****************************************************** The ‘‘officially released’’ date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ‘‘officially released’’ date appearing in the opinion. In no event will any such motions be accepted before the ‘‘officially released’’ date. All opinions are subjectto modification andtechnical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut LawJournal andboundvolumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.

******************************************************STATE v. SANTIAGO—SECOND CONCURRENCE EVELEIGH, J., concurring. Vengeance has no place in the orderly administration of justice by a civilized society. It certainly can never serve as thejustification for the death penalty in today’s world. My review of the text and legislative history of the public act under consideration, No. 12-5 of the 2012 Public Acts (P.A. 12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactmentoftheprovisionsallowingtheelevenmenondeath
row to be executed while eliminating the death penalty for crimes committed in the future. Because I conclude that there is no longer any valid penological purpose justifying the retention of the death penalty for prerepeal defendants, and that our capital sentencing statutory scheme no longer guards against arbitrariness, it necessarily follows that the portions of P.A. 12-5 that allowthe men on deathrowtobe executedareviolative ofthefederalandstate constitutionalbansagainstcruel and unusual punishment. See U.S. Const., amend. VIII; Conn. Const., art. I, §§ 8, 9.1 I thereforejoin the majority’s analysis in all respects, and join in remanding the
case with directionto sentence the defendant, Eduardo Santiago, to a term of life imprisonment without the possibility of release. I write separately to express my viewthat, althoughourstateconstitutionprovidesseparate and distinctprotectionsto the citizens ofConnecticut and appropriatelyprohibits capital punishment, the protections afforded by the eighth amendment to the United States constitution and existing federal case law would have been sufficient to prohibit capital punishment in the state of Connecticut. Moreover, although I agree with the majority that capital punishment is unconstitutional andthatthe majorityproperlyreached the issue ofunconstitutionality, in view ofthe dissents’ claims about the appropriateness of the majority’s reaching the issue, I conclude that the unconstitutional aspects of the act could have been severed in order to effectuate the legislature’s clear intent to repeal the death penalty. Historically, Connecticut has been a leader in recognizing limits to the application of the death penalty.2 The death penalty is an especially brutal, archaic punishment, and one that has been kept alive only because of our society’s acceptance of the traditional theories of punishment, namely, retribution and deterrence. Because the concept of retributive justice inextricably links the severity of a punishment with the culpability of the offender, the death penalty must be available for similarly culpable offenders in order for a capital sentencing scheme to fulfill avalid retributive purpose. By maintaining the death penalty for those who have committed a capital offense before the act’s arbitrary effective date while eliminating the death penalty foranycrime committedthereafter, nomatterhowheinous that crime may be, P.A. 12-5 severs the tie between the imposition of the death penalty and the culpability of the individual offender.
I
P.A. 12-5 RENDERS CONNECTICUT’S CAPITAL PUNISHMENT STATUTORY SCHEME UNCONSTITUTIONAL UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION
The eighth amendment to the constitution of the United Statesbansthe inflictionofall cruelandunusual punishments. See footnote 1 ofthis concurring opinion. In assessing the contours of the eighth amendment in the context of the death penalty, the United States Supreme Court has recognized that ‘‘the penalty of death differs from all other forms of criminal punishment, not in degree but in kind.’’ (Internal quotation marks omitted.) Solem v. Helm, 463 U.S. 277, 289, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), quoting Furman

v. Georgia, 408 U.S. 238, 306, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring).
When a particular type of punishment is challenged categorically or, in other words, when it is argued that
a given penalty is never appropriate for a specific category ofoffender, ‘‘[t]he [c]ourt first considers objective indiciaofsociety’sstandards, as expressedinlegislative enactments and state practice to determine whether there is a national consensus against the sentencing practice at issue.

. . . Next, guided by the standards elaborated by controlling precedents and by the [c]ourt’s own understanding and interpretation of the [e]ighth [a]mendment’s text, history, meaning, and purpose

. . . the [c]ourt must determine in the exercise of its own independent judgment whether the punishment in question violates the [c]onstitution.’’ (Citations omitted; internal quotation marks omitted.) Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
The Supreme Courtalsohasrecognizedthat, because ofits ultimate and irrevocable effect, the death penalty cannot be imposed underprocedures that create a substantial risk of its infliction in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 188, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976). Simplyput, ‘‘[t]he [e]ighth and [f]ourteenth [a]mendments cannottolerate the infliction ofasentence ofdeathunderlegal systems that permit this unique penalty to be

. . . wantonly and

. . . freakishly imposed.’’ (Internal quotation marks omitted.) Id., quotingFurmanv. Georgia, supra, 408 U.S. 310 (Stewart, J., concurring). Following our legislature’s prospective repeal of the death penalty, the single most determinative factor inwhetheradeathpenaltyisimposedorcarriedoutunder
our capital sentencing scheme is the date on which
a defendant commits his or her crime—specifically, whether a defendant has committed his or her crime before April 25, 2012. As I explain in part I A of this concurring opinion, I conclude that, as amended by P.A. 12-5, Connecticut’s capital sentencing scheme is contrary to the consensus against executions postrepeal of the death penalty. In addition, as I explain in part I B of this concurring opinion, to allow such an arbitraryfactor, which lacks any connectionto the purported purposes ofthe death penalty and the nature of the offenses committed, to have such an extreme impact on the ultimate fate ofa limited class ofindividual defendants is the paradigm of capriciousness that the eighth amendment will not tolerate.
A Executing the Defendant Following the Repeal of the Death Penalty Is Inconsistent with Contemporary

Standards of Decency
Under the test reserved for categorical challenges to the death penalty for a particular class of offender, the first step is to consider objective indicia of society’s standards. Graham v. Florida, supra, 560 U.S. 61–62. Inthepresent case, this step requiresthe courtto examine the standards expressed by legislatures and courts regarding the imposition ofthe death penalty following
aprospective repeal. Although ‘‘[t]he clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures’’; (internal quotation marks omitted) id., 62, quoting Atkinsv. Virginia, 536U.S. 304, 312, 122 S. Ct. 2242, 153 L. Ed. 2d335 (2002); ‘‘[t]here aremeasures ofconsensus other than legislation.

. . . Actual sentencing practices
are an important part of the [c]ourt’s inquiry into consensus.’’ (Citation omitted; internal quotation marks omitted.) Graham v. Florida, supra, 62; accord Kennedyv. Louisiana, 554 U.S. 407, 433–34, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008); Roper v. Simmons, 543 U.S. 551, 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Atkins

v. Virginia, supra, 316; Thompson v. Oklahoma, 487 U.S. 815, 821–29, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988); Enmund v. Florida, 458 U.S. 782, 794–96, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). On the basis ofnot only the actions of legislative and executive branches worldwide regarding prospective repeals of the death penalty, but also the actual sentencing practices of otherjurisdictions during periods of time in which the death penalty has been repealed, I would conclude that current societal standards unequivocally indicate an unwillingness to impose the death penalty on defendants who committed their crimes prior to the repeal.
1
Federal and State Case LawAlthough the United States Supreme Court has repeatedly upheld the facial validity of the death penalty; see Greggv. Georgia, supra, 428 U.S. 187; in recent years, that court has limited the situations in which capitalpunishmentispermissible. SeeKennedyv.Louisiana, supra, 554 U.S. 413 (deathpenaltyimpermissible for nonhomicide crimes against individuals); Roper v. Simmons, supra, 543 U.S. 568 (deathpenaltyimpermissible for defendants who committed their crimes prior to age of eighteen); Atkins v. Virginia, supra, 536 U.S. 321 (deathpenaltyimpermissible for defendants whose intellectual functioning is in low range). That court, however, has never decided whether a state may carry out executions while a prospective repeal ofthe death penalty is in effect. Nonetheless, this nation’s highest court has consideredthesignificanceofaprospectiverepealofthedeath penalty for purposes of eighth amendment analysis. In Atkins v. Virginia, supra, 536 U.S. 314–15, the United States Supreme Court determined that a national consensus existed against the execution of mentally disabled defendants, relying in part on the fact that eighteen ofthe thirty-eight states thatpermitted capital punishment had enacted legislation forbidding the execution of such individuals. See id., 342 (Scalia, J., dissenting). The court was well aware that, of those eighteen states, only seven had prohibited all such executions, while eleven had enacted statutes prospectively prohibiting the execution of mentally disabled individuals, thus maintaining death sentences for mentally disabled individuals who had committed capital offenses prior to the enactment of the repeals. See id., 342–43 (Scalia, J., dissenting) (arguing againstinclusion ofprospective repeal states). The court declined, however, to draw any analytic distinction between states thathadcompletelyabolishedtheexecutionofmentally disabled individuals and states that had only had prospectively prohibited it in determining whether a national consensus against the practice had emerged. Id., 314–16. Under Atkins, therefore, a prospective appeal ofthe death penalty signals ajurisdiction’s own
consensus against the death penalty.3 Applying the proper standard, I turn now to the practices of our sister states, as articulated by their legislatures and courts. As I explain in further detail subsequently in this opinion, twenty-seven other states and the District of Columbia have, at least at some point in history, eliminated their death penalty, and no executions have been carried out by those states as long as the repeal or invalidation remained in effect.4 Eleven states other than Connecticut, namely, Hawaii, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico, Vermont, and Wisconsin, have enacted repeals ofthe death penalty that are prospective only in nature.5 Only one state otherthan Con-necticut, New Mexico, continues to have individuals sentenced to death despite the enactment ofaprospective repeal. See 2009 N.M. Laws 141. The appellate courts of that state have not yet ruled on the constitutionality of the prospective only nature of their repeal, andno executionshavebeen carriedoutsince its enactment.6 Significantly, however, a small number ofstates have enacted prospective repeals of the death penalty for certain classes of offenders or prospective repeals of procedures that had made a death sentence more likely. In these states, courts consistently have concluded that the repeal must be applied to persons previously sentenced to death.7
I begin with the case law from those states that have addressed the question that is before this court in the context ofapartial repeal ofthe death penalty or death penalty provisions. This case law shows that, like the view taken by the United States Supreme Court, a prospective repeal ofthe deathpenaltyis deemedto signify
consensus that the execution of individuals who fall withinthe categoryofoffenderaffectedbytheprospective repeal, including those individuals sentenced to death prior to the repeal, would violate contemporary standards of decency. See Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989), superseded by statute
as stated in Turpin v. Hill, 269 Ga. 302, 303–304, 498 S.E.2d 52 (1998); Saylor v. Indiana, 808 N.E.2d 646, 650 (Ind. 2004); Cooper v. State, 540 N.E.2d 1216, 1220–21 (Ind. 1989); State v. Bey, 112 N.J. 45, 51, 548 A.2d 846 (1988); Van Tran v. State, 66 S.W.3d 790, 801– 804 (Tenn. 2001). Thus, courts have vacated a defendant’s deathsentencewhen, duetoprospectivechanges inthatstate’scapitalpunishmentscheme,thedefendant would not have been eligible for the death penalty had he been sentenced after the statutory changes were made.
In Cooperv. State, supra, 540 N.E.2d 1220, the Indiana Supreme Court concluded that a prospective repeal of the deathpenaltyfor offenders underthe age ofsixteen rendered the prerepeal death sentence ofa fifteen year olddefendantunconstitutionalunderthatstate’sconstitution. In considering the Indiana legislature’s decision to apply the repeal prospectively despite the fifteen year old defendant’s pending death sentence, the court noted: ‘‘The bill’s sponsors declared openly that this exclusion was purposeful. Although the exclusion [of thedefendant] wasassaultedonthe [h]ousefloorduring consideration ofthebill asbeingunjust, itwas apparent that the authors wished to enact a general policy without the passion that legislating on a particular case would arouse.’’ (Footnotes omitted.) Id., 1219. The Indiana Supreme Court reasoned as follows in holding that executing the defendant would violate the state constitution:8 ‘‘While this case has been pending on appeal, the legallandscape surroundingithas changed dramatically in ways that reflect on the appropriateness ofthisdeath penalty ‘in light of other death penalty cases.’ ’’ Id. Although the legislature purposefully had crafted the repeal so as not to affect the defendant’s death sentence, the court didnotfindthe effective date provision of the act dispositive of the issue of whether it
was constitutionalto execute the defendant. Id. Rather, the court stated: ‘‘Now that Indiana law establishes [sixteen] as the minimum age for the imposition ofthe death penalty, [the defendant] would be both the first and the last person ever to be executed in Indiana for
a crime committed at the age of [fifteen]. This makes her sentence unique and disproportionate to any other sentence for the same crime.’’ Id., 1219–20. This language, in my view, suggests that the court determined that the prospective repeal signified a societal consensus against the execution of any offender who was younger than sixteen years of age at the time of his or hercrime, regardless ofwhetherthe crimewas committed prior to the effective date of the repeal.
Morerecently, inSaylorv.Indiana, supra, 808N.E.2d 651, the Indiana Supreme Court reduced a death sentence after a change in the law altered the way that the death penalty could be imposed in future cases. The defendant in Saylor had been sentenced to death in 1992, despite a unanimousjury recommendation to the contrary, under a law that allowed the trial judge to override a jury recommendation against death if the trialjudge found that the statutory aggravating circumstances outweighed any mitigating circumstances. Id., 647–48. After the defendant’s sentence was affirmed, the Indiana legislature enacted legislation that eliminated the trialjudge’s authority to impose a death sentence in contravention ofajury’s recommendation. Id., 648. The defendant thereafter sought rehearing on the judgment affirming his sentence, claiming, inter alia, that his death sentence should be invalidated because, if his sentencing had occurred after the amendments to the capital sentencing statute took effect, he would not have been eligible for the death penalty. Id. On rehearing, the Indiana Supreme Court agreed with the defendant and reduced his sentence from death to a term of years. Id., 651. As it did in Cooper, the court reaffirmed its goal ofensuring ‘‘ ‘evenhanded operation ofthe death penalty statute’ by reviewing death sentences ‘in light of other death penalty cases.’ ’’ Id., 650. Althoughthe courtnotedthatithadpreviouslyaffirmed the defendant’s deathsentence, itexplained: ‘‘Sincethat time the legal landscape has significantly changed.

