.

Although finding the adjudicative facts that concern

the parties and events of a particular case is largely the

province of the jury—or the trial court in cases tried

to the court—appellate courts tasked with determining

the content of law and policy may take notice of constitutional and legislative facts, such as historical sources

and scientific and sociological studies. See footnote 44

of this opinion. It is well established that ‘‘[t]he intellectual legitimacy of [judicial decisions in which the court

takes notice of legislative facts to ascertain constitutional norms] turns [on] the actual truth-content of the

legislative facts taken into account by the judges who

propound the decision. While not necessarily indisputably true, it would appear that these legislative facts

must at least appear to be more likely than not true if

the opinion is going to have the requisite intellectual

legitimacy [on] which the authority of judge-made rules

is ultimately founded.’’ (Emphasis added.) 2 K. Broun,

McCormick on Evidence (7th Ed. 2013) § 331, pp. 612–

13. Although Chief Justice Rogers accuses the majority

of relying on ‘‘cherry picked,’’ extra-record materials;

footnote 30 of Chief Justice Rogers’ dissenting opinion;

she never specifically explains why she thinks the

sources on which the majority relies, taken together,

fail to satisfy this ‘‘more likely than not true’’ standard.

2 K. Broun, supra, § 331, p. 613. She is unable to point

to any methodological flaws in the social science and

otherresearch studies cited in this opinion, to challenge
the authors’ qualifications, or to direct our attention to

any conflicting research of equal quality and breadth.

She fails to cite to any sources that undermine the

meticulous historicalresearch provided by Collier, Connecticut’s state historian, or Holdsworth’s voluminous

review of early Connecticut legal history, or Professor

Goodheart’s award winning treatise. Nor is there any

suggestion that the death penalty statistics that we have

presented are inaccurate or misleading. In reality, the

sociological research and historical facts on which we

rely far exceed the governing more likely than not true

standard, and they are not subject to reasonable dispute.

It is also noteworthy that the authorities on which

Chief Justice Rogers relies forthe proposition that legislative fact-finding by appellate courts is improper

include a law review article that begins by lamenting

that ‘‘[m]any of the [United States] Supreme Court’s

most significant decisions turn on questions of [legislative] fact.’’ A. Larsen, ‘‘Confronting Supreme Court Fact

Finding,’’ 98 Va. L. Rev. 1255, 1255 (2012). To be clear,

then, Chief Justice Rogers’ complaint is not that the

majority uses social science research in a manner that

appellate courts ordinarily do not but merely that she

and a handful of law professors personally disapprove

of this common practice.

The sources on which Chief Justice Rogers relies

contend that legislative fact-finding by appellate tribunals is subject to bias and error, and that it deprives

the parties of the opportunity to participate fully in the

adversarial truth seeking process. There is no doubt

that appellate review of legislative facts, as with virtually every other form of truth seeking in which human

beings engage, can be an imperfect process. Ultimately,

however, the practice has been approved and adopted

because there simply is no better alternative. Appellate

courts frequently are called on to make quasi-legislative

policy judgments, whether in crafting state common

law, construing open-ended constitutional and statutory mandates, or simply determining whether a particular interpretation of a statute would ‘‘lead to absurd

consequences or bizarre results.’’ (Internal quotation

marks omitted.) Raftopol v. Ramey, 299 Conn. 681, 703,

12 A.3d 783 (2011). These policy judgments often hinge

on facts about the world in which we live, facts the

study of which is the domain of natural and social

scientists. See 2 K. Broun, supra, § 331, pp. 610–15. If

we were to follow the counsel of Chief Justice Rogers,

and submit every such question to the crucible of

adversarial fact-finding in a trial court, the wheels of

justice would quickly grind to a halt.114

Ultimately, and most importantly, Chief Justice Rogers, having criticized our consideration of extra-record

materials, fails to identify so much as a single statistic

or historical fact cited in this opinion that she believes
is subject to reasonable dispute. Accordingly, having

carefully considered Chief Justice Rogers’ arguments,

we continue to have every confidence that the constitutional and legislative facts on which we rely are a proper

subject of judicial notice, are more likely than not true,

and paint an accurate picture of the historical and contemporary record of capital punishment in Connecticut

and the United States.

B

Connecticut’s Historical Acceptance

of Capital Punishment

We next address the argument of the dissenting justices that capital punishment cannot now offend the

constitution of Connecticut because (1) there are references to capital punishment in the text of both the 1818

and 1965 state constitutions, (2) the framers of the 1818

constitution believed that the death penalty was an

appropriate punishment for the most serious crimes,

and (3) in 1965, the constitutional convention declined

to adopt a constitutional provision that would have

prohibited capital punishment. The premises of the dissents’ argument are undoubtedly true. The conclusion

is not.

It is certainly the case that, although Connecticut has

steadily reduced the number of crimes subject to capital

punishment over the past four centuries, the death penalty has continued during that period to be authorized

by statute, and it is referenced in our state constitution.

There also is little doubt that the framers of the state

constitution considered the death penalty to be an

acceptable form of punishment, under certain circumstances and if properly applied. Although the dissenting

justices reiterate these facts throughout their opinions,

they fail to explain exactly how our state’s historical

acceptance of the death penalty answers the primary

question presented by this appeal, namely, whether,

following the enactment of P.A. 12-5, capital punishment now constitutes excessive and disproportionate

punishment when viewed through the lens of our state’s

contemporary standards of decency.

As we have explained, the constitutionally relevant

inquiry is whether the death penalty, as currently

administered in Connecticut, and following the enactment of P.A. 12-5, offends our state’s evolving standards

of decency, and whether that punishment continues to

satisfy any legitimate penological objective. Although

the fact that the death penalty was considered acceptable 50 or 200 years ago might be relevant to a challenge

contending that capital punishment is inherently unconstitutional; see State v. Ross, supra, 230 Conn. 249–50;

it says little about whether capital punishment is constitutional today, in light of our legislature’s most recent

pronouncement on the issue, and given what we now

understand and what our elected officials have deter-
mined regarding capital punishment’s lack of deterrent

value, the potential for irredeemable error, a pattern of

persistently arbitrary and discriminatory application,

and our state’s inability to administer the death penalty

in a way that affords closure and solace to the families

of the victims.

As the Supreme Court of California has recognized,

incidental references to the death penalty in a state

constitution merely acknowledge that the penalty was

in use at the time of drafting; they do not forever

enshrine the death penalty’s constitutional status as

standards of decency continue to evolve: ‘‘It has been

suggested that we are . . . restrained from considering

whether capital punishment is proscribed by [the state

constitutional prohibition against cruel and unusual

punishment] since the death penalty is expressly or

impliedly recognized in several other provisions of the

California constitution. We perceive no possible conflict or repugnance between those provisions . . .

however, for none of the incidental references to the

death penalty purport to give its existence constitutional stature. They do no more than recognize its existence at the time of their adoption. Thus, the bail clause

of [the California constitution] restricts the right to bail

in capital cases . . . [and] the due process clause . . .

ensures that life will not be taken without due process

. . . . None of these provisions can be construed as

an affirmative exemption of capital punishment from

the compass of the cruel or unusual punishment clause

of [the California constitution].’’ (Footnote omitted.)

People v. Anderson, supra, 6 Cal. 3d 637–38. The United

States Supreme Court likewise has indicated that the

mere fact that the federal constitution makes reference

to capital crimes does not mean that contemporary

standards of decency may not evolve to the point that

the death penalty is no longer constitutionally permissible. See Gregg v. Georgia, supra, 428 U.S. 176–82 (opinion announcing judgment).

It may well be that, at bottom, the opposition of

the dissenting justices reflects their disapproval of the

evolving standards of decency test itself, a legal standard according to which a penalty that once passed

constitutional muster may, within a relatively brief span

of time, come to be deemed cruel and unusual. See,

e.g., Roper v. Simmons, supra, 543 U.S. 574–75, 578

(overruling Stanford v. Kentucky, 492 U.S. 361, 109 S.

Ct. 2969, 106 L. Ed. 2d 306 [1989], in prohibiting execution of individuals who were under eighteen years old

when they committed capital crime); Atkins v. Virginia, supra, 536 U.S. 321 (overruling Penry v.

Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d

256 [1989], in holding that execution of intellectually

disabled individuals is unconstitutional). But that is the

law of the land, both federally and in Connecticut. In

the case of the death penalty, the past several years

have witnessed dramatic changes in the legal landscape,
most significant of which was the decision by the

elected branches to abolish capital punishment for all

future offenses. Whatever role the death penalty may

once have played in our system of justice, it is clear

that our elected representatives, acting on behalf of the

people of this state, have repudiated the death penalty

as a sentencing option unworthy of continued support.115

C

Whether Deference to the Legislature Requires

That We Uphold P.A. 12-5

We next address the argument of the dissenting justices that, in holding that the death penalty now violates

the constitution of Connecticut, we have failed to pay

adequate deference to the will of the legislature. Each

of the dissenting justices argues, in essence, that a

reviewing court is bound to accept what the dissenting

justices maintain to be the judgment of the legislature—

that the death penalty comports with contemporary

standards of decency and serves legitimate penological

interests—and that to do otherwise is to usurp the

properrole of the legislature in orderto advance judges’

personal moral agendas.116 We already have rejected

this argument in State v. Ross, supra, 230 Conn. 248–49,

however, recognizing that it fundamentally misunderstands the well established function and role of judicial

review in the capital sentencing context.

We begin by reiterating that, although the legislature

voted to abolish capital punishment on a solely prospective basis, this by no means reflects or embodies a

determination thatthe death penalty remains consonant

with contemporary standards of decency and continues

to serve the goal of deterrence or retribution. The prospective nature of P.A. 12-5 instead appears to reflect

a belief on the part of some legislators that prior commitments the state has made to relatives of murder

victims justify the retention of capital punishment for

use in those cases. Capital punishment may, in other

words, simply be the lesser of two evils. Public Act 12-

5 also likely reflects a purely political decision to placate

the public’s desire to exact vengeance on certain notorious inmates, while passing along to this court the task of

finally decommissioning the state’s machinery of death.

There is abundant evidence in the legislative history to

support both of these interpretations. See parts II B

and III C of this opinion.

If we assume, for the sake of argument, however,

that a majority of the legislature has in fact determined

that capital punishment remains a morally acceptable

punishment that serves legitimate penological interests,

the question arises as to the proper scope of this court’s

review. It is well established that, under both the federal

and state constitutions, a criminal sentence challenged

as unconstitutionally excessive or disproportionate
must undergo two stages of judicial review. First, the

reviewing court determines whether the punishment

offends contemporary standards of decency, as evidenced by the various factors discussed in part II of

this opinion. Legislative enactments are one of those

considerations, but certainly not the only one. Second,

the court is required to exercise its own independent

judgment as to whether the punishment remains suitable to the crime and continues to serve any legitimate

penological purpose. As the United States Supreme

Court explained in Atkins v. Virginia, supra, 536 U.S.

304, although the current legislative judgment is of great

importance, ‘‘the [c]onstitution contemplates that in the

end our own judgment will be brought to bear on the

question of the acceptability of the death penalty under

the [e]ighth [a]mendment.’’ (Internal quotation marks

omitted.) Id., 312. A punishment, therefore, must satisfy

both levels of review to survive constitutional scrutiny.

Such scrutiny is especially critical in the present case

because, to our knowledge, we are the first court in

the modern era to comprehensively address the issue

of whether the death penalty can remain consonant

with society’s evolving standards of decency and serve

legitimate penological interests following a prospective

only repeal.

Although Chief Justice Rogers concedes, as she must,

that a challenged punishment is subject to this type of

close judicial scrutiny, she nevertheless maintains that,

because the constitutional authority to define crimes

and to fix the degree and method of punishment belongs

to the legislature, once the legislature has determined

that a particular punishment is appropriate and morally

acceptable, that determination is, essentially, dispositive. If that were the case, then judicial review would

be a weak tea indeed. When an appellate court is asked

to pass on the constitutionality of a mode of punishment, it is, almost invariably, after a defendant has been

found guilty of a crime and sentenced in accordance

with a duly enacted penal statute. If the fact that an

elected legislature had authorized and enacted the punishment in question were enough to insulate it from

judicial scrutiny, then the freedom from cruel and

unusual punishment would be a hollow one. See People

v. Anderson, supra, 6 Cal. 3d 640 (‘‘[w]ere it otherwise,

the [l]egislature would ever be the sole judge of the

permissible means and extent of punishment and . . .

the [c]onstitution would be superfluous’’ [citation omitted]). ‘‘We know that the [f]ramers did not envision so

narrow a role for this basic guaranty of human rights.’’

