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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 of decency [in this state] and no longer serves

any legitimate penological purpose.’’ The majority thus

treats the claim of the 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 whether the 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

whether the state constitution provides broader protections under our capital sentencing scheme than the

federal constitution. See, e.g., State v. 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 question is not whether P.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, a test this court has never previously applied before

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 whether the death

penalty is per se unconstitutional, and a legal standard
derived 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 of on capital punishment. It also disregards the

sixth Geisler factor and does not consider the relative

importance of each Geisler factor. This is apparently

because the majority wishes to avoid weighing repeated

references to capital punishment in the text of our state

constitution, the historical roots of capital 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 announcing judgment),

and the standard was applied in that case only after

the court examined the text of the 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

unusual punishment.It then adopts a new legal standard

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

Geisler is 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 defendant in the present case has not done, or when

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, but from the parties’ oral arguments,

in which the defendant’s appellate counsel repeatedly

described his claim as a statutory claim, and various

members of the panel, including Justice Palmer, asked

numerous questions regarding the issue of severability

if this court should deem the retention provision of P.A.

12-5 unconstitutional.5 Thus, the majority’s decision to

review the defendant’s challenge to P.A. 12-5 by

applying the type of analysis usually reserved for a claim

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 of the 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 precedent in capital cases. See State v. 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

to perform the actual substantive legal analysis’’ in Ross

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 of the majority opinion. The problem is not simply that the majority rejects

well established Connecticut precedent but that the

majority’s misapplication of Geisler fails 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

intended to describe punishment deemed morally unacceptable 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 under the state constitution. Consequently, the court in Ross was required

to develop a principled approach to resolving this question, an approach it rightly expected would be followed

in subsequent cases. In so doing,the court first observed

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 of our constitutional forbearers, and (6) contemporary understandings of applicable economic and

sociological norms6

in order to obtain a proper understanding of whether the people of Connecticut deemed

capital punishment morally acceptable. State v. Ross,

supra, 230 Conn. 249.

Instead of conducting a substantive analysis of

whether capital punishment offends our state 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 constitutional history, the majority makes few, if any,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 constitutional freedom from cruel and unusual

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.

B
The Majority’s Application of Federal Law

When the majority finally considers whether capital

punishment is constitutional, it substitutes federal

eighth amendment jurisprudence in place of the framework adopted in Ross. The majority’s rationale for creating an independent test derived from federal law,

however, makes no legal sense, and its attempt to find

support for doing so in Ross and Rizzo necessarily fails.

The majority relies on State v. Linares, 232 Conn.

345, 379–87, 655 A.2d 737 (1995), to justify 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 proceeded to resolve the appellant’s particular constitutional challenge according to the legal test

and framework relevant and suited to that area of the

law, rather than performing the substantive legal analysis under . . . the six Geisler factors.’’ Footnote 14 of

the majority opinion. The majority explains that the

court in Linares first conducted a Geisler analysis to

determine whetherthe state constitution affords 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 constitutionality of a criminal sanction, like the constitutionality of a limitation on the free expression at issue in

Linares, is governed by its own distinct legal rules and

standards.’’ Id.

No meaningful comparison between Linares and the

present case is possible, however. Among other things,

the defendant in Linares challenged the constitutionality of a statute, whereas the defendant in the present

case, according to the majority, raised a general challenge to the constitutionality of capital 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 greater rights than the 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 and
Rizzo to evaluate challenges to allegedly cruel and

unusual punishment. Nothing could be further from 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 in Ross. State v. 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 cognizant that our 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.) 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 Geisler factor, subject to the qualifications articulated in Ross and to the ultimate weighing and balancing

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

concluding that the majority’s sole intention is to ignore

all information, regardless of its historical or contemporary relevance, inconsistent with its predetermined conclusion 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 of the 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 majority well 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 every part of and 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 of the state’’ [internal quotation marks

omitted]). Consequently, a textual analysis under

Geisler necessarily requires that the court acknowledge

all references in the Connecticut constitution to capital

punishment and capital offenses, as this court has done

each time it has conducted a textual analysis in the past.

