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STATE v. SANTIAGO—FIRST CONCURRENCE

NORCOTT and McDONALD, Js., concurring.

Although we fully agree with and join the majority opinion, we write separately to express our profound concerns regarding an issue of substantial public

importance that will never be resolved by this court in

light of the majority’s determination that the imposition

of the death penalty is an unconstitutionally excessive

and disproportionate punishment. Specifically, we cannot end our state’s nearly 400 year struggle with the

macabre muck of capital punishment litigation without

speaking to the persistent allegations of racial and ethnic discrimination that have permeated the breadth of

this state’s experience with capital charging and sentencing decisions. We recognize that this particular

challenge to our state’s capital punishment regime has

not been raised or briefed in the present case and,

therefore, cannot serve as the basis for the majority’s

holding today. Nor do we purport to resolve conclusively these allegations.1 Because they have been a powerful undercurrent running through virtually all of our

death penalty jurisprudence, however, we feel compelled to analyze them.

I

ALLEGED RACIAL DISPARITIES IN CAPITAL

CHARGING AND SENTENCING

The possibility that the death penalty is sought or

imposed in a racially discriminatory manner emerged

as a matter of scholarly interest beginning in the 1930s,

and the first related legal challenges were brought during the civilrights movement of the 1960s. See D. Baldus

et al., ‘‘Racial Discrimination and the Death Penalty in

the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia,’’ 83 Cornell L. Rev. 1638, 1643 (1998). In Connecticut, the issue

came to the attention of this court twenty years ago in

State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995). As

the majority today explains, both supporters and opponents of the death penalty have recognized that: (1)

there is an inherent tension in the United States

Supreme Court’s death penalty jurisprudence; and (2)

that court’s determination that the eighth amendment

precludes the states from restricting the discretion of

capital juries necessarily means that juries can—and

will—choose whether to impose the ultimate sentence

or exercise their mercy in seemingly arbitrary ways. In

Cobb, the defendant, Sedrick Cobb, sought to present

for this court’s review data purporting to demonstrate

that a capital punishment system that leaves so much

to the unlimited discretion of jurors and prosecutors

inevitably results in charging and sentencing decisions

that are not merely arbitrary and capricious, but also

impermissibly discriminatory. Id., 737–40.
A divided three to three panel of this court concluded

that Cobb’s claims should be decided in the context of

a habeas corpus proceeding; id., 762–63; although the

dissenting justices concluded that, by statute, Cobb’s

claim that systemic racial disparities rendered his death

sentence disproportionate fell within this court’s original jurisdiction and could have been resolved by this

court in the first instance with the assistance of a special

master. Id., 777–78 (Berdon, J., with whom Norcott and

Katz, Js., join). With respect to the inevitable delays

that would result from submitting the question to a

habeas trial, the dissenting justices argued that, ‘‘if our

capital sentencing system is infected with racism, we

must expose that ugly truth as soon as possible. The

public and other branches of state government, as well

as other defendants who face the death penalty, must

know the answer now.’’ Id., 776. ‘‘When a capital defendant marshals a compelling argument that the death

penalty as it is administered in our state is incurably

racist,’’ Justice Berdon later cautioned, ‘‘we should stop

dead in our tracks until we have given the argument

our most serious attention.’’ (Internal quotation marks

omitted.) State v. Cobb, 251 Conn. 285, 537, 743 A.2d 1

(1999) (Berdon, J., dissenting), cert. denied, 531 U.S.

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

History has confirmed that the concerns expressed

by the dissenting justices in State v. Cobb, supra, 234

Conn. 776, were well founded. Eight years later, when

Richard Reynolds presented similar evidence of systemic racial disparities in the imposition of the death

penalty as a challenge to the constitutionality of his

sentence, the parties to Cobb’s habeas case still had

not finished analyzing the data. See State v. Reynolds,

264 Conn. 1, 232–33, 836 A.2d 224 (2003), cert. denied,

541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).

At that time, this court consolidated Reynolds’ racial

disparity claims, along with those of other death row

inmates, with Cobb’s habeas action. See id., 233. Ten

more years passed, during which the state spent millions of dollars on legal fees and expert statistical

reports; see J. Lender, ‘‘A Big Bill in Death Row Case,’’

Hartford Courant, September 14, 2014, p. B1; before

the habeas court finally issued its decision in 2013. See

In re Death Penalty Disparity Claims, Superior Court,

judicial district of Tolland, Docket No. TSR-CV-05-

4000632-S (October 11, 2013) (unpublished opinion).

During that time, a number of members of this court

voiced their concern that our state’s capital punishment

system appeared to be incurably tainted by racial and

ethnic bias. See, e.g., State v. Santiago, 305 Conn. 101,

324–25, 49 A.3d 566 (2012) (Harper, J., concurring and

dissenting); State v. Peeler, 271 Conn. 338, 466, 857 A.2d

808 (2004) (Katz, J., dissenting), cert. denied, 546 U.S.

845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v.

Breton, 264Conn. 327, 447, 824A.2d 778 (2003)(Norcott,

J., dissenting), cert. denied, 540 U.S. 1055, 124 S. Ct.
819, 157 L. Ed. 2d 708 (2003); State v. Webb, 238 Conn.

389, 557, 680 A.2d 147 (1996) (Berdon, J., dissenting),

aff’d after remand, 252 Conn. 128, 750 A.2d 448, cert.

denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53

(2000). This court reserved judgment on the question,

however, pending the resolution of the habeas case.

Ultimately, though, the habeas court denied the petitioners’ claims on purely legal grounds, without ever

clearly stating whether it had credited the petitioners’

evidence of systemic racial disparities. In re Death Penalty Disparity Claims, supra, Superior Court, Docket

No. TSR-CV-05-4000632-S. That decision is currently on

appeal to this court. See In re Death Penalty Disparity

Claims, Connecticut Supreme Court, Docket No. SC

19252 (filed November 6, 2013). Today, a majority of

this court has concluded that our state constitution no

longer permits the execution of capital felons. As a

result, we anticipate that those individuals who have

been sentenced to death in Connecticut will withdraw

any pending penalty phase appeals and habeas claims,

and move for a correction of their sentences. See Practice Book § 43-22. In any event, today’s majority decision seemingly renders the habeas action moot.

Accordingly, although that case would have been the

more probable opportunity to address the long-standing

racial disparity claims, that avenue is no longer available. If the impressive efforts and substantial expenses

invested by the state in that case are not to be all for

naught, then the issue should be examined now.

We have been reluctant to accept the conclusion that

our capital punishment system is incurably infected

with racial and ethnic bias, believing—as we still do—

that the vast majority of Connecticut’s law enforcement

officers, prosecutors, judges, and jurors are decent, fairminded, and dedicated individuals who strive to see

that justice is carried out impartially. Abundant historical and statistical evidence, however, now strongly suggests that racial disparities in the capital punishment

system exist in Connecticut—as elsewhere—that cannot be accounted for by benign, nonracial factors. Specifically, there is a substantial and growing body of

evidence suggesting that decisions as to: (1) which

defendants will be charged with capital crimes, (2)

whether to seek the death penalty for those defendants,

and (3) whether to impose that ultimate punishment,

are heavily influenced by the constitutionally impermissible factors of racial and ethnic bias.

We begin our review with the historical evidence.

