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STATE v. SANTIAGO—SECOND CONCURRENCE

EVELEIGH, J., concurring. Vengeance has no place

in the orderly administration of justice by a civilized

society. It certainly can never serve as the justification

for the death penalty in today’s world. My review of

the text and legislative history of the public act under

consideration, No. 12-5 of the 2012 Public Acts (P.A.

12-5), leads me to the inescapable conclusion that vengeance was the motivating factor underlying the enactment of the provisions allowing the eleven men on death

row to be executed while eliminating the death penalty

for crimes committed in the future. Because I conclude

that there is no longer any valid penological purpose

justifying the retention of the death penalty for 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

allow the men on death row to be executed are violative

of the federal and state constitutional bans against cruel

and unusual punishment. See U.S. Const., amend. VIII;

Conn. Const., art. I, §§ 8, 9.1

I therefore join the majority’s analysis in all respects, and join in remanding the

case with direction to sentence the defendant, Eduardo

Santiago, to a term of life imprisonment without the

possibility of release. I write separately to express my

view that, although our state constitution provides separate and distinct protections to the citizens of Connecticut and appropriately prohibits capital punishment, the

protections afforded by the eighth amendment to the

United States constitution and existing federal case law

would have been sufficient to prohibit capital punishment in the state of Connecticut. Moreover, although

I agree with the majority that capital punishment is

unconstitutional and that the majority properly reached

the issue of unconstitutionality, in view of the dissents’

claims about the appropriateness of the majority’s

reaching the issue, I conclude that the unconstitutional

aspects of the act could have been severed in order to

effectuate the legislature’s clear intent to repeal the

death penalty.

Historically, Connecticut has been a leader in 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 a valid retributive purpose.

By maintaining the death penalty for those who have

committed a capital offense before the act’s arbitrary

effective date while eliminating the death penalty for
any crime committed thereafter, no matter how heinous

that crime may be, P.A. 12-5 severs the tie between the

imposition of the death penalty and the culpability of

the individual offender.

I

P.A. 12-5 RENDERS CONNECTICUT’S CAPITAL

PUNISHMENT STATUTORY SCHEME

UNCONSTITUTIONAL UNDER THE

EIGHTH AMENDMENT TO THE

UNITED STATES

CONSTITUTION

The eighth amendment to the constitution of the

United States bans the infliction of all cruel and unusual

punishments. See footnote 1 of this concurring opinion.

In assessing the contours of the eighth amendment in

the context of the death penalty, the United States

Supreme Court has recognized that ‘‘the penalty of

death differs from all other forms of criminal 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 of offender, ‘‘[t]he [c]ourt first considers objective

indicia of society’s standards, as expressed in legislative

enactments and state practice to determine whether

there is a national consensus against the sentencing

practice at issue. . . . Next, guided by the standards

elaborated by controlling precedents and by the

[c]ourt’s own understanding and interpretation of the

[e]ighth [a]mendment’s text, history, meaning, and 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 Court also has recognized that, because

of its ultimate and irrevocable effect, the death penalty

cannot be imposed under procedures 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). Simply put, ‘‘[t]he

[e]ighth and [f]ourteenth [a]mendments cannot tolerate

the infliction of a sentence of death under legal systems

that permit this unique penalty to be . . . wantonly

and . . . freakishly imposed.’’ (Internal quotation

marks omitted.) Id., quoting Furman v. Georgia, supra,

408 U.S. 310 (Stewart, J., concurring).

Following our legislature’s prospective repeal of the

death penalty, the single most determinative factor in
whether a death penalty is imposed or carried out under

our capital sentencing scheme is the date on which

a defendant commits his or her crime—specifically,

whether a defendant has committed his or her crime

before April 25, 2012. As I explain in part I A of this

concurring opinion, I conclude that, as amended by

P.A. 12-5, Connecticut’s capital sentencing scheme is

contrary to the consensus against executions postrepeal of the death penalty. In addition, as I explain in

part I B of this concurring opinion, to allow such an

arbitrary factor, which lacks any connection to the purported purposes of the death penalty and the nature of

the offenses committed, to have such an extreme

impact on the ultimate fate of a limited class of individual defendants is the paradigm of capriciousness that

the eighth amendment will not tolerate.

A

Executing the Defendant Following the Repeal of the

Death Penalty Is Inconsistent with Contemporary

Standards of Decency

Under the test reserved for categorical challenges to

the death penalty for a particular class of offender, the

first step is to consider objective indicia of society’s

standards. Graham v. Florida, supra, 560 U.S. 61–62.

In the present case, this step requires the court to examine the standards expressed by legislatures and courts

regarding the imposition of the death penalty following

a prospective repeal. Although ‘‘[t]he clearest and most

reliable objective evidence of contemporary values is

the legislation enacted by the country’s legislatures’’;

(internal quotation marks omitted) id., 62, quoting

Atkins v. Virginia, 536 U.S. 304, 312, 122 S. Ct. 2242, 153

L. Ed. 2d 335 (2002); ‘‘[t]here are measures of consensus

other than legislation. . . . Actual sentencing practices

are an important part of the [c]ourt’s inquiry into consensus.’’ (Citation omitted; internal quotation marks

omitted.) Graham v. Florida, supra, 62; accord Kennedy v. Louisiana, 554 U.S. 407, 433–34, 128 S. Ct. 2641,

171 L. Ed. 2d 525 (2008); Roper v. Simmons, 543 U.S.

551, 573, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); Atkins

v. Virginia, supra, 316; Thompson v. Oklahoma, 487

U.S. 815, 821–29, 108 S. Ct. 2687, 101 L. Ed. 2d 702

(1988); Enmund v. Florida, 458 U.S. 782, 794–96, 102

S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). On the basis of not

only the actions of legislative and executive branches

worldwide regarding prospective repeals of the death

penalty, but also the actual sentencing practices of

other jurisdictions during periods of time in which the

death penalty has been repealed, I would conclude that

current societal standards unequivocally indicate an

unwillingness to impose the death penalty on defendants who committed their crimes prior to the repeal.

1

Federal and State Case Law
Although the United States Supreme Court has

repeatedly upheld the facial validity of the death penalty; see Gregg v. Georgia, supra, 428 U.S. 187; in recent

years, that court has limited the situations in which

capital punishment is permissible. See Kennedy v. Louisiana, supra, 554 U.S. 413 (death penalty impermissible

for nonhomicide crimes against individuals); Roper v.

Simmons, supra, 543 U.S. 568 (death penalty impermissible for defendants who committed their crimes prior

to age of eighteen); Atkins v. Virginia, supra, 536 U.S.

321 (death penalty impermissible for defendants whose

intellectual functioning is in low range). That court,

however, has never decided whether a state may carry

out executions while a prospective repeal of the death

penalty is in effect.

Nonetheless, this nation’s highest court has considered the significance of a prospective repeal of the death

penalty for purposes of eighth amendment analysis. In

Atkins v. Virginia, supra, 536 U.S. 314–15, the United

States Supreme Court determined that a national consensus existed against the execution of mentally disabled defendants, relying in part on the fact that

eighteen of the thirty-eight states that permitted 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 against inclusion

of prospective repeal states). The court declined, however, to draw any analytic distinction between states

that had completely abolished the execution of mentally

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 of the death penalty signals a jurisdiction’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 of the death penalty that are prospective only in nature.5 Only one state other than Con-
necticut, New Mexico, continues to have individuals

sentenced to death despite the enactment of a prospective 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,

and no executions have been carried out since its enactment.6 Significantly, however, a small number of states

have enacted prospective repeals of the death penalty

for certain classes of offenders or prospective repeals

of procedures that had made a death sentence more

likely. In these states, courts consistently have 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 of a partial repeal of the death penalty or death

penalty provisions. This case law shows that, like the

view taken by the United States Supreme Court, a prospective repeal of the death penalty is deemed to signify

consensus that the execution of individuals who fall

within the category of offender affected by the prospective 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 death sentence when, due to prospective changes

in that state’s capital punishment scheme,the defendant

would not have been eligible for the death penalty had

he been sentenced after the statutory changes were

made.

In Cooper v. State, supra, 540 N.E.2d 1220, the Indiana

Supreme Court concluded that a prospective repeal of

the death penalty for offenders under the age of sixteen

rendered the prerepeal death sentence of a fifteen year

old defendant unconstitutional underthat state’s constitution. In considering the Indiana legislature’s decision

to apply the repeal prospectively despite the fifteen

year old defendant’s pending death sentence, the court

noted: ‘‘The bill’s sponsors declared openly that this

exclusion was purposeful. Although the exclusion [of

the defendant] was assaulted on the [h]ouse floor during

consideration of the bill as being unjust, it was apparent

that the authors wished to enact a general policy 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 legal landscape surrounding it has changed dramatically in ways that reflect on the appropriateness of this
death penalty ‘in light of other death penalty cases.’ ’’

Id. Although the legislature purposefully had crafted

the repeal so as not to affect the defendant’s death

sentence, the court did not find the effective date provision of the act dispositive of the issue of whether it

was constitutional to execute the defendant. Id. Rather,

the court stated: ‘‘Now that Indiana law establishes

[sixteen] as the minimum age for the imposition of the

death penalty, [the defendant] would be both the first

and the last person ever to be executed in Indiana for

a crime committed at the age of [fifteen]. This makes

her sentence unique and disproportionate to any other

sentence for the same crime.’’ Id., 1219–20. This 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

her crime,regardless of whether the crime was committed prior to the effective date of the repeal.

More recently, in Saylor v.Indiana, supra, 808 N.E.2d

651, the Indiana Supreme Court reduced a death 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 unanimous jury recommendation to the

contrary, under a law that allowed the trial judge to

override a jury recommendation against death if the

trial judge found that the statutory aggravating circumstances outweighed any mitigating circumstances. Id.,

647–48. After the defendant’s sentence was affirmed,

the Indiana legislature enacted legislation that eliminated the trial judge’s authority to impose a death sentence in contravention of a jury’s recommendation. Id.,

648. The defendant thereafter sought rehearing on the

judgment affirming his sentence, claiming, inter alia,

that his death sentence should be invalidated because,

if his sentencing had occurred after the amendments

to the capital sentencing statute took effect, he would

not have been eligible for the death penalty. Id. On

rehearing, the Indiana Supreme Court agreed with the

defendant and reduced his sentence from death to a

term of years. Id., 651. As it did in Cooper, the court

reaffirmed its goal of ensuring ‘‘ ‘evenhanded operation

of the death penalty statute’ by reviewing death sentences ‘in light of other death penalty cases.’ ’’ Id., 650.

Although the court noted that it had previously affirmed

the defendant’s death sentence, it explained: ‘‘Since that

time the legal landscape has significantly changed. . . .

