State v. Peeler

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 STATE v. PEELER—SECOND CONCURRENCE

PALMER, J., with whom EVELEIGH and McDON-
ALD, Js., join, concurring. In State v. Santiago, 318
Conn. 1, 122 A.3d 1 (2015), a majority of this court
concluded that, following the legislature’s April, 2012
decision to abolish the death penalty for all future
offenses; see Public Acts 2012, No. 12-5 (P.A. 12-5);
capital punishment no longer comports with the state
constitutional prohibition against cruel and unusual
punishment. See State v. Santiago, supra, 10, 86, 118–19,
140; see also Conn. Const., art. I, §§ 8 and 9. Specifically,
we determined that to execute individuals convicted of
committing capital felonies prior to April, 2012, now
that the legislature has determined that the death pen-
alty is neither necessary nor appropriate for any crimes
committed after that date, no matter how atrocious
or depraved, would be out of step with contemporary
standards of decency and devoid of any legitimate peno-
logical justification. See State v. Santiago, supra, 9,
14–15. Accordingly, we vacated the death sentence of
the defendant in that case, Eduardo Santiago, and we
ordered that he be resentenced to life in prison without
the possibility of release. Id., 140.
The present appeal is brought by another defendant,
Russell Peeler, who, like Santiago, committed a capital
felony and was sentenced to death prior to the enact-
ment of P.A. 12-5. Ordinarily, our determination in San-
tiago that the death penalty is no longer constitutional
would control the outcome of the present case as well,
and the defendant and others similarly situated would
be entitled to resentencing consistent with our decision
in Santiago. The state, however, has argued that Santi-
ago was decided without the benefit of adequate brief-
ing by the parties and that, as a result, the majority in
Santiago made a series of legal and historical errors
that led to an incorrect decision. Indeed, the state goes
so far as to contend that our decision in Santiago was
so unjust, and so completely devoid of legitimacy, that
it should be afforded no precedential value and now
may be overturned, only nine months later, merely
because the composition of this court has changed.
I agree with and join the per curiam opinion in this
case, in which the majority concludes that Santiago
remains binding and valid authority, and that other con-
victed capital felons who have been sentenced to death
are, therefore, entitled to be resentenced forthwith con-
sistent with that decision. I write separately because I
categorically reject any suggestion that the parties did
not have the opportunity to brief these issues in Santi-
ago, or that the court in that case overlooked key
authorities, arguments, or historical developments that,
if properly considered, would have resulted in a differ-
ent outcome. We already have explained at some length
why the parties, and particularly the state, had a full
and fair opportunity to address the issues on which our
decision in Santiago was based. See id., 120–26; see
also State v. Santiago, 319 Conn. 935, 936–40, 125 A.3d
520 (2015) (denying state’s motion for stay of execution
of judgment in Santiago pending resolution of appeal
in present case). In this concurring opinion, I briefly
address the state’s principal historical and legal argu-
ments and explain why they are unpersuasive.
I
HISTORICAL ANALYSIS
The state first argues that, in Santiago, we ‘‘relied
on flawed historical analysis to justify [our] departure
from well established principles of law . . . .’’ Specifi-
cally, the state contends that we incorrectly concluded
that, prior to the adoption of the 1818 constitution,
Connecticut courts were authorized to review the con-
stitutionality of allegedly cruel and unusual punish-
ments. In reality, the state contends, the authority to
review and determine the propriety of a punishment
always has rested solely with the legislature. In so
arguing, the state fundamentally misunderstands the
relevant Connecticut history, this court’s precedents,
and the basis of our decision in Santiago. Although a
full review of the relevant history and the scope of the
state’s confusion in this regard lies beyond the ambit
of this opinion, I briefly address three of the most signifi-
cant flaws in the state’s analysis.