(Internal quotation marks omitted.) District Attorney

v. Watson, supra, 381 Mass. 662.

In dismissing the United States Supreme Court’s

repeated statements as to the importance of this independent judicial review process, Chief Justice Rogers

fails to explain why the high court would continue to

emphasize that ‘‘[t]he [c]onstitution contemplates that
in the end our own judgment will be brought to bear on

the question of the acceptability of the death penalty’’;

(internal quotation marks omitted) Hall v. Florida,

supra, 134 S. Ct. 1999; and that ‘‘[t]hat exercise of independent judgment is the [c]ourt’s judicial duty’’; id.,

2000; if that were not the law. Instead, Chief Justice

Rogers merely queries how truly independent judicial

review of an allegedly cruel and unusual punishment

can be reconciled with the observation by that court, in

a 1989 decision, that, ‘‘ ‘[i]n determining what standards

have ‘‘evolved’’ . . . [the court has] looked not to [its]

own conceptions of decency, but to those of modern

American society as a whole.’ ’’ Footnote 33 of Chief

Justice Rogers’ dissenting opinion, quoting Stanford v.

Kentucky, supra, 492 U.S. 369. Of course, we do not

disagree with the cited language from Stanford insofar

as independent judicialreview must stand on the court’s

principled consideration of the available evidence

regarding a punishment’s penological merits, rather

than the personal predilections of individual judges.

The short answer to Chief Justice Rogers’ question,

however, is that Stanford, which was an outlier at the

time it was decided, subsequently was overruled by

Roper v. Simmons, supra, 543 U.S. 574–75, 578, and is

no longer good law. See id., 574 (overruling holding of

Stanford that persons under eighteen years of age at

time of capital offense may be executed and explaining

that, ‘‘to the extent Stanford was based on a rejection

of the idea that [the] [c]ourt is required to bring its

independent judgment to bear on the proportionality

of the death penalty for a particular class of crimes or

offenders . . . it suffices to note that this rejection was

inconsistent with prior [e]ighth [a]mendment decisions’’ [citations omitted]). In fact, in Roper, the court

took pains to reiterate that ‘‘[t]he beginning point is a

review of objective indicia of consensus, as expressed

in particular by the enactments of legislatures that have

addressed the question. These data give us essential

instruction. We then must determine, in the exercise

of our own independent judgment, whether the death

penalty is a disproportionate punishment . . . .’’

(Emphasis added.) Id., 564.

In reality, the United States Supreme Court has, on

multiple occasions, held that punishments that were

duly enacted by democratically elected legislatures

were nevertheless unconstitutionally excessive and disproportionate under this standard. See, e.g., Hall v.

Florida, supra, 134 S. Ct. 1990, 2001 (holding that Florida law foreclosing further exploration of capital defendant’s intellectual disability if his IQ score is more than

seventy violated eighth amendment); Thompson v.

Oklahoma, supra, 487 U.S. 838 (declaring as unconstitutional death penalty for offender who was under sixteen

years old when he committed capital offense). Indeed,

there are numerous cases in which that court and other

federal and state courts have held democratically
enacted criminal sanctions to be devoid of penological

value, and thus unconstitutionally excessive, without

relying on any predicate finding that those sanctions

had lost their popular support. See, e.g., Solem v. Helm,

463 U.S. 277, 281, 292–94, 303, 103 S. Ct. 3001, 77 L. Ed.

2d 637 (1983) (concluding that courts are competent

to apply ‘‘generally accepted criteria’’ to assess independently relative severity of criminal offenses and sentences for purposes of eighth amendment proportionality

analysis, and holding that sentence of life imprisonment

for writing $100 check with intentto defraud was unconstitutionally excessive); Furman v. Georgia, supra, 408

U.S. 239–40 (holding death penalty unconstitutional as

then applied in Georgia and Texas, even though fortyone state legislatures had approved ofits use and polling

data was mixed); Robinson v. California, 370 U.S. 660,

667, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962) (holding that

California statute authorizing jail sentence for narcotics

addiction inflicted cruel and unusual punishment in

violation of eighth and fourteenth amendments); Weems

v. United States, supra, 217 U.S. 357–58, 367, 377 (concluding that traditional Philippine punishment of years

of hard and painful labor was unconstitutionally excessive punishment for crime of falsifying public document, even if punishment conformed to customs, habits,

and prejudices of resident population, and that punishment would have been excessive even if authorized by

federal law); People v. Anderson, supra, 6 Cal. 3d 641

(holding that capital punishment violated state constitution and explaining that court ‘‘would abdicate [its]

responsibility to examine independently the question

were [its] inquiry to begin and end with the fact that

statutory provisions authorizing [the] imposition of the

death penalty have been recently enacted’’); see also

Kennedy v. Louisiana, supra, 554 U.S. 461 (Alito, J.,

dissenting) (indicating that court had exercised its own

independent judgment in holding that death penalty

was excessive and disproportionate penalty for rape of

child); Kennedy v. Louisiana, 554 U.S. 945, 129 S. Ct.

1, 171 L. Ed. 2d 932 (2008) (Scalia, J., respecting the

denial of rehearing) (observing that court in Kennedy

had exercised its own judgment while noting that parties had failed to call court’s attention to fact that Congress and the president recently had reauthorized death

penalty for military personnel convicted of child rape).

Despite her attempt to distinguish each of these cases,

Chief Justice Rogers simply cannot wipe away a century

of eighth amendment jurisprudence.

Nor has the United States Supreme Court ever

reviewed an eighth amendment challenge under the

highly deferentialrational basis standard that Chief Justice Rogers would apparently have this court apply. As

Justice White explained in Furman, ‘‘[j]udicial review,

by definition, often involves a conflict between judicial

and legislative judgment as to what the [c]onstitution

means or requires. . . . It seems conceded by all that
. . . there are punishments that the [eighth] [a]mendment would bar whether legislatively approved or not.

Inevitably, then, there will be occasions when [the

court] will differ with Congress or state legislatures

with respect to the validity of punishment.’’ Furman v.

Georgia, supra, 408 U.S. 313–14 (White, J., concurring).

Chief Justice Rogers may not agree that courts should

play such a criticalrole in securing the people’s freedom

from cruel and unusual punishment, but that is the law

of the land. See Glossip v. Gross, supra, 135 S. Ct. 2776

(Breyer, J., dissenting)(court, not legislature, ultimately

must determine whether capital punishment comports

with evolving standards of decency because ‘‘[these]

are quintessentially judicial matters . . . [that] concern the infliction—indeed the unfair, cruel, and

unusual infliction—of a serious punishment [on] an

individual’’).

Finally, it would be difficult to imagine a case in

which the argument for legislative deference is weaker

than in the present case. The death penalty is a punishment that Connecticut has imposed on fewer than two

dozen occasions over the past one-half century, and it

has been carried out only once during that time frame.

The penalty has been abolished by most of our neighboring states, and, after years of repeal efforts, our

legislature and governor have now followed suit, abolishing it for all future crimes. Capital punishment has

been preserved, then, only on a provisional basis, and

only for a handful of current death row inmates. Moreover, the legislative history suggests that many legislators would have supported a full repeal and that those

who voted to retain the death penalty on a retroactive

basis may well have done so in the belief that this court

would not permit any further executions to be carried

out, as this state’s chief prosecutor himself predicted.

See part II B of this opinion; see also footnotes 1, 59

and 60 of this opinion and accompanying text. In short,

the legislature could not have come any closer to fully

abolishing capital punishment without actually doing

so. We perceive no ringing legislative endorsement of

the death penalty in Connecticut.

V

CONCLUSION

In prospectively abolishing the death penalty, the legislature did not simply express the will of the people

that it no longer makes sense to maintain the costly and

unsatisfying charade of a capital punishment scheme in

which no one ever receives the ultimate punishment.

Public Act 12-5 also held a mirror up to Connecticut’s

long, troubled history with capital punishment: the

steady replacement by more progressive forms of punishment; the increasing inability to achieve legitimate

penological purposes; the freakishness with which the

sentence of death is imposed; the rarity with which it is

carried out; and the racial, ethnic, and socio-economic
biases that likely are inherent in any discretionary death

penalty system. Because such a system fails to comport

with our abiding freedom from cruel and unusual punishment, we hold that capital punishment, as currently

applied, violates the constitution of Connecticut.

The judgment is reversed with respect to the imposition of a sentence of death and the case is remanded

with direction to impose a sentence of life imprisonment without the possibility of release; the judgment

is affirmed in all other respects.

In this opinion NORCOTT, EVELEIGH and McDONALD, Js., concurred.

* This opinion supplements the opinion of this court in State v. Santiago,

305 Conn. 101, 49 A.3d 566 (2012) (Santiago I), which was released on June

12, 2012. The judgment rendered herein, however, supersedes the judgment

in Santiago I.

** The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1

In March, 2009, when he testified before the Judiciary Committee as to

the constitutionality of a bifurcated, prospective only repeal, Kane stated

that ‘‘[t]he [s]tate could not and would not, could not constitutionally and

would not as a matter of public policy seek to execute somebody for a

crime they committed today when they could not be executed for committing

the same crime tomorrow. I don’t think that would stand up as a matter of

constitutional law. I don’t think the courts would permit that . . . .’’ Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 8, 2009 Sess., p. 2403.

‘‘[I]f this [legislature] decides to abolish the death penalty for a crime that’s

committed later on,’’ he continued, ‘‘I think the Connecticut Supreme Court

would decide . . . in effect that the community standard is such that this

is now cruel and unusual punishment.’’ Id., p. 2412. For that reason, Kane

advised the legislature that the passage of a prospective only repeal ‘‘would

actually nullify the death penalty for anybody who has not yet been executed.’’ Id., p. 2403. Kane’s substantially similar 2012 testimony regarding

the constitutional defects inherent in a prospective only repeal is discussed

in part II B of this opinion.

2 Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2009 Sess.,

p. 2716.

3 Hereinafter, all references to § 53a-54b are to the 1999 revision, unless

otherwise noted.

4 The jury also found the defendant guilty of one count each of murder,

felony murder, conspiracy to commit murder, stealing a firearm, and larceny

in the sixth degree, and two counts each of burglary in the first degree and

conspiracy to commit burglary in the first degree. The murder and felony

murder counts were merged with the capital felony count for purposes

of sentencing.

5

In addition to the sentence of death, the trial court also imposed a total

effective term of imprisonment of forty-five years and ninety days on the

remaining charges of which the defendant was convicted; see footnote 4 of

this opinion; to run consecutive to the death sentence.

6 Our determination that the defendant must be sentenced on the capital

felony count to life imprisonment without the possibility of release has no

bearing on the sentence imposed by the trial court on the remaining charges.

See footnote 5 of this opinion.

7

In a footnote, the author of the majority opinion in Santiago I, Justice

Norcott, expressed that he maintained his long-standing belief that the death

penalty is a violation of the state constitution, and that he was able to author

the majority opinion only because there was a possibility that, on remand,

the defendant would not be sentenced to death. State v. Santiago, supra,

305 Conn. 307 n.166.

8 Thereafter, we granted permission to a group of experts on international

human rights and comparative law, a group of legal historians and scholars,

and the American Civil Liberties Union Foundation of Connecticut to file

amicus briefs in support of the defendant’s position, and permission to the

Criminal Justice Legal Foundation to file an amicus brief in support of the

state’s position. We also issued an order requesting supplemental briefs

from the parties to address a then unpublished paper in which the author
asserted that the death penalty may be imposed for crimes committed before

April 25, 2012, as provided in P.A. 12-5. See K. Barry, From Wolves, Lambs:

The Case for Gradual Abolition of the Death Penalty (preliminary working

draft), subsequently published at K. Barry, ‘‘From Wolves, Lambs (Part I):

The Eighth Amendment Case for Gradual Abolition of the Death Penalty,’’

66 Fla. L. Rev. 313 (2014). The defendant filed a second supplemental brief

addressing the paper, but the state declined to do so.

