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

******************************************************STATE v

. SANTIAGO—SECOND DISSENT ZARELLA, J., with whom ESPINOSA, J., joins, dissenting. The majority claims that it is not deciding that the death penalty is per se unconstitutional;1 nor is it deciding that Public Acts 2012, No. 12-5 (P.A. 12-5), is unconstitutional. Rather, the majority claims that, following the passage of P.A. 12-5, the death penalty is unconstitutional under the Connecticut constitution because it ‘‘no longer comports with contemporary standards ofdecency [inthis state] andno longerserves any legitimate penological purpose.’’ The majority thus treats the claim ofthe defendant, Eduardo Santiago, as
a ‘‘hybrid’’ claim, falling somewhere between a per se challenge and a statutory challenge, in order to avoid the tests we long ago adopted to determine whether the death penalty is unconstitutional on per se grounds

or whether a particular death penalty statute is unconstitutional on due process grounds. For example, when determining whetherthe death penalty is per se unconstitutional, we have applied the six-pronged test set forth in State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992). See State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995); see also State v. Rizzo, 303 Conn. 71, 185, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). In contrast, when determining whether a death penalty statute is unconstitutional, we have applied the due process principles relevant to the resolution of a statutory claim;2 see State v. Ross, supra, 253; except when a Geisler analysis is required to determine whetherthe state constitutionprovides broaderprotections under our capital sentencing scheme than the federal constitution. See, e.g., Statev.Rizzo, supra, 136;

see also State v. Colon, 272 Conn. 106, 327, 382–83, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005); State v. Ross, 269 Conn. 213, 257–60, 849 A.2d 648 (2004). The advantage of treating the defendant’s claim as a hybrid claim, as opposed to a per se claim or a statutory claim, is that the majority frees itself to create a new and different hybrid test to determine the constitutionality of the death penalty. The majority does this by claiming that the questionis notwhetherP.A. 12-5 is unconstitutional but whether the prospective repeal provision in P.A. 12-5 makes the death penalty unconstitutional. In my view, this is a distinction without a difference. The majority nonetheless relies on it to conjure up a new test, atestthiscourthasneverpreviouslyappliedbefore in any death penalty case. The majority’s new hybrid test is a confusing combination of the six factor test set forth in Geisler, a test
we routinely have used to determine whetherthe death penalty is per se unconstitutional, and a legal standardderived from federal law that the majority incorrectly claims was adopted by this court in Ross and applied in Rizzo

.3 In applying this new hybrid test, however, the majority pays only lip service to the Geisler factors because it focuses on cruel and unusual punishment instead ofon capital punishment. It also disregards the sixth Geisler factor and does not consider the relative importance of each Geisler factor. This is apparently becausethe majoritywishesto avoidweighingrepeated references to capitalpunishment inthe text ofour state constitution, the historical roots ofcapital punishment, Connecticut precedent upholding the constitutionality of capital punishment, and precedent from other state and federal jurisdictions against the federal evolving standards of decency standard on which it relies to determine whether capital punishment is constitutional. The only federal case in which the evolving standards of decency standard has been used to determine whether capital punishment is constitutional, however, is Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) (opinion announcingjudgment), and the standard was applied in that case only after the court examined the text ofthe federal constitution, the history of capital punishment, and federal precedent. See id., 176–79 (opinion announcing judgment). The majority thus disregards Gregg as well as our own precedent in refusing to weigh and balance all of the Geisler factors in the context of capital punishment. Accordingly, because I strongly protest the majority’s unorthodox reasoning in this case, I emphatically dissent.4
I

IMPROPER LEGAL STANDARD
The majority first conducts an abbreviated Geisler analysis that focuses on the meaning of cruel and unusualpunishment. Itthenadoptsanewlegalstandard derived from federal law to determine whether the death penalty is cruel and unusual punishment. In the discussion that follows, I explain why I strongly disagree with each step in the majority’s analysis.
A
The Majority’s Application of Geisler
The majority’s application of the test set forth in Geisleris problematic for two reasons. First, this court has applied the Geisler test in other capital cases only when a defendant has challenged the facial validity of the death penalty; see, e.g., State v. Rizzo, supra, 303 Conn. 185; State v. Ross, supra, 230 Conn. 249; which the defendantinthe present case has not done, orwhen the defendant has challenged our capital sentencing statutes and it has been necessary to assess whether the state constitution affords broader protection under those statutes than the federal constitution; see, e.g., State v. Rizzo, supra, 136–45; State v. Webb, 252 Conn.128, 146–47, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); State v. Ross, supra, 230 Conn. 253–54; which the defendant also has not done. The defendant instead challenges the constitutionality of P.A. 12-5. This is clear not only from the defendant’s briefs, butfromthe parties’ oral arguments, in which the defendant’s appellate counsel repeatedly described his claim as a statutory claim, and various members ofthe panel, including Justice Palmer, asked

numerous questions regarding the issue of severability ifthis court should deemthe retentionprovision ofP.A. 12-5 unconstitutional.5 Thus, the majority’s decision to review the defendant’s challenge to P.A. 12-5 by applyingthetype ofanalysisusuallyreservedforaclaim that capital punishment is unconstitutional on per se grounds, even though no such claim has been raised, creates a disturbing anomaly in Connecticut’s capital punishment jurisprudence that cannot be lightly dismissed. Having chosen to apply the incorrect legal standard to review the defendant’s claim, the majority then compounds this error by focusing its Geisler analysis on the ‘‘scope, nature, and history ofthe protections from cruel and unusual punishment’’ instead of on capital punishment. As with the majority’s initial decision to apply Geisler, this is a clear departure from our precedentin capital cases. SeeStatev.Ross, supra, 230 Conn. 245–48; see also State v. Rizzo, supra, 303 Conn. 186. The majority acknowledges this deviation, observing that, although this court ‘‘used the Geisler framework toperformthe actual substantive legal analysis’’ inRoss and Rizzo, it prefers to follow a different approach in the present case because ‘‘the constitutionality of a criminal sanction

. . . is governed by its own distinct legal rules and standards,’’ apparently unaware that the ‘‘rules and standards’’ developed for this purpose are embodied in Geisler

. Footnote 14 ofthe majority opinion. The problem is not simply that the majority rejects well established Connecticut precedent but that the majority’s misapplication ofGeislerfails to achieve the objective for which the test was intended when the court adopted it in Ross to review challenges to the validity of capital punishment under the state constitution.
Cruel and unusual punishment is a legal concept intendedto describepunishment deemedmorallyunacceptable by society. See, e.g., State v. Rizzo, supra, 303 Conn. 188 (‘‘[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment’’ [internal quotation marks omitted]); State

v. Ross, supra, 230 Conn. 251 (whether death penalty constitutes cruel and unusual punishment requires court to determine whether it is ‘‘so inherently cruel and so lacking in moral and sociological justification that it is

. . . fundamentally offensive to evolving standards of human decency’’). Thus, when a court is pre-sented with the issue of whether a particular punishment is cruel and unusual, it must develop a set of principles to guide its analysis. Ross was the first case in which this court was asked to decide whether a punishment was cruel and unusual underthe state constitution. Consequently, the court inRoss was required to develop aprincipled approach to resolving this question, an approach it rightly expected wouldbe followed insubsequentcases. Insodoing,thecourtfirstobserved that, although the Connecticut constitution contains no cruel and unusual punishment clause, the due process clauses of article first, §§ 8 and 9, of the Connecticut constitution ‘‘impliedly prohibit punishment that is cruel and unusual.’’ State v. Ross, supra, 230 Conn. 246. It then adopted the six factor test articulated in Geisler

as the most principled means of determining whether capital punishment is cruel and unusual. Id., 249; see also State v. Rizzo, supra, 184–86. Applying this test, the court examined (1) the text of the constitutional provisions, (2) related Connecticut precedents, (3) persuasive federal precedents, (4) persuasive precedents of other state courts, (5) historical insights into the intent ofour constitutional forbearers, and (6) contemporary understandings of applicable economic and sociological norms6 in order to obtain a proper understanding ofwhether the people of Connecticut deemed capital punishment morally acceptable. State v

. Ross, supra, 230 Conn. 249.
Instead of conducting a substantive analysis of whethercapitalpunishmentoffends ourstate constitution under Geisler, however, as the court did in Ross and Rizzo, the majority applies the Geisler factors to examine the meaning of cruel and unusual punishment

. Not unexpectedly, this analysis provides no insights into whether capital punishment is deemed morally acceptable in Connecticut because, with the exception of a small portion of the relevant constitutionalhistory, themajoritymakesfew, ifany, references to capital punishment or capital offenses.
The majority also fails to address the sixth Geisler factor. The majority explains that, ‘‘when construing the state constitutionalfreedomfrom cruelandunusual punishment, we broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges.’’ The majority adds that it will consider the sixth Geisler factor—contemporary understandings of applicable economic and sociological norms—only to the extent this factor may be relevant in determining whether capital punishment comports with contemporary standards of decency in Connecticut. It thus becomes clear that the majority’s Geisler analysis of cruel and unusual punishment is wholly unnecessary to the substantive analysis of capital punishment that follows.
BThe Majority’s Application of Federal Law
When the majority finally considers whether capital punishment is constitutional, it substitutes federal eighth amendmentjurisprudence in place ofthe frameworkadoptedinRoss

. Themajority’srationaleforcreating an independent test derived from federal law, however, makes no legal sense, and its attempt to find supportfordoing so inRoss andRizzo necessarilyfails.
The majority relies on State v. Linares, 232 Conn. 345, 379–87, 655 A.2d 737 (1995), tojustify its abandonment of Geisler

. The majority states that, ‘‘[i]n some of

our decisions, we have utilized the multifactor Geisler analysis to flesh out the general nature and parameters of the state constitutional provision at issue. Having done so, we proceededto resolve the appellant’sparticular constitutional challenge according to the legal test and framework relevant and suited to that area of the law, ratherthan performing the substantive legal analysis under