. . . [A]s a matter of Indiana state law [the defendant], if tried today, could not be sentenced to death without a jury recommendation that death be imposed. Under these circumstances we conclude that his death sentence is inappropriate and should be revised.’’ Id. The court compared the case before it with its previous decisioninCooper, andstatedthatbothcasespresented ‘‘situations in which the legislature, after [the defen-dants’] sentences were imposed, enacted significant changes in the requirementsfor the deathpenalty that would render [the defendants] ineligible for a death sentence in a trial conducted today

. . . . [W ]e concludeitisnotappropriate to carryoutadeathsentence that was the product of a procedure that has since been revised in an important aspect that renders the defendant ineligiblefor the deathpenalty.’’ (Emphasis added.) Id., 650–51. Accordingly, the Indiana Supreme Court converted the sentence of death to a term of imprisonment. Similarly, in Van Tran v. State, supra, 66 S.W.3d 792, the Tennessee Supreme Court concluded that it would violate that state’s constitutional ban on cruel and unusual punishment to execute a mentally disabled defendant after the enactment of laws prospectively banning such executions. That court concluded that, although the legislature did not intend for the repeal to apply retroactively to those mentally disabled defendants who had been sentenced to death prior to the effective date ofthe repeal; id., 798–99; the prospective ban nevertheless reflected an ‘‘evolving societal view’’ in that state that executing a mentally disabled individual would violate ‘‘contemporary standards of decency.’’ Id., 801–805.
The Georgia Supreme Court reached the same conclusion when faced with a challenge to a statute prospectively repealing the death penalty for mentally disabled individuals. See Fleming v. Zant, supra, 259 Ga. 690. That court concluded that the prospective repeal signified that the contemporary ‘‘ ‘standard[s] of decency’ ’’ in that state no longer supported the execution of those individuals, including those who were on death row prior to the effective date of the repeal. Id. In analyzing the significance ofthe prospective repeal, the court stated: ‘‘The legislative enactment reflects a decision by the people of Georgia that the execution of mentally [disabled] offenders makes no measurable contribution to acceptable goals of punishment. Thus, although there may be no ‘national consensus’ against executingthementally [disabled], thisstate’sconsensus is clear.’’9 (Footnote omitted.) Id. Likewise, in State v. Bey, supra, 112 N.J. 51, the New Jersey Supreme Court gave retroactive effect to a statuteprospectivelyrepealingthe deathpenaltyforcrimes committed by minors. Although in that case the court premised its decision to apply the statute retroactively
on rules ofstatutory construction; id., 100–105; it noted that, apart from the legislature’s intent concerning retroactivity, ‘‘notions of fundamental fairness

. . . would likewise demand retroactive application of the juvenile-offender exemption in this case.

. . . Indeed, the [state]

. . . concedes that sound public policy and fundamental fairness dictate that [the] defendant not be singled out to be the onlyjuvenile ever executed oreven eligible for execution under our current death penalty law.’’ (Citation omitted; internal quotation marks omitted.) Id., 104–105.
Itisallbutacertaintythatatleastsomefuture offenders protected by the prospective repeal will have the
same characteristics as the prerepeal defendants, and thattheir crimes will be similarto—ifnot worse than— those committed by the prerepeal defendants, yet only the prerepeal defendants would face the possibility of dying at the hands ofthe state. As I explain more fully in part I A 3 of this concurring opinion, first, it would be irrational to conclude that the prerepeal defendants may be executed when the legislature has determined that the death penalty should not be available for all future offenders, irrespective of whether their moral culpability is similar to, or greater than, that of the prerepeal defendants. Second, these decisions from our sisterstateswerenotallsolelygroundedonthefactthat the legislative enactments addressed offenders who, in general, are less culpable than the average adult offender, and that this diminished culpability rendered imposition of the death penalty unconstitutional. Rather, these decisions aptlyhighlightedthe fundamental unfairness inherent in executing a defendant when, due to a legislative enactment either prospectively repealing the death penalty or substantially altering the way in which the death penalty may be imposed in the future, that defendant would not have been eligible for the death penalty ifhe or she had been sentenced after the enactment took effect.10 Thus, these courts were alsoconcernedwithensuringtheevenhandedoperation oftheircapital sentencing statutes, andviewedthe date of an offense as an arbitrary eligibility factor for the death penalty.11 See Saylor v. Indiana, supra, 808 N.E.2d 650; Cooper v. State, supra, 540 N.E.2d 1219; State v. Bey, supra, 112 N.J. 104–105. Thus, the precedents of our sister states, in my view, weigh strongly against carrying out an execution after the legislature has prospectively repealed the death penalty.
2
Actual Practices in Other Jurisdictions Moreover, in assessing whether apunishment is constitutionally sound, ‘‘it also is appropriate for us to consider what is occurring in actual practice.’’ State v. Rizzo, 303 Conn. 71, 191, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). Thus, in determining whetherthere is anational
consensus against conducting executions while adeath penalty repeal is in place, it is proper to look to the numberofexecutionsthathave occurredinotherstates while a repeal of the death penalty has been in effect. See Graham v. Florida, supra, 560 U.S. 63–64 (reviewing statistics concerning number of juvenile nonhomicide offenders serving sentences oflife imprisonmentwithoutpossibilityofparole);Kennedyv.Loui-siana, supra, 554U.S. 433–34(reviewingstatisticsabout number of executions of child rapists to determine if such punishment is socially unacceptable); State v. Rizzo, supra, 191–93 (reviewing number of people on deathrowandnumberofexecutions carriedoutnationally to constitutionality of death penalty). Upon review, it does not appear that any state has
ever executed an inmate while a death penalty repeal has been in force.12 Aside from the two states with expressly prospective death penalty repeals, Connecticut and New Mexico; see footnote 6 ofthis concurring opinion; seventeen states, as well as the District of Columbia, do not have statutes that currently authorize the death penalty. See Death Penalty Information Center, ‘‘States With and Without the Death Penalty,’’ (2015), available at http://www.deathpenaltyinfo.org/ states-and-without-death-penalty (last visited August 10, 2015). In two of these states—North Dakota and West Virginia—the legislation repealing the death penalty expressly stated that the repeal applied retroactively.13 In six of these states—Hawaii, Illinois, Iowa, Maryland, Minnesota and New Jersey—the death sentences of the remaining inmates on death row were commuted by the executive branch, either before or afterthe legislature repealedthe deathpenalty.14 Intwo other states—Massachusetts and New York—as well
as the District of Columbia, a court invalidated the existing death penalty statutory scheme, which effectively banned future executions in the absence of a statutory change.15 No such changes have been made. Thus, no postrepeal executions have taken place in the nineteen other jurisdictions which currently prohibit the death penalty.
In addition, the followingthirteen states have, atvarious times in our nation’s history, temporarily repealed and laterreinstatedthe deathpenalty, yetnone ofthese states ever executed a person previously sentenced to death while the temporary repeal remained in effect: Arizona,16 Colorado,17 Delaware,18 Iowa,19 Kansas,20 Maine,21 Missouri,22 New Mexico,23 New York,24 Oregon—twice,25 South Dakota,26 Tennessee,27 and Washington.28 No state has executedaninmate while arepeal
was in effect.29 Rather, any executions occurred after the death penalty was reinstated and a new death sentence was imposed under the new capital sentencing statute. On several occasions, the sentences of prerepeal death row inmates were commuted to life imprisonment through applicable procedures.30 In other instances, the repeal legislation either expressly31 or impliedly32 applied retroactively.33
The utter absence ofpostrepeal executions leads me inexorably to the conclusion that there is a national
consensus against the practice. In fact, the statistics in this case are far more convincing than some of the statistics relied upon by the United States SupremeCourt in determining that a national consensus exists against a given sentencing practice. See Graham v. Florida, supra, 560 U.S. 64–65 (concluding that there
was national consensus against sentencing juvenile nonhomicide offenders to life imprisonment without possibility of parole when only 123 such people were serving that sentence in eleven jurisdictions); Atkins

v. Virginia, supra, 536 U.S. 316 (concluding national
consensus against executing intellectually disabled defendants existed where five such offenders had been executed in thirteen year period); Enmund v. Florida, supra, 458 U.S. 794 (concluding that society had rejected death penalty for nontriggerman felony murdererswhereonlysixsuchoffendershadbeenexecuted between 1954 and 1982). Thus, although the United States Supreme Court has determined that a national
consensus exists against the sentencing practices in those cases, despite the fact that those sentences had actuallybeenimposed, there cannotbe aclearerindicator of consensus than that demonstrated by the statistics in the present case, namely, a complete unwillingness on the part of this nation to impose or carry out a death sentence while a death penalty repeal—eitherprospectivelyorintoto—isineffect. The actual practice ofthese states is the controlling factor, and the practice of these states is, clearly, not to execute. See Atkins v. Virginia, supra, 316 (national consensus exists against executing mentally disabled individuals when, among others things, even states that authorized practice had not actually carried out such executions).
3

International Considerations Finally, I would point out that, not only is there a national consensus against the imposition ofthe death penalty while arepeal is in effect, there is a demonstrable global consensus that postrepeal executions are impermissible. According to a recent report by the United Nations, as of 2008, ninety-five countries have abolished the death penalty for all crimes.34 U.N. Secretary-General, ‘‘Capital Punishment and Implementation ofthe Safeguards GuaranteeingProtectionofthe Rights ofThose Facingthe Death Penalty; Report ofthe Secretary-General,’’ (2009), p. 7, available at http://www. crin.org/docs/UN_CP.pdf (last visited August 10, 2015). According to available data, none of these countries have everexecutedanindividualafterthe deathpenalty
was repealed, regardless of whether the repeal was accomplished via legislation, executive action, or a determination by a court oflaw. Id., pp. 60–62; see also Death Penalty Information Center, ‘‘Abolitionist and Retentionist Countries,’’ (2015), available at http://www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last visited August 10, 2015). Thus, if Connecticut were to execute the defendantafter the enactment of P.A. 12-5, it would apparently
earnthe dubious distinctionofbecomingthefirstsovereign entity to execute one of its citizens while a repeal of the death penalty remains in force. In doing so, our state would distinguish itself from a host of countries that have refused to tread the path on which our state
nowtravels, including countries asvaried as Argentina, Belgium, Cambodia, Djibouti, France, Haiti, Ireland, Kyrgyzstan, Mexico, Mozambique, the Philippines, Romania, Rwanda, Samoa, Senegal, Serbia, South Africa, Turkey, andtheUnitedKingdom. U.N. SecretaryGeneral, supra, pp. 60–62.
In light of the foregoing, I am persuaded that there
are clearobjectiveindiciaofsocietalstandardssupporting the proposition that there is a consensus that the imposition ofasentence ofdeath following alegislative repeal ofthe death penaltyviolates contemporary standards of decency.
B
Enactment of P.A. 12-5 Eliminates Any Valid Penological Objective for Maintaining the Death Penalty for Prerepeal Offenders for Reasons Unrelated to Their Culpability ‘‘Community consensus, while entitled to great weight, is not itself determinative ofwhether a punishment is cruel and unusual.’’ (Internal quotation marks omitted.) Graham v. Florida, supra, 560 U.S. 67. ‘‘In accordance with the constitutional design, the task of interpreting the [e]ighth [a]mendment remains our responsibility.

. . . The judicial exercise of independentjudgment requires consideration ofthe culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question.