9 The defendant also claims that imposing the death penalty on a person,

such as the defendant, who committed a capital felony before April 25, 2012,

would (1) be arbitrary, in violation of General Statutes § 53a-46b (b), (2)

violate the equal protection guarantees of the federal and state constitutions,

(3) violate the substantive due process guarantees of the federal and state

constitutions, (4) violate the federal constitutional prohibition against bills

of attainder, (5) violate the federal constitutional prohibition against ex post

facto laws, and (6) violate the provision of article first, § 9, of the constitution

of Connecticut barring punishments ‘‘except in cases clearly warranted by

law.’’ Because we conclude that the state constitutional prohibition against

cruel and unusual punishment no longer permits the imposition of the death

penalty, we need not address these claims. Certain of these claims are

addressed, however, in Justice Eveleigh’s concurring opinion and Chief

Justice Rogers’ dissenting opinion.

10 We address certain other, more specific objections of the dissenting

justices throughout this opinion.

11 It has been argued that, when an appellant challenges a statute or

practice under both the state and federal constitutions, this court should

first consider the state claims, turning to the federal claim only after

determining that the appellant’s state constitutional challenges will not succeed. See W. Horton, The Connecticut State Constitution (2d Ed. 2012) p.

37. This approach is particularly apt when, as in the present case, the claim

is one of first impression under both the federal and state constitutions.

Accordingly, we will evaluate and resolve the defendant’s claim under the

state constitution. Because the legal framework that we apply with respect

to allegedly cruel and unusual punishments is not fundamentally distinct

from that adopted by the United States Supreme Court, we have no reason

to believe that the eighth amendment would compel a different result. In

any event, because the defendant prevails under the state constitution, we

need not speculate as to how that court might resolve his federal claims or

decide whether the state constitution provides broader protection than the

federal constitution in this regard.

12 The relevant portions of article first, §§ 8 and 9, of the Connecticut

constitution of 1965 are derived almost verbatim from article first, §§ 9, 10

and 13, of the Connecticut constitution of 1818. See State v. Joyner, 225

Conn. 450, 486 and n.5, 625 A.2d 791 (1993) (Berdon, J., dissenting) (comparing article first, §§ 8 and 9, of Connecticut constitution of 1965 with article

first, §§ 9 and 10, of Connecticut constitution of 1818); see also Conn. Const.

(1818), art. I, § 13.

Article first, § 8, of the Connecticut constitution of 1965, as amended by

article seventeen of the amendments, provides in relevant part: ‘‘No person

shall be . . . deprived of life, liberty or property without due process of

law, nor shall excessive bail be required nor excessive fines imposed. No

person shall be held to answer for any crime, punishable by death or life

imprisonment, unless upon probable cause shown at a hearing in accordance

with procedures prescribed by law . . . .’’

Although article twenty-nine of the amendments amended article seventeen of the amendments in 1996, article twenty-nine did not amend the

foregoing language.

Article first, § 9, of the Connecticut constitution of 1965 provides: ‘‘No

person shall be arrested, detained or punished, except in cases clearly

warranted by law.’’

13 This ordering of the Geisler factors reflects the order in which we

consider them for purposes of the present case and does not necessarily

reflect their relative importance generally.

14 In some of our decisions, we have utilized the multifactor Geisler 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

particular constitutional challenge according to the legal test and framework

relevant and suited to that area of the law, rather than performing the

substantive legal analysis under the somewhat artificial auspices of the six

Geisler factors. See, e.g., State v. Linares, 232 Conn. 345, 379–87, 655 A.2d

737 (1995) (concluding, on basis of Geisler factors, that state constitution

affords expansive protection to free speech in public places butthen concluding that challenged statute did not infringe impermissibly on those protec-
tions under facts presented). In other cases, by contrast, we have used the

Geisler framework to perform the actual substantive legal analysis. See,

e.g., State v. Rizzo, 303 Conn. 71, 135–45, 31 A.3d 1094 (2011) (Rizzo II)

(evaluating challenges to death penalty according to six Geisler factors),

cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012); see also

State v. Ross, supra, 230 Conn. 249–51. In the present case, we follow

the former approach because, as we explain more fully hereinafter, the

constitutionality of a criminal sanction, like the constitutionality of a limitation on the free expression at issue in Linares, is governed by its own

distinct legal rules and standards. Accordingly, assuming that the Geisler

framework is even applicable to the ultimate question of whether the death

penalty now constitutes excessive and disproportionate punishment following the enactment of P.A. 12-5; cf. Kerrigan v. Commissioner of Public

Health, 289 Conn. 135, 227, 957 A.2d 407 (2008) (undertaking Geisler analysis

following conclusion that plaintiffs met state constitutional standard applicable for determining quasi-suspect class status); our consideration of the

relevant Geisler factors is interwoven into our application of the legal framework that properly governs such challenges. See parts II and III of this

opinion.

15 The eighth amendment to the United States constitution provides:

‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.’’

The cruel and unusual punishments clause of the eighth amendment is

made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See Robinson v. California, 370 U.S. 660, 666–68, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962).

16 In addition, some members of the United States Supreme Court have

suggested that a punishment may be so unusual that it runs afoul of the

eighth amendment on that basis alone. See, e.g., Furman v. Georgia, 408

U.S. 238, 331, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring);

Weems v. United States, 217 U.S. 349, 390, 30 S. Ct. 544, 54 L. Ed. 793 (1910)

(White, J., dissenting). For the most part, however, the court has treated

the term ‘‘unusual’’ as little more than constitutional surplussage. See, e.g.,

Furman v. Georgia, supra, 276–77 n.20 (Brennan, J., concurring) (meaning

of term is of minor significance); Trop v. Dulles, 356 U.S. 86, 100 n.32, 78

S. Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion) (‘‘[o]n the few occasions

[the] [c]ourt has had to consider the meaning of the phrase [‘unusual’],

precise distinctions between cruelty and unusualness do not seem to have

been drawn’’).

17 It is well established, however, that ‘‘[t]he adoption of federal constitutional precedents that appropriately illuminate open textured provisions in

our own organic document in no way compromises our obligation independently to construe the provisions of our state constitution.’’ State v. Lamme,

supra, 216 Conn. 184. Accordingly, we are not necessarily bound, for state

constitutional purposes, to reach the same conclusions as the United States

Supreme Court has with regard to any particular punishment or legal

challenge.

As we previously indicated; see footnote 11 of this opinion; because the

present appeal presents an issue that, to our knowledge, is a question of

first impression not only in Connecticut but also for the federal courts, we

need not determine, in resolving the defendant’s state constitutional claims,

whether the state constitution affords broader protections against cruel

and unusual punishment than does the eighth amendment. Even if those

protections are merely coextensive, however, we note that, in another case,

this court nevertheless might conclude that practices and punishments that

the United States Supreme Court has expressly approved are nevertheless

unconstitutionally cruel and unusual in Connecticut. This might be true

either because our state’s contemporary standards of decency differ from

those of the nation as a whole, or because this court simply reaches a

different conclusion when applying to the relevant constitutional facts, as

a matter of state constitutional law, standards similar or even identical to

those that the United States Supreme Court has articulated.

18 Some justices of the United States Supreme Court have suggested that

these considerations—whether a punishment is excessive or disproportionate, whether it comports with contemporary standards of decency and dignity, and whether it satisfies any legitimate penological goals—represent

three distinct elements or prongs of the eighth amendment analysis. See,

e.g., Furman v. Georgia, 408 U.S. 238, 330–32, 92 S. Ct. 2726, 33 L. Ed.

2d 346 (1972) (Marshall, J., concurring). Whether these considerations are

treated as distinct elements or merely as distinct components of a common
element, however, is merely semantic and ultimately immaterial, because

it is clear that a sentence’s failure to satisfy any of these requirements would

render it unconstitutional under the eighth amendment.

19 In Davis v. Connecticut, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750

(1972), and Delgado v. Connecticut, 408 U.S. 940, 92 S. Ct. 2879, 33 L. Ed.

2d 764 (1972), both memorandum decisions, the United States Supreme

Court struck down a prior incarnation of Connecticut’s capital punishment

scheme as facially unconstitutional because it failed to comply with these

requirements.

20 See footnote 44 of this opinion (noting cases in which this court has

permitted citation to extra-record reference materials, including state histories, as evidence of contemporary societal norms or to advocate for new

interpretation of state constitution).

21 With respect to the Connecticut constitution of 1965, see footnote 31

of this opinion.

We acknowledge that both the 1818 and 1965 Connecticut constitutions

make express reference to capital punishment and that such punishment

no doubt was considered constitutional at the time of their adoption. In

part IV B of this opinion, we explain why that historical acceptance does

not alter our conclusion that capital punishment no longer comports with

contemporary standards of decency or serves a legitimate penological purpose in Connecticut.

22 This provision was retained in the 1702 laws; see Acts and Laws, of His

Majesties Colony of Connecticut in New-England (1702) p. 98; but was left

out of the 1784 laws in keeping with the general sentiment of that time that

such protections were not properly the subject of written legal codes.

23 In addition to recognizing the freedom from cruel, inhuman, and barbarous punishments, the 1672 code also guaranteed those accused of capital

offenses the right to a trial by jury and provided for a special jury of life

and death. See W. Holdsworth, supra, p. 581.

24 In her dissenting opinion, Chief Justice Rogers chides our use of terms

such as ‘‘progress’’ and ‘‘progressive,’’ implying that we improperly have

exceeded our constitutional mandate and embraced a progressive sociopolitical viewpoint. (Internal quotation marks omitted.) Footnote 12 of Chief

Justice Rogers’ dissenting opinion. Nothing could be further from the truth.

The United States Supreme Court has instructed, on literally dozens of

occasions, that, in construing the eighth amendment, courts must look to

‘‘the evolving standards of decency that mark the progress of a maturing

society.’’ (Emphasis added; internal quotation marks omitted.) Hall v. Florida, supra, 134 S. Ct. 1992; accord Trop v. Dulles, 356 U.S. 86, 101, 78 S.

Ct. 590, 2 L. Ed. 2d 630 (1958) (plurality opinion); see also Weems v. United

States, 217 U.S. 349, 378, 30 S. Ct. 544, 54 L. Ed. 793 (1910) (‘‘[the eighth

amendment] in the opinion of the learned commentators may be therefore

progressive, and is not fastened to the obsolete, but may acquire meaning

as public opinion becomes enlightened by a humane justice’’ [emphasis

added]). Indeed, Chief Justice Rogers acknowledges shortly thereafter in

her dissenting opinion that this is the governing federal standard. See text

accompanying footnote 15 of Chief Justice Rogers’ dissenting opinion. Furthermore, in more than twenty of our cases, including four capital appeals,

this court has recognized that ‘‘our state constitution is an instrument of

progress . . . .’’ (Emphasis added; internal quotation marks omitted.) State

v. Rizzo, supra, 266 Conn. 207; accord State v. Webb, 238 Conn. 389, 411,

680 A.2d 147 (1996); State v. Ross, supra, 230 Conn. 248; State v. Dukes, 209

Conn. 98, 115, 547 A.2d 10 (1988). Both state and federal constitutional

jurisprudence, then, has been marked by the use of such language. In the

present case, we likewise use the term ‘‘progressive’’ in its established

constitutional, rather than political, sense. We do agree with Chief Justice

Rogers, however, that, although the arc of our history in this regard is both

clear and profound, there is no constitutional mandate that our state’s

criminal law become increasingly compassionate.