. . . the six Geisler factors.’’ Footnote 14 of the majority opinion. The majority explains that the court in Linares first conducted a Geisler analysis to determinewhetherthe state constitutionaffords expansive protections to free speech in public places before applying a legal test developed in the free speech context to determine whether the challenged statute infringed impermissibly on those protections. See id. The majority then declares its intention to follow the

same approach in the present case because ‘‘the constitutionalityofacriminalsanction, likethe constitutionality of a limitation on the free expression at issue in Linares, is governed by its own distinct legal rules and standards.’’ Id.
No meaningful comparison betweenLinares and the present case is possible, however. Among other things, the defendant inLinares challenged the constitutionality of a statute, whereas the defendant in the present case, according to the majority, raised a general challenge to the constitutionality ofcapital punishment following the passage of P.A. 12-5. Linares also is inapposite because the purpose of conducting a Geisler analysis in that case was ‘‘[t]o determine whether our state constitution affords greaterrights thanthe federal constitution’’; State v. Linares, supra, 232 Conn. 379; which the majority repeatedly declares is unnecessary and thus irrelevant in the present case. See footnotes 11 and 17 of the majority opinion. Finally, insofar as a specific legal test has been developed to determine the constitutionality of capital punishment in Connecticut, it is the six factor test set forth in Geisler

. Thus, to the extent the majority relies on the reasoning in Linares to justify its substantive analysis in the present case, its reliance is misplaced.
The majority also claims that this court adopted the federal evolving standards of decency test in Ross andRizzo to evaluate challenges to allegedly cruel and unusual punishment. Nothing could be furtherfrom the truth. In both decisions, the court made clear that the standard it was adopting for this purpose was the six factor Geisler test; see State v. Ross, supra, 230 Conn. 249; see also State v. Rizzo, supra, 303 Conn. 185–86, 188 n.86; which is not a federal standard. To the extent the court in Rizzo also discussed contemporary economic and sociological norms, it did so only after accepting the court’s analysis of the first five Geisler factors inRoss

. Statev. Rizzo, supra, 185–86. The court explained: ‘‘We undertake, in essence, a partial Geisler analysis regarding what has occurred since 1994, because our constitutional text and history remain the same, and this court repeatedly has sustained the constitutionality of the death penalty generally and our death penalty statutes in particular. Accordingly, our focus is on recent federal and state jurisprudence and contemporary economic and sociological norms.’’ Id., 188 n.86. The court also noted: ‘‘In so doing

. . . we remain cognizantthat ourconstitution contains explicit references to capital punishment

. . . and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.’’ (Citation omitted; internal quotation marks omitted.) Id., 188, quoting State v. Ross, supra, 230 Conn. 249–50. It is therefore clear that, insofar as Geisler permits an evaluation of contemporary norms similar to the federal evolving standards of decency test, it does so only under the sixth Geislerfactor, subjectto the qualifications articulatedinRoss andtotheultimateweighingandbalancing of all six Geisler factors. Problems with the majority’s analysis under the federal test are further discussed in part II F of this opinion.
On the basis of this review, it is difficult to avoid concludingthatthe majority’s sole intentionisto ignore allinformation, regardless ofitshistorical orcontemporaryrelevance, inconsistentwithitspredeterminedconclusion that capital punishment is unconstitutional in Connecticut. In the discussion that follows, I demonstrate how the majority should have applied Geisler in accordance with our precedent and why a proper Geisler analysis, even presuming Geisler applies, does not support the majority’s conclusion that the death penalty is cruel and unusual punishment.7
II
GEISLER ANALYSIS

A
Constitutional Text
I begin with the text ofthe Connecticut constitution. In an analysis that would mystify anyone intent on understanding whether the constitutional text sustains the validity of capital punishment in Connecticut, the majority completely ignores language in the state con-stitution referring to capital punishment. The majority instead indulges in a meandering, speculative and entirely irrelevant examination of why no cruel and unusual punishment clause was included in the 1818 constitution. As the majoritywell knows, however, that is not what is expected or required under Geisler

. In explaining the textual approach to construing the contours of our state constitution, Geisler instructs that, ‘‘[u]nless there is some clear reason for not doing so, effect must be given to everypart ofand each word in the constitution.’’ (Emphasis added; internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 685; see also State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990) (‘‘[i]n examining the text of [the state constitution] to determine the extent to which it supports the defendant’s claim, we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law ofthe state’’ [internal quotation marks omitted]). Consequently, a textual analysis under Geislernecessarilyrequiresthatthe courtacknowledge all references in the Connecticut constitution to capital punishment and capital offenses, as this court has done eachtime ithas conductedatextualanalysisinthepast.
Inthepresentcase, evenacursoryexaminationofthe text reveals that the Connecticut constitution contains repeated references to capital punishment and capital offenses. Article first, § 8, of the constitution of Connecticut, as amendedbyarticle seventeenofthe amendments, provides in relevant part: ‘‘In all criminal prosecutions, the accused shall have a right to

. . . be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great

. . . .’’ (Emphasis added.) Article first, § 8, further provides: ‘‘ No person shall

. . . be deprived oflife, libertyorpropertywithoutdueprocess of law,’’ and ‘‘[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unlessuponprobable causeshownatahearinginaccordance with procedures prescribed by law

. . . .’’ (Emphasis added.) Finally, article first, § 19, ofthe Connecticut constitution, as amended by article four ofthe amendments, provides in relevant part: ‘‘[N]o person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent.

. . .’’ (Emphasis added.) Thus, multiple references to capital punishment in the state constitution support the conclusion that, from a textual standpoint, the death penalty does not fall within the implied prohibition of cruel and unusual punishment because it was contemplated not only in 1818, when the relevant language in article first, § 8, was adopted as part of the original constitution;

see Conn. Const. (1818), art. I, § 9; but also in 1972, when the provision referring to capital punishment in article first, § 19, was added by article four of the amendments. This court reached the same conclusionwhenit conductedaGeisleranalysis ofthe Connecticut constitutioninRoss andRizzo

. SeeStatev. Ross, supra, 230 Conn. 249–50 (‘‘our state constitution makes repeatedtextual references to capital offenses andthus expressly sustains the constitutional validity of such a penalty in appropriate circumstances’’); see also State

v. Rizzo, supra, 303 Conn. 185 (same).
Article first, § 1, of the Connecticut constitution, which describes the constitution as a social compact,8 provides additional textual support for the conclusion that capital punishment is deemed morally acceptable in Connecticut. A social compact is an agreement ‘‘between the people and the government they create [that] binds the agencies of government to respect the blueprint of government and the rights retained by the people.’’ L. Henkin, ‘‘The United States Constitution As Social Compact,’’ in American Philosophical Society, ‘‘A More Perfect Union: Essays on the Constitution,’’ 131 Proc. Am. Phil. Society 261, 265 (1987); see also Moorev. Ganim, 233 Conn. 557, 598, 660A.2d 742 (1995) (‘‘The social compact theory posits that all individuals

are born with certain natural rights and that people, in freelyconsentingtobegoverned, enterasocialcompact withtheirgovernmentbyvirtue ofwhichtheyrelinquish certain individual liberties in exchange ‘for the mutual preservation of their lives, liberties, and estates.’ J. Locke, ‘Two Treatises of Government,’ book II [Hafner Library of Classics Ed. 1961] ¶ 123, p. 184; see also 1 Z. Swift, A System ofthe Laws ofthe State ofConnecticut [1795] pp. 12–13.’’). Accordingly, repeated references to capital punishment and capital offenses throughout the constitution, which never have been challenged or eliminated by constitutional amendment, suggest that the people of Connecticut always have accepted, and continue to accept, capital punishment as an integral part of the social compact for the purpose of maintaining public order, preserving their freedom to live in peace and tranquility, and ‘‘perpetuat[ing] the liberties, rights andprivilegeswhichtheyhave derivedfromtheir ancestors

. . . .’’9 Conn. Const., preamble.
B
Historical Insights
With respect to the relevant constitutional history, Geislerexplains thatthe ‘‘historical approach’’ includes consideration of ‘‘the historical constitutional setting and the debates of the framers

. . . .’’ (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. 685. Ross thus examined ‘‘historical insights into the intent of our constitutional forbearers’’; State v. Ross, supra, 230 Conn. 249; andobservedthat‘‘Connecticut’s history has included a death penalty statute since 1650, when it was incorporated into Ludlow’s Code

. . . and such a penalty was considered constitutional at the time ofthe adoption ofthe constitution of 1818.’’ (Citation omitted; footnote omitted.) Id., 250. Neverthe-less, the majority not only fails to acknowledge the historical roots of capital punishment in Connecticut, but diverts the discussion to an expansive and wholly irrelevant analysis ofour state’s ‘‘unique and expansive constitutional andpreconstitutional history’’ relatingto the freedom from cruel and unusual punishment. This is the same approach the majority employs in its analysis ofthe relevant constitutional provisions by dismissinglanguage inthe state constitutionreferringto capital punishment and capital offenses.
Ifthe majority had conducted the historical analysis required under Geisler and conducted inRoss, the only conclusion it could have drawn is that capital punishment has deep roots in Connecticut going back to early colonial times and that the framers of the Connecticut constitution in 1818 and the convention delegates in 1965 had no intention of eliminating death as the most
severepenaltyinaproportionalsystemofpunishments.
In practice, the death penalty has been imposed in Connecticut from the founding of the colony in 1636 until the first constitutional convention in 1818. Between 1636and 1699, whentherationaleforthedeath penalty was embedded in the religious foundation of New England andpunishment was regarded as divinely mandated, capitalpunishmentappliedatdifferenttimes to as few as twelve and as many as twenty-three crimes,10 and thirty-one persons were executed. L. Goodheart, The Solemn Sentence ofDeath: CapitalPunishment in Connecticut (2011), pp. 4, 7, 10–13. Thereafter, during the first seven decades of the eighteenth century, when a more worldly society emerged and the legal culture was transformed to reflect an increasingly secular ethic; id., p. 39; capital punishment applied to between twelve and nineteen crimes,11 and seventeen persons were executed. Id., pp. 4, 45, 49. Evenwhenthe legal system experimented unsuccessfully with reform from 1773 to 1827, capital punishment applied at different times to between six and eleven crimes,12 and sixteen persons were executed. Id., pp. 4, 75, 79. Thus, when Connecticut held its first constitutional convention in 1818, capital punishment was firmly entrenched and thoroughly accepted as the most severe penalty available to punish criminal offenders.
Public support for capital punishment also was reflected in the views of Zephaniah Swift, who was the chiefjustice of the Connecticut Supreme Court of Errors from 1815 to 1819, the state’s ‘‘leadingjurist [at the time of the 1818 constitutional convention] and the person most responsible for the major reform of Connecticut’s judicial system during’’ the late eighteenthandearlynineteenthcenturies. Id., p. 71. Because of Swift’s role as ‘‘[a] pioneer in the development of

an American common law distinct from England’’; W. Horton, ‘‘Connecticut Constitutional History 1776– 1988,’’ 64 Conn. B.J. 355, 358 (1990); his ideas on thelaw ‘‘take on great significance in determining what the framers had in mind when adopting the language ofthe constitution.’’ State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993) (