[A]s a matter of Indiana state law [the defendant], if

tried today, could not be sentenced to death without a

jury recommendation that death be imposed. Under

these circumstances we conclude that his death sentence is inappropriate and should be revised.’’ Id. The

court compared the case before it with its previous

decision in Cooper, and stated that both cases presented

‘‘situations in which the legislature, after [the defen-
dants’] sentences were imposed, enacted significant

changes in the requirements for the death penalty that

would render [the defendants] ineligible for a death

sentence in a trial conducted today. . . . [W]e conclude itis not appropriate to carry out a death sentence

that was the product of a procedure that has since

been revised in an important aspect that renders the

defendant ineligible for the death penalty.’’ (Emphasis

added.) Id., 650–51. Accordingly, the Indiana Supreme

Court converted the sentence of death to a term of

imprisonment.

Similarly, in Van Tran v. State, supra, 66 S.W.3d 792,

the Tennessee Supreme Court concluded that it would

violate that state’s constitutional ban on cruel and

unusual punishment to execute a mentally disabled

defendant after the enactment of laws prospectively

banning such executions. That court concluded that,

although the legislature did not intend for the repeal

to apply retroactively to those mentally disabled defendants who had been sentenced to death prior to the

effective date of the repeal; id., 798–99; the prospective

ban nevertheless reflected an ‘‘evolving societal view’’

in that state that executing a mentally disabled 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 of the prospective repeal,

the court stated: ‘‘The legislative enactment reflects a

decision by the people of Georgia that the execution

of mentally [disabled] offenders makes no measurable

contribution to acceptable goals of punishment. Thus,

although there may be no ‘national consensus’ against

executing the mentally [disabled], this state’s consensus

is clear.’’9

(Footnote omitted.) Id.

Likewise, in State v. Bey, supra, 112 N.J. 51, the New

Jersey Supreme Court gave retroactive effect to a statute prospectively repealing the death penalty for crimes

committed by minors. Although in that case the court

premised its decision to apply the statute retroactively

on rules of statutory construction; id., 100–105; it noted

that, apart from the legislature’s intent concerning 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 only juvenile ever executed or
even eligible for execution under our current death

penalty law.’’ (Citation omitted; internal quotation

marks omitted.) Id., 104–105.

It is all but a certainty that at least some future offenders protected by the prospective repeal will have the

same characteristics as the prerepeal defendants, and

that their crimes will be similar to—if not worse than—

those committed by the prerepeal defendants, yet only

the prerepeal defendants would face the possibility of

dying at the hands of the state. As I explain more fully

in part I A 3 of this concurring opinion, first, it would

be irrational to conclude that the prerepeal defendants

may be executed when the legislature has determined

that the death penalty should not be available for all

future offenders, irrespective of whether their moral

culpability is similar to, or greater than, that of the

prerepeal defendants. Second, these decisions from our

sister states were not all solely grounded on the fact that

the legislative enactments addressed offenders who,

in general, are less culpable than the average adult

offender, and that this diminished culpability rendered

imposition of the death penalty unconstitutional.

Rather, these decisions aptly highlighted the 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 if he or she had been sentenced after

the enactment took effect.10 Thus, these courts were

also concerned with ensuring the evenhanded operation

of their capital sentencing statutes, and viewed the date

of an offense as an arbitrary eligibility factor for the

death penalty.11 See Saylor v. Indiana, supra, 808

N.E.2d 650; Cooper v. State, supra, 540 N.E.2d 1219;

State v. Bey, supra, 112 N.J. 104–105. Thus, the 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 a punishment 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 whether there is a national

consensus against conducting executions while a death

penalty repeal is in place, it is proper to look to the

number of executions that have occurred in other states

while a repeal of the death penalty has been in effect.

See Graham v. Florida, supra, 560 U.S. 63–64

(reviewing statistics concerning number of juvenile

nonhomicide offenders serving sentences of life imprisonment without possibility of parole); Kennedy v. Loui-
siana, supra, 554 U.S. 433–34 (reviewing statistics about

number of executions of child rapists to determine if

such punishment is socially unacceptable); State v.

Rizzo, supra, 191–93 (reviewing number of people on

death row and number of executions carried out nationally 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 of this concurring

opinion; seventeen states, as well as the District of

Columbia, do not have statutes that currently authorize

the death penalty. See Death Penalty Information 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

after the legislature repealed the death penalty.14 In two

other states—Massachusetts and New York—as well

as the District of Columbia, a court invalidated the

existing death penalty statutory scheme, which 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 following thirteen states have, at various times in our nation’s history, temporarily repealed

and later reinstated the death penalty, yet none of these

states ever executed a person previously sentenced to

death while the temporary repeal remained in effect:

Arizona,16 Colorado,17 Delaware,18 Iowa,19 Kansas,20

Maine,21 Missouri,22 New Mexico,23 New York,24 Oregon—twice,25 South Dakota,26 Tennessee,27 and Washington.28 No state has executed an inmate while a repeal

was in effect.29 Rather, any executions occurred after

the death penalty was reinstated and a new death 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 of postrepeal executions leads me

inexorably to the conclusion that there is a national

consensus against the practice. In fact, the statistics in

this case are far more convincing than some of the

statistics relied upon by the United States Supreme
Court in determining that a national consensus exists

against a given sentencing practice. See Graham v.

Florida, supra, 560 U.S. 64–65 (concluding that there

was national consensus against sentencing juvenile

nonhomicide offenders to life imprisonment without

possibility of parole when only 123 such people were

serving that sentence in eleven jurisdictions); Atkins

v. Virginia, supra, 536 U.S. 316 (concluding national

consensus against executing intellectually disabled

defendants existed where five such offenders had been

executed in thirteen year period); Enmund v. Florida,

supra, 458 U.S. 794 (concluding that society had

rejected death penalty for nontriggerman felony murderers where only six such offenders had been executed

between 1954 and 1982). Thus, although the United

States Supreme Court has determined that a national

consensus exists against the sentencing practices in

those cases, despite the fact that those sentences had

actually been imposed, there cannot be a clearer indicator 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—either prospectively orin toto—is in effect. The

actual practice of these 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 of the death

penalty while a repeal 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

of the Safeguards Guaranteeing Protection of the Rights

of Those Facing the Death Penalty; Report of the 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 ever executed an individual afterthe death penalty

was repealed, regardless of whether the repeal was

accomplished via legislation, executive action, or a

determination by a court of law. Id., pp. 60–62; see also

Death Penalty Information Center, ‘‘Abolitionist and

Retentionist Countries,’’ (2015), available at http://

www.deathpenaltyinfo.org/abolitionist-and-retentionist-countries (last visited August 10, 2015).

Thus, if Connecticut were to execute the defendant
after the enactment of P.A. 12-5, it would apparently

earn the dubious distinction of becoming the first sovereign entity to execute one of its citizens while a repeal

of the death penalty remains in force. In doing so, our

state would distinguish itself from a host of countries

that have refused to tread the path on which our state

now travels, including countries as varied as Argentina,

Belgium, Cambodia, Djibouti, France, Haiti, Ireland,

Kyrgyzstan, Mexico, Mozambique, the Philippines,

Romania, Rwanda, Samoa, Senegal, Serbia, South

Africa, Turkey, and the United Kingdom. U.N. SecretaryGeneral, supra, pp. 60–62.

In light of the foregoing, I am persuaded that there

are clear objective indicia of societal standards supporting the proposition that there is a consensus that the

imposition of a sentence of death following a legislative

repeal of the death penalty violates contemporary 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 of whether 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 independent judgment requires consideration of the 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

serves legitimate penological goals.’’(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 commit the 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 a juvenile even though the same sentence

would not violate the eighth amendment when imposed

on an adult. In Atkins v. Virginia, supra, 536 U.S. 317–

18, the court engaged in a similar analysis regarding

adults with intellectual disabilities.

In cases such as Coker v. Georgia, 433 U.S. 584, 592,
97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)(plurality opinion),

Enmund v. Florida, supra, 458 U.S. 787, and Kennedy

v. Louisiana, supra, 554 U.S. 438–39,the 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

of the death penalty would be unconstitutionally disproportionate to the culpability of the offender. See, e.g.,

Kennedy v. Louisiana, supra, 438. In reaching its conclusion, the court examined not only societal consensus

regarding the punishment faced by the defendant and

the underlying penological justifications, but also the

characteristics of the crime and the offender.

The present case raises an issue that has not been

answered by any of the previously cited cases. The

defendant asks us to decide whether the imposition of

the death penalty would be disproportionate in relation

to the particular type of homicide of which he was

convicted as to violate the eighth amendment now that

our legislature has determined that, moving forward,

the death penalty is an impermissible punishment for

any offender who commits the same type of homicide.

This is fundamentally a different question than the ones

posed by Enmund, Kennedy, Coker, Simmons, Atkins,

Graham, and Miller. In each of those cases, the court

was essentially being asked to make an exception—to

spare a group of offenders from an otherwise acceptable penalty. By contrast, in the present case, we are

faced with the situation in which Connecticut has determined that the death penalty is no longer an acceptable

punishment for any crime committed today. Thus, the

question is not whether Connecticut may create an

exception to an otherwise acceptable punishment, but

whetherConnecticut may inflict an otherwise unacceptable punishment on the defendant.

An exploration of P.A. 12-5 and how it would impact

offenders such as the defendant helps put the question

before us in proper context. Public Act 12-5, § 2,

amended General Statutes § 53a-35a, effective April 25,

2012. That statute presently provides in relevant part:

‘‘For any felony committed on or after July 1, 1981, the

sentence of imprisonment shall be a definite sentence

and, unless the section of the general statutes that

defines or provides the penalty forthe crime specifically

provides otherwise, the term shall be fixed by the court

as follows: (1) (A) For a capital felony committed prior

to April 25, 2012, under the provisions of section 53a54b in effect prior to April 25, 2012, a term of life 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 this
scheme for purposes of this part of my analysis is that

the conduct classified as a ‘‘capital felony’’ or a ‘‘murder

with special circumstances’’ is exactly the same. The

legislature simply substituted the term ‘‘murder with

special circumstances’’ for ‘‘capital felony’’ in the provision setting forth the eight offenses that were previously

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

is hired by the defendant to commit the same for pecuniary gain’’), with General Statutes (Rev. to 2013) § 53a54b (‘‘[a] person is guilty of murder with special circumstances who is convicted of any of the following . . .

[2] murder committed by a defendant who is hired to

commit the same for pecuniary gain or murder 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 . . . .’’ If the defendant

had engaged in identical conduct afterApril 25, 2012,the

death penalty simply would not have been an available

punishment. Therefore, the date of the offense, rather

than the particular culpability of the offender, is determinative of whether the death penalty is available. With

this perspective in mind, I turn to the question of

whether such a dichotomy can be justified.