25 For nearly one century after the adoption of the English Declaration of

Rights of 1689, for instance, ‘‘the law of Great Britain condemned a prisoner

who refused to plead to be slowly pressed to death by weights placed [on]

his chest.’’ Judicial and Civil History of Connecticut (D. Loomis & J. Calhoun

eds., 1895) p. 63; see also W. Holdsworth, supra, p. 356 (mutilating punishments were imposed far less frequently in seventeenth century Massachusetts and, especially, in Connecticut, than in England); W. Holdsworth,

supra, p. 361 (England permitted more extensive and more brutal corporal

punishment than Connecticut in mid-seventeenth century); W. Holdsworth,

supra, pp. 431–32, 568 (capital punishment was considerably rarer in New

England than in England, where theft of as little as one shilling constituted

capital crime); W. Holdsworth, supra, p. 569 (‘‘[t]he courts and legislatures

of Connecticut and New Haven succeeded in creating a more equitable and
less brutal system of criminal justice than that of England’’).

26 For example, a second wave of immigration brought new residents to

Connecticut during this period, significantly expanding the colonial population. These immigrants did not share the founding generation’s vision of

Connecticut as a ‘‘new Israel under a new covenant,’’ committed to observing

and strictly enforcing the judicial laws of Moses. W. Holdsworth, supra, p.

124; see id., pp. 532–34, 579–81. Whereas their predecessors were preoccupied with the moral aspects of sinfulness, the new citizens were more

concerned with addressing the practical consequences of crime. See id., p.

518. This ‘‘erosion of moral outrage’’ left the public less convinced of the

need for strict punishment in many cases and resulted in more lenient public

sentiment toward a number of crimes. Id., p. 518; see id., p. 576.

27 In 1666, for example, a special court of assistants at Governor Winthrop’s

urging overruled Hannah Hackleton’s death sentence for blasphemy. See

W. Holdsworth, supra, p. 381. The same year, in the case of Elizabeth Seager,

Governor Winthrop himself directly overturned a capital sentence, this time

for witchcraft, and ordered the defendant freed. See id., pp. 519–20. Seager

is believed to have been the first convicted witch to have escaped the gallows

in Connecticut. See id., p. 520. Four years later, a specially appointed court

released another woman who had been sentenced to die for witchcraft. See

id., pp. 520–21. Katherine Harrison’s case is noteworthy as the first instance

in which a Connecticut court reversed a jury conviction in a capital case.

See id., p. 521.

28 That such punishments had come to be seen as cruel in Connecticut is

apparent from the case of Polly Rogers, a Native American who petitioned

the legislature for redress in 1815 after having been convicted of adultery

and sentenced to whipping and branding. L. Goodheart, supra, p. 78. ‘‘In

keeping with the sensibility of the age,’’ Professor Lawrence B. Goodheart

recounts, ‘‘she protested the ‘cruel punishment of being branded with a hot

iron.’ ’’ Id. The legislature granted her request and spared her. Id.

Moreover, although Newgate hardly would have met modern standards

for the treatment of inmates, records from Connecticut’s preconstitutional

period clearly indicate that the legislature was concerned that prisoners

not be treated cruelly. In 1809, the legislature appointed a committee that

considered, and ultimately enacted, the governor’s recommendation that

the prisoners in Newgate would benefit from religious instruction. See 1

Crimes and Misdemeanors, 2d Series (1809) pp. 95a–96a. The following year,

a second committee was appointed to evaluate the condition of the prison’s

inmates. See 1 Crimes and Misdemeanors, 2d Series (1810) p. 97a. On the

basis of the resulting report, the legislature directed Newgate’s overseers

to provide the prisoners with a more diverse diet and to ensure that suitable

bathing places were provided. See id., pp. 99d–99e, 99z, 100a. At the same

time, the legislature resolved to prohibit ‘‘unnecessary and cruel punishments’’ within the facility. Id., p. 100a. In 1815, just three years before the

adoption of the state constitution, a legislative committee went even further,

condemning the practice of whipping at Newgate as ‘‘incompatible with

. . . decency and humanity,’’ and beginning to plan for the construction of

a new state prison. 1 Crimes and Misdemeanors, 2d Series (1815) pp. 153a,

154c; see also 2 Z. Swift, A Digest of the Laws of the State of Connecticut

(1823) pp. 268–69 (‘‘and though the law invests [jailers] with all the powers

necessary for the interest of the commonwealth, yet they are not to behave

with the least degree of wanton cruelty to their prisoners’’).

29 The fact that Swift later repudiated some of his more progressive penological views is of little moment. Swift did not begin to author his Digest

of the Laws of the State of Connecticut until after he stepped down as

Chief Justice in 1819; P. O’Sullivan, ‘‘Biographies of Connecticut Judges I:

Zephaniah Swift,’’ 19 Conn. B.J. 181, 190–91 (1945); and it was in that work

that he embraced a more severe philosophy of punishment. Indeed, in State

v. Ellis, 197 Conn. 436, 497 A.2d 974 (1985), we recognized that it was Swift

himself who, having inveighed against the barbaric and medieval forms of

punishment of the past; id., 450 n.13; impressed on the legislature in the

early 1820s to adopt ‘‘more rational and consistent laws’’ that would ‘‘proportion the punishment according to the nature and grade of the crime . . . .’’

(Internal quotation marks omitted.) Id., 451 n.13.

30 Justice Zarella is simply incorrect, then, when, in his dissenting opinion,

he contends that ‘‘[w]hat is striking thing about this case . . . is the lack

of any suggestion by the legislature . . . that the imposition of the death

penalty was wrong.’’

31 Although we look primarily to our state’s preconstitutional traditions

and the history and intent of the drafters of the 1818 constitution to parse
the meanings of article first, §§ 8 and 9; see State v. Joyner, 225 Conn.

450, 486–87, 625 A.2d 791 (1993) (Berdon, J., dissenting); it also may be

appropriate to consider how the 1818 provisions were interpreted in 1965,

when they were incorporated into the state’s present constitution. See W.

Horton, The Connecticut State Constitution (2d Ed. 2012) pp. 33–34. By that

time, attitudes toward the purpose and permissible scope of punishment in

Connecticut had, of course, evolved even further, in ways that are too

numerous to count. Perhaps the clearest example of this evolution may be

seen in the state prison in Somers, which replaced the Wethersfield facility

shortly before the new constitution was adopted. See G. Demeusy, ‘‘State

Dedicates New Prison with Note of Hope for Future,’’ Hartford Courant,

February 16, 1964, p. 15B; G. Demeusy & J. Tucker, ‘‘400 Convicts Are Moved

to New Somers Prison,’’ Hartford Courant, November 6, 1963, p. 1. At a

dedication ceremony in 1964, the new facility was described as ‘‘a symbol

of progress, a gateway to penal reform . . . .’’ (Internal quotation marks

omitted.) ‘‘Penal Outlook Hailed at State Prison Ceremony,’’ Hartford

Courant, February 15, 1964, p. 4. Speaking at the dedication, Warden Frederick G. Reincke hailed the Somers prison as ‘‘the beginning of a new era

. . . primarily devoted to preparing inmates for adjusting to community

living and responsibility when they are released.’’ (Internal quotation marks

omitted.) Id. According to Reincke, ‘‘[t]he days of revenge imprisonment in

Connecticut [were] over.’’ Id.

The chairman of the prison’s board of directors, Charles Stroh, concurred,

explaining that ‘‘we . . . have launched a rehabilitation [facility] that centers not around retribution and punishment, but the individual training and

treatment of inmates.’’ (Internal quotation marks omitted.) G. Demeusy,

supra, p. 15B. This new penal philosophy, he explained,reflected an emerging

public ‘‘realization that there’s something more to penology than simply

locking up the lawbreakers.’’ Id. Stroh further explained: ‘‘There is punishment—but it’s punishment for a purpose and it is accepted by the inmates

as a part of their rehabilitation . . . .’’ (Internal quotation marks omitted.)

Id. For his part, Governor John Dempsey opined that the new state prison

was ‘‘wholly in keeping with modern penology, [and] maintain[ed] Connecticut’s reputation as a state that is forward-looking and progressive in all

fields of human endeavor.’’ (Internal quotation marks omitted.) Id. To the

extent that conceptions of cruel and unusual punishment prevalent at the

drafting of the 1965 state constitution are relevant to the Geisler analysis,

then, there is no doubt that our state’s understanding of the permissible

nature and purposes of punishment had undergone a thorough transformation.

32 Connecticut ultimately approved the federal Bill of Rights in 1939, 150

years after its submission to the states for ratification in 1789. P. Maier,

Ratification: The People Debate the Constitution, 1787–1788 (2010) p. 459.

33 The opinions of the dissenting justices reveal the prescience of these

fears.

34 In State v. Rizzo, 303 Conn. 71, 142, 31 A.3d 1094 (2011) (Rizzo II),

cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), we therefore

identified Rizzo I as a case, albeit a rare one, in which we had treated the

state constitution as providing greater protection to capital defendants than

the federal constitution in concluding that the jury must find beyond a

reasonable doubt that the aggravating factors outweigh mitigating factors

in order for the death penalty to be imposed. Several members of this court,

in dissent, also have determined that the state constitution affords broader

protection from cruel and unusual punishment. See, e.g., State v. Santiago,

supra, 305 Conn. 309 (Harper, J., concurring in part and dissenting in part);

State v. Rizzo, supra, 303 Conn. 202–203 (Norcott, J., dissenting); State v.

Peeler, 271 Conn. 338, 464, 857 A.2d 808 (2004) (Katz, J., dissenting), cert.

denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v. Webb,

238 Conn. 389, 551, 680 A.2d 147 (1996) (Berdon, J., dissenting). As we have

explained, however, the present case does not require that we determine

whether the state constitution affords greater protection than the federal

constitution with respect to cruel and unusual punishment.

35 In his dissenting opinion, Justice Zarella refuses to acknowledge that,

in Rizzo II, we adopted and applied the federal courts’ eighth amendment

framework for evaluating challenges to the death penalty and other allegedly

cruel and unusual punishments. He does so despite language in that decision

that clearly indicates our adherence to the federal framework. See, e.g.,

State v. Rizzo, supra, 303 Conn. 191 (‘‘[a]lthough the clearest and most

reliable objective evidence of contemporary values is the legislation enacted

by the country’s legislatures . . . Atkins v. Virginia, supra, 536 U.S. 312;
in assessing whether a punishment is constitutionally sound, it also is appropriate for us to consider what is occurring in actual practice’’ [internal

quotation marks omitted]).

36 In Watson, the Supreme Judicial Court of Massachusetts struck down

that state’s death penalty as impermissibly cruel underthe state constitution.

District Attorney v. Watson, supra, 381 Mass. 650. In the November, 1982

election, Massachusetts voters approved a referendum amending the state

constitution to permit the state legislature to reinstate capital punishment.

See Commonwealth v. Colon-Cruz, 393 Mass. 150, 152, 470 N.E.2d 116

(1984). No such statute is currently in place.

37 In Anderson, the California Supreme Court struck down that state’s

death penalty as both cruel and unusual. See People v. Anderson, supra, 6

Cal. 3d 651, 656–57. In the November, 1972 election, California voters passed

a ballot initiative amending the California constitution and reinstating capital

punishment. See People v. Frierson, 25 Cal. 3d 142, 173, 599 P.2d 587, 158

Cal. Rptr. 281 (1979).

38 We emphasize that we are not, as Justice Zarella suggests, in any way

conflating the sociological considerations encompassed by the sixth Geisler

factor with the standards by which federal courts have evaluated claims

that a particular punishment is excessive or disproportionate, namely, that

the punishment offends contemporary standards of decency or fails to

accomplish legitimate penological purposes. Those standards are, rather,

the substantive test according to which both this court and the federal

courts evaluate such claims. The Geisler ‘‘test,’’ by contrast, is merely a

scheme by which we organize and review, for purposes of state constitutional

challenges, the various types of considerations that may bear on any question

of first impression.

39 Although Chief Justice Rogers, in her dissenting opinion, suggests that,

because the federal constitution makes express reference to capital offenses,

it is an open question as to whether the federal courts ever would find

the death penalty unconstitutional per se under the evolving standards of

decency rubric, we disagree. In Gregg v. Georgia, supra, 428 U.S. 153, the

United States Supreme Court made clearthat even claims that capital punishment is categorically unconstitutional are to be evaluated according to that

rubric, and that the constitutional text is not dispositive. See id., 176–87

(opinion announcing judgment).