Berdon, J., dissenting). Theseideas are principally understood through his two legal treatises, publishedin 1796 and 1823,13respectively, ‘‘settingforth the common law of Connecticut based on the actual practices of localjudges.’’ W. Horton, The Connecticut State Constitution (2d Ed. 2012) p. 23. Both treatises

are relevant because they describe Swift’s views on capital punishment, as well as those of the framers, both before and directly after the 1818 constitutional convention.
In his 1796 treatise, Swift expressed strong support for the death penalty ifproperly imposed within a proportional system of punishments, explaining that ‘‘[i]t is a fundamental principle, that the sole end ofpunishmentis the prevention ofcrimes, andthat everypunishment ought to be proportioned to the [offense].’’ 2 Z. Swift, A System ofthe Laws ofthe State ofConnecticut (1796) p. 293. He thus approved of the legislature’s attempt to create the type of proportional system he advocated by establishing three grades ofpunishment, thesebeingdeath, confinementtohardlaborandcoarse fare, and corporal and pecuniary pains and penalties. Id., p. 296. He disapproved, however, of the number of crimes the legislature had deemed deserving of the ultimate punishment, which included ‘‘treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered’’; id.; believing instead that ‘‘[t]he dreadful punishment of death, ought only to be inflicted [for] those crimes which directly and immediately tend to the destruction of society and the human race, as treason, and murder.’’ Id.
When Swift updated his 1796 treatise in the early 1820s, immediatelyfollowingthe constitutionalconvention, he maintained his belief that punishments should be proportionaltothe offense and continuedto support the death penalty,14 contending that it should apply not only to treason and murder, but to other crimes as well.15 2 Z. Swift, A Digest of the Laws of the State of Connecticut (1823) p. 262. He wrote: ‘‘Treason, murder, rape, and arson, where life is destroyed or endangered, ought to be punished with death. These crimes are of such an atrocious nature, that the interest of the community requires they should not only be punished in the severest manner, but the offender ought to be deprived ofthe power ofrepeating the crime. The punishment of death will not only be sanctioned by public opinion, but there is no probability that executions will be so frequent in such cases, as to weaken their effect

on the community.’’ Id. Accordingly, to the extent the majority suggests that Swift and other reformers rejected harsh punishments and became increasingly uneasy with capital punishment by the time ofthe constitutional convention, it indulges in revisionist think-ing. Approval ofcapital punishment by our constitutional forbearers is also reflected in theirhandling ofan event that led directlyto the calling ofthe 1818 constitutional convention, namely, legislativeinterferencewithacriminal conviction and sentence of death in Lung’s Case, 1 Conn. 428 (1815). See W. Horton, The Connecticut State Constitution, supra, p. 12. In response to the legislature’s action, ‘‘Swift convened a special court to try Peter Lung for murder. After being duly convicted and sentenced to die, Lung filed apetition with the General Assembly claiming that the trial had been procedurally improper. The General Assembly agreed, set aside the conviction, and ordered a new trial, at which Lung was promptly convicted, and he was hanged.’’ Id. ‘‘The case outraged the Connecticutjudges, who were Federalist to a man. Led by Swift, who wrote a pamphlet in 1816 attacking legislative interference with a judicial decision, the judiciary demanded separation of powers.’’ Id., citing Z. Swift, ‘‘A Vindication of the Calling of the Special Superior Court, at Middletown, on the 4th Tuesday of August, 1815, For the Trial of Peter Lung, Charged with the Crime of Murder. With Observations

on the Constitutional Power ofthe Legislature to Interfere with theJudiciary inthe Administration ofJustice’’ (1816) p. 42 (AVindication ofthe Calling ofthe Special Superior Court).
What is striking about this case, in addition to the factthat it led inpartto the 1818 constitutional conventionandthe adoptionofanewstate constitutionformalizing the separation of powers in Connecticut, is the lack of any suggestion by the legislature or judiciary that the imposition of the death penalty was wrong. Connecticutjudges were inflamed because the legislature had interfered with Lung’s conviction and verdict due to perceived procedural irregularities, and the fact that he had been condemned to die was simply not
an issue.16
Tothe extentthe majoritydisagrees and cites anewspaper article published afterLung’s execution ‘‘remarking on the ‘infrequency of capital punishment’ and observing that the ‘[behavior] of this unfortunate sufferer on this trying occasion, was such as to attract the tenderest sympathy of every rational beholder,’ ’’ it misunderstands the context in which the article was written. In his pamphlet on Lung’s Case, Swift effectively countered any notion that capital punishment lacked broad public support when he observed that public sympathy for a capital offender as the execution drew near was ‘‘probably owing to the weakness incident to human nature.’’ A Vindication of the Calling of the Special Superior Court, supra, p. 11. Swift further explained: ‘‘When a crime has been committed, public indignation is awakened, and all unite to bring about the conviction of the offender. But as soon as he isconvicted, especially in capital cases—when the awful sentence of death is pronounced, then a sentiment of compassion begins to operate in [favor] ofthe unfortunate convict: the sense of justice is drowned in the feelings of compassion; andfalse humanity begins to
run riot. His case will then be viewed in the most favorable light. Some will doubt about the evidence of his guilt—some will question the propriety of capital punishments in any case, and some will hint at the possible unfairness of the trial. Prejudice will be excited even against the triers, who are then considered as having sought the blood of a fellow creature, and many will find fault with [everything] that has been done from a secret aversion to the law, and a natural disposition to pull down courts, and prostrate government. Artful and designing men well know how to fan the flame and profit by it. Such was the course of things in the case ofLung. As soon as he was removed fromthe theatre of hiscrimes, andtheplaceoftrial,the convictedmurderer

was transformed into an innocent sufferer, and many began to take a deep interest in his fate.’’ (Emphasis added.) Id., pp. 11–12.
Whatever public sympathy may have been extended to Lung following his conviction, there is no indication in the annotated debates of the constitutional convention, two years after the uproar over Lung’s Case, of decreasing public support for capital punishment. See generally W. Horton, ‘‘Annotated Debates of the 1818 Constitutional Convention,’’ 65 Conn. B.J. SI-7 through SI-84 (1991). Nor is there evidence that any convention delegates soughtto ban capital punishment or objected tothe inclusion oflanguage inthe constitutionreferring tocapitalpunishment. Seeid. Theconventionappointed

a committee of twenty-four delegates to draft the new constitution. See id., SI-14 through SI-15. The committee’s proposed language in article first referring to capital offenses and to the deprivation of life without due processoflawwasbasedonlanguageinthe 1817Mississippi Bill of Rights; see id., SI-102 through SI-103; and

was adopted by the convention delegates without comment. See id., SI-31 through SI-32. Thereafter, language in articlefirstreferringtopunishmentbydeaththatwas proposed on the convention floor also was accepted without significant comment or debate. See id. Directlyfollowingtheconstitutionalconvention, public support for capital punishment continued unabated when the legislature endorsed the proportional system ofpunishmentadvocatedby Swift, includingthe continued use ofthe deathpenalty, in revisions to the General Statutes for the purpose ofensuring their conformance withthe new constitution.17 SeeStatev. Ellis, 197 Conn. 436, 450–51 n.13, 497 A.2d 974 (1985). A note in the crimes and punishments section ofthe revised statutes explained that ‘‘the object has been

. . . to proportion the punishment according to the nature and grade of the crime’’ and that ‘‘[t]he experience of this state has[shown], not only that mild punishments are better calculated to prevent crimes, than those which are sanguinary; but that punishments must be attended with considerable severity, to operate as examples to others