Under the eighth amendment, in order for a punishment to pass constitutional muster, it must fulfill a valid

penological objective. ‘‘Criminal punishment can have

different goals, and choosing among them is within a

legislature’s discretion.’’ Graham v. Florida, supra, 560

U.S. 71. The two penological justifications traditionally

and consistently articulated in support of the death

penalty are deterrence of capital crimes and retribution.

See Kennedy v. Louisiana, supra, 554 U.S. 441. Unless

the imposition of the death penalty ‘‘measurably 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 penalty validly serves one or both of these 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

measurably contributes to a valid penological objective.

There has been a long running debate as to whether

the death penalty actually functions as a deterrent to

those crimes deemed capital offenses. See, e.g., J.

Acker, ‘‘Be Careful What You Ask For: Lessons From

New York’s Recent Experience With Capital Punish-
ment,’’ 32 Vt. L. Rev. 683, 702–11 (2008). Courts have

concluded that ‘‘[t]he value of capital punishment as

a deterrent of crime is a complex factual issue the

resolution of which properly rests with the legislatures,

which can evaluate the results of statistical studies in

terms of their own local conditions and with a flexibility

of approach that is not available to the courts.’’ Gregg

v. Georgia, supra, 428 U.S. 186; see also State v. Rizzo,

supra, 303 Conn. 197. Thus, courts have deferred to a

legislative judgment that ‘‘the possible penalty of death

may well enter into the cold calculus that precedes the

decision to act.’’ Gregg v. Georgia, supra, 186.

Deferring to our legislature is not proper in the 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

whether to commit murder with special circumstances.

Thus, ‘‘[f]ollowing the abolition of the death penalty for

all future offenses committed in Connecticut . . . it is

possible to determine the exact number of potential

crimes that will be deterred by executing the defendant

in this case. That number is zero.’’ (Emphasis in 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

remain on death row, cannot be justified by its deterrent

effect.35 See Atkins v. Virginia, supra, 536 U.S. 319–20

(concluding that executing mentally retarded will not

further goal of deterrence).

Courts have always treated death differently from

other types of punishments in determining what is constitutionally permissible. See Solem v. Helm, supra, 463

U.S. 289; Bullington v. Missouri, 451 U.S. 430, 445–46,

101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981); Beck v. Alabama,

447 U.S. 625, 637–38, 100 S. Ct. 2382, 65 L. Ed. 2d 392

(1980); Gardner v. Florida, 430 U.S. 349, 358–60, 97 S.

Ct. 1197, 51 L. Ed. 2d 393 (1977). No court has ever

justified the continued imposition of the death penalty

on minors or the mentally disabled following repeal

because doing so would have promoted stability in the

law. The prospective repeal of the death penalty in

this statute has eliminated the traditionally articulated

rationale of deterring those particularly heinous crimes

deemed to justify the punishment of death.

Therefore, I turn to the other claimed justification

for capital punishment, namely, retribution. Although

not a forbidden penological objective, ‘‘[r]etribution is

no longer the dominant objective of the criminal law

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

omitted.) Gregg v. Georgia, supra, 428 U.S. 183; see

also State v. Corchado, 200 Conn. 453, 463, 512 A.2d

183 (1986). The United States Supreme Court has recognized that, of the valid justifications for punishment,
‘‘retribution . . . most often can contradict the law’s

own ends. This is of particular concern when the [c]ourt

interprets the meaning of the [e]ighth [a]mendment in

capital cases. When the law punishes by death, it risks

its own sudden descent into brutality, transgressing the

constitutional commitment to decency and restraint.’’

Kennedy v. Louisiana, supra, 554 U.S. 420.

‘‘[T]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal

culpability of the criminal offender.’’(Internal quotation

marks omitted.) Graham v. Florida, supra, 560 U.S. 71;

see also Atkins v. 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

general principles mandating similar punishmentin similar circumstances. See R. Nozick, Philosophical Explanations (1981) p. 367. Thus, retribution ‘‘sets an internal

limit to the amount of punishment, according to the

seriousness of the wrong . . . .’’ Id. Retributive justice,

therefore, is concerned with imposing a sentence 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 of severity,

but in kind, for similar crimes. Indeed, the notion that

the death penalty should be reserved for only the most

deserving of offenders and, thus, work to produce evenhanded justice, is embedded in this nation’s capital punishment jurisprudence. To ensure that only the most

culpable of offenders are sentenced to death, the United

States Supreme Court has ‘‘consistently confined the

imposition of the death penalty to a narrow category

of the most serious crimes.’’ Atkins v. Virginia, supra,

536 U.S. 319; see also Kennedy v. Louisiana, supra,

554 U.S. 442 (‘‘[i]n considering whether retribution is

served . . . we have looked to whether . . . the 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

been reserved for certain crimes ‘‘so grievous an affront

to humanity that the only adequate response may be the

penalty of death.’’ (Emphasis added.) Gregg v. Georgia,

supra, 428 U.S. 184.

In written testimony to the Judiciary Committee,
Chief State’s Attorney Kevin Kane acknowledged that

‘‘[p]rospective repeal of the death penalty will create

two classes of people: one will be subject to execution

and the other will not, not because of the nature of the

crime or the existence or absence of any aggravating

or mitigating factor, but because of the date on which

the crime was committed.’’ Conn. Joint Standing 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 after April 25, 2012? Although P.A. 12-5 contains no statement of policy or underlying findings, the

legislative history establishes two factors that indicate

that maintaining the death penalty on the basis of an

arbitrary date does not measurably contribute to a valid

retributive purpose. First, the various rationales 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

innocent person cannot be eliminated;37 (3)the length of

time required for effective appellate and postconviction

review would make it more likely that the men on death

row would die of old age rather than be executed;38 (4)

the death penalty fails to provide closure for victims’

families;39 and, of course, (5) moral objections to the

state’s taking of a life.40 Second, although the legislative

debate articulated serious concerns as to the legal and

moral propriety of prospective repeal,41 no lawmaker

articulated a legitimate or moralrationale for conditioning death upon the date of the offense. The lone comment expressing anything close to such a justification

was a suggestion that the state should not upset the

expectations of victims’ families, a point that I address

subsequently in this concurring opinion. See 55 S. Proc.,

Pt. 3, 2012 Sess., p. 720, remarks of Senator Andrew

Roraback. No other legislator indicated that he or she

shared that particular view. Rather, it was broadly

acknowledged that the decision to repeal the death

penalty only on a prospective basis was driven by a

desire to exact revenge on certain notorious death row

inmates and the fear of the political consequences that

could have accompanied an absolute prohibition.42 For

example, Representative Lawrence Cafero, an 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 of the reasons this General Assembly

didn’t take this bill up earlier was because of the fresh-
ness of those awful crimes.’’ 55 H.R. Proc., Pt. 3, 2012

Sess., p. 1043; see also 55 H.R. Proc., Pt. 4, 2012 Sess.,

p. 1063, remarks of Representative Al Adinolfi (‘‘[t]here

are many people in this room that have changed in their

mind their vote to abolish the death penalty rather than

vote against abolishing the death penalty based on these

[eleven] who are on death row being executed, 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 of Representative Ernest Hewett

(‘‘for the members who are voting for a prospective bill

so they can make sure that Hayes and Komisarjevsky

get the death penalty, it’s not going to happen’’). 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 going forward: ‘‘I do not get how anybody

can say, I believe killing is wrong. . . . What I don’t

get is, how killing can be wrong for someone else, but

[the men currently on death row], they are bad, so we

can kill them. . . . You either support the death penalty and taking somebody’s life or you don’t.’’ Id., p.

1210. These are, obviously, statements selected from an

extremely extensive legislative history. Nevertheless,

these statements, in my view, accurately reflect the

primary reasons behind the prospective nature of the

repeal: the desire to see the men currently on death

row die, or at least certain of them,44 as well as the

avoidance of the political consequences that would

have accompanied the abolishment of existing death

sentences.

Therefore, I can only conclude that the purpose of

limiting the repeal of the death penalty prospectively is

private vengeance. Private vengeance differs markedly

from retribution, and is an impermissible justification

for punishment. Whereas retribution is concerned with

ensuring that an offender gets his ‘‘ ‘just deserts’ ’’;

Atkins v. Virginia, supra, 536 U.S. 319; revenge,45 on

the other hand, is personal, or private. A person or

society seeking revenge has a personal tie to the victim,

or is personally affected by the harm done to the victim.

Those seeking revenge are motivated by emotion, and

take personal pleasure in the suffering of the offender.

See R. Nozick, supra, p. 367. Most significantly,revenge,

by its nature, carries no limits on the harm that may

be imposed on the offender, whereas retribution sets an
internal limit on punishment according to an offender’s

culpability. See id. Thus, revenge cares not with what

comes of other offenders who commit similar crimes,

but is concerned only with harming a specific offender.46

The state contends, however, that executing 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 of these crimes and, particularly, theirfamilies. I

cannot agree. Although the office of the state’s attorney

may have the ability to promise a victim’s family that

it will seek a sentence of death, it cannot legitimately

promise that the offender will be put to death for numerous reasons. The jury may decide not to convict or not

to impose a sentence of death. Should the jury vote to

impose that punishment, the defendant’s death sentence may be vacated on direct appeal, as in the present

case, or in collateral proceedings even years later. The

board of parole and pardons could commute the death

sentence. See General Statutes § 54-124a (d). More 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 not mean that the state is authorized to carry

it out. ‘‘The mere fact that the community demands the

murderer’s life in return for the evil he has done cannot

sustain the death penalty, for . . . ‘the [e]ighth

[a]mendment demands more than that a challenged

punishment be acceptable to contemporary society.’ ’’

Gregg v. Georgia, supra, 428 U.S. 240 (Marshall, J.,

dissenting). ‘‘It is undoubtedly correct that there is a

demand for vengeance on the part of many persons in

a community against one who is convicted of a particularly offensive act. At times a cry is heard that morality

requires vengeance to evidence society’s abhorrence of

the act. But the [e]ighth [a]mendment is our insulation

from our baser selves. The ‘cruel and unusual’ language

limits the avenues through which vengeance can be

channeled. Were this not so, the language would be

empty and a return to the rack and other tortures would

be possible in a given case.’’ (Footnote omitted.) 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 of the death penalty repeal. See

State v. Santiago, supra, 305 Conn. 319 (Harper, J.,

concurring in part and dissenting in part) (‘‘[i]f it is

upon . . . rage that the death penalty depends, then

that penalty cannot stand’’). Indeed, it is wholly 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 crime
committed today. I therefore conclude that the retention of the death penalty for the men currently on death

row, after the legislature has declared that the death

penalty is no longer a proper punishment for any 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 conclude that the execution of prerepeal death row inmates

while a death penalty repeal is in effect does not measurably contribute to a valid retributive purpose. Public

Act 12-5 ensures that no murderer will be sentenced to

death in the future, irrespective of his or her culpability.