. . . In this inquiry the [c]ourt also considers whether the challenged sentencing practice
serveslegitimatepenologicalgoals.’’ (Citations omitted; internal quotation marks omitted.) Id.
In Roper v. Simmons, supra, 543 U.S. 568–71, Graham v. Florida, supra, 560 U.S. 67–71, and Miller v. Alabama, U.S. , 132 S. Ct. 2455, 2465–69, 183 L. Ed. 2d 407 (2012), the United States Supreme Court contrasted the characteristics of juveniles and adults who committed the same criminal behavior, and concluded that juveniles were less culpable than adults who committhe same crime and, therefore, the punishment at issue—whether it was life without parole or the death penalty—would be cruel and unusual if imposed on ajuvenile even though the same sentence wouldnotviolate the eighth amendmentwhen imposed
on an adult. InAtkins v. Virginia, supra, 536 U.S. 317– 18, the court engaged in a similar analysis regarding adults with intellectual disabilities.
In cases such as Cokerv. Georgia, 433 U.S. 584, 592,97 S. Ct. 2861, 53L. Ed. 2d982 (1977) (pluralityopinion), Enmund v. Florida, supra, 458 U.S. 787, and Kennedy

v.Louisiana, supra, 554U.S. 438–39,the SupremeCourt examined whether imposition of the death penalty for
a nonhomicide crime violated the eighth amendment. In each case, the court concluded that the imposition ofthe deathpenaltywouldbeunconstitutionallydisproportionate to the culpability of the offender. See, e.g., Kennedy v. Louisiana, supra, 438. In reaching its conclusion, the courtexaminednotonlysocietal consensus regarding the punishment faced by the defendant and the underlying penological justifications, but also the characteristics of the crime and the offender.
The present case raises an issue that has not been answered by any of the previously cited cases. The defendant asks us to decide whether the imposition of the deathpenaltywould be disproportionate in relation to the particular type of homicide of which he was convicted as to violate the eighth amendment now that
our legislature has determined that, moving forward, the death penalty is an impermissible punishment for any offender who commits the same type ofhomicide. This is fundamentally adifferentquestionthanthe ones posed byEnmund, Kennedy, Coker, Simmons,Atkins, Graham, and Miller

. In each of those cases, the court
was essentially being asked to make an exception—to spare a group of offenders from an otherwise acceptable penalty. By contrast, in the present case, we are facedwiththe situationinwhich Connecticuthas determined thatthe death penalty is no longer an acceptable punishment for any crime committed today. Thus, the question is not whether Connecticut may create an exception to an otherwise acceptable punishment, but whetherConnecticutmayinflictanotherwiseunacceptable punishment on the defendant.
An exploration ofP.A. 12-5 and how it would impact offenders such as the defendant helps put the question before us in proper context. Public Act 12-5, § 2, amended General Statutes § 53a-35a, effective April 25, 2012. That statute presently provides in relevant part: ‘‘For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and, unless the section of the general statutes that definesorprovidesthepenaltyforthecrimespecifically provides otherwise, the term shall be fixed bythe court
as follows: (1) (A) For a capital felony committed prior to April 25, 2012, under the provisions of section 53a54b in effectpriortoApril 25, 2012, aterm oflife imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-46a, or (B) for the class A felony of murder with special circumstances committed on or after April 25, 2012, under the provisions of section 53a-54b in effect
on or after April 25, 2012, a term of life imprisonment without the possibility of release

. . . .’’ General Statutes § 53a-35a. The most significant feature of thisscheme for purposes of this part of my analysis is that the conduct classifiedas a‘‘capitalfelony’’ ora‘‘murder with special circumstances’’ is exactly the same

. The legislature simply substituted the term ‘‘murder with special circumstances’’ for ‘‘capital felony’’ inthe provisionsettingforththeeightoffensesthatwerepreviously eligible for capital punishment. Compare General Statutes (Rev. to 1999) § 53a-54b (‘‘[a] person is guilty of a capital felony who is convicted of

. . . [2] murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who ishiredbythedefendantto committhesameforpecuniary gain’’), with General Statutes (Rev. to 2013) § 53a54b (‘‘[a] personis guilty ofmurderwithspecial circumstances who is convicted of any of the following

. . . [2] murder committed by a defendant who is hired to committhe same forpecuniarygain ormurder committed by one who is hired by the defendant to commit the same for pecuniary gain’’). Only the former version of the statute, however, permits punishment by death. Thus, the precise conduct which gave rise to the defendant’s capital felony conviction is now defined as ‘‘murder with special circumstances

. . . .’’ Ifthe defendant hadengagedinidenticalconductafterApril25, 2012,the death penalty simply would not have been an available punishment. Therefore, the date of the offense, rather than the particular culpability ofthe offender, is determinative ofwhetherthe deathpenaltyis available. With this perspective in mind, I turn to the question of whether such a dichotomy can be justified.
Under the eighth amendment, in order for a punishmenttopass constitutionalmuster, itmustfulfill avalid penological objective. ‘‘Criminal punishment can have different goals, and choosing among them is within a legislature’s discretion.’’ Graham v. Florida, supra, 560 U.S. 71. The two penologicaljustifications traditionally and consistently articulated in support of the death penaltyare deterrence ofcapitalcrimesandretribution. See Kennedy v. Louisiana, supra, 554 U.S. 441. Unless the impositionofthe deathpenalty‘‘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. Although this court has previously concluded that the death penaltyvalidly serves one or both ofthese objectives; see State v. Rizzo, supra, 303 Conn. 197–98; it is plain to me that, in light of the prospective repeal, the execution of prerepeal death row inmates no longer measurablycontributesto avalidpenological objective.
There has been a long running debate as to whether the death penalty actually functions as a deterrent to those crimes deemed capital offenses. See, e.g., J. Acker, ‘‘Be Careful What You Ask For: Lessons From New York’s Recent Experience With Capital Punish-ment,’’ 32 Vt. L. Rev. 683, 702–11 (2008). Courts have concluded that ‘‘[t]he value of capital punishment as
a deterrent of crime is a complex factual issue the resolution ofwhichproperlyrests withthe legislatures, which can evaluate the results of statistical studies in terms oftheirownlocal conditions andwithaflexibility of approach that is not available to the courts.’’ Gregg

v. Georgia, supra, 428 U.S. 186; see also State v. Rizzo, supra, 303 Conn. 197. Thus, courts have deferred to a legislativejudgment that ‘‘the possible penalty ofdeath may well enter into the cold calculus that precedes the decision to act.’’ Gregg v. Georgia, supra, 186. Deferring to our legislature is not proper in the present case. Public Act 12-5 eliminates the possibility that any future murderer will be sentenced to death. The potential infliction of the penalty of death, therefore, will no longer enter into an individual’s decision of whetherto commitmurderwith special circumstances. Thus, ‘‘[f]ollowing the abolition ofthe death penaltyfor all future offenses committed in Connecticut

. . . it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.’’ (Emphasis in original.) State v. Santiago, 305 Conn. 101, 321, 49 A.3d 566 (2012) ( Harper, J., concurring in part and dissenting in part). Accordingly, the execution of the defendant,
as well as the executions of the other inmates who remainondeathrow, cannotbejustifiedbyits deterrent effect.35 See Atkins v. Virginia, supra, 536 U.S. 319–20 (concluding that executing mentally retarded will not further goal of deterrence).
Courts have always treated death differently from othertypes ofpunishments in determining what is constitutionallypermissible. See Solem v. Helm, supra, 463 U.S. 289; Bullington v. Missouri, 451 U.S. 430, 445–46, 101 S. Ct. 1852, 68L. Ed. 2d270 (1981);Beckv.Alabama, 447 U.S. 625, 637–38, 100 S. Ct. 2382, 65 L. Ed. 2d 392 (1980); Gardner v. Florida, 430 U.S. 349, 358–60, 97 S. Ct. 1197, 51 L. Ed. 2d 393 (1977). No court has ever justified the continued imposition ofthe death penalty
on minors or the mentally disabled following repeal because doing so would have promoted stability in the law. The prospective repeal of the death penalty in this statute has eliminated the traditionally articulated rationale ofdeterring those particularly heinous crimes deemed to justify the punishment of death. Therefore, I turn to the other claimed justification for capital punishment, namely, retribution. Although not a forbidden penological objective, ‘‘[r]etribution is
no longer the dominant objective of the criminal law

. . . .’’ (Citations omitted; internal quotation marks omitted.) Gregg v. Georgia, supra, 428 U.S. 183; see also State v. Corchado, 200 Conn. 453, 463, 512 A.2d 183 (1986). The United States Supreme Courthasrecognized that, of the valid justifications for punishment,‘‘retribution

. . . most often can contradict the law’s

ownends. Thisis ofparticularconcernwhenthe [c]ourt interprets the meaning of the [e]ighth [a]mendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.’’ Kennedy v. Louisiana, supra, 554 U.S. 420. ‘‘[T]heheartoftheretributionrationaleisthatacriminal sentence must be directly related to the personal culpabilityofthe criminaloffender.’’ (Internalquotation marks omitted.) Graham v. Florida, supra, 560 U.S. 71;
see alsoAtkinsv. Virginia, supra, 536 U.S. 319 (‘‘[w]ith respect to retribution

. . . the severity of the appropriate punishment necessarily depends on the culpability of the offender’’). Retribution is committed to generalprinciplesmandatingsimilarpunishmentinsimilar circumstances. See R. Nozick, Philosophical Explanations (1981) p. 367. Thus, retribution ‘‘sets aninternal limit to the amount of punishment, according to the seriousness ofthe wrong

. . . .’’ Id. Retributivejustice, therefore, is concerned with imposing a sentence proportionate to the crime, so that the ‘‘interest in seeing that the offender gets his ‘just deserts’ ’’ is satisfied. Atkins v. Virginia, supra, 319; see also Kennedy v. Louisiana, supra, 554 U.S. 442 (‘‘[t]he goal of retribution

. . . reflects society’s and the victim’s interests in seeing that the offender is repaid for the hurt he caused’’).
Under this theory, it is unjust to create a system that purposefully imposes, or encourages the imposition of, wholly disproportionate punishment on equally culpable defendants. Rather, to fulfill a valid retributive purpose, sentences must be handed out evenhandedly; legislatures and courts cannot simply dole out different punishments, varying not merely in degrees ofseverity, but in kind, for similar crimes. Indeed, the notion that the death penalty should be reserved for only the most deserving ofoffenders and, thus, worktoproduce evenhandedjustice, is embeddedinthisnation’s capitalpunishment jurisprudence. To ensure that only the most culpable ofoffendersare sentencedto death, theUnited States Supreme Court has ‘‘consistently confined the imposition of the death penalty to a narrow category ofthe most serious crimes.’’ Atkins v. Virginia, supra, 536 U.S. 319; see also Kennedy v. Louisiana, supra, 554 U.S. 442 (‘‘[i]n considering whether retribution is served

. . . we have looked to whether

. . . the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed’’ [internal quotation marks omitted]). The death penalty, therefore, has beenreservedforcertain crimes ‘‘so grievous anaffront to humanitythat the onlyadequateresponsemay be the penalty ofdeath.’’ (Emphasis added.) Greggv. Georgia, supra, 428 U.S. 184.
In written testimony to the Judiciary Committee,Chief State’s Attorney Kevin Kane acknowledged that ‘‘[p]rospective repeal of the death penalty will create two classes ofpeople: one will be subject to execution and the other will not, not because ofthe nature ofthe crime or the existence or absence of any aggravating
or mitigating factor, but because of the date on which the crime was committed.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2937. In
so doing, however, our legislature’s prospective repeal necessarily establishes that the death penalty is not the only adequate response to those crimes previously deemed capital felonies. What, then, is the real purpose behind executing the
men currently on death row, when the legislature has completely taken death off of the table for all crimes committed afterApril 25, 2012? Although P.A. 12-5 contains no statement ofpolicy or underlying findings, the legislative history establishes two factors that indicate that maintaining the death penalty on the basis of an arbitrary date doesnotmeasurably contribute to avalid retributive purpose. First, the various rationales articulated in support of the death penalty’s repeal applied to all cases regardless of the date of offense: (1) the death penalty operates in an incurably arbitrary and discriminatory manner;36 (2) the risk of executing an innocentpersoncannotbeeliminated;37 (3)thelengthof time requiredforeffective appellate andpostconviction reviewwouldmake itmore likelythatthe men on death
row would die of old age rather than be executed;38 (4) the death penalty fails to provide closure for victims’ families;39 and, of course, (5) moral objections to the state’s taking ofalife.40 Second, althoughthe legislative debate articulated serious concerns as to the legal and moral propriety of prospective repeal,41 no lawmaker articulatedalegitimate ormoralrationaleforconditioning death upon the date of the offense. The lone comment expressing anything close to such ajustification
was a suggestion that the state should not upset the expectations ofvictims’ families, a point that I address subsequentlyinthis concurring opinion. See 55 S. Proc., Pt. 3, 2012 Sess., p. 720, remarks of Senator Andrew Roraback. No other legislator indicated that he or she shared that particular view. Rather, it was broadly acknowledged that the decision to repeal the death penalty only on a prospective basis was driven by a desire to exact revenge on certain notorious death row inmates and the fear ofthe political consequences that could have accompanied an absolute prohibition.42 For example, Representative Lawrence Cafero, an opponent of the prospective nature of the repeal and the abolition of the death penalty generally, stated: ‘‘It is
no secret that what is weighing over all of us is the [murder of Jennifer Hawke-Petit, Hayley Petit, and Michaela Petit in Cheshire]. In fact, it was widely reported that one ofthe reasons this General Assembly didn’t take this bill up earlier was because ofthe fresh-ness of those awful crimes.’’ 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1043; see also 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1063, remarks ofRepresentative AlAdinolfi (‘‘[t]here

are manypeople inthis roomthathave changedintheir mind theirvote to abolishthe death penaltyratherthan vote againstabolishingthe deathpenaltybasedonthese [eleven] who are on death row being executed, especially [Joshua] Komisarjevsky and [Steven] Hayes [who
were convicted of capital felonies in connection with the murders in Cheshire]’’);43 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1305, remarks ofRepresentative ErnestHewett (‘‘forthe members who are voting for aprospective bill
so they can make sure that Hayes and Komisarjevsky get the death penalty, it’s not going to happen’’). Representative Cafero later added that, if the legislature intended to have a debate about the propriety of the death penalty, ‘‘let’s have that debate. Let’s not have this one. Let’s not mislead the public.

. . . If it is the will of this [c]hamber that this [s]tate is no longer in the business of executing people, then let’s say it and do it. You cannot have it both ways.’’ 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1047. Likewise, Representative Themis Klarides, herself a supporter of the death penalty, remarked about the inconsistency inherent in the legislative determination that a select few individuals may be executed, but that execution is unjustified in any circumstance goingforward: ‘‘I do notgethow anybody
can say, I believe killing is wrong.

. . . What I don’t get is, how killing can be wrong for someone else, but [the men currently on death row], they are bad, so we
can kill them.