In the present case, even a cursory examination of the

text reveals that the Connecticut constitution contains

repeated references to capital punishment and capital

offenses. Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the 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 of life, liberty or property without due process

of law,’’ and ‘‘[n]o person shall be held to answer for

any crime, punishable by death or life imprisonment,

unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .’’

(Emphasis added.) Finally, article first, § 19, of the Connecticut constitution, as amended by article four of the

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 conclusion
when it conducted a Geisler analysis of the Connecticut

constitution in Ross and Rizzo. See State v. Ross, supra,

230 Conn. 249–50 (‘‘our state constitution makes

repeated textual references to capital offenses and thus

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

Moore v. Ganim, 233 Conn. 557, 598, 660 A.2d 742 (1995)

(‘‘The social compact theory posits that all individuals

are born with certain natural rights and that people, in

freely consenting to be governed, enter a social compact

with their government by virtue of which they relinquish

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 of the Laws of the State of Connecticut

[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 and privileges which they have derived from their

ancestors . . . .’’9 Conn. Const., preamble.

B

Historical Insights

With respect to the relevant constitutional history,

Geisler explains that the ‘‘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; and observed that ‘‘Connecticut’s history has included a death penalty statute since

1650, when it was incorporated into Ludlow’s Code

. . . and such a penalty was considered constitutional

at the time of the adoption of the constitution of 1818.’’

(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 of our state’s ‘‘unique and expansive

constitutional and preconstitutional history’’ relating to

the freedom from cruel and unusual punishment. This

is the same approach the majority employs in its analysis of the relevant constitutional provisions by dismissing language in the state constitution referring to capital

punishment and capital offenses.

If the majority had conducted the historical analysis

required under Geisler and conducted in Ross, 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

severe penalty in a proportional system of punishments.

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 1636 and 1699, when the rationale forthe death

penalty was embedded in the religious foundation of

New England and punishment was regarded as divinely

mandated, capital punishment applied at different times

to as few as twelve and as many as twenty-three

crimes,10 and thirty-one persons were executed. L.

Goodheart, The Solemn Sentence of Death: Capital Punishment 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. Even when the

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 chief justice of the Connecticut Supreme Court of

Errors from 1815 to 1819, the state’s ‘‘leading jurist [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 eighteenth and early nineteenth centuries. 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 the
law ‘‘take on great significance in determining what the

framers had in mind when adopting the language of the

constitution.’’ State v. Joyner, 225 Conn. 450, 490, 625

A.2d 791 (1993)(Berdon, J., dissenting). These ideas are

principally understood through his two legal treatises,

published in 1796 and 1823,13 respectively, ‘‘setting forth

the common law of Connecticut based on the actual

practices of local judges.’’ 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 if properly imposed within a proportional system of punishments, explaining that ‘‘[i]t

is a fundamental principle, that the sole end of punishment is the prevention of crimes, and that every punishment ought to be proportioned to the [offense].’’ 2 Z.

Swift, A System of the Laws of the State of Connecticut

(1796) p. 293. He thus approved of the legislature’s

attempt to create the type of proportional system he

advocated by establishing three grades of punishment,

these being death, confinement to hard labor and coarse

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, immediately following the constitutional convention, he maintained his belief that punishments should

be proportional to the offense and continued to 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 of the power of repeating 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 of the constitutional convention, it indulges in revisionist think-
ing.

Approval of capital punishment by our constitutional

forbearers is also reflected in their handling of an event

that led directly to the calling of the 1818 constitutional

convention, namely, legislative interference with a criminal 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 a petition 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 Connecticut judges, 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 of the Legislature to Interfere with the Judiciary in the Administration of Justice’’

(1816) p. 42 (A Vindication of the Calling of the Special

Superior Court).

What is striking about this case, in addition to the

fact that it led in part to the 1818 constitutional convention and the adoption of a new state constitution formalizing 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.

Connecticut judges 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

To the extent the majority disagrees and cites a newspaper article published after Lung’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 is
convicted, especially in capital cases—when the awful

sentence of death is pronounced, then a sentiment of

compassion begins to operate in [favor] of the unfortunate convict: the sense of justice is drowned in the

feelings of compassion; and false 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

of Lung. As soon as he was removed from the theatre of

his crimes, and the place oftrial,the convicted murderer

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 sought to ban capital punishment or objected

to the inclusion of language in the constitution referring

to capital punishment. See id. The convention appointed

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

process oflaw was based on language in the 1817 Mississippi 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 article first referring to punishment by death that was

proposed on the convention floor also was accepted

without significant comment or debate. See id.