See Kerrigan v. Commissioner of Public Health, 289

Conn. 135, 172 n.22, 957 A.2d 407 (2008) (‘‘the lessons

of history and experience are surely the best guide as

to when, and with respect to what interests, society is

likely to stigmatize individuals as members of an inferior caste’’ [internal quotation marks omitted]). As the

majority notes, a central theme running through Profes-
sor Lawrence B. Goodheart’s recently published book

is that the long history of the death penalty in Connecticut has exhibited ‘‘an unmistakable racial dimension.’’

L. Goodheart, The Solemn Sentence of Death: Capital

Punishment in Connecticut (2011) p. 50. Capital punishment, Goodheart suggests, invariably has been imposed

disproportionately on marginalized and unpopular

groups, and in particular on members of ethnic and

racial minorities. See id., p. 39. During the colonial

period, this meant African-Americans and NativeAmericans. See id. From the founding of the colonies in the

1630s through the early 1770s, two thirds of those

hanged for homicide, infanticide, and rape were people

of color, notwithstanding that nonwhites accounted for

only 5 percent of the state population. See id., pp. 17,

50, 57, 61. Native Americans in particular were singled

out, not only in the frequency with which they were

executed, but also in the barbarity of the procedures

deployed. Although hanging was the standard practice,

for example, New Haven authorities opted instead for

decapitation so as to ‘‘racially set apart Nepaupuck and

Busheage,’’ two Native American participants in the

early tribal skirmishes with European settlers. Id., pp.

17–18. A contemporary account of Busheage’s execution describes how the ‘‘executioner would strike off

his head with a falchion [a sword with a curved blade],

but he had eight blows at it before he could effect it

. . . .’’ (Internal quotation marks omitted.) Id., p. 18.

Other historians who have studied this time period

have reached the same conclusion as Goodheart. Connecticut’s former state historian, for instance, has

described how ‘‘[w]ell established practice saw . . .

white men escaping punishment for rape while black

men hanged . . . .’’ C. Collier, ‘‘The Common Law and

Individual Rights in Connecticut before the Federal Bill

of Rights,’’ 76 Conn.B.J. 1, 18 n.40 (2002). Such ‘‘discriminations were so deep and pervasive in the culture,’’

Collier explains, ‘‘that the variable nature of justice was

seldom called into question.’’ Id. William Holdsworth

likewise opines that ‘‘white prejudice [was likely among

the reasons that] Indians bore a disproportionate share

of the severest civil and criminal penalties meted out at

this time.’’ W. Holdsworth, Law and Society in Colonial

Connecticut, 1636–1672 (1974) p. 315 (unpublished doctoral dissertation, Claremont Graduate School).

This ‘‘apartheid in the larger society’’ continued to

infect the capital sentencing system in the nineteenth

century. L. Goodheart, supra, p. 92. More than one half

of those hanged for rape or murder between 1773 and

1827, for example, were Native American, AfricanAmerican, or of mixed race. See id., pp. 81, 91. Although

the complexion of capital punishment shifted during

the mid-nineteenth century, the pattern remained the

same. Goodheart identifies this period as the ‘‘height

of ethnocentricism,’’ an era in which a heavy influx of

Irish immigrants resulted in widespread ‘‘antipapist and
xenophobic sentiment’’ directed toward the new ethnic

underclass. Id., p. 110. Of the men executed in Connecticut between 1828 and 1879, only one half were members

of what Goodheart characterizes as the ‘‘white, Protestant majority . . . .’’ Id. The remainder were recent

Irish immigrants and, in a few cases, people of color.

See id., p. 111.

Recent arrivals to America continued to figure prominently among those executed during the decades bracketing the turn of the twentieth century. See id., p. 133.

Remarkably, of the sixty men who were hanged in Connecticut between 1880 and 1929, only fifteen were of

domestic nativity, and one quarter of those were of

African or Asian descent. See id., pp. 136–38. Following

a new wave of immigration from Southern Europe, fully

one third of those executed during this period had been

born in Italy. See id.

Although the racial and ethnic disparities that Goodheartrecords were not quite as pronounced in the twentieth century, he indicates that those ‘‘executed were,

like those before them, on the margins of society.’’ Id.,

p. 169. For the first time in centuries, the majority of

those executed in Connecticut since 1940 have been

native born whites. See id., pp. 174, 187. Still, over one

half of the men on death row as of 2005, including

the present defendant, Eduardo Santiago, were AfricanAmerican or Hispanic. See id., p. 219.

In total, of the nearly 160 documented executions in

Connecticut history, more than one half of those put

to death have been either members of racial minorities

or low status first generation Americans. See id., pp. 4,

17, 22, 33, 50, 57, 61, 66, 81, 91, 111, 136–38, 170, 174,

187. Since 1693, only black men have been executed

for rape in Connecticut, and each for the rape of a white

woman. See id., p. 65. Perhaps more telling is that, in

almost 400 years, no white person has ever been executed in Connecticut for the murder of a black person.

See id., p. 55. Goodheart quotes one abolitionist as

commenting that ‘‘[a]ny white person of financial means

and with friends . . . has little need to fear the imposition of the death penalty.’’ (Internal quotation marks

omitted.) Id., p. 183.

Although Goodheart notes that ‘‘low-income black

men convicted of murdering whites are particularly vulnerable to capital punishment’’; id., pp. 4–5; the enduring lesson from his scholarly chronicle is that looking

solely at racial disparities actually significantly understates the extent to which prejudice may have tainted

Connecticut’s capital punishment regime. Many, if not

most, of the whites executed in this state have been

‘‘untouchables’’ of another sort, whether unpopular

recent immigrants orthe marginalized, low status, older

women who filled the ranks of those executed for witchcraft. See id., pp. 32–33; W. Holdsworth, supra, pp. 393–

97. Only one person executed in Connecticut, Michael
Ross, ever graduated from college; L. Goodheart, supra,

p. 221; and his execution would not have occurred had

Ross not insisted that it proceed by forgoing additional

appeal options. On the basis of this undisputed history,

Goodheart ultimately concludes that ‘‘documentation

of bias in the criminal justice system is clear . . . .’’

Id., p. 4.

We should not, perhaps, be surprised by the results

of this new research. As Justice Brennan recounted in

his dissent in McCleskey v. Kemp, 481 U.S. 279, 330,

107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), Gunnar Myrdal’s

‘‘epochal study of American race relations,’’ conducted

before the end of the second World War, had already

revealed the deep taint of race on our nation’s criminal

justice system. ‘‘As long as only Negroes are concerned

and no whites are disturbed,’’ Myrdal wrote, ‘‘great

leniency will be shown in most cases . . . . The sentences for even major crimes are ordinarily reduced

when the victim is another Negro. . . . For offenses

which involve any actual or potential danger to whites,

however, Negroes are punished more severely than

whites. . . . On the other hand, it is quite common for

a white criminal to be set free if his crime was against

a Negro.’’ (Internal quotation marks omitted.) Id., quoting G. Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (Harper & Brothers 1944)

pp. 551–53. More than two decades later, a presidential

commission likewise concluded that the ‘‘death sentence is disproportionately imposed and carried out on

the poor, the Negro, and the members of unpopular

groups.’’ The Challenge of Crime in a Free Society, A

Report by the President’s Commission on Law Enforcement and Administration of Justice (1967) p. 143.