40 The majority specifically stated: ‘‘The first five factors do not support

the . . . argument [of the defendant, Michael B. Ross]. In article first, § 8,

and article first, § 19, our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional

validity of such a penalty in appropriate circumstances. Connecticut case

law has recognized the facial constitutionality of the death penalty under

the eighth and fourteenth amendments to the federal constitution. . . .

Federal constitutional law does not forbid such a statute outright. . . .

Courts in the overwhelming majority of our sister states have rejected facial

challenges to the death penalty under their state constitutions. Finally,

Connecticut’s history has included a death penalty statute since 1650, when

it was incorporated into Ludlow’s Code . . . and such a penalty was considered constitutional at the time of the adoption of the constitution of 1818.’’

(Citations omitted; footnotes omitted.) State v. Ross, supra, 230 Conn.

249–50.

41 We note that the dissenting justices, while criticizing our departure from

the court’s discussion of capital punishment in Ross, make no attempt to

defend the adequacy of the analysis therein.

42 In Webb, this court did consider and reject an alternative argument: that

capital punishment violates the social compact clause of article first, § 1,

of the state constitution. State v. Webb, supra, 238 Conn. 406–12.

43 We do not disagree with Chief Justice Rogers that the last two factors—

the laws and practices of other jurisdictions, and the opinions and recommendations of professional associations-—are of less importance, and we

agree that those considerations alone would constitute an insufficient basis

for deeming a punishment cruel and unusual in the absence of any evidence

that it has come to be so in Connecticut. We do, however, disagree with

Chief Justice Rogers’ suggestion in her dissenting opinion that the defendant

has asked that we consider the constitutional implications of the adoption

of P.A. 12-5 in a complete factual and jurisprudential vacuum, ignoring any

and all other evidence that capital punishment no longer comports with

contemporary standards of decency in Connecticut, even insofar as that

evidence pertains to the defendant’s claim that the death penalty is now

unconstitutional in light of P.A. 12-5. In fact, in his brief to this court, the
defendant expressly asked us to consider previous decisions of this court

that explored all of these factors in substantial depth.

44 We previously have permitted citation to extra-record reference materials as evidence of contemporary societal norms or to advocate for a new

interpretation of the state constitution. See, e.g., State v. Rizzo, supra, 303

Conn. 184 n.81; see also Hall v. Florida, supra, 134 S. Ct. 1993–96 (relying

on medical and psychological research in concluding that eighth amendment

does not permit states to adopt rigid rule that individuals with intelligence

quotient [IQ] test scores higher than 70 are precluded from offering other

evidence of mental disability). Notice also may be taken in this context of

treatises reporting the public history of Connecticut. See 1 B. Holden & J.

Daly, Connecticut Evidence (1988) § 31, pp. 128–29. More generally, it is

well established that an appellate court may take notice of ‘‘legislative facts,’’

including historical sources and scientific studies, ‘‘which help determine

the content of law and policy,’’ as distinguished from the ‘‘adjudicative

facts,’’ which concern ‘‘the parties and events of a particular case.’’ (Internal

quotation marks omitted.) Moore v. Moore, 173 Conn. 120, 122, 376 A.2d

1085 (1977); accord State v. Rizzo, supra, 303 Conn. 184 n.81.

45 See Association forthe Study of Connecticut History, 2012 Award Recipients (announcing Goodheart as recipient of 2012 Homer D. Babbidge, Jr.,

Award for best monograph on significant aspect of Connecticut’s history

published in calendar year), available at http://asch-cthistory.org/awards/

2012-recipients (last visited July 27, 2015).

46 Goodheart distinguishes infanticide from homicide in that, from 1699

to 1808, an unmarried woman who lost her infant during childbirth was

legally presumed to have killed the baby to conceal her shame. See L.

Goodheart, supra, p. 20. This presumption of infanticide could be rebutted

if a witness to the birth testified that the baby was stillborn. See id.

47 There is no precedentfor Chief JusticeRogers’ contention thatlegislative

enactments are relevant indicia of evolving standards of decency only to

the extent that they accurately reflect popular opinion. See footnote 33 of

Chief Justice Rogers’ dissenting opinion. On the contrary, the United States

Supreme Court repeatedly has instructed that, for purposes of the eighth

amendment, social mores are to be measured by the legislation enacted by

the elected branches of government, and not according to the shifting winds

of public sentiment. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 335, 109 S.

Ct. 2934, 106 L. Ed. 2d 256 (1989) (conflicting public sentiment, as expressed

in polls and resolutions, does not evidence contemporary values until

expressed in legislative action), overruled on other grounds by Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); cf. Furman

v. Georgia, supra, 408 U.S. 362 (Marshall, J., concurring).

48 Although Justice Marshall appears to have coined the phrase ‘‘machinery

of death’’ in Rumbaugh v. McCotter, 473 U.S. 919, 921, 105 S. Ct. 3544, 87

L. Ed. 2d 668 (1985) (Marshall, J., dissenting from the denial of certiorari),

it is widely attributed to Justice Blackmun’s famous declaration, shortly

before his retirement from the United States Supreme Court in 1994, that,

‘‘[f]rom this day forward, I no longer shall tinker with the machinery of

death. For more than [twenty] years I have endeavored—indeed, I have

struggled—along with a majority of [the] [c]ourt, to develop procedural and

substantive rules that would lend more than the mere appearance of fairness

to the death penalty endeavor. Rather than continue to coddle the [c]ourt’s

delusion that the desired level of fairness has been achieved and the need

for regulation eviscerated, I feel morally and intellectually obligated simply

to concede that the death penalty experiment has failed. It is virtually selfevident to me now that no combination of procedural rules or substantive

regulations ever can save the death penalty from its inherent constitutional

deficiencies. The basic question—does the system accurately and consistently determine which defendants deserve to die?—cannot be answered

in the affirmative.’’ (Footnote omitted; internal quotation marks omitted.)

Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, 127 L. Ed. 2d 435

(1994) (Blackmun, J., dissenting from the denial of certiorari).

49 We fail to understand how Chief Justice Rogers could translate Senator

Kissel’s clear, unequivocal statement about P.A. 12-5 to mean nothing more

than that he thought that ‘‘there was no reliable way to predict the outcome’’

of this court’s review. (Internal quotation marks omitted.) Footnote 26 of

Chief Justice Rogers’ dissenting opinion. If there was any ambiguity in

Senator Kissel’s statement, it surely was resolved by his statement, during a

Judiciary Committee hearing on the proposed repeal legislation, that ‘‘[e]very

expert that I have asked . . . has stated that the evolving societal standards

evinced by a change in the law form . . . very solid grounds under the
cruel and unusual punishment portion of the constitution to support repeal

of [the] death [penalty] for folks sitting on death row when a prospective

bill is passed.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,

2012 Sess., pp. 2549–50.

50 See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 532–33, 593–95, remarks of

Senator Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 661–62, remarks

of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 670–71, remarks of

Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 765, remarks of

Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks

of Senator Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82,

remarks of Senator Edith Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–86,

remarks of Senator Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91,

remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc., Pt. 4, 2012 Sess.,

pp. 1136–37, remarks of Representative Patricia M. Widlitz; 55 H.R. Proc.,

Pt. 4, 2012 Sess., pp. 1250–52, remarks of Representative Roland J. Lemar;

55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1256–57, remarks of Representative

Michael L. Molgano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1258–60, remarks

of Representative Gary A. Holder-Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess.,

pp. 1280–81, remarks of Representative Richard A. Smith; 55 H.R. Proc., Pt.

4, 2012 Sess., pp. 1282–86, remarks of Representative Daniel S. Rovero; 55

H.R. Proc., Pt. 4, 2012 Sess., pp. 1292–94, remarks of Representative Auden

C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1295–96, remarks of Representative John F. Hennessy; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1310–12, remarks

of Representative Linda M. Gentile; 55 H.R. Proc., Pt. 4, 2012 Sess., pp.

1313–16, remarks of Representative Patricia B. Miller; 55 H.R. Proc., Pt. 4,

2012 Sess., pp. 1317–19, remarks of Representative Lile R. Gibbons; 55 H.R.

Proc., Pt. 4, 2012 Sess., pp. 1340–42, remarks of Representative Philip J.

Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1375–76,remarks of Representative

Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt.

8, 2012 Sess., pp. 2557–59, remarks of Senator Martin M. Looney; Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2514–16,

2523, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2690–92, remarks of

Representative Charlie L. Stallworth.

51 See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., pp. 593–94, remarks of Senator

Eric D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 672–73, remarks of Senator

Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator

Edwin A. Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator

Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 772, remarks of Senator Carlo

Leone; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith

Prague; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator Gayle

Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., pp. 801–803, remarks of Senator

Martin M. Looney; 55 S. Proc., Pt. 3, 2012 Sess., p. 812, remarks of Senator

Donald E. Williams, Jr.; 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1002, remarks of

Representative Gerald M. Fox III; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1049–50,

remarks of Representative Terry Backer; 55 H.R. Proc., Pt. 4, 2012 Sess.,

pp. 1090–91, remarks of Representative Mary Mushinsky; 55 H.R. Proc., Pt.

4, 2012 Sess., pp. 1115–16, remarks of Representative John W. Thompson;

55 H.R. Proc., Pt. 4, 2012 Sess., p. 1280, remarks of Representative Richard A.

Smith; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1291–94,remarks of Representative

Auden C. Grogins; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1314–15, remarks of

Representative Patricia B. Miller; Conn. Joint Standing Committee Hearings,

Judiciary, Pt. 8, 2012 Sess., pp. 2514–15, remarks of Senator Williams; Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2690,

remarks of Representative Charlie L. Stallworth; see also 55 S. Proc., Pt. 3,

2012 Sess., pp. 792–93, remarks of Senator Coleman (possibility of error is

reason many legislators supported repeal).

52 See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 594, remarks of Senator Eric

D. Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle

Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1376, remarks of Representative

Patricia A. Dillon; Conn. Joint Standing Committee Hearings, Judiciary, Pt.

8, 2012 Sess., pp. 2515–16, 2527, remarks of Senator Donald E. Williams,

Jr.; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p.

2622, remarks of Senator Edwin A. Gomes; Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2691, remarks of Representative

Charlie L. Stallworth; Conn. Joint Standing Committee Hearings, Judiciary,

Pt. 9, 2012 Sess., pp. 2843–44, remarks of Representative Gary A. HolderWinfield.

53 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry

B. Gerratana; id., p. 751, remarks of Senator Edwin A. Gomes; id., p. 769,
remarks of Senator Bob Duff; id., pp. 772–73, remarks of Senator Carlo

Leone; id., p. 790, remarks of Senator Joseph J. Crisco, Jr.; 55 H.R. Proc.,

Pt. 4, 2012 Sess., p. 1256, remarks of Representative Michael L. Molgano;

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp.

2516, 2517, remarks of Senator Donald E. Williams, Jr.; Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2517, remarks of Senator

Edward Meyer; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,

2012 Sess., pp. 2629–30, remarks of Representative Richard A. Smith.

54 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 747, remarks of Senator Len

Suzio (stating that all members would agree that P.A. 12-5 concerns morality,

not finances); id., p. 757, remarks of Senator Paul R. Doyle (‘‘I consider this

a vote of consci[ence] for all of us’’); id., p. 804, remarks of Senator John

McKinney (‘‘[t]his is in many ways a vote of conscience, a vote of where

your moral compass leads you’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1381,

remarks of Representative Lawrence F. Cafero, Jr. (prospective repeal

implies that ‘‘it is no longer the policy of the [s]tate of Connecticut to take

a life’’); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 593, remarks of Senator

Coleman (observing that capital punishment is matter of principle for many

legislators); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1385, remarks of Representative J. Brendan Sharkey (debate is about profound moral and ethical questions). Importantly, although some opponents of P.A. 12-5 chided supporters

for what the opponents characterized as the inconsistency of prospectively

repealing capital punishment while retaining it for those already on death

row, they consistently characterized this dichotomy as a moral inconsistency

rather than a merely pragmatic decision. See, e.g., 55 S. Proc., Pt. 3, 2012

Sess., pp. 747–48, remarks of Senator Suzio.