Directly following the constitutional convention, public support for capital punishment continued unabated

when the legislature endorsed the proportional system

of punishment advocated by Swift, including the continued use of the death penalty, in revisions to the General

Statutes for the purpose of ensuring their conformance

with the new constitution.17 See State v. Ellis, 197 Conn.

436, 450–51 n.13, 497 A.2d 974 (1985). A note in the

crimes and punishments section of the 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, arson resulting 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, Connecticut revisited its commitment to capital punishment when an amendment

proposing abolition of the death penalty was submitted

but soundly defeated at the 1965 constitutional convention, which adopted the state’s present constitution. The

record of the 1965 proceedings reveals that a Greenwich

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,ConstitutionalConvention of 1965 (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 explicit rejection of a direct attempt to abolish

capital punishment in 1965 demonstrates, first, that the

death penalty, which had been operative in this state

since colonial times, 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, of the 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

diminishing support forthe death penalty before, during

or directly after the constitutional conventions of 1818

and 1965 is a gross mischaracterization of the historical

record. An examination of Connecticut’s history reveals

that, although the number of crimes to which capital

punishment was applied diminished over the years, the
punishment 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

deemed morally unacceptable by our constitutional forbearers.

C

Related Connecticut Precedents

A Geisler analysis also includes an examination of

the ‘‘holdings and dicta of this 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

challenges to capital punishment under the state constitution. Rather, the majority engages in a brief discussion

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 of this attempt to avoid revealing Connecticut’s

well established precedent upholding capital punishment is the majority’s misrepresentation of the 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.

When the court considered a constitutional challenge

to capital punishment in Ross, itrelied on State v. 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 concluding that ‘‘Connecticut case law

has recognized the facial constitutionality of the 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); State v. 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 of the state constitution. In Webb, the court

determined that the social compact clause does not
preclude 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 of the death penalty statutes [in Connecticut].’’

Id., 411 n.21. Accordingly, relevant Connecticut precedent overwhelmingly supports the conclusion that 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 constitutional precedents that appropriately illuminate open textured provisions in our own organic

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

State v. Geisler, supra, 222 Conn. 685. Although none

of the 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

constitutional law is consistent with the repeated recognition of capital punishment in our own constitution.

State v. Ross, supra, 230 Conn. 250. Nonetheless, the

majority disregards federal precedent holding that capital punishment is constitutional and directs its attention

to the ‘‘minimum standards for what constitutes impermissibly cruel and unusual punishment’’ under the federal constitution. Text accompanying footnote 15 of the

majority opinion.

The majority claims that the United States Supreme

Court has identified as unconstitutionally cruel those

punishments that are (1) inherently barbaric, (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 of capital punishment. The only references in Ross

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 of the court to use that term. Id., 298 (Berdon,
J., dissenting in part). Furthermore, as repeatedly noted

in this opinion, the court in Ross adopted the framework

established in Geisler to evaluate challenges to allegedly cruel and unusual punishments. Accordingly,

because the United States Supreme Court has not modified 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. In Ross, the

court followed this directive by observing that ‘‘[c]ourts

in the overwhelming majority of our sister states have

rejected facial challenges to the death penalty under

their state constitutions.’’ State v. 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

facially unconstitutional, California and Massachusetts,

subsequent constitutional amendments promptly abrogated those decisions. Id., 250 n.30. Although the majority does not address this question as part of its Geisler

analysis but, rather, as part of its subsequent discussion

of evolving standards of decency, I note for the record

the majority’s concession that ‘‘capital punishment

remains legal in a majority of jurisdictions within the

United States . . . .’’ An analysis of persuasive state

precedents thus supports the continued validity of capital 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, 547 A.2d 10 (1988), in which the

court observed that ‘‘[c]onstitutional provisions must be

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 in Ross determined that this

factor requires an examination of ‘‘whether contemporary understandings of applicable economic and sociological norms compel the conclusion that any death

penalty constitutes cruel and unusual punishment.’’