. . . .’’ General Statutes (1821 Rev.) tit. 22, § 118, p. 177 n.5. To that effect, capital punishment, which had been imposed in 1805 for crimes such as bestiality, sodomy, false witness, arsonresulting in death, treason, destruction of military property, dismemberment, murder and rape; see Acts and Laws of the State of Connecticut in America (1805), pp. 182, 321, 349, 419; was retained for, among other crimes, treason, murder, maiming, arson and rape. See General Statutes (1821 Rev.) tit. 22, §§ 1, 3, 6, 8, 10, pp. 151–52. The revised statutes also authorized the governor to reward persons who provided authorities with information leading to the timely capture of capital offenders. General Statutes (1821 Rev.) tit. 22, § 118, p. 176.
Almost 150 years later, Connecticutrevisitedits commitment to capital punishment when an amendment proposing abolition ofthe death penalty was submitted but soundly defeated at the 1965 constitutional convention, whichadoptedthestate’spresentconstitution. The recordofthe 1965proceedingsrevealsthataGreenwich delegate submitted a resolution entitled ‘‘Resolution Proposing an Amendment to the Constitution Concerning Capital Punishment’’ for the purpose of abolishing the death penalty. Constitutional Convention Record Index, ConstitutionalConventionof1965 (August, 1965) p. 5. The resolution received an unfavorable report by the committee on resolutions, however, and was summarily rejected by the convention delegates. Journal of the Constitutional Convention of Connecticut 1965, p. 111. This explicitrejection ofadirectattemptto abolish capital punishment in 1965 demonstrates, first, that the death penalty, which had been operative in this state since colonialtimes, always had been deemed constitutional and, second, that the convention delegates in 1965, like the framers in 1818, did not want to change the status quo. The state’s commitment to capital punishment was renewed a second time on December 22, 1972, when article first, § 19, ofthe Connecticut constitution was amended to provide that ‘‘no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent.’’ (Emphasis added.) Conn. Const., amend. IV. There appears to have been

no other attempt to amend the constitution for the purpose of abolishing capital punishment during the last 200 years. To conclude, any suggestion that there was little or diminishingsupportforthe deathpenaltybefore, during

or directly after the constitutional conventions of 1818 and 1965 is agross mischaracterization ofthe historical record. AnexaminationofConnecticut’shistoryreveals that, although the number of crimes to which capital punishment was applied diminished over the years, thepunishment was accepted in Connecticut as the most
severe penalty for a criminal offense not only in 1818, at the time of the first constitutional convention, but in 1972, as well, when the most recent constitutional amendment referring to capital offenses was adopted. Accordingly, a historical analysis under Geisler supports the conclusion that capital punishment was not deemedmorallyunacceptableby ourconstitutionalforbearers.
C

Related Connecticut Precedents
A Geisler analysis also includes an examination of the ‘‘holdings and dicta ofthis court, and the Appellate Court

. . . .’’ (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. 685. The majority nonetheless continues to disregard Geisler by failing to acknowledge this court’s recent holdings rejecting challengesto capitalpunishmentunderthe state constitution. Rather, themajorityengagesinabriefdiscussion regarding the degree of protection from cruel and unusual punishment provided under the due process clauses of the state constitution. In addition to fundamentally changing the required analysis, the consequence ofthis attempt to avoid revealing Connecticut’s well established precedent upholding capital punishment is the majority’s misrepresentation ofthe reasoning in Ross and Rizzo, neither of which adopted a federal evolving standards of decency test to evaluate challenges to allegedly cruel and unusual punishment,

as the majority claims. See part I B of this opinion.
Whenthe court considered aconstitutional challenge to capitalpunishmentinRoss, itreliedonStatev.Davis, 158 Conn. 341, 358, 260 A.2d 587 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972), in concludingthat ‘‘Connecticut case law has recognized the facial constitutionality ofthe death penalty under the eighth and fourteenth amendments to the federal constitution.’’ State v. Ross, supra, 230 Conn. 250. Since Ross, capital punishment has been deemed facially constitutional in many other cases as well. See State v. Santiago, 305 Conn. 101, 307, 49 A.3d 566 (2012); State v. Rizzo, supra, 303 Conn. 184, 201; State v. Colon, supra, 272 Conn. 383; State v. Reynolds, 264 Conn. 1, 236–37, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004); State v. Cobb, 251 Conn. 285, 496–97, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000);Statev. Webb, 238 Conn. 389, 401–402, 411–12, 680 A.2d 147 (1996); State v. Breton, 235 Conn. 206, 218, 663 A.2d 1026 (1995).
This court also has implicitly endorsed the constitutionality of capital punishment under the social compact clause ofthe state constitution. In Webb, the court determined that the social compact clause does notpreclude death penalty legislation in Connecticut because Connecticut’s social compact does not confer

on convicted offenders a natural and unenumerated right to life. State v. Webb, supra, 238 Conn. 411–12. The court explained: ‘‘Unenumerated rights [such as a citizen’s right to be protected from capital punishment] exist, if at all

. . . only if they are grounded in or derived from the constitutional text or Connecticut’s unique historical record’’; id., 410; and ‘‘the constitutional text and historical record support the constitutionality ofthe deathpenaltystatutes [in Connecticut].’’ Id., 411 n.21. Accordingly, relevant Connecticut precedent overwhelminglysupportsthe conclusionthat capital punishment has continued to receive strong public support in Connecticut in recent years. D
Persuasive Federal Precedents
Geisler further instructs the court to consider ‘‘federal constitutionalprecedentsthat appropriatelyilluminate open textured provisions in our own organic document

. . . .’’ (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. 685. Although none ofthe provisions in the Connecticut constitution referring to capital punishment is open textured, the court in Ross cited to Gregg v. Georgia, supra, 428 U.S. 153, for the proposition that federal constitutional law does not forbid the death penalty outright and that federal constitutionallawis consistentwiththerepeatedrecognition of capital punishment in our own constitution. State v. Ross, supra, 230 Conn. 250. Nonetheless, the majoritydisregards federalprecedentholdingthat capitalpunishmentis constitutionalanddirectsits attention to the ‘‘minimum standards for what constitutes impermissibly cruel and unusual punishment’’ under the federal constitution. Text accompanying footnote 15 ofthe majority opinion.
The majority claims that the United States Supreme Court has identified as unconstitutionally cruel those punishments that are (1) inherentlybarbaric, (2) excessive and disproportionate, and (3) arbitrary or discriminatory, and contends that the court in Ross ‘‘broadly adopted, as a matter of state constitutional law, this federal framework for evaluating challenges to allegedly cruel and unusual punishments.’’ Text accompanying footnote 17 of the majority opinion. This is not the case. There is no reference in Ross to this federal framework as the basis for evaluating the constitutionality ofcapitalpunishment. The only references inRoss to capital punishment as being excessive or arbitrarily imposed are in the context of as applied challenges to the constitutionality of Connecticut’s death penalty statutes. See State v. Ross, supra, 230 Conn. 231, 232, 239. As for the barbarity of capital punishment, the author of the dissenting opinion in Ross was the only member ofthe court to use that term. Id., 298 ( Berdon,J., dissentinginpart). Furthermore, as repeatedlynoted inthisopinion, the courtinRoss adoptedtheframework established in Geisler to evaluate challenges to allegedly cruel and unusual punishments. Accordingly, becausethe United States Supreme Courthas notmodified or rejected its conclusion in Gregg that capital punishment is not forbidden in all circumstances under federal constitutional law, federal precedent continues to support the constitutional validity of capital punishment under the Connecticut constitution.
E
Persuasive Precedents of Other State Courts
Geisler next requires an examination of ‘‘sister state decisions

. . . .’’ (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. 685. InRoss, the courtfollowedthis directiveby observingthat ‘‘[c]ourts in the overwhelming majority of our sister states have rejected facial challenges to the death penalty under theirstateconstitutions.’’Statev.Ross, supra, 230 Conn. 250. The court specifically noted that, between 1972 and 1994, thirty-seven states had passed death penalty statutes, and, in the only two jurisdictions in which the state’s highest court had deemed the death penalty faciallyunconstitutional, Californiaand Massachusetts, subsequent constitutional amendments promptly abrogatedthose decisions. Id., 250 n.30. Althoughthe majority does not address this question as part of its Geisler analysis but, rather, aspart ofits subsequent discussion of evolving standards of decency, I note for the record the majority’s concession that ‘‘capital punishment remains legal in a majority ofjurisdictions within the United States

. . . .’’ An analysis of persuasive state precedentsthus supportsthe continuedvalidity ofcapital punishment under the Connecticut constitution.
F
Economic and Sociological Considerations
The last Geisler factor, economic and sociological considerations, is the most challenging factor to interpret and apply. See State v. Geisler, supra, 222 Conn. 285. The court in Geisler provided little guidance as how to conduct this analysis and merely cited to State

v. Dukes, 209 Conn. 98, 547A.2d 10 (1988), in which the courtobservedthat‘‘[c]onstitutionalprovisionsmustbe interpreted within the context of the times’’; id., 114; and that the state constitution ‘‘should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.’’ Id., 115. Accordingly, the court inRoss determined thatthis factor requires an examination of ‘‘whether contemporary understandings ofapplicable economic and sociological norms compel the conclusion that any death penalty constitutes cruel and unusual punishment.’’ Statev.Ross, supra, 230 Conn. 251. The courtexplained: ‘‘The question is not whether any one ofus would voteto enact a death penalty if our role were that of a legislator. It is, rather, whetherthe defendant is correct in his contention that the death penalty is so inherently cruel and so lacking in moral and sociologicaljustification that it is unconstitutional on its face because it is fundamentallyoffensiveto evolvingstandardsofhuman decency.’’ Id. The court then advised: ‘‘Judicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected inthetextofourconstitutionaldocument, inourhistory and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.’’18 Id.
In an apparent attempt to circumvent this analysis, the majority replaces it with an entirely new standard, derived from federal law, that requires a determination

as to whether capital punishment comports with evolving standards of decency. Apparently searching for precedent in Connecticut’s own capital punishment jurisprudence, the majority suggests that the federal standard pertaining to evolving standards of decency

was adopted inRoss and followed inRizzo

. This is not the case. The majority initially contends that, when the court inRoss andRizzo consideredwhetherthe deathpenalty

was cruel and unusual punishment underthe state constitution, itdidnotaddresstheissue asasingle constitutional claim but as ‘‘two distinct constitutional [claims],’’ the first being a per se claim that capital punishmentviolates the state constitution under all circumstances, and the second being a claim that capital punishment no longer comports with Connecticut’s evolving standards of decency. The majority thus appears to rely on the existence of this purported second claim in Ross and Rizzo as precedent for framing the defendant’s claim in the present case as a claim that capital punishment is unconstitutional because it