. . . You either support the death penalty and taking somebody’s life or you don’t.’’ Id., p. 1210. These are, obviously, statements selectedfrom an extremely extensive legislative history. Nevertheless, these statements, in my view, accurately reflect the primary reasons behind the prospective nature of the repeal: the desire to see the men currently on death
row die, or at least certain of them,44 as well as the avoidance of the political consequences that would have accompanied the abolishment of existing death sentences. Therefore, I can only conclude that the purpose of limiting the repeal ofthe death penalty prospectively is private vengeance. Private vengeance differs markedly from retribution, and is an impermissible justification for punishment. Whereas retribution is concerned with ensuring that an offender gets his ‘‘ ‘just deserts’ ’’; Atkins v. Virginia, supra, 536 U.S. 319; revenge,45 on the other hand, is personal, or private. A person or society seeking revenge has apersonaltie to thevictim,
orispersonallyaffectedbythe harm done to thevictim. Those seeking revenge are motivated by emotion, and take personal pleasure in the suffering ofthe offender. See R. Nozick, supra, p. 367. Mostsignificantly, revenge, by its nature, carries no limits on the harm that may be imposedonthe offender, whereasretributionsets aninternal limit on punishment according to an offender’s culpability. See id. Thus, revenge cares not with what
comes of other offenders who commit similar crimes, butisconcernedonlywithharmingaspecificoffender.46
The state contends, however, that executing prerepeal death row inmates does serve a valid retributive purpose because, by carrying out existing death sentences, the state will fulfill promises it has made to the victims ofthese crimesand, particularly, theirfamilies. I cannot agree. Althoughthe office ofthe state’s attorney may have the ability to promise a victim’s family that it will seek a sentence of death, it cannot legitimately promisethattheoffenderwillbeputto deathfornumerous reasons. Thejury may decide not to convict or not to impose a sentence of death. Should the jury vote to impose that punishment, the defendant’s death sentence maybevacated on directappeal, as inthepresent case, or in collateral proceedings even years later. The board ofparole and pardons could commute the death sentence. See General Statutes § 54-124a (d). More fundamentally, selectively executing the men currently on death row in order to fulfill such promises would amount to nothing more than exacting revenge on behalf of the families of the victims. Simply because society demands a certain punishment does notmeanthatthe state is authorizedto carry it out. ‘‘The mere fact that the community demands the murderer’s life in return forthe evil he has done cannot sustain the death penalty, for

. . . ‘the [e]ighth [a]mendment demands more than that a challenged punishment be acceptable to contemporary society.’ ’’ Gregg v. Georgia, supra, 428 U.S. 240 (Marshall, J., dissenting). ‘‘It is undoubtedly correct that there is a demand for vengeance on the part of many persons in
a community against one who is convicted ofaparticularly offensive act. At times a cry is heard that morality requiresvengeance to evidence society’s abhorrence of the act. But the [e]ighth [a]mendment is our insulation from ourbaserselves. The ‘cruel andunusual’ language limits the avenues through which vengeance can be channeled. Were this not so, the language would be emptyandareturnto the rack and othertortureswould be possible in a given case.’’ (Footnote omitted.) Furman v. Georgia, supra, 408 U.S. 344–45 (Marshall, J., concurring). Thus, society’s desire to see the men on death row executed cannot alone legitimize executing the prerepeal defendants in light ofthe deathpenalty repeal. See State v. Santiago, supra, 305 Conn. 319 ( Harper, J., concurring in part and dissenting in part) (‘‘[i]f it is upon

. . . rage that the death penalty depends, then that penalty cannot stand’’). Indeed, it is wholly inconsistent to justify an execution by our society’s moral outrage at the offender’s conduct when our state no longer sanctions a sentence of death for any crimecommitted today. I therefore conclude that the retention ofthe deathpenaltyforthe men currently on death row, after the legislature has declared that the death penalty is no longer a proper punishment for any murderer going forward, serves no valid penological purpose, and marks this state’s ‘‘sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.’’47 Kennedy v. Louisiana, supra, 554 U.S. 420.
In light of the foregoing principles, I therefore concludethatthe executionofprerepeal deathrowinmates whileadeathpenaltyrepealisineffectdoesnotmeasurably contribute to a valid retributive purpose. Public Act 12-5 ensures that no murderer will be sentenced to deathinthe future, irrespective ofhis orherculpability. Thus, the act completely unravels the thread that links the imposition of the death penalty and the culpability ofindividual offenders. No longercandeathbeimposed forcrimesvirtuallyidenticalto, similarto, orevenmore heinous than the crimes committed by prerepeal death
row inmates. By repealing the death penalty going forward, the legislature has made a determination that the internal limit of punishment, or the most appropriate penalty, for even the most egregious of crimes is life imprisonmentwithoutthepossibility ofparole. In other words, the legislature hasrejectedthe notionthat death istheonlyadequateresponseforeventhemostculpable of offenders; see Gregg v. Georgia, supra, 428 U.S. 184; and, instead, has determined that a sentence of life imprisonment without the possibility ofparole will sufficetosatisfytheinterestinseeingthatsuchanoffender gets his just deserts.
C Applying the Death Penalty on the Basis ofthe Date of the Offense in Relation to the Effective Date of P.A. 12-5 is Unconstitutionally Arbitrary
It is also my view that, as amended by P.A. 12-5, Connecticut’s statutory capital sentencing scheme is unconstitutionalbecause, ascurrentlystructured, itsuffers from the same inequities that plagued the capital sentencing schemes that were declared unconstitutional by the United States Supreme Court in Furman

. SeeFurmanv. Georgia, supra, 408 U.S. 238–40. InFurman, a majority of United States Supreme Court justices each came to the independent conclusion that the penalty ofdeath, as it was then currently administered,
was so cruelandunusualastoviolatethe eighthamendment. Id., 240. Although no justice’s reasoning could command a clear majority, by examining the decision in Furman in light of two other cases decided in that time period by the United States Supreme Court, namely, McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971), and Gregg v. Georgia, supra, 428 U.S. 153, one comes to understand that the death penalty is in accord with the eighth amendmentonly when it is imposed onthe most culpable offenders for the commission of the most grave homicides and, importantly, only when this most extreme punishment is imposed fairly, consistently, and based solely on the individualandunique circumstances ofeach case. What Connecticut has done, by prospectively repealing the death penalty for all types of homicide that previously
were defined as ‘‘capital felonies’’ by §§ 53a-35a and 53a-54b, is to remove any assurance that only the most deserving offenders will be selected by our statutory scheme to receive the death penalty on the basis of their individual circumstances.
TheUnited States Supreme CourtdecisioninMcGautha reveals the problems that occurred under the older versions of our nation’s capital sentencing schemes. In McGautha, two men who had been sentenced to death claimed that ‘‘the absence of standards to guide the jury’s discretion on the punishment issue is constitutionally intolerable.

. . . [The] petitioners contend that to leave thejury completely at large to impose or withhold the death penalty as it sees fit is fundamentally lawlessandthereforeviolatesthebasic commandofthe [f]ourteenth [a]mendmentthatno [s]tate shall deprive a person ofhis life without due process oflaw.’’ McGautha v. California, supra, 402 U.S. 196. At that point in time, the United States Supreme Court was unwilling torecognizetheunconstitutionalityofthe outdatedsentencing schemes that permitted juries to exercise unchanneled discretion in determining a capital defendant’s sentence. See id., 203–208.
The United States Supreme Court would reverse
course only one year later inFurman

. In that case, five justices separately concluded that the death penalty as currently administered was unconstitutional under the eighth and fourteenth amendments. Furman v. Georgia, supra, 408 U.S. 238–40. Justice Stewart’s opinion, which focused on the random and arbitrary manner in which the death penalty was imposed, heavily influenced the development of modern capital sentencing schemes. Id., 309–10. More than anything else, Justice Stewart was concerned with the unprincipled manner in which the death penalty was being imposed at the time: ‘‘These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of

. . . murders in 1967 and 1968, manyjust as reprehensible
as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.’’ (Emphasis added; footnote omitted.) Id. Thus, although Justice Stewart didnot determine thatthe deathpenaltyitselfis aviolation ofthe eighth amendment; see id., 307–308; one can only conclude that whenever randomness, arbitrariness, or capriciousness exert their influence on the imposition of the death penalty, the eighth and fourteenth amendments of the constitution of the UnitedStates have been violated.
The plurality opinion in Gregg serves as a guide to legislatures that wish to continue to constitutionally impose the death penalty. In Gregg, the United States Supreme Court approved of a Georgia capital sentencing statute passed in response to Furman: ‘‘The basic
concern ofFurman centered on those defendants who
were being condemned to death capriciously and arbitrarily. Under the procedures before the [c]ourt in that case, sentencing authorities were not directed to give attention to the nature or circumstances of the crime committed or to the character or record of the defendant. Left unguided, juries imposed the death sentence in a way that could only be called freakish. The new Georgia sentencing procedures, by contrast, focus the jury’sattentionontheparticularizednature ofthe crime and the particularized characteristics of the individual defendant.

. . . In this way the jury’s discretion is channeled. Nolongercanajurywantonlyandfreakishly impose the death sentence; it is always circumscribed by the legislative guidelines.’’ Gregg v. Georgia, supra, 428 U.S. 206–207.48
PublicAct 12-5 amends Connecticut’s statutorydeath penalty scheme in amannerthat, in myview, runs afoul of the principles expressed in Furman

. The United States Supreme Court has repeatedly found that death is different. ‘‘Thereisnoquestionthatdeathas apunishment is unique in its severity and irrevocability.’’ Id., 187; see also Furman v. Georgia, supra, 408 U.S. 305 (Brennan, J., concurring) (‘‘deathis anunusuallysevere and degrading punishment’’); Furman v. Georgia, supra, 346 (Marshall, J., concurring) (death is ‘‘the ultimate sanction’’). It cannot fairly be denied that ‘‘death is a punishment different from all other sanctions in kind rather than degree.’’ Woodson v. North Carolina, 428 U.S. 280, 303–304, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). ‘‘When a defendant’s life is at stake, the [United States Supreme Court] has been particularly sensitive to insure that every safeguard is observed.

. . . It is
an extreme sanction, suitable to the most extreme of crimes.’’ (Citations omitted; footnote omitted.) Gregg

v. Georgia, supra, 428 U.S. 187.
Instead ofresulting from the unfettered discretion of
a jury, as in Furman, the arbitrariness in the present
case stems from the effective date provision ofthe act, which, in effect, renders the date on which a defendant commits his crime an eligibility factor for the death penalty. I fail to see how this scheme, which permits the imposition ofthe death penalty for a capital felony committed at any time prior to 11:59 p.m. on April 24, 2012, but rejects categorically the imposition of the death penalty for the same conduct or even substantially more heinous acts carried out two minutes later, is in any way distinct from the constitutionally infirm schemes rejected by the United States Supreme CourtinFurman

. The circumstancesthatI describe strike me
as exactlythe sort ofwanton andfreakishimposition of the death penalty that runs afoul of the eighth amendment ofthe United States constitution. See Furman v. Georgia, supra, 408 U.S. 310 (Stewart, J., concurring); Callins v. Collins, 510 U.S. 1141, 1152, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) (‘‘[t]he demands of Furman are met by ‘narrowing’ the class ofdeath-eligible offenders according to objective, fact-bound characteristics of the defendant or the circumstances of the offense’’ [emphasis added]).
In my view, the understanding that, today, only this subset of criminal offenders—those defendants who committed capital felonies prior to the effective date of P.A. 12-5, regardless of individual culpability—will be subject to this punishment causes an arbitrary, anomalous impact on this subset of criminal offenders and therefore causes Connecticut’s capital sentencing scheme as amended by P.A. 12-5 to violate the eighth amendment.
II
SEVERABILITY OF UNCONSTITUTIONAL

PARTS OF P.A. 12-5 Having concluded that the execution of prerepeal death row inmates violates the constitutional ban on cruel and unusualpunishment, and although the majority opinion decides today that capital punishment is unconstitutional, in view of the dissents’ claims about the appropriateness ofthemajority’sreachingtheissue, I now examine the effect that this conclusion has on the continued viability of P.A. 12-5. My conclusion as to the constitutionality of the act relates solely to the effective date provision ofthe act, which is the mechanism by which the death penalty is retained for capital felonies committed before the act and abolished for all identical future crimes.49 The issue, therefore, is whether the unconstitutional provisions are severable from the remainder of the act. I would conclude that they are and, thus, would allow the constitutional portions of the act to stand—namely, those portions that effectuate the repeal of the death penalty.
In determining the appropriate remedy when a portion ofa statute has been found to be unconstitutional, ‘‘[w]e seek to determine what [the legislature] would have intended in light of the [c]ourt’s constitutional holding.

. . . Thus, [g]uiding the solution is the maxim that this court will strive to interpret a statute so as to sustain its validity

. . . and [to] give effect to the intention of the legislature.

. . . [In enacting] General Statutes § 1-3 the legislature has shown its intention that there isto be apresumption ofseparability ofthe provisions and of the applications of statutes.

. . . With regard to the separability of provisions, to overcomethe presumption it must be shown that the portion declared invalid is so mutually connected and dependent on the remainder of the statute as to indicate an intent that they should stand or fall together

. . . and this interdependence would warrant a belief that the legislature would not have adopted the remainder of the statute independently of the invalid portion.