Thus, the act completely unravels the thread that links

the imposition of the death penalty and the culpability

of individual offenders. No longer can death be imposed

for crimes virtually identical to, similar to, or even more

heinous than the crimes committed by prerepeal death

row inmates. By repealing the death penalty going 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

imprisonment without the possibility of parole. In other

words, the legislature has rejected the notion that death

is the only adequate response for even the most culpable

of offenders; see Gregg v. Georgia, supra, 428 U.S. 184;

and, instead, has determined that a sentence of life

imprisonment without the possibility of parole will suffice to satisfy the interest in seeing that such an offender

gets his just deserts.

C

Applying the Death Penalty on the Basis of the Date of

the Offense in Relation to the Effective Date

of P.A. 12-5 is Unconstitutionally Arbitrary

It is also my view that, as amended by P.A. 12-5,

Connecticut’s statutory capital sentencing scheme is

unconstitutional because, as currently structured, it suffers from the same inequities that plagued the capital

sentencing schemes that were declared unconstitutional by the United States Supreme Court in Furman.

See Furman v. Georgia, supra, 408 U.S. 238–40. In Furman, a majority of United States Supreme Court justices each came to the independent conclusion that the

penalty of death, as it was then currently administered,

was so cruel and unusual as to violate the eighth amendment. Id., 240. Although no justice’s reasoning could

command a clear majority, by examining the decision

in Furman in light of two other cases decided in that

time period by the United States Supreme Court,

namely, McGautha v. California, 402 U.S. 183, 91 S.

Ct. 1454, 28 L. Ed. 2d 711 (1971), and Gregg v. Georgia,

supra, 428 U.S. 153, one comes to understand that the

death penalty is in accord with the eighth amendment
only when it is imposed on the most culpable offenders

for the commission of the most grave homicides and,

importantly, only when this most extreme punishment

is imposed fairly, consistently, and based solely on the

individual and unique circumstances of each case. What

Connecticut has done, by prospectively repealing the

death penalty for all types of homicide that previously

were defined as ‘‘capital felonies’’ by §§ 53a-35a and

53a-54b, is to remove any assurance that only the most

deserving offenders will be selected by our statutory

scheme to receive the death penalty on the basis of

their individual circumstances.

The United States Supreme Court decision in McGautha 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 the jury completely at large to impose or withhold the death penalty as it sees fit is fundamentally

lawless and therefore violates the basic command of the

[f]ourteenth [a]mendment that no [s]tate shall deprive a

person of his life without due process of law.’’ McGautha v. California, supra, 402 U.S. 196. At that point in

time, the United States Supreme Court was unwilling

to recognize the unconstitutionality of the outdated sentencing 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 in Furman. In that case, five

justices separately concluded that the death penalty as

currently administered was unconstitutional under the

eighth and fourteenth amendments. Furman v. 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, many just as reprehensible

as these, the petitioners are among a capriciously

selected random handful upon whom the sentence of

death has in fact been imposed.’’ (Emphasis added;

footnote omitted.) Id. Thus, although Justice Stewart

did not determine that the death penalty itself is a violation of the 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 United
States have been violated.

The plurality opinion in Gregg serves as a guide to

legislatures that wish to continue to constitutionally

impose the death penalty. In Gregg, the United States

Supreme Court approved of a Georgia capital sentencing statute passed in response to Furman: ‘‘The basic

concern of Furman 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’s attention on the particularized nature of the crime

and the particularized characteristics of the individual

defendant. . . . In this way the jury’s discretion is

channeled. No longer can a jury wantonly and freakishly

impose the death sentence; it is always circumscribed

by the legislative guidelines.’’ Gregg v. Georgia, supra,

428 U.S. 206–207.48

Public Act 12-5 amends Connecticut’s statutory death

penalty scheme in a manner that, in my view, runs afoul

of the principles expressed in Furman. The United

States Supreme Court has repeatedly found that death

is different. ‘‘There is no question that death as a punishment is unique in its severity and irrevocability.’’ Id.,

187; see also Furman v. Georgia, supra, 408 U.S. 305

(Brennan, J., concurring) (‘‘death is an unusually severe

and degrading punishment’’); Furman v. Georgia,

supra, 346 (Marshall, J., concurring) (death is ‘‘the 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 of resulting from the unfettered discretion of

a jury, as in Furman, the arbitrariness in the present

case stems from the effective date provision of the act,

which, in effect, renders the date on which a defendant

commits his crime an eligibility factor for the death

penalty. I fail to see how this scheme, which permits

the imposition of the death penalty for a capital felony

committed at any time prior to 11:59 p.m. on April 24,

2012, but rejects categorically the imposition of the

death penalty for the same conduct or even 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 Court
in Furman. The circumstances that I describe strike me

as exactly the sort of wanton and freakish imposition of

the death penalty that runs afoul of the eighth amendment of the United States constitution. See Furman v.

Georgia, supra, 408 U.S. 310 (Stewart, J., concurring);

Callins v. Collins, 510 U.S. 1141, 1152, 114 S. Ct. 1127,

127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from

denial of certiorari) (‘‘[t]he demands of Furman are

met by ‘narrowing’ the class of death-eligible offenders

according to objective, fact-bound characteristics of

the defendant or the circumstances of the offense’’

[emphasis added]).

In my view, the understanding that, today, only this

subset of criminal offenders—those defendants who

committed capital felonies prior to the effective date

of P.A. 12-5, regardless of individual culpability—will

be subject to this punishment causes an arbitrary,

anomalous impact on this subset of criminal offenders

and therefore causes Connecticut’s capital sentencing

scheme as amended by P.A. 12-5 to violate the eighth

amendment.

II

SEVERABILITY OF UNCONSTITUTIONAL

PARTS OF P.A. 12-5

Having concluded that the execution of prerepeal

death row inmates violates the constitutional ban on

cruel and unusual punishment, and although the majority opinion decides today that capital punishment is

unconstitutional, in view of the dissents’ claims about

the appropriateness of the majority’s reaching the issue,

I now examine the effect that this conclusion has on

the continued viability of P.A. 12-5. My conclusion as

to the constitutionality of the act relates solely to the

effective date provision of the act, which is the 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 of a statute has been found to be unconstitutional,

‘‘[w]e seek to determine what [the legislature] would

have intended in light of the [c]ourt’s constitutional

holding. . . . Thus, [g]uiding the solution is the maxim

that this court will strive to interpret a statute so as to

sustain its validity . . . and [to] give effect to the intention of the legislature. . . . [In enacting] General Statutes § 1-3 the legislature has shown its intention that

there is to be a presumption of separability of the provisions and of the applications of statutes. . . . With

regard to the separability of provisions, to overcome
the presumption it must be shown that the portion

declared invalid is so mutually connected and 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 a portion of a statute to be unconstitutional, this court does not ask whether, if the 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 of the statute, a question that might well engage

the court in speculation. Rather, this court asks the

much narrower question of whether the legislature, at

the time that the statute is invalidated, would prefer

the continued operation of the constitutional portion of

the statute or the complete invalidation of the statute.’’

(Citations omitted; emphasis omitted; footnote omitted;

internal quotation marks omitted.) State v. Bell, 303

Conn. 246, 260–61, 33 A.3d 167 (2011). Moreover, I

acknowledge that, ‘‘even with the presumption of divisibility, we cannot rewrite a statute and give it an effect

altogether different from that sought by the measure

viewed as a whole especially where offending portions

so affect the dominant aim of the whole statute as to

carry [the whole statute] down with them.’’ (Internal

quotation marks omitted.) In re Robert H., 199 Conn.

693, 704, 509 A.2d 475 (1986), quoting Railroad Retirement Board v. Alton Railroad Co., 295 U.S. 330, 362,

55 S. Ct. 758, 79 L. Ed. 1468 (1935).

In attempting to discern the legislature’s intent

regarding the severability of a statute, this court generally looks to the level of interdependence between the

unoffending language and the unconstitutional language of the statute, and seeks to determine whether,

if the unconstitutional portion is excised, the remainder

still gives effect to the ‘‘dominant aim of the whole

statute . . . .’’ (Internal quotation marks omitted.) In

re Robert H., supra, 199 Conn. 704. Thus, the analysis

does not involve speculation as to how the legislature

would have voted had it been aware of the court’s

constitutional ruling, but rather whether the language

chosen by the legislature renders the statute inseverable. For example, in State v. Menillo, 171 Conn. 141,

368A.2d 136 (1976),this court examined the severability

of language contained in General Statutes (Rev. to 1975)

§ 53-29, which criminalized behaviorintended to 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), and Doe v. Bolton, 410 U.S.

179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), which upheld

a woman’s right to an abortion by medically competent
personnel. See State v. Menillo, 168 Conn. 266, 269,

362 A.2d 962 (1975). The United States Supreme Court

subsequently vacated this court’s decision holding the

statute unconstitutional in its entirety, and concluded

that neither its decision in Roe nor Doe mandated the

total invalidation of the statute. See Connecticut v. 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-

29 could be limited to exclude physicians from its operation, and thus ensure a woman’s right to an abortion

by medically competent personnel. State v. Menillo,

supra, 171 Conn. 145. With the foregoing principles on

severability in mind, this court concluded that ‘‘[t]he

exclusion of physicians from the prohibitions of the

statute would in no way destroy its effectiveness as

to other classes of persons. The invalid inclusion of

physicians is not so mutually related to and intrinsically

connected with the remainder of the statute as to indicate that the statute would never have been adopted

without the inclusion of physicians.’’ Id., 146. Thus, the

court concluded that the presumption of severability

was not overcome, and that the legislature intended to

criminalize the covered behavior when engaged in by

a person who was not a physician.

Similarly, in In re Robert H., supra, 199 Conn. 693,

this court examined statutory language to discern the

legislature’s dominant purpose in enacting the statute.

The defendants in that case had been adjudicated 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 subpoena because of General 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 center visited by the victim based on a determination that information contained therein was privileged.

Id., 694–701. Specifically, the defendants claimed that

the statutory privilege created by § 52-146k was improperly invoked because other language prevented the

identity of the 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

dominant purpose of this statute is to grant a privilege to

confidential communications between a sexual assault

counselor . . . and a victim.’’ Id., 703. Then, instead of

striking down the entire statute, the court determined

that the ‘‘portion of § 52-146k (b) which prohibits the

disclosure of the identity of a sexual assault counselor

is separable and independent from the balance of the

statute given [the statute’s] dominant purpose of creating the privilege . . . .’’ Id., 704. Accordingly, the court

remanded the case to the trial court for a determination

of whether the sexual assault counselor who treated

the victim satisfied the necessary criteria to claim the

testimonial privilege. Id., 704–705. The court similarly

directed that the counselor’s identity be disclosed to

the defendants for purposes of cross-examination concerning her statutory qualifications. Id., 705.