no longer comports with evolving standards ofdecency in Connecticut. Having identified Ross and Rizzo as precedent for the defendant’s claim, the majority next contends that, although the court addressed the evolving standards of decency claim only briefly in Ross, it conducted ‘‘amore sweeping review’’ ofa similar claim in Rizzo before concluding that there remained strong public support for capital punishment in this and other jurisdictions. The majority then adopts ‘‘five objective indicia of society’s evolving standards of decency,’’ based on federal eighth amendment jurisprudence, to review the defendant’s claim. These include (1) the historical development of the punishment at issue, (2) legislative enactments, (3) the currentpractice ofprosecutors and sentencingjuries, (4) the laws and practices of otherjurisdictions, and (5) the opinions and recommendations of professional associations. See text accompanying footnote 43 ofthe majority opinion. For the following reasons, I strongly disagree with themajority’s misrepresentation of the reasoning in Ross and Rizzo for the apparent purpose of legitimizing its adoption of a wholly independent test derived from federal law and ofavoiding the analysis required under the sixth Geisler factor. First, in Ross and Rizzo, the court considered and decidedonlyone claim challengingthe constitutionality of capital punishment under the state constitution. In both cases, that claim was brought on per se grounds. State v. Rizzo, supra, 303 Conn. 184; State v. Ross, supra, 230 Conn. 245. There was no second claim in either case challenging the constitutionality of capital punishment onthe groundthatitfailedto comportwith evolving standards of decency. Second, to the extent the court considered evolving standards of decency in Ross and Rizzo, it did so in the context of the sixth Geisler factor, which Ross described as requiring an examination ofcontemporary understandings of applicable economic and sociological norms. See State v. Ross, supra, 230 Conn. 251; see also State v. Rizzo, supra, 303 Conn. 186–88. There is

no room for debate regarding these facts. Third, although the court conducted a more expansive analysis inRizzo than it did inRoss underthe sixth Geislerfactor, it did not go nearly as far as the majority contends. As previously discussed, Ross stated that evidence of contemporary understandings of applicable economic and sociological norms, or evolving standards of human decency, ‘‘are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.’’ State v. Ross, supra, 230 Conn. 251. Thus, the court in Rizzo began its analysis of the sixth Geisler factor by noting that the ‘‘constitution contains explicit references to capital punishment

. . . and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.’’ (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. 188. The court then examined developments in the capital punishment jurisprudence of the United States Supreme Court and our sister states, as instructed byRoss

. See id., 188–90. In a departure from Ross, however, the court in Rizzo also considered actual practices in other states and determined that, because several thousand inmates were being held on death row in thirty-six states, the death penalty continued to be accepted in the nation generally. See id., 190–92. All ofthe remaining discussion inRizzo, which concerned a decline in the number of executions and in new death sentences, the results of public opinion polls, international norms, whether capital punishment continues to serve a legitimate penological purpose, and the passage but subsequent veto of legislation in Connecticut repealing capital punishment, was inresponse to arguments by the defendant in that case, and was not initiated by the court or necessary to the court’s analysis under the sixth Geisler factor. See id., 192–201. Fourth, the majorityconcedes thatthe ‘‘five objective indicia of society’s evolving standards of decency’’ are largely derived from eighth amendment jurisprudence ratherthan Connecticut law. In addition to the factthat this is contraryto the majority’s claimthatit is deciding this case after ‘‘careful consideration ofthe defendant’s claims inlight ofthe governing constitutionalprinciples and Connecticut’s unique historical and legal landscape’’; (emphasis added); the five indicia are drawn from four federal cases, each of which articulated a slightly different set of criteria in determining whether the penaltyin questionwas constitutional. See Graham

v. Florida, 560 U.S. 48, 61–62, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (legislative enactments and actual sentencing practices); Atkins v. Virginia, 536 U.S. 304, 313–16, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002) (legislative enactments); Thompsonv. Oklahoma, 487U.S. 815, 822–23, 830, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988) (legislative enactments, jury determinations, views of respectedprofessional organizationsandviews ofother nations); Enmund v. Florida, 458 U.S. 782, 788–89, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982) (historical development of punishment, legislative enactments, international opinion, and sentencing decisions of juries). Moreover, a comparison of the majority’s five indicia with those discussed in Ross shows that only two of the five overlap. These two common indicia are the history ofthe punishment in question and the laws and practices ofotherjurisdictions. The otherthree indicia, legislative enactments,the currentpracticesofprosecutors and sentencingjuries, andthe opinions and recommendations of professional associations were not recognized inRoss

. Correspondingly, the majority does not recognize the first and most important indicium recognized in Ross, the constitutional text, as one of thefive indiciainits analysis. This discrepancybetween the five indicia that the majority adopts in the present
case and the indicia described in Ross is significant.
As previously discussed, Ross advised that ‘‘[j]udicial evaluationofevolvingstandardsofhumandecencycannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in

our history and in the teachings of the jurisprudence ofour sister states as well as that ofthe federal courts.’’ State v. Ross, supra, 230 Conn. 251. Ross thus viewed evolving standards of human decency in the broadest possible sense. Given this understanding, the current practices ofprosecutors and sentencingjuries, and the opinionsandrecommendations ofprofessionalassociations, are not particularly relevant because they are not representative of the community as a whole.19 Incontrast, because the state constitution is a social compactthat incorporates the principles bywhich an entire society is governed, it is far more likely to reflect the views of the general population. In Connecticut, for example, the state constitution was amended fifty-nine timesbetween 1818 and 1965, andthirty-onetimessince 1965; W. Horton, The Connecticut State Constitution, supra, pp. 17, 22; and thus reflects not only the beliefs of the original framers but those of the people of Connecticut over the course of 200 years. Historical information, including events ofmore recent origin, likewise provides a broad view ofsocial change within the state and is not unduly reflective of a single perspective. As for the jurisprudence of other jurisdictions, the court in Ross understood that Connecticut is not a self-contained entity that exists in avacuum but is inextricably linked to other federal and state jurisdictions. Accordingly, the capital punishment jurisprudence of other jurisdictions may be influenced to some degree by the

same events and historical developments that inform

ourown. Ithereforedonottakeissuewiththemajority’s reliance on the historical development of the punishment at issue or on the laws and practices of other jurisdictions, although I strongly disagree with the majority’s analysis and conclusions.
I also disagree with the majority’s reliance on legislative enactments as one of the five indicia of evolving standards of decency and with its specific reliance on the passage of P.A. 12-5 as the principal basis for determining that capital punishment is impermissible under the Connecticut constitution. The majority concedes at the outset that this is the most important part of its analysis, stating that, ‘‘[u]pon careful consideration ofthe defendant’s claims in light ofthe governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.’’ In my view, this is a serious mistake, not only because it is inconsistent with Connecticut precedent but because it places the legislature in

a legally untenable position.
I note initially that the court inRoss did not contemplate judicial reliance on state legislation as a basis for determining evolving standards of decency in the contextofastate constitutional claim. Rather, the court deliberatelysteeredclearofthispotentialquagmire and made no reference to legislative enactments as one of the indicia of community standards in Connecticut, mostlikelybecause ofthe legalpredicamentthatwould have resulted from relying on legislative enactments to deem a criminal penalty unconstitutional.
The majority seems to believe that relying on legislation to determine evolving standards of decency isappropriate in a state constitutional analysis because the courtinRizzo quotedlanguage bythe United States Supreme Court declaring that ‘‘the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures

. . . .’’ (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. 191, quotingAtkinsv. Virginia, supra, 536 U.S. 312. The majority, however, takes this language out of context. In Rizzo, the court did not recognize legislative enactments in Connecticut as a
source of community standards in this state but cited Atkins in discussing recent developments in our sister states, which Ross had recognized as relevant under the sixth Geisler factor. See State v. Rizzo, supra, 191–93; State v. Ross, supra, 230 Conn. 251.
The majority also fails to understand the difference between examining legislative enactments in a federal and a state constitutional analysis, and why it is appropriate in the former but makes no sense in the latter. The answer, however, is simple. In a federal analysis of a death penalty statute, the statute is compared to all of the other state statutory schemes in order to determine whether the statute under review is out of step with contemporary norms. When analyzing the constitutionality of the death penalty under the state constitution, however, the majority reviews the state statute by comparing it against itself. This makes no
sense. Thus, ifP.A. 12-5authorizeddrawingandquartering for those convicted of murder, the majority would conclude that the standards of decency in Connecticut

are established by the public act and are therefore constitutional. This logical incoherence is why the court in Ross didnotrelyonlegislative enactmentsto determine contemporary norms. In my view, if the legislature decides to eliminate capital punishment, it is because it is authorized to do

so under the state constitution; see State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976); and its decision has no implications regarding the constitutionality ofthe punishment itself. If, on the otherhand, the legislatureestablishescapitalpunishmentasthemostsevere penalty in a proportional system of punishments, it is because the Connecticut constitution expressly recognizes death as a viable penalty. Thus, the only way capital punishment may be deemed unconstitutional in Connecticut is by the approval of a constitutional amendmentto that effect. Capital punishment also may be eliminated by legislative repeal ofthe death penalty in its entirety, but a legislative act eliminating capital punishment is not an indication that the punishment is unconstitutional. If social values have changed such that capital punishment no longer comports with contemporary standards of decency in Connecticut, this will be reflected in legislative action or a constitutional amendmentbanningcapitalpunishment. Inthe absence of a constitutional amendment, neither an act of thelegislaturenorajudicial edictcannullifyexplicitconstitutional provisions expressly recognizing capital punishment or erase from the historical record the relatively recent rejection of a proposed abolition amendment during the 1965 constitutional convention. Accordingly, P.A. 12-5 cannot serve as the basis for concluding that capital punishment is unconstitutional in Connecticut under the federal test the majority adopts or, for that matter, under any other test. The only realistic constitutional claim that can be made regarding the effect of P.A. 12-5 on the defendant’s sentence is that the statute is unconstitutional. Rejecting the standard the majority adopts, and applyingthe standard onwhichthe courtinRoss relied, I believe contemporary understandings of applicable economic and sociological norms do not compel the conclusionthatcapitalpunishmentismorallyunacceptable in Connecticut. As previously discussed, the state constitutional text contains numerous references to capital punishment. See part II A ofthis opinion. Thus, Iagree withJustice Scaliathat ‘‘[i]tisimpossibletohold unconstitutionalthatwhichthe [c]onstitution explicitly contemplates.’’ (Emphasisinoriginal.) Glossipv. Gross, U.S. , 135 S. Ct. 2726, 2747, 192 L. Ed. 2d 761 (2015) (Scalia, J., concurring). This is especially true in Connecticut, where there have been more than eighty-five amendments to the state constitution since 1818 and the delegates to the 1965 constitutional convention rejected an amendment abolishing capital punishment. The Connecticut constitution thus reflects current public attitudes toward capital punishment, as well as those ofthe original framers. At this time, state and federaljurisprudence also supports the conclusion that capitalpunishmentis morallyacceptable underthe state constitution. SeepartII D and E ofthis opinion. As for Connecticut’s history, I disagree with the majority’s claim that ‘‘new insights into the history ofcapital punishmentin Connecticut, intandemwiththe legislature’s 2012 decisionto abolishthe deathpenaltyprospectively