. . . ‘‘[U]pon finding aportion ofa statute to be unconstitutional, this court does not ask whether, ifthe legislature had known about the constitutional flaw at the time of enactment, it might have preferred some other form of legislation over the remaining constitutional portion ofthe statute, aquestionthatmightwell engage the court in speculation. Rather, this court asks the much narrower question of whether the legislature, at the time that the statute is invalidated, would prefer the continued operation ofthe constitutionalportion of the statute or the complete invalidation ofthe statute.’’ (Citations omitted; emphasis omitted; footnote omitted; internal quotation marks omitted.) State v. Bell, 303 Conn. 246, 260–61, 33 A.3d 167 (2011). Moreover, I acknowledgethat, ‘‘evenwiththepresumption ofdivisibility, we cannot rewrite a statute and give it an effect altogether different from that sought by the measure viewed as a whole especially where offending portions
so affect the dominant aim of the whole statute as to carry [the whole statute] down with them.’’ (Internal quotation marks omitted.) In re Robert H., 199 Conn. 693, 704, 509 A.2d 475 (1986), quoting RailroadRetirement Board v. Alton Railroad Co., 295 U.S. 330, 362, 55 S. Ct. 758, 79 L. Ed. 1468 (1935).
In attempting to discern the legislature’s intent regarding the severability ofa statute, this court generally looks to the level of interdependence between the unoffending language and the unconstitutional language of the statute, and seeks to determine whether, ifthe unconstitutionalportionis excised, the remainder still gives effect to the ‘‘dominant aim of the whole statute

. . . .’’ (Internal quotation marks omitted.) In
re Robert H., supra, 199 Conn. 704. Thus, the analysis does not involve speculation as to how the legislature would have voted had it been aware of the court’s constitutional ruling, but rather whether the language chosen by the legislature renders the statute inseverable. For example, in State v. Menillo, 171 Conn. 141, 368A.2d 136 (1976),thiscourtexaminedtheseverability oflanguage containedin General Statutes (Rev. to 1975) § 53-29, whichcriminalizedbehaviorintendedto induce
a miscarriage or abortion of a pregnancy. In an earlier decision concerning the same statute, the court concluded that the entirety of the statute was unconstitutional in light of the decisions of the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), andDoe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), which upheld
awoman’s right to an abortion by medically competentpersonnel. See State v. Menillo, 168 Conn. 266, 269, 362 A.2d 962 (1975). The United States Supreme Court subsequently vacated this court’s decision holding the statute unconstitutional in its entirety, and concluded that neither its decision in Roe nor Doe mandated the totalinvalidationofthestatute. See Connecticutv.Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975). On remand, this court reconsidered its earlier decision, and sought to determine whether the language of § 53- 29couldbelimitedtoexcludephysiciansfromitsoperation, and thus ensure a woman’s right to an abortion by medically competent personnel. State v. Menillo, supra, 171 Conn. 145. With the foregoing principles on severability in mind, this court concluded that ‘‘[t]he exclusion of physicians from the prohibitions of the statute would in no way destroy its effectiveness as to other classes of persons. The invalid inclusion of physicians is not so mutuallyrelatedto andintrinsically connected with the remainder ofthe statute as to indicate that the statute would never have been adopted without the inclusion ofphysicians.’’ Id., 146. Thus, the court concluded that the presumption of severability
was not overcome, and that the legislature intended to criminalize the covered behavior when engaged in by
a person who was not a physician. Similarly, in In re Robert H., supra, 199 Conn. 693, this court examined statutory language to discern the legislature’s dominant purpose in enacting the statute. The defendants inthat case hadbeen adjudicated delinquents and committed to state custody after being charged with sexual assault. Id., 695. At trial, the defendants sought to introduce records from the rape crisis center visited by the victim, but the court granted a motion to quash the subpoenabecause ofGeneral Statutes (Rev. to 1985) § 52-146k, which, inter alia, created
a testimonial privilege for communications between a sexual assault counselor and a sexual assault victim. Id., 698. The defendants appealed an order by the trial court quashing a subpoena for records from the rape crisis centervisitedbythevictimbased on adetermination that information contained therein was privileged. Id., 694–701. Specifically, the defendants claimed that the statutoryprivilege createdby § 52-146kwasimproperly invoked because other language prevented the identity ofthe sexual assault counselor from being disclosed in a civil or criminal proceeding; General Statutes (Rev. to 1985) § 52-146k (b); and, thus, the definitional elements necessary to qualify an individual
as a ‘‘sexual assault counselor,’’ which determine whether the privilege applied under the statute, could not be established because the counselor could not be called to testify at trial. Id., 698–701; General Statutes (Rev. to 1985) § 52-146k (a) (5).
On appeal, this court agreed that the statute contained conflicting language, stating, ‘‘if the identity of the sexual assault counselor cannot be disclosed under. . . § 52-146k (b), then it would always be impossible to determine whether the statutory criteria set out in § 52-146k (a) (5) were satisfied with respect to that sexual assault counselor.’’ In re Robert H., supra, 199 Conn. 701. After analyzing the language of the statute, the court concluded that ‘‘[t]he obvious intent and the dominantpurposeofthisstatuteistograntaprivilegeto confidential communications between a sexual assault counselor

. . . and a victim.’’ Id., 703. Then, instead of striking down the entire statute, the court determined that the ‘‘portion of § 52-146k (b) which prohibits the disclosure ofthe identity of a sexual assault counselor is separable and independent from the balance of the statute given [the statute’s] dominant purpose of creating the privilege

. . . .’’ Id., 704. Accordingly, the court remandedthe case to the trial courtforadetermination of whether the sexual assault counselor who treated the victim satisfied the necessary criteria to claim the testimonial privilege. Id., 704–705. The court similarly directed that the counselor’s identity be disclosed to the defendants for purposes of cross-examination concerning her statutory qualifications. Id., 705. Similarly, in State v. Bell, 283 Conn. 748, 784–86, 931 A.2d 198 (2007), this courtwas taskedwith determining whether General Statutes (Rev. to 2007) § 53a-40 (h), violatedthe sixthamendment. The statutorysubsection at issue authorized the trial court to impose a substantially harsher sentence on a defendant if: (1) a jury had determined he qualified as a persistent dangerous felony offender and; (2) the trial court concluded that the public interest would be best served by subjecting the defendant to a harsher sentence. See id., 796. Although in that case, the court did look to the legislative historyto determine the actual intent ofthe legislature in amending the statute at issue; see id., 802–803, 812; the court ultimately concluded that, as worded, the statute did violate the sixth amendment because it authorized a sentence enhancement greater than the maximum sentence authorized by the jury verdict. Id., 803–804. Instead of striking the statute in its entirety, however, the court noted that if a phrase were excised from the statute, it would be rendered constitutional while still keeping with the legislature’s dominant purpose behind enacting the statute. See id., 811–12. The court did so even though its separation had the effect ofaltering the legislature’s chosen process required for
a persistent dangerous felony offender to receive an enhanced sentence. See id., 811–13.
With the foregoing principles in mind, I would conclude that the statute in the present case is separable.50 As in In re Robert H., the statutory language in the present case evinces two separate legislative goals: the prohibition ofthe death penalty for all crimes committedaftertheeffective date ofP.A. 12-5; andtheretention ofthe death sentences ofthe prerepeal defendants.51 It would be anomalous and alarming to conclude that,in enacting a statute repealing the death penalty, the legislature wasprimarily concernedwith seeing ahandful of men executed. Thus, it is clear to me that the dominantpurpose ofP.A. 12-5 wastoprohibitthe death penalty for future crimes. The retention of existing death sentences was incidental to the primary purpose ofabolition. Indeed, ifthe obvious intent ofthe legislaturewasto retainthe deathpenaltyforprerepeal defendants, then why would the legislature have enacted the statute? Connecticut, after all, already authorized the death penalty prior to P.A. 12-5 and, therefore, legislative inaction would have ensured the retention of existingdeathsentences. Likewise, itisnoteworthythat the abolition of the death penalty will affect all future defendants, an unquantifiable and obviouslylarge number, whereastheportion ofP.A. 12-5 retainingthe death penaltyforcrimes committedpriorto the effective date will affect only those defendants who have committed capitalfeloniespriortothe effective date. Thus, striking down P.A. 12-5 in its entirety would thwart its primary purpose—the abolition of the death penalty.52
The state claims, however, that an examination ofthe legislative history ofP.A. 12-5 showsthatthe legislature would not have repealed the death penalty without retaining preexisting death sentences and, therefore, that the statute is not severable. I disagree. In certain instances, whenlegislativeintentisnotreadilyapparent from the plain language of the statute, this court has examined the legislative history of a statute when determining whether a statute is severable. See State

v. Bell, supra, 303 Conn. 261–63; State v. Bell, supra, 283 Conn. 802–803. Even ifone examines the legislative history of the act, the state’s argument lacks merit. This court does not seek to determine whether, if the legislature had known about the constitutional flaw at the time of enactment, it would have enacted the remaining constitutionalportion ofthe statute, an exercise that would engage this court in speculation. See State v. Bell, supra, 303 Conn. 261. Rather, the question this court must answer is whether the legislature, at the time that aportion ofthe statute is declared unconstitutional, wouldpreferthe continued operation ofthe constitutional portion of the statute or the complete invalidation of the statute. Id. In answering this question, the court must keep in mind that there is a presumption in favor of severability. See General Statutes § 1-3. Moreover, this court should keep in mind that, if onlyaportionofastatuteisfoundtobeconstitutional, it shouldbeseveredfromtheoffendingremainder‘‘unless this court determines that the legislature would have enacted it in precisely the sameform if it had known of the constitutional flaw at the time of enactment.’’ (Emphasis in original.) State v. Bell, supra, 303 Conn. 261 n.12. As this court explained in Bell, this means that this court would have to find that the legislature would not have repealed the death penalty if it hadbeenawareoftheconstitutionalflawinP.A. 12-5. Seeid. Although I consider the dominant purpose of the statute to be evident from its plain language, an examination of the relevant legislative history bolsters my conclusion that the offending portion of the statute is, in fact, severable from the constitutional remainder. Although the state points to selectportions ofthe legislative historythathighlight aninsistence thatthe repeal be prospective,53 there is also evidence that many legislators were in favor of a complete repeal of the death penalty. More importantly, the legislature was warned, in no uncertain terms, that an attempt to repeal the deathpenalty onlyprospectivelywas likelyto run afoul of both the federal and state constitutions. Consider, for example, a portion of Chief State’s Attorney Kevin Kane’s testimony before the Judiciary Committee: ‘‘If it is passed inthis form and it’s prospective and a crime
occurs the day before it becomes effective my feeling is [that] there’s—I know I wouldn’t, I know I won’t seek the deathpenaltyfor acrime that occurs the daybefore it becomes effective. I think that would be arbitrary

. And I wouldn’t—just wouldn’t plain feel right doing it. That’s my opinion.’’54 (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2633. Asked point-blank by a legislator ‘‘does this law, thisbill stop [offenderswho committed capital felonies prior to the effective date] from receiving the deathpenalty?’’ Id., p. 2646. ChiefState’sAttorney Kane responded: ‘‘the wording of the bill itself does not but my prediction is

. . . that as a result of

. . . this bill passing people won’t be executed whether [they have] been sentenced or not.’’ (Emphasis added.) Id. Similarly, another legislator urged the House ofRepresentatives to adopt an amendment to the bill that became P.A. 12-5 that would have reinstated the death penalty for all offenders ifthis court were to determine thatthe repeal ofthe deathpenaltywas constitutionally requiredto applyto those currently sentencedto death: ‘‘This amendment, Madam Speaker

. . . now is very appropriate. There are many people in this room that have changed in their mind their vote to abolish the death penalty rather than vote against abolishing the deathpenaltybased onthese [eleven] who are on death
row being executed, especially, Komisarjevsky and Hayes

. . . . And what I’m saying is that we will be misleading the people in this room that have changed their decision because the death penalty will still stay inplaceforthosethatare ondeathrowifwe donotpass this

. . . amendment

. . . we would be doing them a wrong. And I think those people would

. . . have been misled by this coming out, because I believe that those who put in this bill, withthe prospective inthere, know that eventually this is going to go away, and they’re misleading the rest ofthe [r]epresentatives that will be voting here today; therefore, I urge all my colleagues inthis room to supportthis amendment.’’ 55 H.R. Proc.,Pt. 4, 2012 Sess., p. 1063, remarks of Representative Adinolfi. The amendment, which was described by its sponsor, Representative John Hetherington, as ‘‘the opposite of a severability clause

. . . think of it that way’’; id., p. 1061; failed by avote offifty-fourto eightyeight, with nine votes not present or abstaining. Id., p. 1066.
A matching amendment failed in the Senate. The amendment’s sponsor explained the need for it as follows: ‘‘[T]heintentis—Senator [Eric] Colemanhadindicatedthatthebillhebelievesnottobeunconstitutional. Therefore this amendment doesnothaveto go forward. And I guess I look at it as a spare tire in your trunk. You may not need it. But if it is unconstitutional, you have it. And you’ve protected the intent ofthe [l]egislature, which is not, clearly not to let the [eleven] currently on death row to get a different sentence. And if that’s clearly what we want to do this amendment will
ensure that takesplace

. And there’s many ofus around the [c]ircle who, at least I understand, were debating whether to vote in favor of getting rid of the death penalty or not. But clearly an effort to change their mindwasthe relieforsatisfactionthatthe [eleven] who
are currently on death row would continue to be on death row absent—even with this legislation. All this does is say absolutely true. And if your wishes are not upheld, and if those [eleven] end up with a lesser sentence, which was not our intent, we will do away with getting rid ofthe death penalty. It’sjustprotection that gets what we all wanted. And if that’s a major factor, this is how you protect it.’’ (Emphasis added.) 55 S. Proc., Pt. 3, 2012 Sess., p. 668, remarks of Senator Leonard Fasano. This proposed amendment also failed to pass, receiving fifteen votes in favor and twenty against, with one vote not present or abstaining. Id., p. 669. All of the legislators who voted against this amendment were presumably aware of the statutory presumptioncodifiedat § 1-3infavorofseveringinvalid provisions fromthe remaininginoffensive language ofa statute atthetimethattheyrejectedtheseamendments. See, e.g., State v. Fernando A., 294 Conn. 1, 21, 981 A.2d 427 (2009) (‘‘the General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have upon any one of them’’ [internal quotation marks omitted]). Further, other legislators plainly believed that there might be constitutional issues associated with a purely prospective repeal: for example, Senator John Kissel stated the following in response to testimony that sought to assure the legislature that a prospective only repeal could be accomplished: ‘‘[T]his is Connecticut, this is New England, this is a debate that’s not going away any time soon and I really do believe once this step is made, the other shoe’s going to fall, inevitably, ifnot sooner than we all think. And whether it’s driven by a Supreme Court decision, appeals, or whether afuture legislature a few years from now says, wow,
we can’t have [eleven] people on death row and have everybody else—or some horrible, horrific criminal commits a crime and because it’s a few days after this goes into effect then the argument is we’ve got this individual here who can only face life without [the] possibility of release, that is fundamentally unfair to these other individuals and that’s—that becomes much
more difficult for folks such as myself who are advocates andproponents ofthe deathpenalty.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2768. Accordingly, I conclude that the portions of P.A. 12- 5 that render it unconstitutional are not so mutually connectedto the constitutional remainder so as to indicate a legislative intent that the entire act should fall and that, therefore, the provision of P.A. 12-5 requiring prospective application is severable.
III
CONCLUSION
The effective date provision of P.A. 12-5 is patently unconstitutional under the federal constitutional ban
on cruel and unusual punishment. Moreover, our state constitution’s prohibition of excessive and disproportionate punishment renders capital punishment unconstitutional. If our state had executed one person while the prospective repeal is in effect, it would have separated itself from not only all of the states in our own country, but from all of the countries in the modern world. Instead ofcontinuing its tradition as aparadigm for the elimination of the death penalty for certain classes of individuals, Connecticut would have descended into the murky depths of the uncharted waters of death penalty executions postrepeal of the death penalty statute. The majority’s decision today derives from the strength ofour collective moral ethos. Our laws should never succumb to the inherent indecency associated with a vengeful purpose directed toward a few isolated individuals. I do not believe that this is the legacy which Connecticut wishes to leave to its future generations. Therefore, I respectfullyjoin in the majority opinion and issue this concurring opinion.