Similarly, in State v. Bell, 283 Conn. 748, 784–86, 931

A.2d 198 (2007), this court was tasked with determining

whether General Statutes (Rev. to 2007) § 53a-40 (h),

violated the sixth amendment. The statutory subsection

at issue authorized the trial court to impose a 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 history to determine the actual intent of the 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

of altering the legislature’s chosen process required for

a persistent dangerous felony offender to receive an

enhanced sentence. See id., 811–13.

With the foregoing principles in mind, I would 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 of the death penalty for all crimes committed afterthe effective date of P.A. 12-5; and the retention

of the death sentences of the prerepeal defendants.51 It

would be anomalous and alarming to conclude that,
in enacting a statute repealing the death penalty, the

legislature was primarily concerned with seeing a handful of men executed. Thus, it is clear to me that the

dominant purpose of P.A. 12-5 was to prohibit the death

penalty for future crimes. The retention of existing

death sentences was incidental to the primary purpose

of abolition. Indeed, if the obvious intent of the legislature was to retain the death penalty for prerepeal 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

existing death sentences. Likewise, it is noteworthy that

the abolition of the death penalty will affect all future

defendants, an unquantifiable and obviously large number, whereas the portion of P.A. 12-5 retaining the death

penalty for crimes committed prior to the effective date

will affect only those defendants who have committed

capital felonies priorto the effective date. Thus, striking

down P.A. 12-5 in its entirety would thwart its primary

purpose—the abolition of the death penalty.52

The state claims, however, that an examination of the

legislative history of P.A. 12-5 shows that the legislature

would not have repealed the death penalty without

retaining preexisting death sentences and, therefore,

that the statute is not severable. I disagree. In certain

instances, when legislative intent is notreadily apparent

from the plain language of the statute, this court has

examined the legislative history of a statute when

determining whether a statute is severable. See State

v. Bell, supra, 303 Conn. 261–63; State v. Bell, supra,

283 Conn. 802–803. Even if one examines the legislative

history of the act, the state’s argument lacks merit.

This court does not seek to determine whether, if the

legislature had known about the constitutional flaw

at the time of enactment, it would have enacted the

remaining constitutional portion of the statute, an 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 a portion of the statute is declared unconstitutional, would prefer the continued operation of the

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

only a portion of a statute is found to be constitutional, it

should be severed from the offending remainder‘‘unless

this court determines that the legislature would have

enacted it in precisely the same form if it had known

of the constitutional flaw at the time of enactment.’’

(Emphasis in original.) State v. Bell, supra, 303 Conn.

261 n.12. As this court explained in Bell, this means

that this court would have to find that the legislature

would not have repealed the death penalty if it had
been aware of the constitutionalflaw in P.A. 12-5. See id.

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 select portions of the legislative history that highlight an insistence that the 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

death penalty only prospectively was likely to run afoul

of both the federal and state constitutions. Consider,

for example, a portion of Chief State’s Attorney Kevin

Kane’s testimony before the Judiciary Committee: ‘‘If

it is passed in this form and it’s prospective and a crime

occurs the day before it becomes effective my feeling

is [that] there’s—I know I wouldn’t, I know I won’t seek

the death penalty for a crime that occurs the day before

it becomes effective. I think that would be arbitrary.

And I wouldn’t—just wouldn’t plain feel right doing it.

That’s my opinion.’’54 (Emphasis added.) Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 8, 2012

Sess., p. 2633. Asked point-blank by a legislator ‘‘does

this law, this bill stop [offenders who committed capital

felonies prior to the effective date] from receiving the

death penalty?’’ Id., p. 2646. Chief State’s Attorney Kane

responded: ‘‘the wording of the bill itself does not but

my prediction is . . . that as a result of . . . this bill

passing people won’t be executed whether [they have]

been sentenced or not.’’ (Emphasis added.) Id.

Similarly, another legislator urged the House of Representatives to adopt an amendment to the bill that

became P.A. 12-5 that would have reinstated the death

penalty for all offenders if this court were to determine

that the repeal of the death penalty was constitutionally

required to apply to those currently sentenced to death:

‘‘This amendment, Madam Speaker . . . now is very

appropriate. There are many people in this room that

have changed in their mind their vote to abolish the

death penalty rather than vote against abolishing the

death penalty based on these [eleven] who are on death

row being executed, especially, Komisarjevsky and

Hayes . . . . And what I’m saying is that we will be

misleading the people in this room that have changed

their decision because the death penalty will still stay

in place forthose that are on death row if we do not pass

this . . . amendment . . . we would be doing them a

wrong. And I think those people would . . . have been

misled by this coming out, because I believe that those

who put in this bill, with the prospective in there, know

that eventually this is going to go away, and they’re

misleading the rest of the [r]epresentatives that will be

voting here today; therefore, I urge all my colleagues

in this room to support this amendment.’’ 55 H.R. Proc.,
Pt. 4, 2012 Sess., p. 1063, remarks of Representative

Adinolfi. The amendment, which was described by its

sponsor, Representative John Hetherington, as ‘‘the

opposite of a severability clause . . . think of it that

way’’; id., p. 1061; failed by a vote of fifty-four to 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]he intent is—Senator[Eric] Coleman had indicated that the bill he believes not to be unconstitutional.

Therefore this amendment does not have to go forward.

And I guess I look at it as a spare tire in your trunk.

You may not need it. But if it is unconstitutional, you

have it. And you’ve protected the intent of the [l]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 takes place. And there’s many of us around

the [c]ircle who, at least I understand, were debating

whether to vote in favor of getting rid of the death

penalty or not. But clearly an effort to change their

mind was the relief or satisfaction that the [eleven] who

are currently on death row would continue to be on

death row absent—even with this legislation. All this

does is say absolutely true. And if your wishes are

not upheld, and if those [eleven] end up with a lesser

sentence, which was not our intent, we will do away

with getting rid of the death penalty. It’s just protection

that gets what we all wanted. And if that’s a major

factor, this is how you protect it.’’ (Emphasis added.)

55 S. Proc., Pt. 3, 2012 Sess., p. 668, remarks of Senator

Leonard Fasano. This proposed amendment also failed

to pass, receiving fifteen votes in favor and twenty

against, with one vote not present or abstaining. Id.,

p. 669. All of the legislators who voted against this

amendment were presumably aware of the statutory

presumption codified at § 1-3 in favor of severing invalid

provisions from the remaining inoffensive language of a

statute at the time that they rejected these amendments.

See, e.g., State v. Fernando A., 294 Conn. 1, 21, 981

A.2d 427 (2009) (‘‘the General Assembly is always 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,

if not sooner than we all think. And whether it’s driven

by a Supreme Court decision, appeals, or whether a
future legislature a few years from now says, wow,

we can’t have [eleven] people on death row and have

everybody else—or some horrible, horrific criminal

commits a crime and because it’s a few days after this

goes into effect then the argument is we’ve got this

individual here who can only face life without [the]

possibility of release, that is fundamentally unfair to

these other individuals and that’s—that becomes much

more difficult for folks such as myself who are advocates and proponents of the death penalty.’’ Conn. Joint

Standing Committee Hearings, Judiciary, Pt. 9, 2012

Sess., p. 2768.

Accordingly, I conclude that the portions of P.A. 12-

5 that render it unconstitutional are not so mutually

connected to the constitutional remainder so as to 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 of continuing its tradition as a paradigm

for the elimination of the death penalty for certain

classes of individuals, Connecticut would have

descended into the murky depths of the uncharted

waters of death penalty executions postrepeal of the

death penalty statute. The majority’s decision today

derives from the strength of our collective moral ethos.

Our laws should never succumb to the inherent 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 respectfully join in the majority opinion

and issue this concurring opinion.

1 The eighth amendment to the United States constitution provides:

‘‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel

and unusual punishments inflicted.’’ The cruel and unusual punishments

clause of the eighth amendment is made applicable to the states through

the due process clause of the fourteenth amendment to the United States

constitution. See State v. Taylor G., 315 Conn. 734, 737 n.4, 110 A.3d 338

(2015).

Article first, § 8, of the constitution of Connecticut provides in relevant

part that in all criminal prosecutions: ‘‘No person shall . . . be deprived of

life, liberty or property without due process of law . . . .’’ Article first, § 9,

of the constitution of Connecticut provides in relevant part: ‘‘No person

shall be . . . punished, except in cases clearly warranted by law.’’ This

court has previously held that these provisions of our state constitution

‘‘impliedly prohibit punishment that is cruel and unusual.’’ State v. Rizzo,
303 Conn. 71, 130 n.52, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S.

Ct. 133, 184 L. Ed. 2d 64 (2012); see also State v. Ross, 230 Conn. 183, 246–47,

646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed.

2d 1095 (1995).

2 Connecticut has previously acted ahead of the United States Supreme

Court and other states in this nation in prohibiting the execution of mentally

handicapped individuals; see Public Acts 2001, No. 01-151, § 2; minors; see

Public Acts 1973, No. 73-137, § 4 (f); and perpetrators of nonhomicide

offenses. See Public Act 73-137, § 3; Public Acts 2001, No. 01-151, § 3; see

also State v. Rizzo, 303 Conn. 71, 189, 31 A.3d 1094 (2011) (noting that

Connecticut had acted to ban these practices ahead of United States Supreme

Court, and stating, ‘‘over time, the national landscape has become more

closely aligned with Connecticut’’), cert. denied, U.S. , 133 S. Ct. 133,

184 L. Ed. 2d 64 (2012).

3

I note that neither the majority nor the dissents in Atkins focused their

analysis on the legislative history of the repeal statutes referenced therein.

See Atkins v. Virginia, supra, 536 U.S. 313–17; id., 321–23 (Rehnquist, C.

J., dissenting); id., 342–45 (Scalia, J., dissenting). Thus, it appears that when

examining whether a national consensus against a particular sentencing

practice has emerged for eighth amendment purposes, the relevant inquiry

does not appear to focus on why a statute repealing a particular sentencing

practice was passed, but whether such legislation was passed at all. Further,

the fact that the issue in Atkins was whether it was considered cruel and

unusual to sentence a particular subset of criminal defendants who were

less culpable than a typical capital defendant does not affect the relevance

of that analysis to the present case. The majority in Atkins provided courts

with a rosetta stone for use in deciphering whether a national consensus

exists against a particular sentencing practice—whatever it may be. Using

Atkins and its sister cases as an indicator of the sources that the United

States Supreme Court has looked to when it has sought to determine whether

a national consensus against a particular sentencing practice exists is

entirely relevant to the present case. In this respect, the present case is

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

consensus differed from the approach adopted in Justice Scalia’s dissent.