These historical accounts of persistent racial disparities in capital sentencing have been borne out, repeatedly, by contemporary statistical evidence both in Connecticut and throughout the United States. In

Connecticut, as we have discussed, the issue first

reached this court when Cobb proffered government

data, derived from both the Criminal Justice Information Services Division of the Federal Bureau of Investigation and the Uniform Crime Reporting Program of

the state of Connecticut, evidencing substantial facial

disparities in our state’s capital sentencing system. See

State v. Cobb, supra, 234 Conn. 766 n.6 (Berdon, J.,

dissenting). The data indicated that: ‘‘(1) since 1973,

prosecutors have charged a capital felony pursuant to

General Statutes § 53a-54b in seventy-four cases, of

which only eleven, or 15 percent, have involved the

murder of a victim who was black, even though 40

percent of all murder victims in the state during that

same time period were black; (2) since 1973, although

there have been eighteen capital prosecutions for murder committed during the course of kidnapping, none

was prosecuted where the victim was black; (3) during

the same period, there have been twelve capital prose-
cutions for murder committed in the course of a sexual

assault, and only one involved the murder of a black

victim; (4) since 1973, twenty-eight cases have resulted

in a conviction of capital felony, by verdict or plea, and

eighteen of those twenty-eight have proceeded to a

hearing on the imposition of the death penalty. Of the

twenty-eight capital felony convictions, only four, or 14

percent, have involved the murder of a victim who was

black, and of the eighteen that have gone to a penalty

phase hearing, only one, or 5.5 percent, has involved

the murder of a black victim; (5) of the sixty-six capital

convictions in which the guilt phase has been concluded, twenty-one involved black defendants and

forty-five involved nonblack defendants. Of the black

defendants, thirteen of twenty-one, or 62 percent, were

convicted of capital felonies and fifteen of forty-five,

or 33 percent, [nonblack] defendants were so convicted.’’ Id., 738–39 n.4. In that case, however, both

parties, the three prevailing justices, and the three dissenting justices all agreed thatCobb’s data were preliminary and that further research and analysis were

required before this court could rule on the constitutional import of any systemic racial or ethnic disparities.

See id., 739–40 n.4; id., 768 (Berdon, J., dissenting);

State v. Breton, 235 Conn. 206, 264, 663 A.2d 1026 (1995)

(Berdon, J., dissenting).

Since that time, substantial new information has

become available that provides further support for

Cobb’s allegations of systemic racial bias. In 2001, the

Connecticut legislature created a Commission on the

Death Penalty (commission) ‘‘to study the imposition

of the death penalty in this state.’’ Public Acts 2001, No.

01-151, § 4 (a)(P.A. 01-151). Public Act 01-151 mandated

that the new commission examine and report on fourteen aspects of Connecticut’s capital punishment

scheme. See P.A. 01-151, § 4 (c) and (d). One requirement was that the commission study whether ‘‘there is

any disparity in the decision to charge, prosecute and

sentence a person for a capital felony based on the

race, ethnicity, gender, religion, sexual orientation, age

or socioeconomic status of the defendant or the victim

. . . .’’ P.A. 01-151, § 4 (c) (3).

The commission issued its final report in January,

2003, in which it indicated that it had performed a comprehensive review of all 166 capital felony prosecutions

in Connecticut since 1973. See State of Connecticut,

Commission on the Death Penalty, Study Pursuant to

Public Act No. 01-151 of the Imposition of the Death

Penalty in Connecticut (January 8, 2003) pp. 17, 21

(Commission Report).2 The Commission Report found,

among other things, that murders involving non-Hispanic white victims represented just over one half of

the capital prosecutions in the state, but accounted for

86 percent of the death sentences imposed. See id., pp.

21, 25. By contrast, the thirty-eight offenders accused

of murdering African-American victims accounted for
nearly one fourth of all capital felony prosecutions, but

not one of the offenders was sentenced to death. See

id., pp. 22, 24. Taken together, crimes involving AfricanAmerican or Hispanic victims accounted for 40 percent

of all convictions, but just 14 percent of death sentences. See id., p. 25. Because of these disparities, the

commission recommended that ‘‘Connecticut should

adopt legislation explicitly providing that no person

shall be put to death in accordance with any death

sentence sought or imposed based on the race . . .

of the defendant. To enforce such a law, Connecticut

should permit defendants to establish prima facie cases

of discrimination based upon proof that their sentence

is part of an established discriminatory pattern.’’ Id., p.

28. The commission further recognized that numerous

studies conducted in other jurisdictions, after subjecting similar findings to multivariate statistical analysis, have concluded that ‘‘race is a factor that influences

the outcome of capital cases.’’ Id., p. 18.

Accordingly, data from three authoritative governmental sources—the Criminal Justice Information Services Division of the Federal Bureau of Investigation,

the Uniform Crime Reporting Program of the state of

Connecticut, and the Commission Report—all suggest

that the death penalty in Connecticut continues to be

imposed disproportionately based on the race and ethnicity of the offender and the victim. The alleged disparities are significant, and hold across hundreds of cases.

We are not aware of any study orreport to have reached

a contrary conclusion. In fact, the chief state’s attorney,

who represents the state in this matter, now concedes

that there are ‘‘obvious’’ facial disparities in Connecticut’s capital punishment system. Conn. Joint Standing

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

2650–51, remarks of Chief State’s Attorney Kevin Kane

(When Kane was asked about raw data indicating that

minority defendants who commit capital eligible murders of white victims are far more likely to receive

the death sentence than those who murder minority

victims, he responded: ‘‘We’ve seen disparity. It’s

obvious.’’).3

We are not aware of any innocuous, nonracial factors

that would plausibly account for these undisputed disparities in capital charging and sentencing rates. Rather,

the available evidence supports the conclusion that,

when members of minority groups who offend against

whites are charged with capital crimes and subjected

to execution at far greater rates than other defendants

who commit comparable crimes, those disparities are

a result of racial biases and cannot be explained away

by other, innocuous factors.

Goodheart has reviewed, from a historical standpoint, four centuries of commentaries, death day sermons, press reports, and public records regarding the

imposition of the death penalty in Connecticut. On the
basis of that review, he concludes that persistent racial

disparities in our state’s capital punishment system are

the product of ‘‘ethnocentricism,’’ ‘‘xenophobic sentiment’’; L. Goodheart, supra, p. 110; and racial ‘‘apartheid

. . . .’’ Id., p. 92. To put it most plainly, Goodheart

reports, ‘‘Yankee observers regularly characterized executed immigrants as subhuman.’’ Id., p. 162.

Significantly, this court has long taken judicial notice

of the fact that disparate sentencing outcomes can be

the result of subtle racial biases: ‘‘We cannot be blind

to the fact that there may still be some who are biased

against the Negro race and would be more easily convinced of a Negro’s guilt of the crime of rape than they

would of a white man’s guilt. Especially would they be

unlikely to approach in a detached and objective manner the decision of the guilt or innocence of a Negro

charged with raping a white woman.’’ State v. Higgs,

143 Conn. 138, 143, 120 A.2d 152 (1956).

During the legislative hearings on No. 12-5 of the 2012

Public Acts (P.A. 12-5), multiple witnesses testified that,

one-half century later, Connecticut’s capital punishment system remains far from color-blind.4 Their testimony finds support in abundant sociological research

from other jurisdictions, much of it published subsequent to our decision in State v. Cobb, supra, 234 Conn.