First, the state misperceives the purpose of the dis-
cussion in part I of our decision in State v. Santiago,
supra, 318 Conn. 15–46, and the role that that discussion
played in the outcome of the case. Our goal in part I
of Santiago was not to establish that this court has
the constitutional authority to strike down legislatively
enacted punishments as impermissibly cruel and
unusual. There was no need to establish that principle
because, as the defendant explains, and as the state
ultimately concedes, the state lost that argument
decades—if not centuries—ago. Just four years after
the adoption of the 1818 constitution, Chief Justice Ste-
phen Titus Hosmer, writing for the Connecticut
Supreme Court of Errors, rejected the asserted ‘‘omnip-
otence of the legislature’’ with respect to punitive sanc-
tions such as imprisonment and clarified that the review
of such laws was properly within the purview of the
judiciary. Goshen v. Stonington, 4 Conn. 209, 225 (1822);
see also C. Collier, ‘‘The Connecticut Declaration of
Rights Before the Constitution of 1818: A Victim of
Revolutionary Redefinition,’’ 15 Conn. L. Rev. 87, 97
(1982) (‘‘the delegates to the Connecticut [c]onstitu-
tional [c]onvention of 1818 overrode the protestations
of the Federalist old republicans who still clung to a
faith in legislative supremacy and the common law to
uphold all of the natural rights of individuals’’). More
recently, in State v. Lamme, 216 Conn. 172, 179–80, 579
A.2d 484 (1990), and again in 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), we
rejected the state’s argument that our state constitution
confers the authority to determine what constitutes
cruel and unusual punishment solely on the legislature.1
Our purpose in part I of Santiago, then, was merely to
trace in greater detail than we previously had the origins
and contours of our state constitutional freedoms from
cruel and unusual punishment. In other words, the ques-
tion we considered in Santiago was the scope of the
rights at issue, and not which branch of government is
charged with securing their enforcement.2
The second fundamental flaw in the state’s historical
analysis is its suggestion that, prior to 1818, Connecticut
courts played no role in securing our common-law and
statutory freedoms from cruel and unusual punishment.
In Santiago, we reviewed numerous instances and con-
texts in which each of the three branches of government
at times sought to temper what were perceived as cruel
or unusual punishments. With respect to the judiciary,
for example, we noted agreement among scholars of
early Connecticut history that (1) magistrates enforced
the criminal law during the colonial period so as to
avoid needless cruelty, especially with regard to capital
crimes; State v. Santiago, supra, 318 Conn. 29–31; (2)
Connecticut courts began to nullify dubious capital sen-
tences as early as the 1660s; id., 31–32 n.27; and (3)
in the years leading up to the adoption of the 1818
constitution, ‘‘courts were adopting a milder practice
in applying the capital law.’’ (Internal quotation marks
omitted.) Id., 36. Indeed, the very source on which the
state relies explains at the outset how this preconstitu-
tional history sowed the seeds that ultimately blos-
somed into this court’s judicial review authority: ‘‘When
we speak of law in early Connecticut—legislation, adju-
dication, and executive administration—we speak of
the law of the magistrates.’’ E. Goodwin, The Magistracy
Rediscovered: Connecticut, 1636–1818 (1981) p. 11.
‘‘The Puritan’s peculiar concept of the magistracy was
. . . a unique contribution to the development of later
concepts of independent judiciaries, distinct functions
for courts of law, and even, perhaps, the distinctively
American notion of judicial review.’’ Id. In Lamme, hav-
ing reviewed this history, we concluded that ‘‘the most
significant aspect of the pre-1818 declaration of rights
is that it had constitutional overtones even though it was
statutory in form. The [d]eclaration and supplementary
statutes relating to individual rights were grounded in
the Connecticut common law and viewed as inviolate.
Abridgements perpetrated by the government were con-
sidered void on their face and courts were to refuse
to enforce them.’’ (Emphasis added; internal quotation
marks omitted.) State v. Lamme, supra, 216 Conn. 179,
quoting C. Collier, supra, 15 Conn. L. Rev. 94; see also
Binette v. Sabo, 244 Conn. 23, 79, 710 A.2d 688 (1998)
(Katz, J., concurring in part and dissenting in part).
Accordingly, although the state is certainly correct that
the legislature played a central role in establishing and
enforcing our traditional freedoms from cruel and
unusual punishment during Connecticut’s preconstitu-
tional era, the state has offered no reason to conclude,
counter to well established authority, that the legisla-
ture has been the exclusive guardian of those freedoms.3
Of course, any discussion of the relationship between
the judicial and legislative authorities during the pre-
constitutional era, and especially prior to the creation
of this court in 1784, must be qualified by the recognition
that the General Court, which, at the end of the seven-
teenth century, was renamed the General Assembly,
blended and simultaneously exercised both judicial and
lawmaking functions during that period. See, e.g., H.
Cohn & W. Horton, Connecticut’s Four Constitutions
(1988) p. 21; E. Goodwin, supra, pp. 33–35, 52–54. In
some sense, then, any discussion of whether the legisla-
ture or the judiciary was responsible for securing the
people’s freedom from cruel and unusual punishment
is academic. In any event, it is clear that the adoption
of the state’s first formal constitution in 1818 was moti-
vated in no small part by a desire to create an indepen-
dent judiciary tasked with securing those basic con-
stitutional liberties, and that these changes embodied
a rejection of the belief ‘‘that republican government
with legislative supremacy was the best safeguard of
personal liberties.’’ (Internal quotation marks omitted.)