. . . [provide] a clearpicture ofthe long, steady devolution of capital punishment in our state

. . . .’’
The majority claims that various developments during the past 400 years ‘‘have resulted in capital punishmentbeing available forfarfewercrimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public acceptance.’’ As Chief Justice Rogers discusses in her dissenting opinion, however, the historical record does not demonstrate a decline in public support for the death penalty in Connecticut as the most severe form of punishment, even incontemporarysociety, wherepersonsaccusedofcapital crimes are provided with many more legal protections than similar offenders were provided in the past.
The ‘‘new insights’’ to which the majority refers appear to come entirely from the author of a recentlypublished book, Lawrence B. Goodheart, who repeatedly demonstrates his bias infavor ofabolishing capital punishment in his commentary, in his selection and presentation of the historical evidence, and in numerous other published articles. See, e.g., L. Goodheart, supra, p. 2 (opining that ‘‘the deathpenalty in Connecticutiscontradictoryinprincipleandunworkableinpractice’’); L. Goodheart, ‘‘Changing Use of Death Penalty Argues ForAbolition,’’ Hartford Courant, April23, 2011, p. A7 (‘‘[m]y research has convinced me that it’s time to abolishalawthatisunenforceable, unfairandunethical,’’ and ‘‘I’ve come to the beliefthat we can no longer enforce this law, it was never effective and it was unfairly applied’’); see also M. Kirk, ‘‘The History ofthe DeathPenaltyin Connecticut,’’ UCONN Today, October 24, 2011, available at http://today.uconn.edu/2011/10/ the-history-of-the-death-penalty-in-connecticut/ (last visited July 27, 2015) (quoting from interview in which Goodheart expresses opposition to death penalty). Accordingly, Goodheart does not discuss the historical facts on which he relies in a completely objective fashion. Nevertheless, even Goodheartconcedesthatpublic support for capital punishment has remained strong in Connecticut during the past four centuries. For example, he observes that, inthe more recentpast, ‘‘[d]espite

a petition campaign and gubernatorial support, opponents [of capital punishment] during an era of reform in the 1840s and 1850s failed to sway the legislature

. . . .’’ L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, p. 3. Similarly, ‘‘[a]fter the horrors of World War II, Governor Abraham Ribicoff

. . . supported broad-based efforts to end capital punishment, but the General Assembly voted down abolition

. . . .’’ Id., pp. 3–4. Thereafter, in 1963, ‘‘the House voted overwhelmingly, once again, to retain capital punishment’’ because of ‘‘popular support for the execution of hardened criminals’’; id., p. 201; and, ‘‘[i]n 1965, the House voted

. . . 167 to 67 to retain the death penalty.’’ Id., p. 202. Goodheart also observes that, in the 1970s, following the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in which, according to Goodheart, the nation’s highest court ‘‘found thatthe arbitrary and inconsistent impositionofthe deathpenaltyviolatedthe [e]ighthand [f]ourteenth amendments [of the federal constitution] concerning cruel and unusual punishment and due process of the law’’; L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, p. 196; Connecticut did not abolish capital punishment but ‘‘was one ofthirty-seven states to rewrite its capital code to comply with the revised standard.’’ Id.
In explaining why the death penalty retains strong public support in Connecticut, Goodheart states that ‘‘[s]urveys ofpublic opinionprovide an answer. A Quinnipiac University poll in January [of] 2005 indicatedthat 59 percent of Connecticut residents favored the deathpenalty,’’ whichwas ‘‘comparableto national sentiment.’’ Id., p. 249. Goodheart also observes that, more recently, ‘‘[p]ublic opinion, the General Assembly (except in 2009), most governors, and the courts (state andfederal) sustainthe deathpenalty, atleastforparticularly cruel and heinous murders.’’ Id., p. 2. He further acknowledgesthat, ‘‘[a]fternearlyfourcenturies ofcapitalpunishment, Connecticutis exceptionalinitsregion in still carrying out the [capital punishment] statute. It appearsthatasubstantialmajorityofthe state’s citizens wish to preserve the death penalty, at least for multiple murderers

. . . .’’ Id., p. 5. At other times, he explains that ‘‘[t]he death penalty remains on the books because enough citizens believe that it is a necessary and just retribution’’; id., pp. 5–6; and that ‘‘[m]ost citizens in Connecticut [have] approved the death penalty when itapplie[s] tohorrificmurders.’’Id., p. 250. Forexample, Goodheart states that 70 percent of those polled supported the execution of Michael Ross in 2005, the last person executed in Connecticut, and that ‘‘[o]ne-fourth ofthose who hadpreviouslyindicatedtheyopposedthe death penalty wanted Ross executed.’’ Id. Goodheart ultimately concludes, without qualification, that, despite avocal minority, ‘‘[p]ublic opinion supports the death penalty for [the worst] killers

. . . .’’ Id., p. 252. Goodheart’s statistics are consistent with statistics cited by ChiefJustice Rogers in her dissenting opinion, which indicate that 62 percent of Connecticut voters favored the death penalty in April, 2012, and 59 percent in March, 2013, for persons convicted of murder. See footnote 31 of ChiefJustice Rogers’ dissenting opinion and accompanying text. Thus the ‘‘facts’’ cited by the majority’s own ‘‘historian’’ do not support its claim that there has been a significant ‘‘deterioration in public acceptance’’ of the death penalty.
That capital punishment in Connecticut has been applied to a steadily decreasing number of crimes during the past 400 years and has been carried out infrequently in more recent decades does not mean that capital punishment for the most terrible crimes is lacking in significantpublic support. There always has been public debate as to the type and number of crimes to which capitalpunishment should apply, andthe protections afforded to offenders before the punishment is carried out have grown over the years, thus extending the time between sentencing and execution. Capital punishment nonetheless continues to receive public support in Connecticut. This was reflected most recently in the inability of the legislature to override former Governor M. Jodi Rell’s veto following the passage of an act intended to repeal the death penalty prospectively in 2009; see Public Acts 2009, No. 09-107; in the failure ofsimilar legislation to achieve a full vote in either chamber of the legislature after advancing through the Judiciary Committee in 2011; see State v.Rizzo, supra, 303 Conn. 199; and in the fact that P.A. 12-5 provides only for the prospective repeal of capital punishment, while retaining it for current death row inmates.
The majority declares that the passage of P.A. 12-5 is a tipping point in the history of capital punishment in Connecticut, in that it represents such a significant change in public mores that capital punishment no longer comports with contemporary standards of decency. The majority’s argument, in a nutshell, is that the passage of P.A. 12-5 is an expression of moral outrageagainstwhatthemajoritydescribesasthebarbaric, excessive, arbitrary and discriminatory penalty of death. In reaching this conclusion, however, the majorityrejects alternative explanations astowhythe legislature mayhave passed P.A. 12-5, includingthatthe death penalty is too expensive, that it takes too long to be carriedout, orthatitis merelyanexercise ofthe legislative prerogative to establish penalties for crimes. The majority’s narrow-minded view, however, is unsupported by the facts. If the legislature, as the majority claims, had rejected the death penalty only on the ground that it is barbaric, excessive, arbitrary and discriminatory, thenwhywouldithave enactedaretention provisionspecificallyallowingexecutionstogoforward for all current death row inmates, and why would it have permitted future arrests, indictments, the commencement of trials, and executions to be carried out with respect to those who had not yet been charged with a capital crime but who had committed such a crime before the effective date of P.A. 12-5? One need not be a legal scholar to understand that the majority’s conclusion is not only out of step with the intent of P.A. 12-5, butis disrespectfulto acoequalbranchofgovernment.
In sum, there is no supportforthe majority’s determinationthatcapitalpunishmentno longercomportswith evolving contemporary standards of decency or with understandings of applicable economic and sociological norms under the sixth Geisler factor. Nor can any support for its conclusion be drawn from the passage ofP.A. 12-5. Accordingly, all six Geislerfactors support the conclusionthatcapitalpunishmentremainsmorally acceptable to the people of Connecticut in appropriate circumstances andis not cruel andunusualpunishment under the state constitution following the passage of P.A. 12-5.
III

SEPARATION OF POWERS My final concern is thatthe majority usurps the legislature’s power to define crimes and establish punishments. In Rizzo, this court recognized that ‘‘assessing the propriety ofthe death penalty is not exclusivelythe domain of the legislature, and that this court has anindependent dutyto determinethatthepenaltyremains constitutionallyviable asthe sensibilities ofourcitizens evolve. See Atkins v. Virginia, supra, 536 U.S. 312–13; State v. Ross, supra, 230 Conn. 249. In so doing, however, we must exercise our authority with great restraint; State v. Ross, supra, [230 Conn.] 249; and refrain from interfering with democratic processes unless there is compelling reason to disagree with the judgment reached by the citizenry and its legislatures. Atkins v. Virginia, supra, 313. Moreover, it is clear that [r]easonable people of good faith disagree on the morality and efficacy of capital punishment; Baze v. Rees, [553 U.S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (opinion announcing judgment)]; and that the value of [that sanction], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures

. . . . Kennedy v. Louisiana, [554 U.S. 407, 441, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)]; see also Roper v. Simmons, [543 U.S. 551, 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)] ([i]n general we leave to legislatures the assessment of the efficacy of various criminalpenaltyschemes); Greggv. Georgia, supra, 428 U.S. 175 [opinion announcing judgment] ([i]n a democratic society legislatures, not courts, are constituted torespondtothewillandconsequentlythemoralvalues of the people

. . .); cf. Baze v. Rees, supra, 69 (Alito, J., concurring) ([p]ublic policy on the death penalty, an issue that stirs deep emotions, cannot be dictated by the testimony ofan expert ortwo orbyjudicial findings of fact based on such testimony). We therefore conclude that, as long as there remains powerful evidence of strong public support for the death penalty in the form of long-standing laws enacted by the democratically elected representatives of this state and other jurisdictions within the United States, we will not attempt to discern a contrary view of the public will,

or to answer complex policy questions best answered by the legislative process, by choosing among the competing opinions of interest groups and individuals whose views are not necessarily in accord with those of the general population.’’ (Emphasis added; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. 197–98.
The foregoing view was expressed by this court, includingthe author ofthe majority opinion in the present case, a mere three and one-half years ago. For the majority now to ignore the court’s recent precedent and to decide that capital punishment is impermissible under the Connecticut constitution, especially when the legislature has clearly expressed its intent that all presently sentenced offenders remain subject to the penalty, is inexplicable. See State v. Darden, supra, 171 Conn. 679–80 (‘‘it must be remembered that the constitution assigns to the legislature the power to enact laws defining crimes and fixing the degree andmethod of punishment and to the judiciary the power totryoffenses underthese laws and [to] imposepunishment within the limits and according to the methods therein provided’’).
The majority’s decision is especially disturbing in light of the fact that it is essentially a moral decision rather than a legal one. See, e.g., District Attorney v. Watson, 381 Mass. 648, 693, 411 N.E.2d 1274 (1980) (Quirico, J., dissenting). In other words, the majority determines that capital punishment is unconstitutional because it is ‘‘so out of step with our contemporary standards of decency as to violate the state constitutional ban on excessive and disproportionate punishment,’’ even though, only three and one-halfyears ago, this court reached the opposite conclusion. As ajustice ofthe highest court in a neighboringjurisdiction stated in similar circumstances, foreshadowing the views expressed in Rizzo: ‘‘If this court is to determine the constitutionality ofthe deathpenaltyinlight ofcontemporarymoral standards, Ibelieve itmust, ataminimum, award great deference to the legislative judgment implicit in the passage ofthe statute that contemporary moral standards support the punishment in certain circumstances.

. . . Judicial inquiry does not extend to the expediency, wisdom or necessity of the legislative judgment for that is a function that rests entirely with the lawmaking department.

. . . By substituting its view ofcontemporary standards for the view implicitly expressedbythe [l]egislature, the courtinfringes onthe [l]egislature’sprerogativeto define crimesandestablish the terms of punishment.’’ (Citations omitted; internal quotation marks omitted.) DistrictAttorneyv. Watson, supra, 693–94 (Quirico, J., dissenting). Significantly, the opinion of the dissenting justice in Massachusetts was vindicatedwhenthe citizensofMassachusettspromptly rejected the court’s decision that a state statute providing for the death penalty was unconstitutional on its face by amending the Massachusetts constitution to expresslyprovidethatthe deathpenaltywas notforbidden. See Statev. Ross, supra, 230 Conn. 250 n.30. Moreover, to my knowledge, no other state court decision determiningthat capitalpunishmentis unconstitutional under a state constitution has avoided abrogation by constitutional amendment.20
In State v. Ellis, supra, 197 Conn. 450–51 n.13, the court noted that Swift had recognized the legislature’s authority to define crimes and establish punishments in the early 1800s. The court stated: ‘‘Prior to 1821, manslaughter was punished by methods which might be described as medieval. The 1808 statute provided that ‘whatsoever person shall be guilty of the crime of man-slaughter

. . . shall forfeit to the public treasury of this state, all the goods and chattels to him or her belonging

. . . and be further punished by whipping

on the naked body, and be stigmatized, or burnt on the hand with the letterM

, on a hot iron, and shall also beforever disabled from giving any verdict or evidence in any of the courts within this state.’

. . . General Statutes (1808 Rev.) tit. 66, c. 7.’’ State v. Ellis, supra, 450 n.13. The court then observed that, even though Swift had ‘‘inveighed against this barbaric form of punishment’’; id.; because ‘‘thewaysofcommittingmanslaughter differed greatly in criminality and

. . . the punishment [should have been] varied and proportioned accordingly

. . . [h]e concluded that in this enlightened period, when reason and science [had] dispelled the gloom ofprejudice and superstition, it [was] to be hoped that the legislature [would] soon enact
more rational and consistent laws on this subject.’’ (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 451 n.13. The legislature’s authority to establishpunishments, withinproperlimits, hasbeen expressly acknowledged in Rizzo and in other cases. See, e.g., State v. Rizzo, supra, 303 Conn. 197–98; State

v. Williams, 157 Conn. 114, 121, 249 A.2d 245 (1968), cert. denied, 395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969); State v. McNally, 152 Conn. 598, 603, 211 A.2d 162, cert. denied, 382 U.S. 948, 86 S. Ct. 410, 15 L. Ed. 2d 356 (1965); see also State v. Kreminski, 178 Conn. 145, 153, 422 A.2d 294 (1979); State v. Kyles, 169 Conn. 438, 444, 363 A.2d 97 (1975); State v. Levy, 103 Conn. 138, 148, 130A. 96 (1925). Accordingly, this court must proceed with great caution when exercising its authorityto determine that apunishment is unconstitutional. Finally, the effect of the majority’s decision on the relevantconstitutionalprovisions andstatutesreferring to capital punishment in Connecticut is not their repeal

or elimination, but their unenforceability. As this court stated in State v. Travelers Ins. Co., 73 Conn. 255, 47 A. 299 (1900), aff’d, 185 U.S. 364, 22 S. Ct. 673, 46 L. Ed. 949 (1902), ‘‘[n]o courtcandirectlysetaside an [a]ct ofthe legislature; and the powerto indirectly invalidate legislation is one which inthe nature ofthings can exist in the judicial department only under a constitution in theAmerican sense, andis limitedbythe authorityfrom which it is derived; it is not apower ofveto or revision, butpurelythejudicialpowerofinterpretation.’’ Id., 259. Thus, both the legislature and this court are free to revisit the issue, as it has been asked to do in several pending cases in the context of a claim that capital punishment is per se unconstitutional.
For the foregoing reasons, I dissent.

1 Unless otherwise noted, allfuturereferences inthis opiniontothe constitutionality of capital punishment in Connecticut are to its constitutionality under the state constitution.

2 In Ross, the court stated that, in reviewing a death penalty statute, ‘‘the due process clauses of our state constitution incorporate the principles underlying a constitutionally permissible death penalty statute that the United States Supreme Court has articulated in [prior] cases

. . . . These principles require, as a constitutional minimum, that a deathpenalty statute,

on the one hand, must channel the discretion of the sentencing judge or jury so as to [ensure] that the death penalty is being imposed consistently andreliablyand, onthe otherhand, mustpermitthe sentencingjudge orjuryto consider, as a mitigating factor, any aspect of the individual defendant’s character or record as well as the circumstances ofthe particular offense.’’ (Citations omitted.) State v. Ross, supra, 230 Conn. 252.

3 Although I am not convinced that the Geislertest is the proper standard for assessing state constitutional claims in the first instance; see footnote 7 of this opinion; this court consistently has applied that framework in prior cases, and there is no reason to depart from that framework in the present case.
4 IagreewithChiefJustice Rogers’ discussionofwhetherthe deathpenalty

serves any legitimate penological goals and with parts IV through XIV of her dissenting opinion, inwhich she addressesthe analysis inthe concurring opinion of Justices Norcott and McDonald of whether the death penalty is arbitrary and discriminatory, as well as the defendant’s other claims. I also generally agree with Justice Espinosa’s dissenting opinion.
5 The majority claims that the defendant raised a general challenge to the constitutionalityofcapitalpunishmentbecause one ofthe statedgroundsfor reconsideration in his motion was that P.A. 12-5 ‘‘represents a fundamental change in the contemporary standard[s] of decency in Connecticut and a rejection of the penological justifications for the death penalty, rendering the death penalty now cruel and unusual punishment

. . . .’’ (Internal quotationmarks omitted.) Tothe extentthe defendantrelied onthe contemporary standards of decency in Connecticut as a basis for that argument, however, he did so in the context of his challenge to capital punishment under the eighth amendment to the federal constitution and not under the Connecticut constitution. The defendant devoted only four pages in his briefto a claim that, ‘‘even if an execution following passage of [P.A. 12-5] did not violate the eighth amendment, it would clearly violate

. . . the constitution of Connecticut.’’ Inthis argument, the defendantreliedprimarily on cases from otherjurisdictions in which the court considered whether the enactment of a statutory provision prohibiting the imposition of capital punishment on a certain category of offenders applied retroactively to similar offenders who were sentenced to death before the statute’s enactment. See Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989) (intellectually disabled offender); Saylor

v. State, 808 N.E.2d 646, 647–48 (Ind. 2004) (offender convicted and sentenced to death under procedure subsequently revised so that offender would no longer be eligible for capital punishment); Cooper v. State, 540 N.E.2d 1216, 1219–20 (Ind. 1989) (offender who committed crime when she

was under sixteen); State v. Bey, 112 N.J. 45, 101–102, 548 A.2d 846 (1988) (juvenile offender); Van Tran v. State, 66 S.W.3d 790, 792 (Tenn. 2001) (intellectuallydisabled offender). In asimilarvein, the defendant’s reference to the views of prior dissentingjustices of this court was not in support of

a claimthatthe deathpenaltyis generallyunconstitutionalbut was intended to show that ‘‘the concerns expressed in those opinions are increased exponentially here, where any death sentence would rest on [the] wholly arbitrary factor’’ of the date of the offense following the passage of P.A. 12-5. (Emphasis added.) The defendant’s discussion ofpolicy considerations also focusedontheunfairness ofretaining capitalpunishmentforasmallnumber of offenders while repealing the punishment for future offenders. During oral argument on the motion for reconsideration, the defendant continued to argue that P.A. 12-5 was unconstitutional when he contended that the provision to implement the prospective repeal by the date of the offense was arbitrary under the state constitution and a violation of eighth amendment principles. Indeed, Justice Palmer, in particular, queried the defendant’s appellate counsel repeatedly as to why the distinction in P.A. 12-5 between two classes ofpeople, namely, future offenders who otherwise might be subject to capital punishment and current death row inmates, did not require an equal protection analysis. He also asked numerous questions regarding the severability of the retention provision from the remainder of the act if this court should deem the retention provision unconstitutional. Accordingly, a fair reading of the defendant’s brief and oral argument does not support the majority’s conclusion that the defendant raised a general challenge to the constitutionality of capital punishment, which, in the past, has always been treated as a per se challenge.