735, linking current racial disparities in the administration of the death penalty to our country’s history of

racism. ‘‘[N]umerous studies conducted in the United

States since the [United States] Supreme Court decided

Furman v. Georgia [408 U.S. 238, 92 S. Ct. 2726, 33 L.

Ed. 2d 346 (1972)] . . . suggest that, when significant

non-racial factors are accounted for,race is a factorthat

influences the outcome of capital cases.’’ Commission

Report, supra, pp. 17–18. In 1990, for example, the

United States General Accounting Office ‘‘reported to

the Senate and House Committees on the Judiciary that

its synthesis of [twenty-eight] studies on the subject

disclosed a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the

death penalty after the Furman decision. . . . In 82

percent of the studies, [the] race of [the] victim was

found to influence the likelihood of being charged with

capital murder or receiving the death penalty, i.e., those

who murdered whites were found to be more likely to be

sentenced to death than those who murdered blacks.’’

(Footnote omitted; internal quotation marks omitted.)

Id., p. 18, citing United States General Accounting

Office, Death Penalty Sentencing: Research Indicates

Pattern of Racial Disparities (February 1990) p. 5. ‘‘This

finding was remarkably consistent across data sets,

states, data collection methods, and analytic techniques.’’ United States General Accounting Office,

supra, p. 5.

The conclusion of the United States General Accounting Office, which was based on various types of statisti-
cal analysis, has since been confirmed in fifteen

additional studies conducted during the 1990s, and

many more published since 2000. Evans v. State, 396

Md. 256, 314, 914 A.2d 25 (2006), cert. denied, 552 U.S.

835, 128 S. Ct. 65, 169 L. Ed. 2d 53 (2007); see, e.g., C.

Steiker & J. Steiker, Report to the American Law Institute Concerning Capital Punishment, in A.L.I., Report

of the Council to the Membership of The American Law

Institute On the Matter of the Death Penalty (April 15,

2009) annex B, p. 14 (reporting that many researchers

in many different jurisdictions continue to find ‘‘strong

racial effects’’); D. Baldus et al., supra, 83 Cornell L.

Rev. 1661 (finding evidence of race of victim disparities

in 90 percent of states studied and of race of defendant

disparities in 55 percent); K. Barnes et al., ‘‘Place Matters (Most): An Empirical Study of Prosecutorial Decision-Making in Death-Eligible Cases,’’ 51 Ariz. L. Rev.

305, 338 (2009) (finding large racial disparity in conviction rate in Missouri); K. Beckett & H. Evans, The Role

of Race in Washington State Capital Sentencing, 1981–

2012 (January 27, 2014) p. 2 (‘‘regression analyses indicate that juries were three times more likely to impose

a sentence of death when the defendant was black than

in cases involving similarly situated white defendants’’

[emphasis omitted]), available at http://www.death

penaltyinfo.org/documents/WashRaceStudy2014.pdf(last visited July 8, 2015); J. Blume et al., ‘‘Explaining

Death Row’s Population and Racial Composition,’’ 1 J.

Empirical Legal Stud. 165, 167, 169 (2004) (comprehensive regression analysis of death row populations in

thirty-one states over two decades revealed that prosecutorial decision to seek death sentence more aggressively for black defendants who murder white victims

results in clear ‘‘racial hierarchy’’); S. Johnson et al.,

‘‘The Delaware Death Penalty: An Empirical Study,’’ 97

Iowa L. Rev. 1925, 1939 (2012)(finding ‘‘dramatic’’racial

disparities); J. Levinson et al., ‘‘Devaluing Death: An

Empirical Study of Implicit Racial Bias on Jury-Eligible

Citizens in Six Death Penalty States,’’ 89 N.Y.U. L. Rev.

513, 521 (2014) (finding that death qualified jurors harbor stronger implicit racial biases than excluded

jurors); Maryland Commission on Capital Punishment,

Final Report to the General Assembly (December 12,

2008) pp. 9–10 (recommending abolition of capital punishment based in part on nearly unanimous finding by

commissioners that ‘‘the troublesome factor of race

plays a dominant role in the administration of the death

penalty in Maryland’’), available at http://www.goccp.

maryland.gov/capital-punishment/documents/deathpenalty-commission-final-report.pdf (last visited July 8,

2015); G. Pierce & M. Radelet, ‘‘The Impact of Legally

Inappropriate Factors on Death Sentencing for California Homicides, 1990–1999,’’ 46 Santa Clara L. Rev. 1,

19 (2005) (finding ‘‘glaring differences in the rate of

death sentences across categories of victim race/ethnicity’’); C. Slobogin, ‘‘The Death Penalty in Florida,’’ 1

Elon L. Rev. 17, 54 (2009) (‘‘[n]umerous studies of the
Florida capital punishment process, spanning the past

thirty-five years, have confirmed a correlation between

the imposition of a death sentence and the race of the

murder victim’’); M. Wilson, ‘‘The Application of the

Death Penalty in New Mexico, July 1979 through

December 2007: An Empirical Analysis,’’ 38 N.M. L. Rev.

255, 260 (2008) (‘‘data strongly suggest that the race

and ethnicity of the victims and the defendants affected

the determination of who would live and who would

die’’); see generally D. Baldus & G. Woodworth, ‘‘Race

Discrimination in the Administration of the Death Penalty: An Overview of the Empirical Evidence with Special Emphasis on the Post-1990 Research,’’ 39 Crim. L.

Bull. 194, 196, 207–208 (2003) (finding consistent pattern of race of victim disparities, even after adjusting

for culpability of offenders and aggravation level of

crimes); J. Sorensen et al., ‘‘Empirical Studies on Race

and Death Penalty Sentencing: A Decade After the GAO

Report,’’ 37 Crim. L. Bull. 395, 403–404 (2001) (in metaanalysis of ‘‘high quality’’ statistical studies, race of victim disparities in capital charging decision found in 90

percent of studies after adjusting for control variables).

All of the meta-analyses5 cited herein, and all of the

major, multijurisdictional primary studies, have concluded, after subjecting evidence of racial disparities

to advanced multivariate statistical analysis, that

offenders who murder non-Hispanic white victims are

more likely to be charged with a capital offense and/

or sentenced to death than those who victimize members of racial minorities. See D. Baldus et al., supra, 83

Cornell L. Rev. 1659; D. Baldus & G. Woodworth, supra,

39 Crim. L. Bull. 214; J. Blume et al., supra, 1 J. Empirical

Legal Stud. 167; J. Sorensen et al., supra, 37 Crim. L. Bull.

403; United States General Accounting Office, supra, p.

5. Some of the studies also have identified a race of

offender bias. The report by the United States General

Accounting Office was the result of a significant and

nonpartisan research effort on the part of the federal

government. The other cited studies are authored by

respected and, in some cases, nationally renowned

experts in the field. We are not aware of any high quality

meta-analysis or multijurisdictional study to have

reached a contrary conclusion. We have no reason to

gainsay such overwhelming evidence of racial bias.