Indeed, Justice Scalia spent paragraphs castigating the majority in Atkins

for its approach, some of which I quote here: ‘‘The [c]ourt pays lipservice

to these precedents as it miraculously extracts a ‘national consensus’ forbidding execution of the mentally retarded . . . from the fact that [eighteen]

[s]tates—less than half (47 [percent]) of the [thirty-eight] [s]tates that permit

capital punishment (for whom the issue exists)—have very recently enacted

legislation barring execution of the mentally retarded. Even that 47 [percent]

figure is a distorted one. If one is to say, as the [c]ourt does today, that all

executions of the mentally retarded are so morally repugnant as to violate

our national ‘standards of decency,’ surely the ‘consensus’ it points to

must be one that has set its righteous face against all such executions.

Not [eighteen] [s]tates, but only [seven]—18 [percent] of death penalty

jurisdictions—have legislation ofthat scope.Eleven of those that the [c]ourt

counts enacted statutes prohibiting execution of mentally retarded defendants convicted after, or convicted of crimes committed after, the effective

date of the legislation; those already on death row, or consigned there before

the statute’s effective date, or even (in those [s]tates using the date of

the crime as the criterion of retroactivity) tried in the future for murders

committed many years ago, could be put to death. That is not a statement

of absolute moral repugnance, but one of current preference between two

tolerable approaches. Two of these [s]tates permit execution of the mentally

retarded in other situations as well: Kansas apparently permits execution

of all except the severely mentally retarded; New York permits execution

of the mentally retarded who commit murder in a correctional facility.’’

(Citation omitted; emphasis altered; footnotes omitted.) Id., 342–43.

Six justices read those words by Justice Scalia and disagreed, finding that

a national consensus against the sentencing practice at issue in Atkins and

making that conclusion in part because of those states that had instituted

prospective only repeals. An examination of subsequent cases decided by

the United States Supreme Court on similar issues only serves to reinforce

this point. See, e.g., Graham v. Florida, supra, 560 U.S. 62–63 (examining

legislation to determine whether national consensus against sentencing practice exists, no indication that whetherrepeal is prospective ortotal is relevant

to analysis).

4 See generally Death Penalty Information Center, ‘‘Executions in the U.S.
1608–2002: The ESPY File, Executions by State,’’ available at http://

www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited August

10, 2015); Death Penalty Information Center, ‘‘States With and Without the

Death Penalty,’’ (2015), available at http://www.deathpenaltyinfo.org/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; Death Penalty Information Center, ‘‘Michigan,’’(2015), available at

http://www.deathpenaltyinfo.org/michigan-0 (last visited August 10, 2015).

6 New Mexico prospectively repealed the death penalty for crimes committed on or after July 1, 2009. See 2009 N.M. Laws 141. Governor Bill Richardson

declined to commute the death sentences of the two prerepeal defendants.

The New Mexico Supreme Court also allowed a death penalty trial for

another defendant charged with a capital felony to go forward after the

prospective repeal took effect, but that court specifically acknowledged

that its decision had not reached the issue of the legality of the prospective

repeal: ‘‘With regard to the issue addressed in briefing and in argument but

not raised in the [p]etition, whether [the prospective repeal of the death

penalty] prohibits the imposition of the death penalty in this case as a matter

of law because [the defendant] was not sentenced prior to the effective

date of [the repeal], this [c]ourt determines it inappropriate to decide the

issue in this writ proceeding and expressly does not do so . . . .’’ (Emphasis

added.) Astorga v. Candelaria, Supreme Court of New Mexico, Docket No.

33, 152 (September 1, 2011). Notably, however, the New Mexico Supreme

Court did allow that defendant to make an argument at his sentencing

regarding ‘‘what consideration, if any, jurors may deem appropriate to give

to the fact that New Mexico has repealed the death penalty for offenses

committed after July 1, 2009,’’ in making their determination whether to

sentence the defendant to death or life imprisonment. Id. The defendant’s

penalty phase of the trial ended in a jury deadlock, and the judge therefore

sentenced the defendant to life imprisonment in accordance with New 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 of jury, no violation of

equal protection to do so); Simborski v. Wheeler, 121 Conn. 195, 198–201,

183 A. 688 (1936) (finding that legislature clearly intended for savings statute

to apply to legislation altering mode of execution from hanging to electrocution, rendering alteration prospective only in nature). Neither of these cases,

however, involved a challenge to the prospective only nature of the legislation at issue based on the eighth amendment to the constitution of the

United States. Indeed, both Dortch and Simborski were decided well before

the United States Supreme Court issued its opinions in Furman v. Georgia,

supra, 408 U.S. 238, and Gregg v. Georgia, supra, 428 U.S. 153, the two cases

which serve as the foundation of modern death penalty jurisprudence. I

seriously doubt that our decision in either Dortch or Simborski would

comport with our modern understanding of the cruel and unusual punishment clause of the eighth amendment and, thus, I do not consider these

opinions to hold any precedential value on this point.

8 Cooper was decided prior to the United States Supreme Court’s decision

in Roper v. Simmons, supra, 543 U.S. 551, which concluded that it violates

the federal constitution to execute defendants who had committed their

crime prior to the age of eighteen. Id., 568–71.

9 Van Tran v. State, supra, 66 S.W.3d 790, and Fleming v. Zant, supra,

259 Ga. 687, were decided prior to Atkins v. Virginia, supra, 536 U.S. 321,

wherein the United States Supreme Court concluded that executing mentally

disabled individuals constitutes cruel and unusual punishment in violation

of the eighth amendment to the United States constitution.

10 Furthermore, to the extent that these decisions from our sister states

do support the proposition that legislation prospectively repealing the death

penalty for defendants with specific characteristics that reduce culpability

must also apply to that class of offenders who committed their crimes prior

to the effective date of the legislation, this proposition supports the principle

that similarly culpable defendants deserve similar punishment. See part I
A 2 and part I A 3 of this concurring opinion.

11 The United States Supreme Court has stated that the eighth amendment

demands reliability and consistency in the imposition of the death penalty

in order for a capital sentencing scheme to pass constitutional muster. See

Furman v. Georgia, supra, 408 U.S. 309–10 (Stewart J., concurring). The

question is not one involving rational basis review. The United States

Supreme Court has invalidated modern capital sentencing schemes even

though one could argue that the schemes were rationally related to a valid

legislative purpose. For example, in Woodson v. North Carolina, 428 U.S.

280, 286, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (plurality opinion), the court

invalidated a statutory scheme that imposed a mandatory death sentence

if an offender were convicted of first degree murder. The court made this

ruling in part because the statute’s ‘‘failure to allow the particularized consideration of relevant aspects of the character and record of each convicted

defendant before the imposition upon him of a sentence of death. . . . A

process that accords no significance to relevant facets of the character and

record of the individual offender or the circumstances of the particular

offense excludes from consideration in fixing the ultimate punishment of

death the possibility of compassionate or mitigating factors stemming from

the diverse frailties of humankind.’’ (Citations omitted.) Id., 303–304. The

court continued: ‘‘While the prevailing practice of individualizing sentencing

determinations generally reflects simply enlightened policy rather than a

constitutional imperative, we believe that in capital cases the fundamental

respect for humanity underlying the [e]ighth [a]mendment . . . requires

consideration of the character and record of the individual offender and

the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.’’ (Citation omitted.)

Id., 304; cf. Callins v. Collins, 510 U.S. 1141, 1144, 114 S. Ct. 1127, 127

L. Ed. 2d 435 (1994) (Blackmun, J., dissenting from denial of certiorari)

(‘‘[r]easonable consistency [in imposing the death penalty] requires that the

death penalty be inflicted evenhandedly, in accordance with reason and

objective standards, rather than by whim’’ [emphasis added]).

12 I extend my thanks to the amicus curiae Legal Historians and Scholars

for bringing much of the following information to my attention.

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

was enacted in 1965. See 1915 N.D. Laws 76; 1965 W. Va. Acts 207; J. Galliher

et al., ‘‘Abolition and Reinstatement of Capital Punishment During the 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,’’ Honolulu Advertiser,

March 26, 1958, p. A1; Editorial, ‘‘Justice Advances in Illinois,’’ N.Y. Times,

March 10, 2011, p. A30; G. Mills, ‘‘Death Order Is Commuted to Life Term,’’

Des Moines Register, January 10, 1965, p. 1L; J. Wagner, ’’On last full day,

O’Malley issues orders commuting four death-row sentences,’’ Washington

Post, January 20, 2015, available at http://www.washingtonpost.com/local/

md-politics/on-last-full-day-omalley-issues-orders-commuting-four-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 Bill Ending Executions, Then Commutes Sentences of

8,’’ N.Y. Times, December 18, 2007, p. B3; see also Death Penalty Information

Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by

State,’’ pp. 103, 105, 166, 168, 221, available at http://www.deathpenalty

info.org/documents/ESPYstate.pdf (last visited August 10, 2015).

15 United States v. Lee, 489 F.2d 1242, 1246–47 (D.C. Cir. 1973); 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 1917 Ariz. Sess. Laws 4 (repeal); 1919 Ariz. Sess. Laws 18 (reinstatement);
see also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–

2002: The ESPY File, Executions by State,’’ p. 35 (indicating no executions

took place during period of repeal), available at http://www.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 between repeal of death penalty on April

2, 1958, and reinstatement of death penalty on December 18, 1961); see also

Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002: The

ESPY File, Executions by State,’’ p. 66, available at http://www.deathpenalty

info.org/documents/ESPYstate.pdf (last visited August 10, 2015).

19 1872 Iowa Acts 139 (repeal); 1878 Iowa Acts 150–51 (reinstatement); D.

Haws, Iowa and the Death Penalty: A Troubled Relationship (2010) pp. 289,

298 (indicating no executions following repeal); see also Death Penalty

Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File,

Executions by State,’’ p. 104, available at http://www.deathpenaltyinfo.org/

documents/ESPYstate.pdf (last visited August 10, 2015).

20 1907 Kan. Sess. Laws 299 (repeal); 1935 Kan. Sess. Laws 234 (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 of Prisons, ‘‘Capital Punishment,’’ (2015), available at http://

www.bop.gov/about/history/federal_executions.jsp (last visited August 10,

2015); see also Death Penalty Information Center, ‘‘Federal Executions 1927–

2003,’’ (2014), available at http://www.deathpenaltyinfo.org/federal-execu

tions-1927-2003 (last visited August 10, 2015). Obviously, this execution was

for a violation of federal law.