55 Ignoring Senator Kissel’s explanation that members of the legislature

have indicated over the course of many years their moral opposition to the

death penalty, Chief Justice Rogers queries ‘‘how Kissel could have known

that.’’ Footnote 26 of Chief Justice Rogers’ dissenting opinion. The relevant

question, rather, is on what basis Chief Justice Rogers would purport to

know better than a twelve term senator and ranking member of the Judiciary

Committee what lies in the hearts and minds of his colleagues.

56 See 55 S. Proc., Pt. 2, 2012 Sess., pp. 583–84, remarks of Senator Carlo

Leone; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74,remarks of Representative

Juan R. Candelaria.

Chief Justice Rogers also takes out of context public testimony by Professor Kevin Barry, which she offers as evidence that support for P.A. 12-5

was driven primarily by financial considerations. See footnote 19 of Chief

Justice Rogers’ dissenting opinion; see also Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2765–66. In fact, in the quoted

testimony,Barry is speaking aboutthe decision of the New Mexico legislature

to repeal that state’s death penalty on a prospective only basis. Id., p.

2765. Specifically, Barry refers to evidence that New Mexico’s repeal was

motivated in large part by that state’s pending budget crisis. Id. Although

Barry does propose that the state might try to make a similar argument in

Connecticut, he provides no support for the proposition that cost considerations were of comparable importance for the legislators who supported P.A.

12-5. Indeed, his statements amount to little more than a recommended

litigation strategy for those who would seek to preserve the death penalty retroactively.

57 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator

Edith Prague (opposing capital punishment out of moral concern that innocent not be wrongly executed, but favoring retroactivity out of respect for

survivors of victims of capital felonies committed before 2012); id., p. 662,

remarks of Senator Andrew W. Roraback (‘‘I have long believed that the

[s]tate shouldn’t be in the business of taking life. And as strongly as I believe

that, I believe even more strongly that the [s]tate shouldn’t be in the business

of breaking its commitment to victims of crime.’’).

58 We do not share Chief Justice Rogers’ conviction that those legislators

who believed capital punishment to be indecent or unjustified, and yet who

held out for a prospective only repeal in order to honor the state’s prior

commitments to the families of murder victims, are somehow illogical or

‘‘morally incoherent . . . .’’ Footnote 22 of Chief Justice Rogers’ dissenting

opinion. There are, no doubt, opponents of the death penalty whose principled opposition is so staunch and so unyielding that they would not countenance its use under any circumstances. We are equally certain, however,

that there are people of good faith and clear mind who, although they have

come to believe that, on balance, state sanctioned killing is impermissibly

excessive, or arbitrary, or subject to error, are not so stridently opposed

that their opposition cannot yield to countervailing moral commitments.

Each day, legislators, no less than judges, must balance conflicting moral
principles and commitments: between free expression and national security;

between environmental conservation and the fruits of economic development; between a right to life and a freedom of choice. Why Chief Justice

Rogers believes that opposition to the death penalty, alone among principled

beliefs, must be uncompromising simply eludes us. See generally K. Barry,

‘‘From Wolves, Lambs (Part I): The Eighth Amendment Case for Gradual

Abolition of the Death Penalty,’’ 66 Fla. L. Rev. 313 (2014) (articulating

principled defense of prospective only repeal of capital punishment on

moral grounds).

59 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator Kissel;

id., pp. 748–49, remarks of Senator Len Suzio; id., pp. 795–96, remarks of

Senator Leonard A. Fasano; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1381–82,

remarks of Representative Lawrence F. Cafero, Jr.

60 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 795–96, remarks of Senator

Leonard A. Fasano (many legal scholars believe retroactive component of

bill is unconstitutional); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1354, remarks

of Representative John W. Thompson (‘‘it seems the consensus here that

nobody on death row will now be executed’’); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2485, remarks of Representative

Al Adinolfi (numerous attorneys believe that prospective repeal will render

retroactive application unconstitutional); Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2507–2508, remarks of Representative Richard A. Smith (many legislators are concerned that inmates on

death row will be removed therefrom upon prospective repeal); Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2534, remarks

of Representative Arthur J. O’Neill(‘‘there seems to be pretty much a consensus by both the prosecutor and the defense people here in Connecticut most

familiar with death penalty issues that that’s going to be a very difficult hill

for the prosecutors to climb in terms of defending the existing sentences

and that we should expect that if we repeal with so-called prospective only

language, that as a practical matter, no one will have the death penalty

imposed [on] them in the state of Connecticut’’); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2549–50, remarks of Senator

Kissel (‘‘[e]very expert that I have asked . . . has stated that the evolving

societal standards evinced by a change in the law form . . . very solid

grounds under the cruel and unusual punishment portion of the constitution

to support repeal of [the] death [penalty] for folks sitting on death row

when a prospective bill is passed’’).

61 Kane’s statements on the question are no less unambiguous than those

of Senator Kissel; see text accompanying footnote 49 of this opinion; see

also footnote 1 of this opinion; and Chief Justice Rogers’ insistence that

Kane expressed no opinion on the matter is equally puzzling. See footnote

28 of Chief Justice Rogers’ dissenting opinion.

62 It bears noting that senators rejected an amendment crafted to ensure

that capital punishment would be retained for those already on death row

in the event that a court declared P.A. 12-5 unconstitutional. The proposed

amendment provided that, if a court were to conclude that a bifurcated,

prospective only repeal of the death penalty was unconstitutional, the repeal

would be nullified, and the state’s capital felony statutes would revert to

their pre-2012 status. See 55 S. Proc., Pt. 3, 2012 Sess., pp. 652–53, 662–64,

remarks of Senator Roraback; see also id., p. 669 (vote on amendment).

We are perplexed by Chief Justice Rogers’ suggestion that it is improper

for us to conclude that some legislators, in supporting a prospective only

appeal, may have acted in part out of political motivations. That conclusion,

Chief Justice Rogers contends, violates what she refers to as the ‘‘constitutional principle that this court must presume that the legislature has acted

for legitimate reasons . . . .’’ Text accompanying footnote 23 of Chief Justice Rogers’ dissenting opinion. We have no quarrel with this principle

generally, but Chief Justice Rogers’ reliance on it in the present case is

misplaced. First, there is nothing improper about a legislator acting on the

basis of political considerations. Moreover, Chief Justice Rogers’ argument

improperly conflates equal protection and eighth amendment principles. As

she asserts; see text accompanying footnote 93 of Chief Justice Rogers’

dissenting opinion; when a statutory classification is challenged on equal

protection grounds, but the classification does not involve a fundamental

right or suspect class, such as race or national origin, it will be evaluated

under the highly deferential ‘‘rational basis’’ standard of review. (Internal

quotation marks omitted.) Contractor’s Supply of Waterbury, LLC v. Commissioner of Environmental Protection, 283 Conn. 86, 93, 925 A.2d 1071

(2007). Under rational basis review, a statutory classification will be upheld,

as long as it is supported by some plausible legitimate rationale, regardless

of whether the legislature actually had that rationale in mind when enacting
the legislation. See id. This unremarkable legal principle is, however, wholly

irrelevant to the question before us. Under the eighth amendment and the

corresponding provisions of the state constitution, the issue is not whether

there is any legitimate justification for a statutory classification but, rather,

what a penal statute actually indicates about contemporary social mores.

It is no more improper for a court to consider the legislative calculations

involved in the crafting of such a statute than in any other situation in which

we look to legislative history to help discern the meaning of a statute. See,

e.g., Local No. 82, Furniture & Piano Moving, Furniture Store Drivers,

Helpers, Warehousemen & Packers v. Crowley, 467 U.S. 526, 542 n.17, 104

S. Ct. 2557, 81 L. Ed. 2d 457 (1984) (‘‘[t]he legislation contains more than

its share of problems for judicial interpretation because . . . many sections

contain calculated ambiguities or political compromises essential to secure

a majority’’ [internal quotation marks omitted]); Kerrigan v. Commissioner

of Public Health, supra, 289 Conn. 205 n.45 (concluding ‘‘that the disclaimer

set forth in [General Statutes] § 46a-81r [1] was a political compromise

designed to assure persons opposed to homosexual conduct of this state’s

unwillingness to approve or condone such conduct’’); see also Griswold

Inn, Inc. v. State, 183 Conn. 552, 561–62, 441 A.2d 16 (1981) (court is not

bound to accept most constitutionally favorable interpretation of state

action).

63 Among the many steps that the legislature could have taken in this

regard include habeas corpus reform, the allocation of additional resources

for the purpose of expediting the lengthy appeals process for this state’s

capital cases, simplification of our death penalty statutes, and streamlining

the procedures applicable to capital cases.

64 See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8,

2012 Sess., pp. 2594–95, remarks of Chief State’s Attorney Kane; Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2741–42,

remarks of Robert Fromer.

65 Once again, Chief Justice Rogers begs the question in assuming that

Governor Malloy’s opposition to a retroactive repeal precluded him from

supporting P.A. 12-5 out of a sincere belief that the death penalty is a

punishment unbecoming a modern, enlightened state. In fact, Governor

Malloy’s signing statement, in which he makes it abundantly clear that

his opposition to capital punishment is principled rather than pragmatic,

notwithstanding his stated preference for a prospective only repeal, offers

perhaps the clearest and most powerful refutation of Chief Justice Rogers’

interpretation of P.A. 12-5. Nor would we join Chief Justice Rogers in labeling

the governor’s stated beliefs logically and morally ‘‘incoherent.’’ Footnote

22 of Chief Justice Rogers’ dissenting opinion. What is illogical, rather,

is the assumption that one cannot believe that something is indecent or

unacceptable unless one is prepared to reject it categorically, under every

possible circumstance.

66 Death Penalty Information Center, ‘‘Death Sentences in the United States

from 1977 by State and by Year,’’ available at http://www.deathpenalty

info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

67 See Amnesty International, ‘‘Death Penalty Trends,’’ available at http://

www.amnestyusa.org/our-work/issues/death-penalty/us-death-penaltyfacts/death-penalty-trend (last visited July 27, 2015).

68 Death Penalty Information Center, ‘‘States with and without the Death

Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-withoutdeath-penalty (last visited July 27, 2015); see also Death Penalty Information

Center, ‘‘Crimes Punishable by the Death Penalty,’’ available at http://

www.deathpenaltyinfo.org/crimes-punishable-death-penalty#BJS (last visited July 27, 2015). Besides Connecticut (2012) and Nebraska (2015), the

others are New York (2007), New Jersey (2007), New Mexico (2009), Illinois

(2011), and Maryland (2013). Death Penalty Information Center, ‘‘States with

and without the Death Penalty,’’ supra.

69 Death Penalty Information Center, ‘‘States with and without the Death

Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-withoutdeath-penalty (last visited July 27, 2015).

70 Death Penalty Information Center, ‘‘Executions by Year Since 1976,’’

available at http://www.deathpenaltyinfo.org/executions-year (last visited

July 27, 2015).

71 Death Penalty Information Center, ‘‘Execution List 2014,’’ available at

http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27,

2015).

72 Death Penalty Information Center, ‘‘Death Sentences in the United States

from 1977 by State and by Year,’’ available at http://www.deathpenalty

info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

73 Death Penalty Information Center, ‘‘Death Sentences in the United States
from 1977 by State and by Year,’’ available at http://www.deathpenalty

info.org/death-sentences-united-states-1977-2008 (last visited July 27, 2015).

74 See ‘‘Gov. Jay Inslee Announces Capital Punishment Moratorium’’ (February 11, 2014), available at http://www.governor.wa.gov/news-media/govjay-inslee-announces-capital-punishment-moratorium (last visited July 27,

2015).

75 A. Blinder, ‘‘Life Sentences for Last Four Facing Death in Maryland,’’

N.Y. Times, January 1, 2015, p. A12.