State v. Ross, supra, 230 Conn. 251. The court explained:

‘‘The question is not whether any one of us would vote
to enact a death penalty if our role were that of a

legislator. It is, rather, whether the defendant is correct

in his contention that the death penalty is so inherently

cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is

fundamentally offensive to evolving standards of human

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

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.’’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 in Ross and followed in Rizzo. This is not

the case.

The majority initially contends that, when the court

in Ross and Rizzo considered whetherthe death penalty

was cruel and unusual punishment under the state constitution, it did not address the issue as a single constitutional claim but as ‘‘two distinct constitutional

[claims],’’ the first being a per se claim that capital

punishment violates 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 of decency

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 ‘‘a more sweeping review’’ of a 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 current practice of prosecutors and sentencing juries, (4) the laws and practices

of other jurisdictions, and (5) the opinions and recommendations of professional associations. See text

accompanying footnote 43 of the majority opinion. For

the following reasons, I strongly disagree with the
majority’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 of avoiding the analysis required under

the sixth Geisler factor.

First, in Ross and Rizzo, the court considered and

decided only one claim challenging the 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 on the ground that it failed to comport with

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 of contemporary

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 in Rizzo than it did in Ross under the sixth

Geisler factor, 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 by Ross. 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 of the remaining discussion in Rizzo, 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 in
response 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 majority concedes that the ‘‘five objective

indicia of society’s evolving standards of decency’’ are

largely derived from eighth amendment jurisprudence

rather than Connecticut law. In addition to the fact that

this is contrary to the majority’s claim that it is deciding

this case after ‘‘careful consideration of the defendant’s

claims in light of the governing constitutional principles

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 penalty in question was 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); Thompson v. Oklahoma, 487 U.S. 815,

822–23, 830, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988)

(legislative enactments, jury determinations, views of

respected professional organizations and views of other

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 of the punishment in question and the laws and

practices of other jurisdictions. The other three indicia,

legislative enactments,the current practices of prosecutors and sentencing juries, and the opinions and recommendations of professional associations were not

recognized in Ross. Correspondingly, the majority does

not recognize the first and most important indicium

recognized in Ross, the constitutional text, as one of

the five indicia in its analysis. This discrepancy between

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

evaluation of evolving standards of human decency cannot 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

of our sister states as well as that of the 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 of prosecutors and sentencing juries, and the

opinions and recommendations of professional associations, are not particularly relevant because they are

not representative of the community as a whole.19 In
contrast, because the state constitution is a social compact that incorporates the principles by which 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

times between 1818 and 1965, and thirty-one times since

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 of more recent origin, likewise

provides a broad view of social 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 a vacuum 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

our own.Itherefore do nottake issue with the majority’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 of the defendant’s claims in light of the 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 in Ross did not contemplate judicial reliance on state legislation as a basis

for determining evolving standards of decency in the

context of a state constitutional claim. Rather, the court

deliberately steered clear of this potential quagmire and

made no reference to legislative enactments as one of

the indicia of community standards in Connecticut,

most likely because of the legal predicament that would

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 is
appropriate in a state constitutional analysis because

the court in Rizzo quoted language by the 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, quoting Atkins v. 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, if P.A. 12-5 authorized drawing and quartering 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 did notrely on legislative enactments to 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

of the punishment itself. If, on the other hand, the legislature establishes capital punishment as the most severe

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

amendment to that effect. Capital punishment also may

be eliminated by legislative repeal of the 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

amendment banning capital punishment. In the absence

of a constitutional amendment, neither an act of the
legislature nor a judicial edict can nullify explicit constitutional 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

applying the standard on which the court in Ross relied,

I believe contemporary understandings of applicable

economic and sociological norms do not compel the

conclusion that capital punishment is morally unacceptable in Connecticut. As previously discussed, the state

constitutional text contains numerous references to

capital punishment. See part II A of this opinion. Thus,

I agree with Justice Scalia that ‘‘[i]t is impossible to hold

unconstitutional that which the [c]onstitution explicitly

contemplates.’’(Emphasis in original.) Glossip v. 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 of the original framers. At this time, state

and federal jurisprudence also supports the conclusion

that capital punishment is morally acceptable under the

state constitution. See part II D and E of this opinion. As

for Connecticut’s history, I disagree with the majority’s

claim that ‘‘new insights into the history of capital punishment in Connecticut, in tandem with the legislature’s

2012 decision to abolish the death penalty prospectively

. . . [provide] a clear picture of the long, steady devolution of capital punishment in our state . . . .’’