Finally, since this court last considered the constitutionality of the death penalty, new empirical evidence

has emerged that not only supports the allegation of

substantial and statistically significant racial disparities

in the imposition of the death penalty in Connecticut,

but also suggests that such disparities are unlikely to

be the product of innocuous, nonracial factors. During

the hearings on P.A. 12-5, legislators heard extensive

testimony from Stanford (and former Yale) Law School

Professor John J. Donohue III, a nationally recognized

expert in criminal law and econometrics. See Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 9,
2012 Sess., pp. 2786–96, remarks of Professor Donohue.

In 2006, the petitioners in the habeas case, In re Death

Penalty Disparity Claims, supra, Superior Court,

Docket No. TSR-CV-05-4000632-S, hired Donohue to

evaluate data that the Office of the Chief Public

Defender had collected relating to every potential capital murder conviction in the state between 1973 and

2007. Employing sophisticated multivariate regression

techniques to control for an array of legitimate factors

relevant to the capital charging and sentencing decisions, Donohue found substantial racial disparities,

especially in prosecutors’ decisions to charge particular

offenders as capital felons. See J. Donohue, ‘‘An Empirical Evaluation of the Connecticut Death Penalty System

Since 1973: Are There Unlawful Racial, Gender, and

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

637 (2014).

At the legislative hearings, Donohue supplied legislators with a lengthy executive summary of his research,

which concluded that ‘‘arbitrariness and discrimination

are defining features of the state’s capital punishment

regime.’’ Conn. Joint Standing Committee Hearings,

supra, p. 3001. Specifically, the data revealed that Connecticut’s prosecutors have not pursued capital charges

solely based on the egregiousness of the crime, but,

instead, that racial minorities who kill white victims

are charged at a rate sharply higher than for other

racial configurations. See id., pp. 3003, 3005–3006. ‘‘An

essential message from the regression analysis across

an array of murder categories [was] that the likelihood

that a death-eligible murder will result in a death sentence is at least an order of magnitude higher for minority on white murders . . . .’’ (Citation omitted.) Id., p.

3006. During the ensuing legislative debates, a number

of supporters of P.A. 12-5 expressed that Donohue’s

research was an important factor in their decision to

vote to abolish the death penalty.6

Since the time of those legislative hearings,

Donohue’s research has been published in a well

respected peer reviewed academic journal. See J.

Donohue, supra, 11 J. Empirical Legal Stud. 637. The

article describes how the ‘‘overwhelming’’ racial disparities in capital charging in Connecticut became even

more pronounced after controlling for numerous legally

relevant variables; id.; including the egregiousness of

the crime, ‘‘geographic and time indicators, various

measures reflecting the aggravating and mitigating

aspects of the crime, the nature of the crime that established it as a capital felony, measures of the culpability

of the defendant, the suffering of the victim, the number

of victims and aspects of the victim’s circumstances,

indic[a]tors of whether the defendant had killed a

stranger or had prior prison sentences, and various

measures of the strength of the evidence . . . .’’ Id.,

682 n.80. Perhaps the most striking finding was that

minority defendants who committed capital eligible fel-
onies against white victims in Connecticut were

charged with capital crimes in 85 percent of cases,

whereas prosecutors only sought a capital conviction

approximately 60 percent of the time for crimes with

minority victims.7 See id., 648. Donohue also concluded

that there is compelling, statistically significant evidence that minority defendants who kill whites are substantially more likely to receive a sentence of death

than white defendants who commit equally egregious

crimes. See id., 640, 672–73. A thorough and fair-minded

review of the available historical and sociological data

thus strongly suggests that systemic racial bias continues to infect the capital punishment system in Connecticut in the post-Furman era.

We strongly emphasize that the fact that a charging

or sentencing decision may be based in part on impermissible racial factors does not imply that the prosecutor, judge, or juror making that decision is ‘‘racist,’’ as

that term is typically used. Statistical studies from other

jurisdictions have demonstrated that the most likely

explanation for such disparities is the tendency of members of the majority race to be more empathetic to

majority victims, who resemble themselves, and less

sympathetic to minority perpetrators, with whom they

are less able to identify. See, e.g., M. Lynch & C. Haney,

‘‘Looking across the Empathic Divide: Racialized Decision Making on the Capital Jury,’’ 2011 Mich. St. L. Rev.

573 (2011) (and sources cited therein); see generally

The Sentencing Project, ‘‘Race and Punishment: Racial

Perceptions of Crime and Support for Punitive Policies’’

(2014) pp. 3, 18 (whites’ implicit association of people

of color with criminality linked to more punitive attitudes). This conclusion is bolstered by recent scientific

studies that now document what has long been recognized: most, if not all, of us exhibit unconscious or

implicit bias. See, e.g., J. Kang & K. Lane, ‘‘Seeing

Through Colorblindness: Implicit Bias and the Law,’’

58 UCLA L. Rev. 465, 473 (2010) (‘‘Implicit biases—by

which we mean implicit attitudes and stereotypes—

are both pervasive [most individuals show evidence

of some biases], and large in magnitude, statistically

speaking. In other words, we are not, on average or

generally, cognitively colorblind.’’).

It likely is the case that many, if not most, of the

documented disparities in capital charging and sentencing arise not from purposeful, hateful racism or racial

animus, but rather from these sorts of subtle, imperceptible biases on the part of generally well-meaning decision makers. Historically, though, it is difficult to refute

what Goodheart and others have noted: that, at varying

times throughout our history, the lives of Native Americans, African-Americans, Asians, Irish, Italians, Jews,

Roman Catholics, and Hispanics simply have not been

considered to be as innately valuable as those of the

cultural majority. See L. Goodheart, supra, p. 162; see

also Furman v. Georgia, supra, 408 U.S. 245 (Douglas,
J., concurring) (it is cruel and unusual to apply death

penalty ‘‘selectively to minorities whose numbers are

few, who are outcasts of society, and who are unpopular, but whom society is willing to see suffer though it

would not countenance general application of the same

penalty across the board’’); State v. Cobb, supra, 234

Conn. 768 (Berdon, J., dissenting) (‘‘the inevitable conclusion is that the state places a higher value on the

life of a white person than on the life of an AfricanAmerican’’); District Attorney v. Watson, 381 Mass. 648,

669, 411 N.E.2d 1274 (1980) (‘‘[t]he conclusion is inescapable that the death penalty is reserved for those

who kill whites, because the criminal justice system in

these states simply does not put the same value on the

life of a black person as it does on the life of a white’’

[internal quotation marks omitted]).

In light of this historical and statistical record, we

would be hard-pressed to dismiss or explain away the

abundant evidence that suggests the death penalty in

Connecticut, as elsewhere, has been and continues to

be imposed disproportionately on racial and ethnic

minorities, and particularly on those whose victims are

members of the white majority. It also appears that

such disparities are not primarily the result of benign,

nonracial factors. We recognize that, in McCleskey v.

Kemp, supra, 481 U.S. 296–97, the United States

Supreme Court concluded that this sort of evidence of

systemic racial disparities, taken alone, is insufficient

to render the death penalty unconstitutionally arbitrary

and discriminatory under the eighth amendment of the

federal constitution. We have serious, indeed, grave

doubts, however, whether a capital punishment system

so tainted by racial and ethnic bias could ever pass

muster under our state constitution.