76 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

77 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

78 The thirteen states are Alabama, Arkansas, Florida, Georgia, Kentucky,

Louisiana, Mississippi, Missouri, North Carolina, South Carolina, Tennessee,

Texas, and Virginia.

79 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

80 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

81 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

82 Death Penalty Information Center, ‘‘Number of Executions by State and

Region Since 1976,’’ available at http://www.deathpenaltyinfo.org/numberexecutions-state-and-region-1976 (last visited July 27, 2015).

83 Death Penalty Information Center, ‘‘States with and without the Death

Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-withoutdeath-penalty (last visited July 27, 2015).

84 Death Penalty Information Center, ‘‘New Hampshire,’’ available at http://

deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015).

85 Death Penalty Information Center, ‘‘New Hampshire,’’ available at http://

deathpenaltyinfo.org/new-hampshire-1 (last visited July 27, 2015). In May

2014, the New Hampshire House of Representatives approved a bill that

would have repealed the death penalty, but the New Hampshire Senate

deadlocked. See Death Penalty Information Center, ‘‘News,’’ available at

http://deathpenaltyinfo.org/news/past/99/2014 (last visited July 27, 2015).

86 Some scholars have gone so far as to suggest that these pronounced

geographic disparities in the legality and use of the death penalty may be

more than mere happenstance. See C. Steiker & J. Steiker, supra, pp. 28–29

(referencing ‘‘broad scholarly literature . . . point[ing] to the fact that executions are overwhelmingly confined to the South [and states bordering the

South], the very same jurisdictions that were last to abandon slavery and

segregation, and that were most resistant to the federal enforcement of civil

rights norms’’).

87 In Rizzo II, the defendant, Todd Rizzo, offered public opinion polling

data for this court’s consideration as another purported source of evidence

regarding contemporary standards of decency. See State v. Rizzo, supra,

303 Conn. 194–95. Chief Justice Rogers, writing for the court in that case,

properly rejected the relevance of such information, ‘‘recogniz[ing] the weaknesses inherent in public opinion polls as objective measures of the popular

psyche . . . .’’ Id., 195.

Now, in a stark about-face, Chief Justice Rogers criticizes the majority

for not focusing on the question of whether a majority of Connecticut

citizens, as gauged by public opinion polls, currently believe that the death

penalty is immoral. She then proceeds to cite to various opinion polls, polls

that demonstrate, at best, that a slim and shrinking majority of Connecticut

registered voters continue to support the death penalty. See Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2623, remarks

of Senator Edwin A. Gomes (reciting polling data and concluding therefrom

that ‘‘[t]he public [has] . . . soured on the death penalty’’).

Chief Justice Rogers simply ignores the fundamental principle that ‘‘[t]he

right to be free [from] cruel and unusual punishments, like the other guarantees of the Bill of Rights, may not be submitted to vote . . . . The very

purpose of a [b]ill of [r]ights was to withdraw certain subjects from the

vicissitudes of political controversy, to place them beyond the reach of

majorities and officials and to establish them as legal principles to be applied
by the courts.’’ (Internal quotation marks omitted.) Furman v. Georgia,

supra, 408 U.S. 268–69 (Brennan, J., concurring). ‘‘The [f]ramers were well

acquainted with the danger of subjecting the determination of the rights of

one person to the tyranny of shifting majorities.’’ (Internal quotation marks

omitted.) Immigration & Naturalization Service v. Chadha, 462 U.S. 919,

961, 103 S. Ct. 2764, 77 L. Ed. 2d 317 (1983) (Powell, J., concurring in the

judgment). That same principle animates article first of the constitution of

Connecticut. It never has been the practice of this court to define the scope

of our fundamental liberties according to a ‘‘popularity contest,’’ and we

will not begin to do so now. See Volusia County Kennel Club, Inc. v.

Haggard, 73 So. 2d 884, 898 (Fla.) (‘‘If popularity contests ever become the

criteria for determining the validity of law, the uncontrolled will of the

mob will become the substitute for constitutional government. It seems

superfluous to say that a poll to ascertain public opinion should never be

the necessary prerequisite to a judicial opinion under our constitutional

system for the administration of [j]ustice.’’), cert. denied sub nom. Lane v.

Volusia County Kennel Club, Inc., 348 U.S. 865, 75 S. Ct. 87, 99 L. Ed. 681

(1954); Gillis v. Yount, 748 S.W.2d 357, 369 (Ky. 1988) (Leibson, J., concurring) (‘‘[c]onstitutional validity is not decided by a popularity contest’’).

88 As we have recognized, society’s standards of decency need not always

evolve in the same direction. We express no opinion as to the circumstances

under which a reviewing court might conclude, on the basis of a revision

to our state’s capital felony statutes or other change in these indicia, that

capital punishment again comports with Connecticut’s standards of decency

and, therefore, passes constitutional muster. See Fleming v. Zant, supra,

259 Ga. 690 (conclusion that prospective repeal of death penalty as to

mentally disabled offenders rendered execution of such individuals impermissibly cruel and unusual punishment did not amount to ‘‘per se’’ prohibition).

89 In her dissenting opinion, Chief Justice Rogers accuses the majority of,

among other things, cherry picking its sources, improperly advocating for

certain political agendas, imposing its personal moral beliefs and policy

preferences on the people of Connecticut, disregarding this court’s precedents, and usurping the legislature’s power. If Chief Justice Rogers truly

believes that we have arrived at this conclusion by ‘‘relying solely on [our]

own views’’ about capital punishment; footnote 33 of Chief Justice Rogers’

dissenting opinion; and merely because ‘‘it offends [our own] subjective

sense of morality,’’ it is only because she herself has refused either to

consider or to recognize the import of the words of our elected officials,

the actions of our jurors and prosecutors, the story of our history, the path

trodden by our sister states, and the overwhelming evidence that our society

no longer considers the death penalty to be necessary or appropriate. In

any event, we do not question the sincerity or good faith of Chief Justice

Rogers’ views, and we find it unfortunate that she deems it necessary to

question ours. Although it should go without saying, we feel compelled to

emphasize that we, no less than the dissenting justices, have decided this

case on the basis of our understanding of and dedication to the governing

legal principles, and our decision should in no way be taken as an indication

of our personal views with respect to the morality of capital punishment.

90 There is presumably some de minimus incapacitative value to the death

penalty in that one in prison for life may still escape or offend against other

inmates and prison staff.

91 Public Act 12-5 simultaneously abolished the death penalty for all crimes

committed on or after April 25, 2012, while preserving it for identical crimes

committed prior to that date. The act contains no statement of policy or

underlying findings purporting to explain the rationale therefor.

92 As authority for this theory, Chief Justice Rogers relies on public statements made by Professor Barry, as well as a brief, conclusory citation to

People v. Floyd, 31 Cal. 4th 179, 191, 72 P.3d 820, 1 Cal. Rptr. 3d 885 (2003).

There is no indication what empirical evidence, if any, supports this novel

theory of deterrence.

93 See, e.g., I. Ehrlich, ‘‘The Deterrent Effect of Capital Punishment: A

Question of Life and Death,’’ 65 Am. Econ. Rev. 397, 397–98 (1975); M.

Frakes & M. Harding, ‘‘The Deterrent Effect of Death Penalty Eligibility:

Evidence from the Adoption of Child Murder Eligibility Factors,’’ 11 Am.

L. & Econ. Rev. 451, 494–95 (2009); C. Sunstein & A. Vermeule, ‘‘Is Capital

Punishment Morally Required? Acts, Omissions, and Life-Life Tradeoffs,’’

58 Stan. L. Rev. 703, 706 (2005).

94 See generally J. Donohue & J. Wolfers, ‘‘Uses and Abuses of Empirical

Evidence in the Death Penalty Debate,’’ 58 Stan. L. Rev. 791 (2005) (ques-
tioning reliability of existing data on deterrence); J. Fagan, ‘‘Death and

Deterrence Redux: Science, Law and Causal Reasoning on Capital Punishment,’’ 4 Ohio St. J. Crim. L. 255 (2006) (concluding that there is no reliable

evidence of deterrence and that studies demonstrating deterrent effect are

fraught with error); M. Radelet & T. Lacock, ‘‘Do Executions Lower Homicide

Rates?: The Views of Leading Criminologists,’’ 99 J. Crim. L. & Criminology

489 (2009) (overwhelming consensus among criminologists is that death

penalty does not add any significant deterrent effect above that of longterm imprisonment).

95 See Death Penalty Information Center, ‘‘Execution List 2014,’’ available

at http://www.deathpenaltyinfo.org/execution-list-2014 (last visited July 27,

2015); see also B. Newton, supra, 13 J. App. Prac. & Process 42 (average

time from sentencing to execution is close to twenty years when postappeal

resentencings are taken into account).

96 To the extent that the dissenting justices contend that such delays are

constitutionally irrelevant because they are the fault of criminal defendants,

who improperly delay their executions by filing frivolous appeals and postconviction challenges, we cannot agree. As Justice Breyer explained in his

dissenting opinion in Glossip v. Gross, supra, 135 S. Ct. 2726, between 1973

and 1995, state and federal courts found errors in more than two thirds of

the capital cases that they reviewed. Id., 2771 (Breyer, J., dissenting). Delays,

then, are indispensable if the ultimate punishment is to be reliably applied,

and, if the constitution did not mandate such close scrutiny, the execution

of innocent persons would inevitably result. See id., 2771–72 (Breyer, J.,

dissenting); see also Kyles v. Whitley, 514 U.S. 419, 422, 115 S. Ct. 1555, 131

L. Ed. 2d 490 (1995) (‘‘[o]ur duty to search for constitutional error with

painstaking care is never more exacting than it is in a capital case’’ [internal

quotation marks omitted]).

97 See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012

Sess., p. 2783, remarks of Representative Arthur J. O’Neill (‘‘the record here

was replete with the proponents of getting rid of capital punishment saying

it has no deterrent effect’’); see also 55 S. Proc., Pt. 2, 2012 Sess., p. 595,

remarks of Senator Coleman; 55 S. Proc., Pt. 3, 2012 Sess., p. 670, remarks

of Senator Edward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., pp. 764–65, remarks

of Senator Steve Cassano; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of

Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., p. 775, remarks of Senator

Anthony J. Musto; 55 S. Proc., Pt. 3, 2012 Sess., p. 783, remarks of Senator

Gayle Slossberg; 55 S. Proc., Pt. 3, 2012 Sess., p. 813, remarks of Senator

Donald E. Williams, Jr.; Conn. Joint Standing Committee Hearings, Judiciary,

Pt. 8, 2012 Sess., p. 2515, remarks of Senator Williams; Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2546, remarks of Senator

Martin M. Looney; Conn. Joint Standing Committee Hearings, Judiciary, Pt.

8, 2012 Sess., p. 2622, remarks of Senator Edwin A. Gomes; Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2660–61,

remarks of Hartford Police Chief Daryl K. Roberts; Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2687, remarks of Professor Khalilah Brown Dean; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2825, remarks of Representative Gary A.

Holder-Winfield.

98 Although concededly somewhat anecdotal, it bears mention that the

one execution that was carried out in Connecticut over the past fifty years

does not appear to have had any beneficial impact on the state’s murder

rate. In fact, the opposite may be true. In the three years prior to Ross’

2005 execution, an average of 102 murders were committed annually in

Connecticut, a figure that is actually inflated by virtue of the inclusion of

sixteen deaths resulting from a single nursing home arson. Crimes Analysis

Unit, Department of Emergency Services & Public Protection, ‘‘Crime in

Connecticut: January–December 2011’’ (2013) p. 11, available at http://

www.dpsdata.ct.gov/dps/ucr/data/2011/Crime%20In%20Connecticut%20-

COMPLETE%202011.pdf (last visited July 27, 2015). By contrast, from 2006

through 2008, an average of 124 murders were committed per annum; id.;

a 22 percent increase.