6 This contrasts with Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), in which Justice Brennan suggested in his concurring opinion that there are four principles by which the United States Supreme Court should determine whether a particular punishment is cruel and unusual under the federal constitution. See id., 271–80 (Brennan, J., concurring). These are whether the punishment is ‘‘so severe as to be degrading to the dignity of human beings’’; id., 271; is inflicted in an arbitrary fashion; id., 274; is ‘‘unacceptable to contemporary society’’; id., 277; and is clearly unnecessary because it is excessive. Id., 279.

7 Although I have expressed reservations in recent years regarding the propriety of applying Geisler in its current form to state constitutionalclaims; see, e.g., Doev. HartfordRoman CatholicDiocesan Corp., 317 Conn. 357, 442, A.3d (2015) (Zarella, J., concurring); State v. Rizzo, supra, 303 Conn. 202 (Zarella, J., concurring); Connecticut Coalitionfor Justice in Education Funding, Inc

. v. Rell, 295 Conn. 240, 400–401 n.2, 990 A.2d 206 (2010) (Zarella, J., dissenting); I review the defendant’s constitutional claim in the present case under Geisler because it was the legal framework this court adopted in Ross and applied in Rizzo

. 8 Article first, § 1, of the Connecticut constitution provides in relevant part: ‘‘All men when they form a social compact, are equal in rights

. . . .’’

9 The majority relies on People v. Anderson, 6 Cal. 3d 628, 637–39, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (1972), in which the Supreme Court ofCalifornia determinedthat thedeathpenaltywasperseunconstitutionalunderthestateconstitution, for the proposition that ‘‘incidental references to [the] death penalty in [a] state constitution merely acknowledge that [the] penalty was in use at [the] time of drafting and do not enshrine its constitutional status as standards of decency evolve

. . . .’’ The court inAnderson, however, adopted a far more nuanced position than the majority portrays. Although the court stated that references in the California constitution to capital punishment ‘‘do no more than recognize [the] existence [of capital punishment] at the time of their adoption’’; People v. Anderson, supra, 638; the court also explained that the references to capital punishment were contained in the original state constitution in 1849, carried over into the constitution of 1879, and merely shifted into a different section of the constitution in 1966. Id., 638–39. The court then added: ‘‘Nothing in the legislative counsel’s analysis, in the arguments for and against the revisions, or in the Secretary of State’s official description of the ballot measure suggested to the voter that approval of [p]roposition 1-a [amending and revising various provisions of the state constitution] in the election ofNovember 8, 1966, would affirm the continuance of capital punishment.’’ Id., 639. The court thereby indicated that, if the ballot measure had included such a suggestion, it would not have regarded the constitutional references to capital punishment as merely incidental. In contrast, Connecticut’s constitutional history contains recent evidence of public support for capital punishment. As discussed in part II B of this opinion, delegates to the 1965 constitutional convention expressly rejected a constitutional amendment to abolish capital punishment, thus indicatingcontinuedapproval ofcapitalpunishmentalmost 150yearsfollowing the adoption of the 1818 constitution. Anderson thus fails to support the majority’s contention that the text of the Connecticut constitution is irrelevant because it does not reflect contemporary values. See Glossip v. Gross, U.S. , 135 S. Ct. 2726, 2747, 192 L. Ed. 2d 761 (2015) (Scalia, J., concurring) (‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates’’ [emphasis in original]).

10 In the colony of Connecticut, capital punishment applied to twelve crimes in 1642 and seventeen crimes in 1650. L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 10–11. In the colonyofNewHaven, capitalpunishmentappliedtotwenty-three crimes in 1656. Id., p. 12. After the two colonies merged in 1665, the punishment applied to eighteen crimes. Id., p. 13.

11 In Connecticut, capital punishment applied to nineteen crimes in 1702 and to twelve crimes in 1750. L. Goodheart, supra, pp. 45, 49.

12 Capital punishment applied to eleven crimes in 1784 and to six crimes in 1821. L. Goodheart, supra, pp. 75, 79.

13 Each treatise consisted of two volumes published in successive years. Swift’s first treatise was published in 1795 (volume I) and 1796 (volume II). His second treatise was published in 1822 (volume I) and 1823 (volume II).

14 Intheprefacetothe updatedtreatise, Swiftnotedthathis earliertreatise

was ‘‘imperfect’’ because it had been written at the beginning ofhis career, and he had wanted to revise it since the time of its publication. 1 Z. Swift, A Digest of the Laws of the State of Connecticut (1822) p. 4. He explained that he thus had devoted his retirement years to ‘‘revis[ing] and enlarg[ing] the work of [his] early age, with the hope to render it more useful, by the knowledge acquired by long experience.’’ Id. He added: ‘‘So great have been the changes and improvements in ourjurisprudence since the former work

was written, that I have retained little more than the plan, and this may be considered as a new work.’’ Id.

15 The majority’s rejection ofthe views expressed in Swift’s updated treatise as being ‘‘oflittle moment’’ is another example ofthe majority’s refusal to acknowledge the historical facts when they are inconsistent with its reasoning. Footnote 29 of the majority opinion. Swift’s declaration in thepreface of his updated treatise that he sought to revise his earlier work in accordance withhis ‘‘long experience’’ dispels anynotionthat Swift changed his views in the three or four years following the constitutional convention, especially when one considers that he also served during those years as the chairman of the committee to revise the General Statutes; see State v. Ellis, 197 Conn. 436, 451 n.13, 497 A.2d 974 (1985); to ensure conformance with the new constitution. See General Statutes (1821 Rev.) preface, p. viii. The majority also ignores this court’s repeated recognition that ‘‘Swift’s writings areparticularlysignificantto ourstate constitutionaljurisprudence. Hewasinstrumentalinencouragingthepublic andthelegislatureto convene the constitutional convention of 1818. Although he pursued awritten constitution in orderto achieve separation ofpowers, his participation as a leader is significant.

. . . [S]ince

. . . Swift was the chief [justice] and the state’s leadingjudicial scholar at the time of the convention, his views on the law take on great significance in determining what the framers had in mind when adopting the language ofthe constitution.’’ (Citation omitted; internal quotation marks omitted.) State v. Ross, supra, 230 Conn. 291 ( Berdon, J., dissenting in part); accord State v. Joyner, supra, 225 Conn. 490 ( Berdon, J., dissenting). Finally, Justice Palmer himself has quoted extensively from Swift’s treatises and has characterized Swift as an important legal authority ofhis day. See, e.g., State v. Courchesne, 296 Conn. 622, 676–77, 684–85 n.41, 998 A.2d 1 (2010) (relying on Swift’s writings, describing Swift as authoritative commentator and stating that ‘‘ ‘Swift led the development of an American [as distinct from an English] common law’ ’’ and that ‘‘this court repeatedly and consistently has relied on Swift for the purpose of ascertaining this state’s common law in a wide variety of contexts’’). Accordingly, for all of these reasons, the majority’s dismissal of Swift’s updated treatise as ‘‘of little moment’’ is incomprehensible. Footnote 29 of the majority opinion.

16 Insofar as the majority suggests that this is not true because ‘‘[t]he deciding vote in favor of a retrial [in the case] was cast by a member of the governing council who ‘was not willing that a man should be [hanged

as a result of] his vote’ ’’; text accompanying footnote 30 of the majority opinion, quoting J. Zeldes, ‘‘Connecticut’s Most Memorable ‘Good for Nothing Rascal’ in This ‘Land of Steady Habits,’ ’’ 80 Conn. B.J. 367, 394 (2006); the majority simplymisunderstandsthe circumstances. The councilmember who cast the deciding vote to retry the case did not do so because he believed the verdict in the prior trial had been wrong or because he was against the imposition of capital punishment. Rather, he wanted to give Lung another opportunityto present his case unclouded bythe prior alleged procedural irregularities stemming from the severity of the punishment.

17 Swift was chosen by the legislature in 1820 to chair the committee directed to perform this task. State v. Ellis, supra, 197 Conn. 451 n.13.

18 The court nonetheless recognized that its conclusion that the death penalty is not cruel and unusual punishment did not mean that the penalty may be imposed without any constitutional constraints. See State v. Ross, supra, 230 Conn. 251–52; see also footnote 2 of this opinion.

19 Prosecutors, in particular, and sentencing juries in capital cases, are not randomly selected representatives of the people of Connecticut.

20 Although the California Supreme Court also declared its state’s death penaltystatuteunconstitutionalunderthe Californiaconstitution; seePeople

v. Anderson, 6 Cal. 3d 628, 651, 656–57, 493 P.2d 880, 100 Cal. Rptr. 152, cert. denied, 406U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d344 (1972), the California constitution subsequently was amended to reinstate capital punishment. See People v. Frierson, 25 Cal. 3d 142, 173, 599 P.2d 587, 158 Cal. Rptr. 281 (1979).