McCleskey was a federal habeas case in which the

petitioner proffered a statistical study performed by

Professors David C. Baldus, Charles Pulaski and George

Woodworth, that purported to show a disparity in the

imposition of the death sentence in Georgia based on

the race of the murder victim and, to a lesser extent,

the race of the defendant. See id., 286. After subjecting

their data to an extensive regression analysis, taking

account of 230 variables that could have explained these

disparities on nonracial grounds, the professors concluded, among other things, that defendants in Georgia

charged with killing white victims were 4.3 times as

likely to receive a death sentence as defendants charged

with killing blacks. See id., 287.

On a five to four vote, a narrow majority of the United

States Supreme Court rejected the petitioner’s claim.

The majority assumed the validity of the petitioner’s

statistical study, but held that such evidence of persistent racial disparities in capital charging and sentencing

is insufficient to invalidate a death sentence under the

federal eighth amendment; id., 308; or equal protection
clause. Id., 297–99. Rather, the majority indicated, to

demonstrate a constitutional violation the petitioner

would have to prove that purposeful, ‘‘invidious’’ discrimination played a role in his particular sentencing

decision. See id., 312–13.

That requirement places upon each individual seeking to demonstrate a constitutional violation a Herculean task. As Justice Harper explained in his dissent in

State v. Santiago, supra, 305 Conn. 327: ‘‘It is incredibly

difficult—bordering on impossible—to demonstrate

prohibited animus behind the decision to charge an

individual with capital felony, behind the refusal to

accept a plea to a lesser penalty, behind the jury’s decision to convict or behind the jury’s decision to select

one of its fellow human beings for death. . . . It is not,

however, the rare case, where at least one of these

decisions—even if unconsciously—is influenced by

considerations of the race of the defendant, the victim,

or both.’’ (Footnote omitted.) See also J. Sullivan, ‘‘The

Abyss of Racism,’’ 13 J. App. Prac. & Process 91, 97

(2012) (‘‘proving discrimination in the individual case

is virtually impossible unless the prosecutoris prepared

to admit bias’’).

Perhaps unsurprisingly, the holding in McCleskey has

been roundly criticized. See K. Williams, ‘‘Deregulation

of the Death Penalty,’’ 40 Santa Clara L. Rev. 677, 708

and n.219 (2000) (collecting sources). The court itself

in McCleskey was in strong disagreement, and Justice

Brennan, with whom Justices Blackmun, Marshall, and

Stevens joined, argued in his dissent that the operative

constitutional question ought to be whether‘‘sentencing

procedures . . . create a substantial risk that the punishment will be inflicted in an arbitrary and capricious

manner.’’(Emphasis added.) McCleskey v. Kemp, supra,

481 U.S. 322. ‘‘This emphasis on risk,’’ Justice Brennan

further explained in his dissent, ‘‘acknowledges the difficulty of divining the jury’s motivation in an individual

case. In addition, it reflects the fact that concern for

arbitrariness focuses on the rationality of the system

as a whole, and that a system that features a significant

probability that sentencing decisions are influenced by

impermissible considerations cannot be regarded as

rational.’’ Id., 323.

Especially noteworthy is the fact that the author of

the majority opinion in McCleskey, Justice Powell, later

confided to his biographer that if he could change his

vote in any one case, it would be McCleskey. See J.

Jeffries, Justice Lewis F. Powell, Jr. (2001 Ed.) p. 451;

see also State v. Ross, 230 Conn. 183, 315–16, 646 A.2d

1318 (1994)(Berdon, J., dissenting in part), cert. denied,

513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

One legal scholar explained Justice Powell’s renunciation of his pivotal role in the McCleskey decision this

way: ‘‘If one is known by the company that one keeps,

Justice Powell no doubt wished for far better company
for one of his final decisions, McCleskey v. Kemp [supra,

481 U.S. 279]. After the opinion’s release, legal and lay

commentators quickly compared McCleskey to infamous decisions like Dred Scott,

8 Korematsu,9 and

Plessy.

10 And a quarter of a century later, McCleskey

has become firmly entrenched as a resident in the exclusive but not so desirable neighborhood of Notorious

Cases . . . . Especially in the criminal law area, a legal

scholar can invoke McCleskey confident that the reader

will understand that the case is being used as shorthand

for ‘cases in which the Supreme Court failed the [c]onstitution’s most basic values.’ ’’ (Footnotes altered.) S.

Sundby, ‘‘The Loss of Constitutional Faith: McCleskey

v. Kemp and the Dark Side of Procedure,’’ 10 Ohio St.

J. Crim. L. 5 (2012).

In light of these criticisms, the Massachusetts

Supreme Judicial Court declined to adopt the standard

set forth in McCleskey and instead held that the death

penalty offends that state’s constitution insofar as pervasive racial disparities in capital charging or sentencing can be documented. See District Attorney v.

Watson, supra, 381 Mass. 665. Because ‘‘experience has

shown that the death penalty will fall discriminatorily

upon minorities, particularly blacks,’’ that court concluded that the death penalty is unconstitutionally cruel

under article twenty-six of the Massachusetts Declaration of Rights. Id.

Although the standard set forth in McCleskey may

be appropriate for challenges to noncapital sentencing

determinations, we question whether it provides adequate protection when the ultimate punishment of death

is involved. Cf. Hall v. Florida, U.S. , 134 S. Ct.

1986, 1993, 188 L. Ed. 2d 1007 (2014) (intellectually

disabled defendants are subject to ordinary criminal

responsibility but may not receive ‘‘law’s most severe

sentence’’). The types of subtle biases that influence

members of the majority to make decisions favoring

their own race may well be inevitable, albeitregrettable.

When unconsciously made, they do not inherently

impugn the diligent and good faith work of our prosecutors, police, judges, and jurors. Nor do they mean that

the outcomes of a criminal justice system, writ large,

are manifestly unjust. See District Attorney v. Watson,

supra, 381 Mass. 668. But both this court and the United

States Supreme Court repeatedly have made clear that

‘‘[d]eath is different.’’11 Because a sentence of death is

uniquely irreversible and deprives the condemned of

the ability to exercise any of his inalienable rights; see

Furman v. Georgia, supra, 408 U.S. 290 (Brennan, J.,

concurring); it ought not be imposed unless we are

assured that the selection between a sentence of death

or life imprisonment is based solely on objective, morally defensible criteria. The fact that a white prosecutor

or a white juror may be more troubled by the death of

a white victim than of a black or Hispanic victim may

be psychologically explicable, but it is not morally
defensible. It should not be the basis on which we

decide who lives and who dies. See District Attorney

v. Watson, supra, 668.

The death penalty is fundamentally different from

other punishments for which we may, reluctantly, have

to tolerate some degree of unintentional systemic disparity or imperfection. Execution represents a complete and utter rejection of the personhood and

humanity of the condemned, an irreversible banishment

from the moral community. ‘‘The death sentence itself

is a declaration that society deems the prisoner a nullity,

less than human and unworthy to live.’’ Id., 683 (Liacos,

J., concurring). Execution cuts off any possibility of

rehabilitation, or redemption, or hope. As Justice Douglas observed in his concurrence in Furman, in a nation

‘‘committed to equal protection of the laws there is no

permissible caste aspect of law enforcement. . . . In

ancient Hindu law a Brahman was exempt from capital

punishment, and . . . punishment increased in severity as social status diminished. We have, I fear, taken in

practice the same position . . . .’’ (Footnotes omitted;

internal quotation marks omitted.) Furman v. Georgia,

supra, 408 U.S. 255. We doubt that our state constitution

would permit us, however inadvertently, to tip the

scales of death toward those whom society values less.