1 The eighth amendment to the United States constitution provides: ‘‘Excessive bail shall notbe required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’’ The cruel and unusual punishments clause of the eighth amendment is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See State v. Taylor G., 315 Conn. 734, 737 n.4, 110 A.3d 338 (2015). Article first, § 8, of the constitution of Connecticut provides in relevant part that in all criminal prosecutions: ‘‘No person shall

. . . be deprived of life, liberty or property without due process of law

. . . .’’ Article first, § 9, of the constitution of Connecticut provides in relevant part: ‘‘No person shall be

. . . punished, except in cases clearly warranted by law.’’ This court has previously held that these provisions of our state constitution ‘‘impliedly prohibit punishment that is cruel and unusual.’’ State v. Rizzo,303 Conn. 71, 130 n.52, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012); see alsoStatev. Ross, 230 Conn. 183, 246–47, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

2 Connecticut has previously acted ahead of the United States Supreme Court and other states inthis nation inprohibiting the execution ofmentally handicapped individuals; see Public Acts 2001, No. 01-151, § 2; minors; see Public Acts 1973, No. 73-137, § 4 (f); and perpetrators of nonhomicide offenses. See Public Act 73-137, § 3; Public Acts 2001, No. 01-151, § 3; see also State v. Rizzo, 303 Conn. 71, 189, 31 A.3d 1094 (2011) (noting that ConnecticuthadactedtobanthesepracticesaheadofUnitedStatesSupreme Court, and stating, ‘‘over time, the national landscape has become more closely aligned with Connecticut’’), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012).

3 I note that neither the majority nor the dissents inAtkins focused their analysis on the legislative history of the repeal statutes referenced therein. See Atkins v. Virginia, supra, 536 U.S. 313–17; id., 321–23 (Rehnquist, C. J., dissenting); id., 342–45 (Scalia, J., dissenting). Thus, it appears that when examining whether a national consensus against a particular sentencing practice has emerged for eighth amendment purposes, the relevant inquiry does not appear to focus on why a statute repealing a particular sentencing practicewaspassed, butwhethersuchlegislationwaspassedatall

. Further, the fact that the issue in Atkins was whether it was considered cruel and unusual to sentence a particular subset of criminal defendants who were less culpable than a typical capital defendant does not affect the relevance ofthat analysis to the present case. The majority inAtkins provided courts with a rosetta stone for use in deciphering whether a national consensus exists against a particular sentencing practice—whatever it may be. Using Atkins and its sister cases as an indicator of the sources that the United States Supreme Courthaslookedtowhenithassoughtto determinewhether

a national consensus against a particular sentencing practice exists is entirely relevant to the present case. In this respect, the present case is indistinguishable from Atkins

. In Atkins, it was no mere oversight or accident that the majority’s approach to determining the existence ofa national

consensus differed from the approach adopted in Justice Scalia’s dissent. Indeed, Justice Scalia spent paragraphs castigating the majority in Atkins for its approach, some of which I quote here: ‘‘The [c]ourt pays lipservice to these precedents as itmiraculously extracts a ‘national consensus’ forbidding execution of the mentally retarded

. . . from the fact that [eighteen] [s]tates—lessthanhalf(47 [percent]) ofthe [thirty-eight] [s]tatesthatpermit capitalpunishment (forwhomthe issue exists)—have veryrecently enacted legislationbarring execution ofthe mentallyretarded. Eventhat47 [percent] figure is a distorted one. Ifone is to say, as the [c]ourt does today, that all executions ofthe mentally retarded are so morally repugnant as to violate

our national ‘standards of decency,’ surely the ‘consensus’ it points to must be one that has set its righteous face against all such executions. Not [eighteen] [s]tates, but only [seven]—18 [ percent] of death penalty jurisdictions—havelegislationofthatscope. Elevenofthosethatthe [c]ourt counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective date ofthe legislation; those alreadyon deathrow, orconsignedtherebefore the statute’s effective date, or even (in those [s]tates using the date of the crime as the criterion of retroactivity) tried in the future for murders committed many years ago, could be put to death. That is not a statement ofabsolute moral repugnance, but one ofcurrent preference between two tolerable approaches. Two ofthese [s]tates permit execution ofthe mentally retarded in other situations as well: Kansas apparently permits execution of all except the severely mentally retarded; New York permits execution of the mentally retarded who commit murder in a correctional facility.’’ (Citation omitted; emphasis altered; footnotes omitted.) Id., 342–43. Sixjustices read those words byJustice Scalia and disagreed, finding that

a national consensus against the sentencing practice at issue inAtkins and making that conclusion in part because of those states that had instituted prospective only repeals. An examination of subsequent cases decided by the United States Supreme Court on similar issues only serves to reinforce this point. See, e.g., Graham v. Florida, supra, 560 U.S. 62–63 (examining legislationto determinewhethernationalconsensusagainstsentencingpracticeexists, noindicationthatwhetherrepealisprospectiveortotalisrelevant to analysis).

4 See generally Death Penalty Information Center, ‘‘Executions in the U.S.1608–2002: The ESPY File, Executions by State,’’ available at http:// www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015); Death Penalty Information Center, ‘‘States With and Without the Death Penalty,’’ (2015), available at http://www.deathpenaltyinfo.org/statesand-without-death-penalty (last visited August 10, 2015); footnotes 16 through 28 of this opinion.

5 See 1957 Hw. Sess. Laws 314; 2010 Ill. Laws 7778; 1965 Iowa Acts 827; 1887 Me. Laws 104; 2013 Md. Laws 2298; 1911 Minn. Laws 572; 2007 N.J. Laws 1427; 2009 N.M. Laws 141; 1965 Vt. Acts & Resolves 28; 1853 Wis. Sess. Laws 100; DeathPenaltyInformation Center, ‘‘Michigan,’’ (2015), available at http://www.deathpenaltyinfo.org/michigan-0 (last visited August 10, 2015).

6 NewMexicoprospectivelyrepealedthe deathpenaltyforcrimes committedonorafterJuly 1, 2009. See2009N.M. Laws 141. GovernorBillRichardson declined to commute the death sentences ofthe two prerepeal defendants. The New Mexico Supreme Court also allowed a death penalty trial for another defendant charged with a capital felony to go forward after the prospective repeal took effect, but that court specifically acknowledged that its decision had not reached the issue ofthe legality ofthe prospective repeal: ‘‘With regard to the issue addressed in briefing and in argument but not raised in the [p]etition, whether [the prospective repeal of the death penalty] prohibitsthe imposition ofthe deathpenaltyinthis case as amatter of law because [the defendant] was not sentenced prior to the effective date of [the repeal], this [c]ourt determines it inappropriate to decide the issue in this writproceeding and expressly does not do so

. . . .’’ (Emphasis added.) Astorga v. Candelaria, Supreme Court of New Mexico, Docket No. 33, 152 (September 1, 2011). Notably, however, the New Mexico Supreme Court did allow that defendant to make an argument at his sentencing regarding ‘‘what consideration, if any, jurors may deem appropriate to give to the fact that New Mexico has repealed the death penalty for offenses committed after July 1, 2009,’’ in making their determination whether to sentence the defendant to death or life imprisonment. Id. The defendant’s penalty phase ofthe trial ended in ajury deadlock, and thejudge therefore sentenced the defendant to life imprisonment in accordance with New Mexico law. See State v. Astorga, 343 P.3d 1245, 1249 (N.M. 2015).

7 It is true that this court has previously refused to apply retroactively other amendments to the statutory capital sentencing scheme then in effect. See Dortch v. State, 142 Conn. 18, 28–30, 110 A.2d 471 (1954) (finding that legislature clearly intended for savings statute to apply to legislation changing punishment for first degree murder conviction from mandatory death sentence to sentence of either life imprisonment without possibility of release or death depending on recommendation ofjury, no violation of equal protection to do so); Simborski v. Wheeler, 121 Conn. 195, 198–201, 183A. 688 (1936) (findingthatlegislature clearlyintendedforsavings statute to applyto legislation altering mode ofexecution from hanging to electrocution, rendering alterationprospective onlyinnature). Neitherofthese cases, however, involved a challenge to the prospective only nature ofthe legislation at issue based on the eighth amendment to the constitution of the United States. Indeed, bothDortch andSimborski were decided well before the United States Supreme Court issued its opinions inFurman v. Georgia, supra, 408 U.S. 238, and Greggv. Georgia, supra, 428 U.S. 153, the two cases which serve as the foundation of modern death penalty jurisprudence. I seriously doubt that our decision in either Dortch or Simborski would comport with our modern understanding of the cruel and unusual punishment clause of the eighth amendment and, thus, I do not consider these opinions to hold any precedential value on this point.

8 Cooperwas decided priorto the United States Supreme Court’s decision in Roper v. Simmons, supra, 543 U.S. 551, which concluded that it violates the federal constitution to execute defendants who had committed their crime prior to the age of eighteen. Id., 568–71.

9 Van Tran v. State, supra, 66 S.W.3d 790, and Fleming v. Zant, supra, 259 Ga. 687, were decided prior to Atkins v. Virginia, supra, 536 U.S. 321, whereintheUnited States Supreme Courtconcludedthat executingmentally disabled individuals constitutes cruel and unusual punishment in violation of the eighth amendment to the United States constitution.

10 Furthermore, to the extent that these decisions from our sister states do supportthe propositionthat legislationprospectivelyrepealing the death penalty for defendants with specific characteristics that reduce culpability must also apply to that class ofoffenders who committed their crimes prior tothe effective date ofthe legislation, thispropositionsupportstheprinciple that similarly culpable defendants deserve similar punishment. See part IA 2 and part I A 3 of this concurring opinion.

11 The United States Supreme Court has stated that the eighth amendment demands reliability and consistency in the imposition of the death penalty in order for a capital sentencing scheme to pass constitutional muster. See Furman v. Georgia, supra, 408 U.S. 309–10 (Stewart J., concurring). The question is not one involving rational basis review. The United States Supreme Court has invalidated modern capital sentencing schemes even though one could argue that the schemes were rationally related to a valid legislative purpose. For example, in Woodson v. North Carolina, 428 U.S. 280, 286, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion), the court invalidated a statutory scheme that imposed a mandatory death sentence if an offender were convicted of first degree murder. The court made this rulinginpartbecausethestatute’s ‘‘failureto allowtheparticularizedconsideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death.

. . . A process that accords no significance to relevant facets ofthe character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.’’ (Citations omitted.) Id., 303–304. The court continued: ‘‘While the prevailingpractice ofindividualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the [e]ighth [a]mendment

. . . requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensablepart oftheprocess ofinflictingthepenaltyofdeath.’’ (Citation omitted.) Id., 304; cf. Callins v. Collins, 510 U.S. 1141, 1144, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) (‘‘[r]easonable consistency [in imposing the death penalty] requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim’’ [emphasis added]).

12 I extend my thanks to the amicus curiae Legal Historians and Scholars for bringing much of the following information to my attention.

13 North Dakota’s repeal was enacted in 1915, while West Virginia’s repeal

was enactedin 1965. See 1915 N.D. Laws 76; 1965 W. Va. Acts 207; J. Galliher et al., ‘‘Abolition and Reinstatement of Capital Punishment During the Progressive Era and Early 20th Century,’’ 83 J. Crim. L. & Criminology 538, 555–56 (1992); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ pp. 210, 402, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015). In some other states, although the legislation did not contain language expressly applying the repeal retroactively, the legislation was arguably retroactive in that the statutes provided, generally, that ‘‘the punishment of death is hereby abolished.’’ 1852 R.I. Pub. Laws 12; see also 1957 Alaska Sess. Laws 262.