21 1876 Me. Laws 81 (repeal); 1883 Me. Laws 169 (reinstatement); D. Hearn,

Legal Executions in New England: A Comprehensive Reference, 1623–1960

(1999), pp. 255–57 (listing executions, indicating none occurring in Maine

following repeal); see also Death Penalty Information Center, ‘‘Executions

in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p. 166, available

at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited

August 10, 2015).

22 1917 Mo. Laws 246 (repeal); 1919 Mo. Laws 778 (reinstatement); H.

Frazier, Death Sentences in Missouri, 1803-2005: A History and Comprehensive Registry of Legal Executions, Pardons, and Commutations (2006), p.

209 (indicating no executions during period ofrepeal); see also Death Penalty

Information Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File,

Executions by State,’’ p. 174, available at http://www.deathpenaltyinfo.org/

documents/ESPYstate.pdf (last visited August 10, 2015).

23 1969 N.M. Laws 415 (repeal); 1979 N.M. Laws 522 (reinstatement); see

also Death Penalty Information Center, ‘‘Executions in the U.S. 1608–2002:

The ESPY File, Executions by State,’’ p. 223 (indicating no executions during

period of repeal), available at http://www.deathpenaltyinfo.org/documents/

ESPYstate.pdf (last visited August 10, 2015).

24 1965 N.Y. Laws vol. I, 1021–22 (partial repeal of death penalty); 1995

N.Y. Laws vol. I, 1 (reinstatement); D. Hearn, Legal Executions in New York

State A Comprehensive Reference, 1639-1963 (1997) p. 281–82 (indicating

no executions during period of repeal); see also Death Penalty Information

Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by

State,’’ p. 255, available at http://www.deathpenaltyinfo.org/documents/

ESPYstate.pdf (last visited August 10, 2015).

25 1915 Or. Laws 12 (repeal); 1920 Or. Laws 46 (reinstatement); 1965 Or.

Laws 6 (repeal); 1978 Or. Laws 4 (reinstatement); Death Penalty Information

Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by

State,’’ p. 275 (indicating no executions during period of repeals), available
at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf (last visited

August 10, 2015).

26 1915 S.D. Sess. Laws 335 (repeal); 1939 S.D. Sess. Laws 166 (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

repeal in 1915 and reinstatement in 1939); see also Death Penalty Information

Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by

State,’’ p. 321, available at http://www.deathpenaltyinfo.org/documents/

ESPYstate.pdf (last visited August 10, 2015).

27 1915 Tenn. Pub. Acts 181 (repealing capital punishment for crime of

murder); 1919 Tenn. Pub. Acts 5 (reinstating capital punishment for crime of

murder); Tennessee Dept. of Corrections, ‘‘Tennessee Executions,’’ (2014),

available at http://www.tennessee.gov/correction/article/tdoc-tennesseeexecutions (last visited August 10, 2015) (indicating no executions of offenders convicted of murder between repeal date of March 27, 1915, and reinstatement date of January 30, 1919); see also Death Penalty Information Center,

‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by State,’’ p.

327, available at http://www.deathpenaltyinfo.org/documents/ESPYstate.pdf

(last visited August 10, 2015).

28 See also 1913 Wash. Sess. Laws 581 (repeal); 1919 Wash. Sess. Laws

273 (reinstatement); Washington Dept. of Corrections, ‘‘Persons Executed

Since 1904 in Washington State,’’ (2014), available at http://www.doc.wa.gov/

offenderinfo/capitalpunishment/executedlist.asp (last visited August 10,

2015) (indicating no executions between repeal date of March 22, 1913, and

date of reinstitution on March 14, 1919); see also Death Penalty Information

Center, ‘‘Executions in the U.S. 1608–2002: The ESPY File, Executions by

State,’’ p. 397, available at http://www.deathpenaltyinfo.org/documents/

ESPYstate.pdf (last visited August 10, 2015).

29 This list includes earlier, temporary repeals in Iowa, Maine, New Mexico,

and New York, states that currently have legislation repealing the death

penalty. See supra footnotes 19, 21, 23, and 24 of this concurring opinion.

Similarly, it includes Tennessee and New York, which temporarily repealed

the death penalty only for certain crimes. See footnotes 24 and 27 of this

concurring opinion.

30 The amicus curiae Legal Historians and Scholars note that this occurred

in Oregon in 1914; Arizona in 1917; Missouri in 1918; and again in Oregon

in 1964. See footnotes 16, 22 and 25 of this concurring opinion.

31 New Mexico’s earlier repeal stated: ‘‘Any person currently under penalty

of death shall have such penalty revoked, and a penalty of life imprisonment

substituted.’’ 1969 N.M. Laws 415.

32 In Iowa and Maine, for example, the applicable legislation stated that

the death penalty was ‘‘hereby abolished.’’ 1872 Iowa Acts 139; 1876 Me.

Laws 81. Although the legislation did not expressly apply to prerepeal death

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

in effect.

33 I also note that the amicus curiae Experts on International Human Rights

and Comparative Law contends that no country has carried out a death

sentence while a death penalty repeal was in effect. This information was

extracted from reports issued every five years by the United Nations concerning 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 (last visited August 10, 2015).

Another seven countries have abolished the use of the death penalty for

ordinary crimes. Id.

35 I question whether, even before the prospective repeal, a sentence of

death continued to have any deterrent effect. In his concurring opinion in
Furman, Justice White concluded that the death penalty was cruel and

unusual as it was then being imposed, but only because the death penalty

was imposed so infrequently. See Furman v. Georgia, supra, 408 U.S. 311

(‘‘I begin with what I consider a near truism: that the death penalty could

so seldom be imposed that it would cease to be a credible deterrent or

measurably to contribute to any other end of punishment in the criminal

justice system’’). Justice White went on to explain: ‘‘Most important, a major

goal of the criminal law—to deter others by punishing the convicted 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 of others. . . . [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 of It,’’ Hartford Courant, December 4, 2004, p. B1; L. Tuohy, ‘‘Execution

Set for May 11,’’ Hartford Courant, February 11, 2005, p. A1. Given the

infrequency with which the state carried out executions prior to the repeal

of the death penalty, I am not convinced that the carrying out of the executions of the defendants who committed their offenses prior to April 25, 2012,

will have any general deterrent effect.

36 See, e.g., 55 S. Proc., Pt. 2, 2012 Sess., p. 533, remarks of Senator Eric

Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 751–52, remarks of Senator Edwin

Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 784, remarks of Senator Gayle

Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1257–64, remarks of Representative Gary Holder-Winfield; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1373–74,

remarks of Representative Juan Candelaria; 55 H.R. Proc., Pt. 4, 2012 Sess.,

pp. 1374–76, remarks of Representative Patricia Dillon.

37 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 752, remarks of Senator Edwin

Gomes; 55 S. Proc., Pt. 3, 2012 Sess., pp. 781–82, remarks of Senator Edith

Prague; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1279–82, remarks of Representative Richard Smith.

38 See Death Penalty Information Center, ‘‘Recent Legislation: Governor’s

Signature Makes Connecticut Fifth State in Five Years to End Death Penalty,’’

(2015), available at http://www.deathpenaltyinfo.org/recent-legislation-gov

ernors-signature-makes-connecticut-fifth-state-five-years-end-death-penalty

(last visited August 10, 2015).

39 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 673, remarks of Senator Edward

Meyer; 55 S. Proc., Pt. 3, 2012 Sess., p. 745, remarks of Senator Terry

Gerrantana; 55 S. Proc., Pt. 3, 2012 Sess., p. 751, remarks of Senator Edwin

Gomes; 55 S. Proc., Pt. 3, 2012 Sess., p. 769, remarks of Senator Bob Duff;

55 S. Proc., Pt. 3, 2012 Sess., pp. 772–73, remarks of Senator Carlo Leone;

55 S. Proc., Pt. 3, 2012 Sess., pp. 790–91, remarks of Senator Joseph Crisco;

55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1255–57, remarks of Representative

Michael Molgano.

40 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 662, remarks of Senator Eric

Coleman; 55 S. Proc., Pt. 3, 2012 Sess., pp. 776–77, remarks of Senator

Anthony Musto; 55 S. Proc., Pt. 3, 2012 Sess., pp. 782–83, remarks of Senator

Gayle Slossberg; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1282–86, remarks of

Representative Daniel Rovero; 55 H.R. Proc., Pt. 4, 2012 Sess., pp. 1340–41,

remarks of Representative Philip Miller; 55 H.R. Proc., Pt. 4, 2012 Sess., p.

1352, remarks of Representative John Thompson; 55 H.R. Proc., Pt. 4, 2012

Sess., pp. 1384–89, remarks of Representative J. Brendan Sharkey.

41 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 725, remarks of Senator Robert

Kane (‘‘I’m a bit confused by how we are able to make it okay for the

existing [eleven] people on death row to be executed but not the future

individuals who may commit some of those very same crimes’’); Id., p. 747,

remarks of Senator Len Suzio (‘‘[i]f you’re going to say that taking human

life in the form of a legal execution is wrong going forward, then it’s wrong

going backwards’’); 55 H.R. Proc., Pt. 3, 2012 Sess., p. 1040, remarks of

Representative Lawrence Cafero (‘‘How can you say in your heart and with

your vote that it should no longer be the policy of the state of Connecticut

to commit anyone to death? And yet, at the same time, say except for these

[eleven] guys. How could you say that? How do you justify that?’’); 55 H.R.

Proc., Pt. 4, 2012 Sess., p. 1054,remarks of Representative John Hetherington
(‘‘It says that, prospectively, it operates to spare killers in the future but

not a certain [eleven] who currently occupy death row. So it is a very

curious moral position; that is, the morality changes depend upon when it’s

applied.’’); 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1307 remarks of Representative

Hetherington (‘‘It condemns death going forward, but accepts it in the past.

It’s illogical; it is arguably immoral.’’); see also footnote 43 of this opinion.

42 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., p. 748, remarks of Senator Len

Suzio (‘‘I suspect that one reason why there’s this big gaping hole, moral

hole in this law is because of the political consequences of making it an

absolute both prospectively, as well as retrospectively. And again, that to

me is a moral failure. The end does not justify the means, but if [your]

position is absolute, if you believe the death penalty is always morally

offensive under any and all circumstances going forward then you really

have to honor your commitment even to those on death row today.’’).

43 I note that, while P.A. 12-5 was being considered by the legislature,

eleven people were on death row. On May 22, 2015, Richard Roszkowski

was sentenced to death for crimes committed prior to April 25, 2012. See

footnote 102 of the majority opinion.