For the same reasons, we are not persuaded by the

argument that there is neither a legal nor a moral problem so long as all those sentenced to death in Connecticut over the past one-half century have been

legitimately charged with and convicted of heinous capital crimes. If this is the case, the argument goes, then

the fact that the racial statistics appear to be skewed

in favor of whites is immaterial, because each man on

death row has been found guilty by a jury of his peers,

as provided by law. Any such argument entirely misses

the point.

It may be that every black man ever executed for

raping a white woman and every Native American ever

executed for murdering a white man in Connecticut

was guilty as charged, and received his due process

and his proper punishment underthe laws then in effect.

But white men in Connecticut have also killed Native

Americans over the past 400 years, and raped black

women. None has ever hanged for it. To the extent that

a criminal justice system operates such that only racial

minorities are subject to execution for their participation in interracial crimes, the fact that those executed

are guilty as charged is of little succor.12 To the extent

that such biases, however subconscious, invariably continue to influence who is charged with and sentenced

to the ultimate punishment, the death penalty likely

would be hard put to survive constitutional scrutiny.

The offense committed by the defendant was, like

all murders, a terrible and tragic crime. But some could

rightly question whether it was among the ‘‘worst of
the worst’’ for which the ultimate punishment must be

reserved.13 The defendant shot the victim in his sleep,

for limited pecuniary gain; if he had killed the victim

in precisely the same manner, but merely as a favor to

his friend, he would not be eligible forthe death penalty.

The defendant is Hispanic, and his victim was white.

In light of the available data, we simply cannot be

assured that, had their races been reversed, the outcome would have been the same. Nor do we have much

confidence that, despite significant social progress, we

are close to the day when capital punishment may be

imposed in a color-blind and ethnically neutral manner.

Lacking such assurances, we would find the prospect

of any future executions in this state deeply troubling

and suspect.

II

RESPONSE TO THE DISSENTING OPINION

OF CHIEF JUSTICE ROGERS

A

The Chief Justice’s Concerns with the

Objectivity of This Concurrence

In her dissenting opinion, Chief Justice Rogers contends that we have ‘‘cherry picked’’ the research on

which we rely herein. This is a bold assertion, and

one to which we feel compelled to respond. The Chief

Justice challenges both the general objectivity of our

review and, specifically, our reliance on Professor

Donohue as a source. We consider each volley in turn.

With respect to our review of the social science

research governing racial and ethnic disparities in capital charging and sentencing, the Chief Justice contends

that we have ignored contrary research by Attorney

Kent S. Scheidegger, who has also submitted a brief in

this appeal on behalf of the amicus Criminal Justice

Legal Foundation, purporting to show that ‘‘ ‘claimed

racial disparities would shrink to insignificance if legitimate factors, including jurisdiction, could properly be

taken into account . . . .’ ’’ Chief Justice Rogers also

contends that the science underlying this type of

research is too complex for a member of this court to

understand or assess. See footnote 44 of Chief Justice

Rogers’ dissenting opinion.

Although much could be said in response, the crux

of the problem, we suspect, is that the Chief Justice

simply fails to understand the nature or purpose of

a meta-analysis. Whether the topic of research is the

environmental impacts of a certain contaminant or the

health benefits of a morning jog, there will, invariably,

be conflicting studies, the results of which may point

in different directions. It is true that a layperson, faced

with two or more conflicting scientific research studies,

may be ill equipped to judge between them. When a

meta-analysis has been completed, the simple fact is

that we don’t have to; someone who does understand
the underlying science and statistical methodologies

has done it for us. In a meta-analysis, an expert in the

field reviews all of the available research on a topic.

He or she assesses that research both quantitatively

(counting up the number of data points and the number

of studies pointing in each direction) and qualitatively

(assessing the methodological soundness of each

study). After assessing the entire field of study, the

author of the meta-analysis then determines whether

any firm conclusions can be drawn from all of the

research. See generally J. Blumenthal, ‘‘Meta-Analysis:

A Primer for Legal Scholars,’’ 80 Temp. L. Rev. 201,

202–14 (2007).

In the present case, Chief Justice Rogers, in highlighting a handful of studies that obtained conflicting

results, simply ignores the fact that multiple meta-analyses and multijurisdictional studies conducted by

respected scholars and government agencies all have

concluded, after reviewing both those primary studies

purporting to find a racial effect and those that did

not, that it is more likely than not that there are racial

disparities in capital charging or sentencing. See, e.g.,

J. Sorensen, supra, 37 Crim. L. Bull. 403–404 (in metaanalysis of ‘‘high quality’’ statistical studies, race of victim disparities in capital charging decision found in 90

percent of studies after adjusting for control variables);

United States General Accounting Office, supra, p. 5

(finding race of victim effect on capital charging in 82

percent of studies, and across all methodologies). If

there has been any cherry picking, then, it has been on

the part of the Chief Justice. We invite her to reach at

random into the bag of meta-analyses on racial disparity

research and see if she does not draw forth the bounty

of fruit that we have found therein.

We next consider Chief Justice Rogers’ concerns with

our analysis of Donohue’s recent report in the Journal

of Empirical Legal Studies. See J. Donohue, supra, 11

J. Empirical Legal Stud. 637. We emphasize at the outset

that we have not relied herein on the legal analysis that

Donohue presents in part VI of that article, in which

he takes issue with the decision of the habeas court in

In re Death Penalty Disparity Claims, supra, Superior

Court, Docket No. TSR-CV-05-4000632-S. See J.

Donohue, supra, pp. 679–93. Rather, our focus and concern have been exclusively with the first five parts of

the article, in which Donohue documents how, after

accounting for dozens of potential explanatory variables, there continue to be racial disparities in Connecticut’s capital punishment system that cannot be

attributed to innocuous, nonracial factors. See id.,

pp. 641–79.

The Chief Justice remains unpersuaded, apparently

because the opposing party in the habeas case—the

state, via its expert—has, not surprisingly, contested

Donohue’s findings. Once again, we reject the Chief
Justice’s view that this court must be paralyzed by a

lack of scientific unanimity, and that we can take notice

only of empirical research that is either undisputed or

‘‘self-evidently true . . . .’’ There is no such requirement. The legislative facts on which appellate judges

necessarily rely are, in practice, rarely indisputable; see

2 K. Broun, McCormick on Evidence (7th Ed. 2013)

§ 331, p. 614; and ‘‘the fact that we must always act

without the illumination of complete knowledge cannot

induce paralysis when we confront what is literally

an issue of life and death.’’ (Internal quotation marks

omitted.) State v. Cobb, supra, 234 Conn. 780 (Berdon,

J., dissenting).