14 See Editorial, ‘‘Quinn Will Commute Death Term,’’ HonoluluAdvertiser, March 26, 1958, p. A1; Editorial, ‘‘Justice Advances in Illinois,’’ N.Y. Times, March 10, 2011, p. A30; G. Mills, ‘‘Death Order Is Commuted to Life Term,’’ Des Moines Register, January 10, 1965, p. 1L; J. Wagner, ’’On last full day, O’Malley issues orders commuting four death-row sentences,’’ Washington Post, January 20, 2015, available at http://www.washingtonpost.com/local/md-politics/on-last-full-day-omalley-issues-orders-commuting-four-deathrow-sentences/2015/01/20/0d22c2f4-a10f-11e4-b146- 577832eafcb4_story.html (last visited August 10, 2015); J. Bessler, Legacy of Violence: Lynch Mobs and Executions in Minnesota (2003) p. 179; J. Peters, ‘‘Corzine Signs BillEndingExecutions, Then Commutes Sentences of 8,’’ N.Y. Times, December 18, 2007, p. B3; see also DeathPenaltyInformation Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ pp. 103, 105, 166, 168, 221, available at http://www.deathpenalty info.org/documents/ESPYstate.pdf (last visited August 10, 2015).

15 United States v. Lee, 489 F.2d 1242, 1246–47 (D.C. Cir. 1973); Commonwealth v. Colon-Cruz, 393 Mass. 150, 163–72, 470 N.E.2d 116 (1984); People

v. Taylor, 9 N.Y.3d 129, 155, 878 N.E.2d 969, 848 N.Y.S.2d 554 (2007); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ pp. 65, 158, 255, available at http:// www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

16 1917Ariz. Sess. Laws4 (repeal); 1919Ariz. Sess. Laws 18 (reinstatement);see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608– 2002: The ESPY File, Executions by State,’’ p. 35 (indicating no executions took place during period ofrepeal), available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

17 1897 Colo. Sess. Laws 135 (repeal); 1901 Colo. Sess. Laws 153 (reinstatement); Office of the Colorado State Public Defender, ‘‘Catalog of Colorado Executions,’’ (2009), available at http://pdweb.coloradodefenders.us/index. php?option=com_content&view=article&id=152<emid=108 (last visited August 10, 2015) (indicating no executions between repeal of the death penalty on March 29, 1897, and reinstatement of death penalty on May 2, 1901); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 57, available at http:// www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

18 51 Del. Laws 742 (1957) (repeal); 53 Del. Laws 801 (1961) (reinstatement); Delaware Dept. of Corrections, ‘‘Death Row,’’ (2015), available at http://www.doc.delaware.gov/deathrow/history.shtml (last visited August 10, 2015) (indicating no executions betweenrepeal ofdeathpenalty onApril 2, 1958, and reinstatement of death penalty on December 18, 1961); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 66, available at http://www.deathpenalty info.org/documents/ESPYstate.pdf (last visited August 10, 2015).

19 1872 Iowa Acts 139 (repeal); 1878 Iowa Acts 150–51 (reinstatement); D. Haws, Iowa and the Death Penalty: A Troubled Relationship (2010) pp. 289, 298 (indicating no executions following repeal); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 104, available at http://www.deathpenaltyinfo.org/ documents/ESPYstate.pdf (last visited August 10, 2015).

20 1907 Kan. Sess. Laws 299 (repeal); 1935 Kan. Sess. Laws 234 (reinstatement); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 119, available at http:// www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015). We note that the United States government carried out an execution in 1930 at the federal penitentiary located in Leavenworth, Kansas. See Federal Bureau ofPrisons, ‘‘Capital Punishment,’’ (2015), available at http:// www.bop.gov/about/history/federal_executions.jsp (last visited August 10, 2015); seealso DeathPenaltyInformationCenter, ‘‘FederalExecutions 1927– 2003,’’ (2014), available at http://www.deathpenaltyinfo.org/federal-execu tions-1927-2003 (last visitedAugust 10, 2015). Obviously, this execution was for a violation of federal law.

21 1876 Me. Laws 81 (repeal); 1883 Me. Laws 169 (reinstatement); D. Hearn, Legal Executions in New England: A Comprehensive Reference, 1623–1960 (1999), pp. 255–57 (listing executions, indicating none occurring in Maine following repeal); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 166, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

22 1917 Mo. Laws 246 (repeal); 1919 Mo. Laws 778 (reinstatement); H. Frazier, Death Sentences in Missouri, 1803-2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations (2006), p. 209 (indicatingnoexecutionsduringperiodofrepeal); seealsoDeathPenalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 174, available at http://www.deathpenaltyinfo.org/ documents/ESPYstate.pdf (last visited August 10, 2015).

23 1969 N.M. Laws 415 (repeal); 1979 N.M. Laws 522 (reinstatement); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPYFile, Executions by State,’’ p. 223 (indicatingno executions during period of repeal), available at http://www.deathpenaltyinfo.org/documents/ ESPYstate.pdf (last visited August 10, 2015).

24 1965 N.Y. Laws vol. I, 1021–22 (partial repeal of death penalty); 1995 N.Y. Laws vol. I, 1 (reinstatement); D. Hearn, Legal Executions in New York State A Comprehensive Reference, 1639-1963 (1997) p. 281–82 (indicating

no executions during period of repeal); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 255, available at http://www.deathpenaltyinfo.org/documents/ ESPYstate.pdf (last visited August 10, 2015).

25 1915 Or. Laws 12 (repeal); 1920 Or. Laws 46 (reinstatement); 1965 Or. Laws 6 (repeal); 1978 Or. Laws 4 (reinstatement); Death PenaltyInformation Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 275 (indicating no executions during period of repeals), availableat http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

26 1915 S.D. Sess. Laws 335 (repeal); 1939 S.D. Sess. Laws 166 (reinstatement); South Dakota Dept. of Corrections, ‘‘Frequent Questions: Capital Punishment,’’ (2014), available at http://doc.sd.gov/about/faq/capitolpunish ment.aspx (last visited August 10, 2015) (indicating no executions between repealin 1915andreinstatementin 1939); seealsoDeathPenaltyInformation Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 321, available at http://www.deathpenaltyinfo.org/documents/ ESPYstate.pdf (last visited August 10, 2015).

27 1915 Tenn. Pub. Acts 181 (repealing capital punishment for crime of murder); 1919 Tenn. Pub. Acts 5 (reinstating capitalpunishment forcrime of murder); Tennessee Dept. of Corrections, ‘‘Tennessee Executions,’’ (2014), available at http://www.tennessee.gov/correction/article/tdoc-tennesseeexecutions (lastvisitedAugust 10, 2015) (indicatingno executions ofoffendersconvictedofmurderbetweenrepealdate ofMarch27, 1915, andreinstatement date ofJanuary 30, 1919); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 327, available athttp://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August 10, 2015).

28 See also 1913 Wash. Sess. Laws 581 (repeal); 1919 Wash. Sess. Laws 273 (reinstatement); Washington Dept. of Corrections, ‘‘Persons Executed Since 1904inWashington State,’’ (2014), available athttp://www.doc.wa.gov/ offenderinfo/capitalpunishment/executedlist.asp (last visited August 10, 2015) (indicating no executions between repeal date ofMarch 22, 1913, and date ofreinstitution on March 14, 1919); see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 397, available at http://www.deathpenaltyinfo.org/documents/ ESPYstate.pdf (last visited August 10, 2015).

29 Thislistincludes earlier, temporaryrepealsinIowa, Maine, NewMexico, and New York, states that currently have legislation repealing the death penalty. See supra footnotes 19, 21, 23, and 24 of this concurring opinion. Similarly, it includes Tennessee and New York, which temporarily repealed the death penalty only for certain crimes. See footnotes 24 and 27 of this concurring opinion.

30 The amicus curiae Legal Historians and Scholars note thatthis occurred in Oregon in 1914; Arizona in 1917; Missouri in 1918; and again in Oregon in 1964. See footnotes 16, 22 and 25 of this concurring opinion.

31 NewMexico’s earlierrepeal stated: ‘‘Anyperson currentlyunderpenalty ofdeath shall have suchpenaltyrevoked, and apenalty oflife imprisonment substituted.’’ 1969 N.M. Laws 415.

32 In Iowa and Maine, for example, the applicable legislation stated that the death penalty was ‘‘hereby abolished.’’ 1872 Iowa Acts 139; 1876 Me. Laws 81. Although the legislation did not expressly applyto prerepeal death

row inmates, neither state conducted an execution while the repeal was in effect.

33 Ialsonotethatthe amicuscuriae Experts onInternationalHumanRights and Comparative Law contends that no country has carried out a death sentence while a death penalty repeal was in effect. This information was extractedfromreportsissuedeveryfiveyearsbytheUnitedNationsconcerning global developments in the law and practice of the death penalty. This court has recognized that the practices of the international community are constitutionally relevant, particularly when international practices do not

run counter to relevant case law and practices in this country. See State v. Allen, 289 Conn. 550, 585, 958 A.2d 1214 (2008). I explore this area further subsequently in part I A 3 of this concurring opinion, but I reiterate here that the lack of postrepeal executions on a global level, coupled with the absence of such executions in this nation, lends further support to my conclusion that there is a consensus against the practice.

34 The Death Penalty Information Center indicates that, currently, ninetyeight countries have abolished the death penalty for all crimes, while an additional thirty-five countries have either not executed anyone for more than ten years or ‘‘have made an international commitment not to use the death penalty.’’ Death Penalty Information Center, ‘‘Abolitionist and Retentionist Countries,’’ (2015), available at http://www.deathpenalty info.org/abolitionist-and-retentionist-countries (lastvisitedAugust 10, 2015). Another seven countries have abolished the use of the death penalty for ordinary crimes. Id.

35 I question whether, even before the prospective repeal, a sentence of death continued to have any deterrent effect. In his concurring opinion inFurman, Justice White concluded that the death penalty was cruel and unusual as it was then being imposed, but only because the death penalty

was imposed so infrequently. See Furman v. Georgia, supra, 408 U.S. 311 (‘‘I begin with what I consider a near truism: that the death penalty could

so seldom be imposed that it would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system’’). Justice White went onto explain: ‘‘Most important, amajor goal of the criminal law—to deter others by punishing the convicted criminal—would not be substantially served where the penalty is so seldom invoked that it ceases to be the credible threat essential to influence the conduct ofothers.

. . . [C]ommon sense and experience tell us that seldomenforced laws become ineffective measures for controlling human conduct and that the death penalty, unless imposed with sufficient frequency, will make little contribution to deterring those crimes for which it may be exacted.’’ Id., 312. This state has executed one person in the last fifty-five years. See Connecticut State Library, ‘‘Executions in Connecticut Since 1894,’’ (last modified May 30, 2013), available at http://www.cslib.org/execu tions.htm (last visited August 10, 2015). That particular defendant, Michael Ross, withdrew his pending appeals and wrote a letter to Governor M. Jodi Rell requesting that she not intervene. See L. Tuohy, ‘‘Ross to Rell: Keep Out ofIt,’’ Hartford Courant, December 4, 2004, p. B1; L. Tuohy, ‘‘Execution Set for May 11,’’ Hartford Courant, February 11, 2005, p. A1. Given the infrequency with which the state carried out executions prior to the repeal ofthe death penalty, I am not convinced that the carrying out ofthe executions ofthe defendants who committedtheir offenses priortoApril 25, 2012, will have any general deterrent effect.

36 See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 533, remarks of Senator Eric Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 751–52, remarks ofSenatorEdwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1257–64, remarks ofRepresentative Gary Holder-Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74, remarks of Representative Juan Candelaria; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1374–76, remarks of Representative Patricia Dillon.

37 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks ofSenator Edwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith Prague; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1279–82, remarks ofRepresentative Richard Smith.

38 See Death Penalty Information Center, ‘‘Recent Legislation: Governor’s SignatureMakes ConnecticutFifthStateinFiveYearstoEndDeathPenalty,’’ (2015), available at http://www.deathpenaltyinfo.org/recent-legislation-gov ernors-signature-makes-connecticut-fifth-state-five-years-end-death-penalty (last visited August 10, 2015).

39 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 673, remarks ofSenatorEdward Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry Gerrantana; 55 S. Proc., Pt. 3, 2012 Sess., p. 751, remarks of Senator Edwin Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff; 55 S. Proc., Pt. 3, 2012 Sess., pp. 772–73, remarks of Senator Carlo Leone; 55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91, remarks of Senator Joseph Crisco; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1255–57, remarks of Representative Michael Molgano.

40 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 662, remarks of Senator Eric Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks of Senator Anthony Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks ofSenator Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1282–86, remarks of Representative Daniel Rovero; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1340–41, remarks of Representative Philip Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1352, remarks of Representative John Thompson; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1384–89, remarks of Representative J. Brendan Sharkey.

41 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 725, remarks ofSenator Robert Kane (‘‘I’m a bit confused by how we are able to make it okay for the existing [eleven] people on death row to be executed but not the future individuals who may commit some ofthose very same crimes’’); Id., p. 747, remarks of Senator Len Suzio (‘‘[i]f you’re going to say that taking human life in the form of a legal execution is wrong going forward, then it’s wrong going backwards’’); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1040, remarks of Representative Lawrence Cafero (‘‘How can you say in your heart and with your vote that it should no longer be the policy of the state of Connecticut to commit anyone to death? And yet, at the same time, say except for these [eleven] guys. How could you say that? How do youjustify that?’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1054, remarks ofRepresentativeJohnHetherington(‘‘It says that, prospectively, it operates to spare killers in the future but not a certain [eleven] who currently occupy death row. So it is a very curious moral position; that is, the morality changes depend upon when it’s applied.’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1307 remarks ofRepresentative Hetherington (‘‘It condemns death going forward, but accepts it in the past. It’s illogical; it is arguably immoral.’’); see also footnote 43 of this opinion.