44 The animus directed toward the two defendants responsible for the

high profile crimes in Cheshire, the last of whom was sentenced to death

less than three months before the legislature took up P.A. 12-5, is evidenced

in a public statement made by Senator Edith Prague: that ‘‘[t]hey should

bypass the trial and take that second animal and hang him by his penis

from a tree out in the middle of Main Street . . . .’’ B. Connors, ‘‘Prague:

‘Hang the Animal By His . . . .’ ’’ NBC Connecticut (May 12, 2011), available

at http://www.nbcconnecticut.com/news/local/Prague-Hang-the-Animal-byHis-121670559.html (last visited August 10, 2015). In State v. Komisarjevsky,

302 Conn. 162, 179–80, 25 A.3d 613 (2011), this court acknowledged the

notoriety of the cases against the two defendants, which aroused such public

antipathy as to resultin threats against both defense counsel and intimidation

of witnesses that had been or might be interviewed by the defense team.

45 I use the terms ‘‘private vengeance’’ and ‘‘revenge’’ interchangeably

throughout this concurrence.

46 The stark differences between retribution and revenge were not lost

on the legislature during the debate of P.A. 12-5. For example, Representative

Cafero, a self-proclaimed supporter of capital punishment, aptly outlined

the differences between the two, and additionally recognized that only 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

compassion or vengeance. Government has to seek justice. Justice is the core

definition behind retribution.’’ 55 H.R. Proc., Pt. 3, 2012 Sess., pp. 1040–41.

47 The state also claims that executing prerepeal death row inmates serves

a valid penological purpose simply because those defendants chose to 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 chamber to be executed, his sentence is, in all practical

respects, life imprisonment without the possibility of parole. Thus, although

the prerepeal defendants were sentenced to death under a constitutionally

permissible capital sentencing statute, that, by itself, is not a basis to carry

out the second aspect of a death sentence, execution.

48 Although Gregg and Furman focus on the need to channel the discretion

of a sentence in individual cases to avoid arbitrary results, the United States

Supreme Court’s eighth amendment jurisprudence on arbitrariness in 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 by juries in
individual cases, the court concluded that the death penalty as it was then

being imposed was unconstitutional not because in any particular instance,

the jury’s decision was arbitrary, but rather because the capital sentencing

schemes of the states permitted arbitrary decision making in individual

cases. See Gregg v. Georgia, supra, 428 U.S. 188 (‘‘[b]ecause ofthe uniqueness

of the death penalty, Furman held that it could not be imposed under

sentencing procedures that created a substantial risk that it would be

inflicted in an arbitrary and capricious manner’’ [emphasis added]); Callins

v. Collins, 510 U.S. 1141, 1152–53, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994)

(Blackmun, J., dissenting from denial of certiorari) (‘‘[i]t is the decision to

sentence a defendant to death—not merely the decision to make a defendant

eligible for death—that may not be arbitrary’’).

49 The state claims that P.A. 12-5 contains no constitutionally invalid provisions because ‘‘[i]t is well established that the death penalty does not violate

any provision of the federal constitution’’ and ‘‘[l]ikewise, a statute that

repeals the death penalty also is constitutionally firm.’’ In my opinion, these

arguments have no merit. While it is true that Gregg established that the

death penalty is not, in and of itself, a violation of any provision of the

federal constitution, modern death penalty jurisprudence has made it 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 of first degree murder in part because statute ‘‘depart[ed]

markedly from contemporary standards respecting the imposition of the

punishment of death and thus cannot be applied consistently with the

[e]ighth and [f]ourteenth [a]mendments’requirement that the [s]tate’s power

to punish ‘be exercised within the limits of civilized standards’ ’’).

50 The state relies on Seals v. Hickey, 186 Conn. 337, 441 A.2d 604 (1982),

and Beach v. Bradstreet, 85 Conn. 344, 82 A. 1030 (1912), in its argument

that the unconstitutional portion of P.A. 12-5 is not severable from the

remaining language. I find these cases inapposite to the circumstances in

the case at hand. Seals, for example, involved a statute which permitted a

trial court to deduct from a jury’s award of damages any money received

by a plaintiff pursuant to a covenant not to sue or release of liability

agreement. Seals v. Hickey, supra, 341 n.6. The court noted that the statute,

when the unconstitutional language was excised, ‘‘offer[ed] absolutely no

direction to the court concerning what steps it may take after the verdict

has been returned.’’ Id., 355. In the present case, as I discuss in detail in

footnote 52 of this concurring opinion, language can be excised from P.A.

12-5 in such a way so as to render the constitutional remainder entirely

workable. Similarly, at issue in Beach was the constitutionality of a statute

which sought to provide $30 annually to every ‘‘resident in the [s]tate who

served in the army, navy, marine corps, or revenue marine service of the

United States during the Civil War . . . and received an honorable discharge

therefrom’’ or their close family. Beach v. Bradstreet, supra, 351. The court

noted that, as drafted, the law would provide funds not only to those persons

who served Connecticut in the Civil War, but also those who had served

other states and now happened to reside in Connecticut. Id., 351–52. The

court found that it could not sever the statute, in part because the act could

not be made constitutional either ‘‘by the exclusion or addition of a word

or words . . . but only by rewriting the statute.’’ Id., 353. In the statute at

hand, the constitutional remainder of the statute can be severed from the

unconstitutional portion, solely through the excision of certain language,

as I demonstrate in footnote 52 of this concurring opinion. Thus, the 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 of the statute are not

so mutually connected and dependent as to indicate a legislative intent that

they should stand or fall together’’). Reading the plain text of the act, its
dominant purpose is, unassailably, to eliminate the death penalty. If the

legislature’s dominant purpose was to ensure that the death penalty was to

remain in place for capital offenders who committed their crimes prior to

April 25, 2012, no change to our old capital scheme was necessary. In

footnote 52 of this concurring opinion, I explain in greater detail precisely

how to sever the offending portion of P.A. 12-5 from the constitutional

remainder.

52 My conclusion that P.A. 12-5 is severable would not, as the state claims,

result in an impermissible rewriting of the act. I would simply read out of

the act any references to the effective date of the act, and any references

to ‘‘capital felonies,’’ which relate solely to capital crimes committed prior

to the effective date of the act. For example, § 53a-35a would read as follows:

‘‘For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and, unless the section of the general

statutes that defines or provides the penalty for the crime specifically provides otherwise, the term shall be fixed by the court as follows:

‘‘(1) For the class A felony of murder with special circumstances a term

of life imprisonment without the possibility of release;

‘‘(2) For the class A felony of murder, a term not less than twenty-five

years nor more than life;

‘‘(3) For the class A felony of aggravated sexual assault of a minor under

section 53a-70c, a term not less than twenty-five years or more than fifty

years;

‘‘(4) For a class A felony other than an offense specified in subdivision

(2) or (3) of this section, a term not less than ten years nor more than

twenty-five years;

‘‘(5) For the class B felony of manslaughter in the first degree with a

firearm under section 53a-55a, a term not less than five years nor more than

forty years;

‘‘(6) For a class B felony other than manslaughter in the first degree with

a firearm under section 53a-55a, a term not less than one year nor more

than twenty years;

‘‘(7) For a class C felony, a term not less than one year nor more than

ten years;

‘‘(8) For a class D felony, a term not more than five years;

‘‘(9) For a class E felony, a term not more than three years; and

‘‘(10) For an unclassified felony, a term in accordance with the sentence

specified in the section of the general statutes that defines or provides the

penalty for the crime.’’

This approach to severance would not leave a statutory void, as the state

claims. The statutory definitions of ‘‘capital felony’’ and ‘‘murder with special

circumstances’’ are identical. By severing the language dealing only with

‘‘capital felony,’’ the act continues to make illegal the conduct which constituted the definition of ‘‘capital felony’’ but now carries a mandatory sentence

of life imprisonment without the possibility of release. See P.A. 12-5, §§ 1,

2. Read in this way, the act applies to all felonies committed after 1981 and,

because this revision essentially constitutes a relabeling of the offense of

‘‘capital felony’’ as ‘‘murder with special circumstances’’; see P.A. 12-5, § 1;

no offender currently sentenced to death could claim that he should be

released as a result of the elimination of ‘‘capital felony’’—all such conduct

would fall under the umbrella of the definition of ‘‘murder with special

circumstances,’’ which differs from ‘‘capital felony’’ only with regard to the

sentence that might be imposed. See P.A. 12-5, § 2. The only relief that an

offender currently sentenced to death could hope for, if the statute were

severed according to this approach, would be to be resentenced to life

imprisonment without the possibility of release. As in Bell, the defendant

and other prerepeal death row inmates would have no claim that the offense

of ‘‘murder with special circumstances’’ does not apply to them through the

workings of the ex post facto clause, because it does not disadvantage the

defendant in any way—the effect of this revision would solely be 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 to judicial gloss applied to statutes when such law

[1] would have retroactive effect and [2] would operate in such way that

would be unforeseeable and disadvantageous to criminal defendant; finding

change to be ameliorative and procedural and, thus, not in violation of ex

post facto clause). There would also be no need to retry the defendant, as

all the predicate factual findings for convicting the defendant of ‘‘murder

with special circumstances’’ would be satisfied by the jury’s verdict in the

guilt phase of the defendant’s earlier capital trial. See P.A. 12-5, § 1.
Further, this approach would not require further action in amending any

other statutes—by striking all references to the effective date provision and

‘‘capital felony’’ in the act itself, the change would affect all relevant statutes.

This method of revision would not strike any reference to ‘‘murder with

special circumstances’’ and thus would have no impact on the function of

the legislature’s chosen sentencing scheme for serious felonies committed

today or in the future.

53 Specifically, the state points to comments of several representatives

and senators who suggested that, politically speaking, P.A. 12-5 could be

passed only if the repeal were prospective in nature. I observe first that,

for purposes of a severability analysis, this court does not immediately look

to the legislative history for guidance. See footnote 51 of this concurring

opinion. Second, as I describe in detail, these selected statements do not

come close to telling the whole story about the nature of this debate and the

actions of the legislature. Both the House and Senate voted down proposed

amendments that would have expressly required the act to be struck down

in its entirety if this court were to conclude that the prospective only nature

of the repeal violated either the federal or state constitution. See 55 S. Proc.,

Pt. 3, 2012 Sess., p. 669; 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1066. The legislature

decided against these proposed amendments in the face of testimony that

warned of the likelihood that the prospective only nature of the repeal was

likely to be found unconstitutional. See, e.g., Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635, remarks of Chief State’s

Attorney Kevin Kane.

54 Pressed further on the issue, Chief State’s Attorney Kane stated: ‘‘My

prediction is that the arguments that I have so far, that we have discussed

in thought I don’t think are likely to prevail in the Supreme Court given

. . . the prior language and several prior opinions about the death penalty.

And I don’t think anybody should be deluding themselves that it’s likely

that this can be prospective. I think that would be—prospective only. I think

that would be a big mistake.’’ (Emphasis added.) Conn. Joint Standing

Committee Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2635.