The majority claims that various developments during the past 400 years ‘‘have resulted in capital punishment being available for far fewer crimes and criminals,

and being imposed far less frequently, with a concomitant deterioration in public acceptance.’’ 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

in contemporary society, where persons accused of capital 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 recently
published book, Lawrence B. Goodheart, who repeatedly demonstrates his bias in favor of abolishing 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 death penalty in Connecticutis contradictory in principle and unworkable in practice’’); L. Goodheart, ‘‘Changing Use of Death Penalty

Argues For Abolition,’’ Hartford Courant, April 23, 2011,

p. A7 (‘‘[m]y research has convinced me that it’s time

to abolish a law that is unenforceable, unfair and unethical,’’ and ‘‘I’ve come to the belief that we can no longer

enforce this law, it was never effective and it was

unfairly applied’’); see also M. Kirk, ‘‘The History of the

Death Penalty in 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 Goodheart concedes that public

support for capital punishment has remained strong in

Connecticut during the past four centuries. For example, he observes that, in the more recent past, ‘‘[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 that the arbitrary and inconsistent imposition of the death penalty violated the [e]ighth and [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 of thirty-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 of public opinion provide an answer. A Quinnipiac University poll in January [of] 2005 indicated
that 59 percent of Connecticut residents favored the

death penalty,’’ which was ‘‘comparable to 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

and federal) sustain the death penalty, atleastfor particularly cruel and heinous murders.’’ Id., p. 2. He further

acknowledges that, ‘‘[a]fter nearly four centuries of capital punishment, Connecticut is exceptional in its region

in still carrying out the [capital punishment] statute. It

appears that a substantial majority of the 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

it applie[s] to horrific murders.’’ Id., p. 250. For example,

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

of those who had previously indicated they opposed the

death penalty wanted Ross executed.’’ Id. Goodheart

ultimately concludes, without qualification, that,

despite a vocal minority, ‘‘[p]ublic opinion supports the

death penalty for [the worst] killers . . . .’’ Id., p. 252.

Goodheart’s statistics are consistent with statistics

cited by Chief Justice 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 Chief Justice 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 significant public support. There always has been

public debate as to the type and number of crimes to

which capital punishment should apply, and the 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 of similar 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 outrage against what the majority describes as the barbaric,

excessive, arbitrary and discriminatory penalty of

death. In reaching this conclusion, however, the majority rejects alternative explanations as to why the legislature may have passed P.A. 12-5, including that the death

penalty is too expensive, that it takes too long to be

carried out, orthat it is merely an exercise of the 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, then why would it have enacted a retention

provision specifically allowing executions to go forward

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, but is disrespectful to a coequal branch of government.

In sum, there is no support for the majority’s determination that capital punishment no longer comports with

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

of P.A. 12-5. Accordingly, all six Geisler factors support

the conclusion that capital punishment remains morally

acceptable to the people of Connecticut in appropriate

circumstances and is not cruel and unusual punishment

under the state constitution following the passage of

P.A. 12-5.

III

SEPARATION OF POWERS

My final concern is that the majority usurps the legislature’s power to define crimes and establish punishments. In Rizzo, this court recognized that ‘‘assessing

the propriety of the death penalty is not exclusively the

domain of the legislature, and that this court has an
independent duty to determine that the penalty remains

constitutionally viable as the sensibilities of our citizens

evolve. 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

criminal penalty schemes); Gregg v. Georgia, supra, 428

U.S. 175 [opinion announcing judgment] ([i]n a democratic society legislatures, not courts, are constituted

to respond to the will and consequently the moral values

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 of an expert or two or by judicial 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,

including the author of the 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 and
method of punishment and to the judiciary the power

to try offenses under these laws and [to] impose punishment 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-half years ago,