42 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 748, remarks of Senator Len Suzio (‘‘I suspect that one reason why there’s this big gaping hole, moral hole in this law is because of the political consequences of making it an absolute both prospectively, as well as retrospectively. And again, that to

me is a moral failure. The end does not justify the means, but if [your] position is absolute, if you believe the death penalty is always morally offensive under any and all circumstances going forward then you really have to honor your commitment even to those on death row today.’’).

43 I note that, while P.A. 12-5 was being considered by the legislature, eleven people were on death row. On May 22, 2015, Richard Roszkowski

was sentenced to death for crimes committed prior to April 25, 2012. See footnote 102 of the majority opinion.

44 The animus directed toward the two defendants responsible for the high profile crimes in Cheshire, the last of whom was sentenced to death less than three months before the legislature took up P.A. 12-5, is evidenced in a public statement made by Senator Edith Prague: that ‘‘[t]hey should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street

. . . .’’ B. Connors, ‘‘Prague: ‘Hang the Animal By His

. . . .’ ’’ NBC Connecticut (May 12, 2011), available at http://www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-byHis-121670559.html (lastvisitedAugust 10, 2015). InStatev. Komisarjevsky, 302 Conn. 162, 179–80, 25 A.3d 613 (2011), this court acknowledged the notorietyofthe cases againstthetwo defendants, whicharousedsuchpublic antipathyastoresultinthreatsagainstbothdefensecounselandintimidation of witnesses that had been or might be interviewed by the defense team.
45 I use the terms ‘‘private vengeance’’ and ‘‘revenge’’ interchangeably throughout this concurrence.
46 The stark differences between retribution and revenge were not lost

onthelegislature duringthe debate ofP.A. 12-5. Forexample, Representative Cafero, a self-proclaimed supporter of capital punishment, aptly outlined the differences betweenthe two, and additionally recognizedthat only retribution is a valid penological justification for punishment: ‘‘A lot of people say that people are for the death penalty because of revenge. If you look up ‘revenge’ in the dictionary, you’ll see it has an emotional component. It is for vengeance. It’s within the word vengeance. Vengeance is an emotion. Government does not have the luxury of having emotions, whether that be compassionorvengeance. Governmenthastoseekjustice.Justiceisthe core definition behind retribution.’’ 55 H.R. Proc., Pt. 3, 2012 Sess., pp. 1040–41.

47 The state also claims that executingprerepeal death row inmates serves
avalid penological purpose simply because those defendants chose to murder at a time in which the death penalty was a constitutionally permissible penalty for their conduct, and were sentenced prior to the effective date of the act. I disagree. This claim is merely another reference to deterrence. Moreover, the state’s view assumes that the full effect of the death penalty is felt by the defendant at the moment of sentencing. As a practical matter, this is a faulty presumption. In my view, a sentence of death carries two parts: the first is a term of years of imprisonment while the defendant is awaiting execution, and the second is the execution itself. Until a defendant walks into the death chamberto be executed, his sentence is, in allpractical respects, life imprisonment without the possibility ofparole. Thus, although the prerepeal defendants were sentenced to death under a constitutionally permissible capital sentencing statute, that, by itself, is not a basis to carry out the second aspect of a death sentence, execution.

48 Although GreggandFurmanfocus onthe needto channelthe discretion ofa sentence in individual cases to avoid arbitrary results, the United States Supreme Court’s eighth amendment jurisprudence on arbitrariness in sentencing is not confined to arbitrariness by individual sentencing bodies. See Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (‘‘Death, in its finality, differs more from life imprisonment than

a [100 year] prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment

. . . .’’). Moreover, although in Furman, the United States Supreme Court’s decision focused on the unchanneled discretion being wielded byjuries inindividual cases, the court concluded that the death penalty as it was then being imposed was unconstitutional not because in any particular instance, the jury’s decision was arbitrary, but rather because the capital sentencing schemes of the states permitted arbitrary decision making in individual

cases. SeeGreggv. Georgia, supra, 428U.S. 188 (‘‘[b]ecauseoftheuniqueness of the death penalty, Furman held that it could not be imposed under sentencing procedures that created a substantial risk that it would be inflicted in an arbitrary and capricious manner’’ [emphasis added]); Callins

v. Collins, 510 U.S. 1141, 1152–53, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari) (‘‘[i]t is the decision to sentence adefendantto death—notmerelythe decisionto make adefendant eligible for death—that may not be arbitrary’’).

49 The state claims that P.A. 12-5 contains no constitutionallyinvalidprovisions because ‘‘[i]t is well established thatthe deathpenalty does notviolate any provision of the federal constitution’’ and ‘‘[l]ikewise, a statute that repeals the death penalty also is constitutionally firm.’’ In my opinion, these arguments have no merit. While it is true that Gregg established that the death penalty is not, in and of itself, a violation of any provision of the federal constitution, modern death penaltyjurisprudence has made it eminently clear that certain state statutory schemes which impose the death penalty can be unconstitutional either on their face or as applied in a given

case. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 320–28, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989) (finding that, although capital sentencing scheme was facially valid, in specific case, scheme prevented jury from considering mitigation evidence presented by defendant), abrogated on other grounds by Atkins v. Virginia, supra, 536 U.S. 321; Woodson v. North Carolina, supra, 428 U.S. 301 (rejecting capital scheme that imposed mandatory death penalty for crime offirst degree murder in part because statute ‘‘depart[ed] markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the [e]ighthand [f]ourteenth [a]mendments’ requirementthatthe [s]tate’spower to punish ‘be exercised within the limits of civilized standards’ ’’).

50 The state relies on Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982), and Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030 (1912), in its argument that the unconstitutional portion of P.A. 12-5 is not severable from the remaining language. I find these cases inapposite to the circumstances in the case at hand. Seals, for example, involved a statute which permitted a trial court to deduct from a jury’s award of damages any money received by a plaintiff pursuant to a covenant not to sue or release of liability agreement. Seals v. Hickey, supra, 341 n.6. The court noted that the statute, when the unconstitutional language was excised, ‘‘offer[ed] absolutely no direction to the court concerning what steps it may take after the verdict has been returned.’’ Id., 355. In the present case, as I discuss in detail in footnote 52 of this concurring opinion, language can be excised from P.A. 12-5 in such a way so as to render the constitutional remainder entirely workable. Similarly, at issue in Beach was the constitutionality of a statute which sought to provide $30 annually to every ‘‘resident in the [s]tate who served in the army, navy, marine corps, or revenue marine service of the United States during the Civil War

. . . and received an honorable discharge therefrom’’ or their close family. Beach v. Bradstreet, supra, 351. The court notedthat, as drafted, the lawwouldprovide funds not onlyto thosepersons who served Connecticut in the Civil War, but also those who had served other states and now happened to reside in Connecticut. Id., 351–52. The court found that it could not sever the statute, in part because the act could not be made constitutional either ‘‘by the exclusion or addition of a word

or words

. . . but only by rewriting the statute.’’ Id., 353. In the statute at hand, the constitutional remainder of the statute can be severed from the unconstitutional portion, solely through the excision of certain language,

as I demonstrate in footnote 52 ofthis concurring opinion. Thus, the circumstances at issue in Beach have little bearing on the present case.
51 It is my position that this court does not examine the legislative history to determine legislative intent if the dominant purpose of the act can be gleaned from its plain meaning. See, e.g., Cruz v. Montanez, 294 Conn. 357, 370, 984 A.2d 705 (2009) (‘‘[t]he intent of the legislature, as this court has repeatedly observed, is to be found not in what the legislature meant to say, but in the meaning of what it did say’’); see also State v. Watson, 165 Conn. 577, 597, 345 A.2d 532 (1973) (‘‘[i]t is not necessary to find the entire statute invalid since the presumption and the balance ofthe statute are not

so mutually connected and dependent as to indicate a legislative intent that they should stand or fall together’’). Reading the plain text of the act, itsdominant purpose is, unassailably, to eliminate the death penalty. If the legislature’s dominant purpose was to ensure that the death penalty was to remain in place for capital offenders who committed their crimes prior to April 25, 2012, no change to our old capital scheme was necessary. In footnote 52 of this concurring opinion, I explain in greater detail precisely how to sever the offending portion of P.A. 12-5 from the constitutional remainder.

52 My conclusion that P.A. 12-5 is severable would not, as the state claims, result in an impermissible rewriting of the act. I would simply read out of the act any references to the effective date of the act, and any references to ‘‘capital felonies,’’ which relate solely to capital crimes committed prior tothe effective date ofthe act. Forexample, § 53a-35awouldreadasfollows: ‘‘Foranyfelony committed on or afterJuly 1, 1981, the sentence ofimprisonment shall be a definite sentence and, unless the section of the general statutes that defines or provides the penalty for the crime specifically provides otherwise, the term shall be fixed by the court as follows: ‘‘(1) For the class A felony of murder with special circumstances a term of life imprisonment without the possibility of release; ‘‘(2) For the class A felony of murder, a term not less than twenty-five years nor more than life; ‘‘(3) For the class A felony of aggravated sexual assault of a minor under section 53a-70c, a term not less than twenty-five years or more than fifty years; ‘‘(4) For a class A felony other than an offense specified in subdivision (2) or (3) of this section, a term not less than ten years nor more than twenty-five years; ‘‘(5) For the class B felony of manslaughter in the first degree with a firearm under section 53a-55a, aterm not less than five years nor more than forty years; ‘‘(6) For a class B felony other than manslaughter in the first degree with

a firearm under section 53a-55a, a term not less than one year nor more than twenty years; ‘‘(7) For a class C felony, a term not less than one year nor more than ten years; ‘‘(8) For a class D felony, a term not more than five years; ‘‘(9) For a class E felony, a term not more than three years; and ‘‘(10) For an unclassified felony, a term in accordance with the sentence specified in the section of the general statutes that defines or provides the penalty for the crime.’’ This approach to severance would not leave a statutory void, as the state claims. The statutorydefinitions of‘‘capitalfelony’’ and ‘‘murderwithspecial circumstances’’ are identical. By severing the language dealing only with ‘‘capital felony,’’ the act continues to make illegal the conduct which constitutedthe definition of‘‘capitalfelony’’ butnow carries amandatorysentence of life imprisonment without the possibility of release. See P.A. 12-5, §§ 1, 2. Read in this way, the act applies to all felonies committed after 1981 and, because this revision essentially constitutes a relabeling of the offense of ‘‘capital felony’’ as ‘‘murder with special circumstances’’; see P.A. 12-5, § 1;

no offender currently sentenced to death could claim that he should be released as a result ofthe elimination of ‘‘capital felony’’—all such conduct would fall under the umbrella of the definition of ‘‘murder with special circumstances,’’ which differs from ‘‘capital felony’’ only with regard to the sentence that might be imposed. See P.A. 12-5, § 2. The only relief that an offender currently sentenced to death could hope for, if the statute were severed according to this approach, would be to be resentenced to life imprisonment without the possibility of release. As in Bell, the defendant and otherprerepeal death row inmates would have no claimthatthe offense of ‘‘murder with special circumstances’’ does not apply to them through the workings of the ex post facto clause, because it does not disadvantage the defendant in any way—the effect ofthis revision would solely be ameliorative from a defendant’s perspective, in that it prevents the imposition of a sentence of death. Cf. State v. Bell, supra, 303 Conn. 256–58 (noting that ex post facto clause applies tojudicial gloss applied to statutes when such law [1] would have retroactive effect and [2] would operate in such way that would be unforeseeable and disadvantageous to criminal defendant; finding change to be ameliorative and procedural and, thus, not in violation of ex post facto clause). There would also be no need to retry the defendant, as all the predicate factual findings for convicting the defendant of ‘‘murder with special circumstances’’ would be satisfied by the jury’s verdict in the guilt phase of the defendant’s earlier capital trial. See P.A. 12-5, § 1.Further, this approach would not require further action in amending any other statutes—by striking all references to the effective date provision and ‘‘capitalfelony’’ inthe actitself, the changewouldaffectall relevantstatutes. This method of revision would not strike any reference to ‘‘murder with special circumstances’’ and thus would have no impact on the function of the legislature’s chosen sentencing scheme for serious felonies committed today or in the future.

53 Specifically, the state points to comments of several representatives and senators who suggested that, politically speaking, P.A. 12-5 could be passed only if the repeal were prospective in nature. I observe first that, forpurposes ofa severability analysis, this court does not immediately look to the legislative history for guidance. See footnote 51 of this concurring opinion. Second, as I describe in detail, these selected statements do not

come close to telling the whole story about the nature ofthis debate and the actions ofthe legislature. Both the House and Senate voted down proposed amendments that would have expressly required the act to be struck down in its entirety ifthis court were to conclude that the prospective only nature ofthe repealviolated eitherthe federal or state constitution. See 55 S. Proc., Pt. 3, 2012 Sess., p. 669; 55H.R. Proc., Pt. 4, 2012 Sess., p. 1066. Thelegislature decided against these proposed amendments in the face of testimony that warned ofthe likelihood that the prospective only nature ofthe repeal was likelytobefoundunconstitutional. See, e.g., Conn.JointStandingCommittee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635, remarks of Chief State’s Attorney Kevin Kane.

54 Pressed further on the issue, Chief State’s Attorney Kane stated: ‘‘My prediction is that the arguments that I have so far, that we have discussed in thought I don’t think are likely to prevail in the Supreme Court given

. . . the prior language and several prior opinions about the death penalty. And I don’t think anybody should be deluding themselves that it’s likely that this can beprospective

. Ithinkthatwouldbe—prospective only. I think that would be a big mistake.’’ (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635.