Lastly, just as the Chief Justice has failed to recognize

the significance of meta-analysis research, there is no

indication that she has accounted for the truth filtering

value of the peer review process. ‘‘[Peer review] is the

process of subjecting an author’s scholarly work to the

examination of academic experts (scholarly or scientific peers) in the same field.’’ Columbia University

Libraries, ‘‘What is Peer Review?,’’ available at http://

library.columbia.edu/help/faq/workshops/

peer review.html (last visited July 22, 2015). Also

known as ‘‘refereeing,’’ peer_review ‘‘is a well-accepted

indicator of quality scholarship.’’ Id. Donohue’s

research, unlike that on which the Chief Justice relies,

has been published in a well respected peer reviewed

journal and, therefore, has withstood the scrutiny of

experts in the field of empirical legal research. Ultimately, then, the Chief Justice is simply incorrect in

assuming that we can place no credence in Donohue’s

conclusions merely because they have been questioned

by opposing litigants and amici. Rather, as this court

recognized in State v. Porter, 241 Conn. 57, 91–92, 698

A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.

1384, 140 L. Ed. 2d 645 (1998), lay judges are routinely

called upon to evaluate the admissibility of complex and

arcane research such as this, with the aid of objective

indicia of reliability. See id. (‘‘nonscientists can understand the fundamental characteristics that separate

valid science from pale imitations’’ [internal quotation

marks omitted]).

Meta-analysis and peer review are precisely the sorts

of objective indicia of scholarship quality and methodological validity upon which judges can and should rely

in separating the scientific wheat from the biased chaff.

Although we reach no firm conclusions herein as to the

existence of racial disparities in Connecticut’s capital

punishment system, we remain confident that we have

identified the best available scholarship in that regard.

B

The Chief Justice’s Concerns with the

Propriety of This Concurrence

We find it curious that the Chief Justice, despite our
clear statements to the contrary, persists in proclaiming

that we have concluded that our state’s death penalty

is imposed in an unconstitutionally discriminatory fashion. We have not. Our goals in this concurring opinion,

rather, have been modest and few. First, we would

gather, all in one place, the various charges of death

penalty racial and ethnic disparity that have been made

over the years, and inter with them the most recent

and respectable research as to the history, scope, and

origin of those alleged disparities. Second, we would

express to our sister courts, for whom the issue is not

yet a dead letter, our suggestion that they consider

closely whether the legal standard articulated in

McCleskey v. Kemp, supra, 481 U.S. 296–97, affords

adequate protection to members of minority populations who may face the ultimate punishment. Third,

and finally, we would make known to those who, for

four centuries, have protested against these alleged disparities that their voices have not gone unheard. We

seek to accomplish no more.

We also find curious the suggestion by the Chief

Justice that, merely by discussing an issue that today’s

majority opinion has rendered moot, we somehow have

‘‘undermine[d] the institutional integrity of this court

. . . .’’ Those are strong words indeed, particularly in

light of the fact that the Chief Justice herself has in the

past authored concurring opinions to address issues

not before the court. See, e.g., State v. Johnson, 312

Conn. 687, 706–707, 94 A.3d 1173 (2014) (Rogers, C. J.,

concurring) (expressing hope that, when appropriate

case presents itself, court will abandon evidentiary rule

adopted in State v. Holliman, 214 Conn. 38, 46, 570

A.2d 680 [1990]). We are aware of no authority, from

this court or any other, supporting the Chief Justice’s

novel rule that the author(s) of a concurring opinion

may freely address issues that are likely to arise in

future cases, but that we are categorically barred from

discussing issues that will not. As we have explained,

one of our goals in authoring this concurring opinion

has been to highlight the racial disparity issue for consideration by other courts and legislative bodies. That

has long been considered a legitimate function of a

concurring opinion. See generally R. Blomquist, ‘‘Concurrence, Posner-Style: Ten Ways to Look at the Concurring Opinions of Judge Richard A. Posner,’’ 71 Alb.

L. Rev. 37, 46, 56–64 (2008). The Chief Justice offers

no reason why it should be otherwise.

1 See part II B of this concurring opinion.

2

It is well established that this court may take notice of statistical reports

compiled pursuant to legislative mandate. See Luurtsema v. Commissioner

of Correction, 299 Conn. 740, 769 n.28, 12 A.3d 817 (2011); Sheff v. O’Neill,

238 Conn. 1, 38 n.42, 678 A.2d 1267 (1996).

3 Given the context of the question to which Kane was responding, Chief

Justice Rogers’ suggestion that Kane was referring not to disparities in

capital punishment, but only in the general prison population, is patently

implausible. If that was all Kane intended to say, his response would have

been a complete non sequitur to the question posed. It is true, however,

that Kane rejected the contention that these disparities are the result of

systemic racial bias on the part of prosecutors or juries. See Conn. Joint
Standing Committee Hearings, supra, p. 2652.

4 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 812–13, remarks of Senator

Donald E. Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt.

9, 2012 Sess., p. 2687,remarks of KhalilahBrown Dean, associate professor of

political science; Conn. Joint Standing Committee Hearings, Judiciary, Pt.

9, 2012 Sess., p. 2791, remarks of John J. Donohue III, professor of law;

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p.

2691, remarks of Representative Charlie L. Stallworth.

5 A meta-analysis is a study that reviews all of the available primary

research that has been conducted on a subject and evaluates the aggregated

findings. See part II A of this concurring opinion.

6 See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 750–51, remarks of Senator

Edwin A. Gomes; id., p. 813, remarks of Senator Donald E. Williams; Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2649–55,

remarks of Representative Bruce V. Morris; Conn. Joint Standing Committee

Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2516, remarks of Senator Williams;

Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p.

2691, remarks of Representative Charlie L. Stallworth.

7 Because the 141 capital felonies charged in Connecticut since 1973 far

exceeds the number of death sentences imposed, the former provides a

more reliable basis for measuring any systemic racial disparities in the

state’s capital punishment system. See J. Donohue, supra, 11 J. Empirical

Legal Stud. 651.

8 Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857).

9 Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194

(1944).

10 Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

11 State v. Rizzo, 266 Conn. 171, 226, 833 A.2d 363 (2003); see also California v. Ramos, 463 U.S. 992, 998–99, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983)

(‘‘the qualitative difference of death from all other punishments requires a

correspondingly greater degree of scrutiny of the capital sentencing determination’’); State v. Rizzo, supra, 226 (‘‘[d]eath, in its finality, differs more

from life imprisonment than a 100-year prison term differs from one of only

a year or two’’ [internal quotation marks omitted]); District Attorney v.

Watson, supra, 381 Mass. 670 (‘‘[w]hile other forms of punishment may also

be arbitrary in some measure, the death penalty requires special scrutiny

for constitutionality’’).

12 Numerous courts and commentators have recognized that the improper

exercise of discretion by government officials tasked with investigating,

charging, plea bargaining, and prosecuting crimes is no less offensive to

the constitution than discrimination by judges or juries at the fact-finding

and sentencing stages of the criminal justice process. See, e.g., State v. Cobb,

supra, 234 Conn. 781 (Berdon, J., dissenting); see also District Attorney v.

Watson, supra, 381 Mass. 667–68 (noting that most life or death decisions

in capital punishment process are made prior to trial).

13 We find noteworthy the fact that the coders whom Donohue employed

to objectively assess the egregiousness of the 205 death eligible crimes

committed in Connecticut since 1973 determined that 117, or 60 percent,

of the offenders who were not sentenced to death committed crimes that

were as egregious or more egregious than the crime committed by the

defendant. See J. Donohue, supra, 11 J. Empirical Legal Stud. 679. Coders

ranked the defendant’s crime as the least egregious of those committed by

our state’s death row inmates. See id.