this court reached the opposite conclusion. As a justice

of the highest court in a neighboring jurisdiction stated

in similar circumstances, foreshadowing the views

expressed in Rizzo: ‘‘If this court is to determine the

constitutionality of the death penalty in light of contemporary moral standards, I believe it must, at a minimum,

award great deference to the legislative judgment

implicit in the passage of the 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 of contemporary standards for the view implicitly

expressed by the [l]egislature, the court infringes on the

[l]egislature’s prerogative to define crimes and establish

the terms of punishment.’’ (Citations omitted; internal

quotation marks omitted.) District Attorney v. Watson,

supra, 693–94 (Quirico, J., dissenting). Significantly, the

opinion of the dissenting justice in Massachusetts was

vindicated when the citizens of Massachusetts promptly

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

expressly provide that the death penalty was not forbidden. See State v. Ross, supra, 230 Conn. 250 n.30. Moreover, to my knowledge, no other state court decision

determining that capital punishment is 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 letter M, on a hot iron, and shall also be
forever 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 ‘‘the ways of committing manslaughter 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 of prejudice 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 establish punishments, within properlimits, has been

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, 130 A. 96 (1925). Accordingly, this court

must proceed with great caution when exercising its

authority to determine that a punishment is unconstitutional.

Finally, the effect of the majority’s decision on the

relevant constitutional provisions and statutes referring

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 court can directly set aside an [a]ct

of the legislature; and the power to indirectly invalidate

legislation is one which in the nature of things can exist

in the judicial department only under a constitution in

the American sense, and is limited by the authority from

which it is derived; it is not a power of veto or revision,

but purely the judicial power of interpretation.’’ 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, all future references in this opinion to the 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 death penalty statute,

on the one hand, must channel the discretion of the sentencing judge or

jury so as to [ensure] that the death penalty is being imposed consistently

and reliably and, on the other hand, must permit the sentencing judge or jury
to consider, as a mitigating factor, any aspect of the individual defendant’s

character or record as well as the circumstances of the particular offense.’’

(Citations omitted.) State v. Ross, supra, 230 Conn. 252.

3 Although I am not convinced that the Geisler test 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

I agree with Chief Justice Rogers’ discussion of whetherthe death penalty

serves any legitimate penological goals and with parts IV through XIV of

her dissenting opinion, in which she addresses the analysis in the 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

constitutionality of capital punishment because one of the stated grounds for

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 quotation marks omitted.) To the extent the defendant relied on the 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 brief to 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.’’

In this argument, the defendant relied primarily on cases from other jurisdictions 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)

(intellectually disabled offender). In a similar vein, the defendant’s reference

to the views of prior dissenting justices of this court was not in support of

a claim that the death penalty is generally unconstitutional but 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 of policy considerations also

focused on the unfairness ofretaining capital punishment for a small number

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 of people, 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 constitutional
claims; see, e.g., Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn.

357, 442, A.3d (2015) (Zarella, J., concurring); State v. Rizzo, supra,

303 Conn. 202 (Zarella, J., concurring); Connecticut Coalition for 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 of California determined that

the death penalty was per se unconstitutional underthe state constitution,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 in Anderson, 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 of November 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

indicating continued approval of capital punishment almost 150 years following 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 colony of New Haven, capital punishment applied to twenty-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 In the preface to the updated treatise, Swift noted that his earlier treatise

was ‘‘imperfect’’ because it had been written at the beginning of his 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 our jurisprudence 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 of the views expressed in Swift’s updated treatise as being ‘‘of little moment’’ is another example of the 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 the
preface of his updated treatise that he sought to revise his earlier work in

accordance with his ‘‘long experience’’ dispels any notion that 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 are particularly significant to our state constitutional jurisprudence.

He was instrumental in encouraging the public and the legislature to convene

the constitutional convention of 1818. Although he pursued a written constitution in order to achieve separation of powers, his participation as a leader

is significant. . . . [S]ince . . . Swift was the chief [justice] and the state’s

leading judicial 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 of the 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 of his 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 simply misunderstands the circumstances. The council member

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 opportunity to present his case unclouded by the 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

penalty statute unconstitutional underthe California constitution; see People

v. Anderson, 6 Cal. 3d 628, 651, 656–57, 493 P.2d 880, 100 Cal. Rptr. 152,

cert. denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344 (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).