We also note that murder rates actually fell in the wake of the mid-2012

abolition of the death penalty. The number of reported murders in the state’s

largest urban areas fell by more than 33 percent in the first half of 2013, as

compared to the first half of 2012. See Federal Bureau of Investigation,

‘‘Crime in the United States 2013: January-June Preliminary Semiannual

Uniform Crime Report,’’ Table 4, available at http://www.fbi.gov/about-us/

cjis/ucr/crime-in-the-u.s/2013/preliminary-semiannual-uniform-crimereport-january-june-2013/tables/table-4-cuts/table_4_offenses_reported_to_
law_enforcement_by_state_colorado_through_idaho_2013.xls (last visited

July 27, 2015). In fact, the most recent available statewide statistics indicate

that the rates of every major category of violent crime declined from 2012

to 2013. See Federal Bureau of Investigation, ‘‘Crime in the United States

2013,’’ Table 4, available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-theu.s/2013/crime-in-the-u.s.2013/tables/4tabledatadecoverviewpdf/table_4_

crime_in_the_united_states_by_region_geographic_division_and_state_

2012-2013.xls (last visited July 27, 2015).

99 See, e.g., Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012

Sess., pp. 2664–66, remarks of Anne Stone; Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2835–37, remarks of Dawn Mancarella; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess.,

pp. 2845–47, remarks of Gail Canzano; Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2861–63, remarks of Walter H.

Everett; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012

Sess., pp. 2865–66, remarks of Victoria Coward; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., pp. 2867–69, remarks of Jane

Caron.

100 See Governor’s Statement, supra (‘‘I [have seen] people wrongly

accused or mistakenly identified’’); footnote 51 of this opinion and accompanying text.

101 It is perfectly reasonable to believe, however, that more than a few

innocent defendants have been executed throughout our state’s history. See,

e.g., W. Holdsworth, supra, p. 519 (as many as eleven people were hanged

as witches in seventeenth century Connecticut).

102 We note that P.A. 12-5 does not prevent the state from seeking the

death penalty for any future defendant who is accused of having committed

a capital felony prior to April 25, 2012, and one defendant, Richard Roszkowski, was in fact sentenced to death in May, 2014; A. Griffin, ‘‘New Death

Sentence,’’ Hartford Courant, May 23, 2014, pp. A1, A5; approximately two

years after the enactment of P.A. 12-5.

103 In Ross, we adopted these principles under the due process clauses of

the state constitution. See State v. Ross, supra, 230 Conn. 252 (principles

articulated by United States Supreme Court ‘‘require, as a constitutional

minimum, that a death penalty statute, on the one hand, must channel the

discretion of the sentencing judge or jury so as to [ensure] that the death

penalty is being imposed consistently and reliably and, on the other hand,

must permit the sentencing judge or jury to consider, as a mitigating factor,

any aspect of the individual defendant’s character or record as well as the

circumstances of the particular offense’’); see also State v. Rizzo, supra,

266 Conn. 227 (same).

104 Justice Norcott has long expressed his profound concern that, ‘‘[a]s

long as racial prejudice is a factor in our lives, and it is an undeniable factor

in every facet of American life, there can be no place for a capital penalty

in our society.’’ State v. Webb, supra, 238 Conn. 570 (Norcott, J., dissenting);

see also State v. Cobb, supra, 251 Conn. 545–46 (Norcott, J., dissenting) (‘‘I

am convinced that the arbitrariness inherent in the sentencer’s discretion

is intensified by the issue of race’’). In their concurring opinion, Justices

Norcott and McDonald refer to what now appears to be strong evidence

demonstrating that impermissible racial and ethnic disparities have, in fact,

permeated this state’s capital sentencing scheme. We decline to address or

resolve such claims, however, because they are not before us at this time.

105 We fail to discern the contradiction that Chief Justice Rogers apparently

sees in recognizing that the citizens of Connecticut, as a people, have traditionally been at the forefront in adopting a more modern and humane system

of criminal justice; see part I B of this opinion; while at the same time

acknowledging that the decisions of individual jurors and prosecutors may

at times be tainted by the same sorts of subconscious biases and prejudices

with which all of us wrestle. Cf. United States v. Mulkis, 39 F.3d 664, 664

(W.D. Wn. 1930) (‘‘surely there is not a righteous man [on] earth that doeth

good and sinneth not’’ [internal quotation marks omitted]).

106 See J. Donohue, ‘‘Capital Punishment in Connecticut, 1973–2007: A

Comprehensive Evaluation from 4686 Murders to One Execution,’’ pp. 130–

31, 143, available at http://works.bepress.com/cgi/viewcontent.cgi?article=

1095&context=john_donohue (last visited July 27, 2015).

107 Once again, these concerns were at the forefront for the legislators

who supported P.A. 12-5; see footnote 50 of this opinion and accompanying

text; and for Governor Malloy when he signed the act. See Governor’s

Statement, supra (‘‘In the trenches of a criminal courtroom, I learned firsthand that our system of justice is very imperfect. While it’s a good system
designed with the highest ideals of our democratic society in mind, like most

of human experience, it is subject to the fallibility of those who participate in

it. I saw people who were poorly served by their counsel. I saw people

wrongly accused or mistakenly identified. I saw discrimination. In bearing

witness to those things, I came to believe that doing away with the death

penalty was the only way to ensure it would not be unfairly imposed.’’).

108 Legislators who supported P.A. 12-5 and those who opposed it agreed

that public outrage at the perpetrators in the Cheshire case in particular

was a primary reason the act was drafted to retain the death penalty retroactively. See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 539, remarks of Senator

Kissel (‘‘there’s no political will to abolish the death penalty because of

those two’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 675, remarks of Senator Toni

Boucher (‘‘the Petit family . . . is behind the whole rational[e] for making

this prospective’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 743, remarks of Senator

Kissel (‘‘Hayes and . . . Komisarjevsky . . . [are] why it’s almost impossible to get a bill through this [l]egislature right now that would repeal the

death penalty across the board’’); 55 S. Proc., Pt. 3, 2012 Sess., p. 746,

remarks of Senator Len Suzio (‘‘some members actually changed their vote

only a year ago in response to the horrible [Petit] tragedy’’); 55 S. Proc., Pt.

3, 2012 Sess., p. 781, remarks of Senator Edith Prague (opposed repeal out

of respect for William Petit); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1043, remarks

of Representative Lawrence F. Cafero, Jr. (‘‘It is no secret that what is

weighing over all of us is the Petit murders. . . . In fact, it was widely

reported that one of the reasons this General Assembly didn’t take this bill

up earlier was because of the freshness of those awful crimes.’’); 55 H.R.

Proc., Pt. 4, 2012 Sess., p. 1063,remarks of Representative Al Adinolfi(‘‘many

people in this room . . . have changed . . . their vote to abolish the death

penalty ratherthan vote against abolishing the death penalty based on [those]

. . . who are on death row being executed, especially, Komisarjevsky and

Hayes’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1209, remarks of Representative

Themis Klarides (‘‘[I]f anyone deserves the death penalty, those two guys

deserve the death penalty because what they did [was] so bad. We don’t

really support it for anybody else going forward [however] . . . .’’); 55 H.R.

Proc., Pt. 4, 2012 Sess., p. 1305, remarks of Representative Ernest Hewett

(addressing ‘‘members who are voting for a prospective bill so they can

make sure that Hayes and Komisarjevsky get the death penalty’’); 55 H.R.

Proc., Pt. 4, 2012 Sess., p. 1317, remarks of Representative Lile R. Gibbons

(‘‘[i]n the wake of the terrible Petit murders, it’s very hard for any of us to

want to vote to repeal the death penalty’’); 55 H.R. Proc., Pt. 4, 2012 Sess.,

p. 1337, remarks of Representative Robert C. Sampson (‘‘We’ve talked a lot

tonight about the murders in Cheshire. The two people—the two men that

committed those acts of violence are not men at all. They are animals. And

I don’t want to let them off the hook . . . .’’); 55 H.R. Proc., Pt. 4, 2012

Sess., p. 1383, remarks of Representative Lawrence F. Cafero, Jr. (‘‘in many

respects it’s because of [Hayes and Komisarjevsky] that we have the bill that

we have before us’’); Conn. Joint Standing Committee Hearings, Judiciary, Pt.

8, 2012 Sess., p. 2544, remarks of Senator Martin M. Looney (legislature

deferred consideration of repeal in 2011 due to Cheshire case).

By contrast, every legislator whom Chief Justice Rogers cites as having

been equally committed to executing the other residents of death row voted

against P.A. 12-5, and would have retained the death penalty both retroactively and prospectively. Their principled views, while no less deserving of

respect, are simply not relevant to the question before us: whether those

legislators who voted to abolish capital punishment only on the condition

that it be retained for those already occupying death row did so out of a

principled belief in the appropriateness of the death penalty or, rather, to

satisfy a public or private call for vengeance against the perpetrators in the

Cheshire case.

109 B. Connors, ‘‘Prague: ‘Hang the Animal By His . . .’,’’ NBC Connecticut

(May 12, 2011), quoting Senator Edith Prague, available at http://

www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-by-His121670559.html (last visited July 27, 2015).

110 Because we conclude both that the continued imposition of the death

penalty in Connecticut following the enactment of P.A. 12-5 offends contemporary standards of decency and that it fails to satisfy any legitimate penological objective, we need not determine whether it has come to be so rarely

imposed that it also violates the state constitutional prohibition on unusual

punishment. As we discussed; see footnote 16 of this opinion; the United

States Supreme Court has at times suggested that the eighth amendment

may contain an independent prohibition against punishments that are
unusual, even if they are not cruel. Recent scholarship supports this interpretation and suggests that, especially in light of the enactment of P.A. 12-5,

the death penalty in Connecticut has become impermissibly unusual. See

R. Casale & J. Katz, ‘‘Would Executing Death-Sentenced Prisoners after the

Repeal of the Death Penalty Be Unusually Cruel under the Eighth Amendment?,’’ 86 Conn. B.J. 329, 341, 344–45 (2012). For example, Professor John

F. Stinneford has observed that, under the original meaning of unusual

punishment, ‘‘when a traditional [common-law] punishment falls completely

out of usage, it loses the presumption of validity that comes with being

usual,’’ and attempts to reintroduce it would be met with as much or more

scrutiny as entirely novel punishments. J. Stinneford, ‘‘The Original Meaning

of ‘Unusual’: The Eighth Amendment as a Bar to Cruel Innovation,’’ 102 Nw.

U. L. Rev. 1739, 1746, 1813 (2008). This reflects the principle that, ‘‘[a]s

courts decide cases year after year and century after century, impractical

and unjust legal practices fall away like dross, while practical and just ones

survive’’; J. Stinneford, supra, 1775; and may apply with equal force to

punishments eliminated by legislative reform. See id., 1814. This interpretation of the constitutional ban on unusual punishment also is consistent with

Connecticut common law in the years leading up to the adoption of the

1818 constitution. See, e.g., State v. Smith, supra, 5 Day (Conn.) 178–79

(reviewing claim that punishment was new or ‘‘novel, without precedent’’);

L. Goodheart, supra, pp. 68, 76–77 (in 1808, legislature voted to commute

death sentence of Clarissa Ockry, who otherwise would have been first

woman executed in Connecticut for infanticide since 1753).

111 Although Justice Zarella contends otherwise, we disagree for the reasons stated in this opinion.

112 Although it might have been helpful for the defendant himself to review

the additional historical information that has come to light over the past

several years, his failure to do so does not preclude our consideration of

information revealed from our own independent research. See part IV A 3

of this opinion.

113 See part IV C of this opinion.

114 To respond that appellate courts simply should refuse to consider or

address any questions of legislative fact that have not already been fully

vetted by the parties at the trial level is to miss the point. When a court

considers a legislative fact, it typically is because that fact is central to a

question of policy the necessary determination of which will broadly impact

persons who are not parties to the immediate dispute. To turn a blind eye

to relevant and well established scientific or sociological knowledge that

the parties may have overlooked or decided to leave unearthed, whether

for strategic or financial reasons, would unjustly and unwisely subject the

public at large to the results of an ill-informed decision.

115 Of course, if the citizens of Connecticut wish to reinstate the death

penalty, they may always amend the state constitution, as the citizens of

California and Massachusetts did, to clarify that the punishment is and will

remain constitutional notwithstanding any evolution in the state’s standards

of decency.

116 See footnote 89 of this opinion.