State v. Lamme, supra, 216 Conn. 180; see also Starr
v. Pease, 8 Conn. 541, 546–48 (1831) (declaration of
rights contained in 1818 constitution imposed limita-
tions on excessive powers previously wielded by legisla-
ture); H. Cohn & W. Horton, supra, p. 23 (call for
independent judiciary was primary reason for constitu-
tional convention).
The third fundamental flaw in the state’s historical
analysis is the state’s failure to adequately and accu-
rately document its theory that the freedoms from cruel
and unusual punishment enshrined in the state constitu-
tion arose from and were limited to legislative efforts
to circumscribe the harsh and arbitrary punishments
imposed by colonial magistrates. Although the state
weaves a lengthy and intriguing narrative in support of
this theory, the state’s account is sparse on citation,
and, it must be said, one searches the cited authorities
in vain for the propositions that the state attributes to
them. Nowhere in the cited text, for example, does
Professor Lawrence B. Goodheart state that the Ludlow
Code of 1650—from which article first, § 9, of the state
constitution derives its origins—was drafted to address
public concerns that magistrates were wielding exces-
sive power or imposing arbitrary penal sanctions. See
L. Goodheart, The Solemn Sentence of Death: Capital
Punishment in Connecticut (2011) pp. 11–12. Quite the
contrary. In the section of his book on which the state
relies, Goodheart explains that the colonists generally
deferred to magistrates’ interpretation of Biblical
authority; see id., p. 9; and he discusses at some length
the key role that the magistrates played in securing
fundamental liberties and tempering the colonies’ dra-
conian capital statutes: ‘‘The statutes are deceptive as
to what occurred in practice. The laws represented a
religious ideal, a public declaration, as the 1672 [colo-
nial] code put it, of what was ‘suitable for the people
of Israel.’ The judicial system was much more lenient.
The courts aspired to be scrupulous and fair. There
was concern to balance individual protection with the
greater good. Drawing on centuries of English tradition,
the Puritans upheld civil rights, including . . . no tor-
ture [and] no cruel or barbarous punishments . . . .
Attorneys did not usually function in either colony; the
wise and impartial rule of the magistrates was deemed
sufficient.’’ (Footnotes omitted.) Id., p. 14.
The state’s reliance on Everett Goodwin’s book, The
Magistracy Rediscovered: Connecticut, 1636–1818, is
similarly misplaced. The state cites page 103 of Good-
win’s book for the proposition that, in the state’s words,
‘‘Connecticut’s history is unique in selecting the legisla-
ture as the body ‘safeguarding’ citizens from abusive,
unlegislated, court-imposed punishments, and not the
other way around.’’ The cited passage, however, con-
tains no mention whatsoever of abusive, court-imposed
punishments. Rather, Goodwin merely discusses the
fact that, as a general matter, Connecticut’s early legal
system relied less on English common law than did the
other American colonies. E. Goodwin, supra, p. 103. He
also references the evolution in Chief Justice Zephaniah
Swift’s thinking with respect to the separation of pow-
ers; although Swift initially believed in the primacy of
the legislature; see id., pp. 99–100, 103; he ultimately
came to conclude that, because the legislature is vulner-
able to ‘‘ ‘undue and improper influence’ ’’; id., p. 114;
the courts must play an important role with respect to
the constitutional review of statutes. See id., pp. 99,
101, 103, 109–10, 114, 160 n.34. In other parts of his
book, Goodwin explains that the colonists codified an
extreme version of the criminal law but ‘‘[left] the miti-
gation to the discretion of the [m]agistrate’’; (internal
quotation marks omitted) id., p. 27; and that the discre-
tion invested in the magistrates reflected the Puritans’
confidence in their wisdom and godliness. Id., p. 30.
Like Goodheart, then, Goodwin provides little support
for the state’s account.
The other sources on which the state relies likewise
fail to support—and in some cases flatly belie—the
state’s theory that Connecticut’s traditional freedoms
from cruel and unusual punishment originated from
and were limited to a commitment to statutory law as
a bulwark against abusive judicial sentencing practices.
William Holdsworth, for example, explains that magis-
trates in both the Connecticut and New Haven colonies
‘‘repeatedly avoided imposing the full penalties pre-
scribed by . . . [law]’’; W. Holdsworth, Law and Soci-
ety in Colonial Connecticut, 1636–1672 (1974) p. 124
(unpublished doctoral dissertation, Claremont Gradu-
ate School); and that, although Connecticut’s first crimi-
nal statutes were more severe than those of Massa-
chusetts, Connecticut’s colonial code actually ‘‘placed
fewer restrictions on the discretionary powers of the
magistrates, and increased the penalties they could
impose for certain crimes . . . .’’ Id., p. 132. Holds-
worth explains that ‘‘these differences reflect a greater
consensus in Connecticut between rulers and ruled and
a greater degree of trust of the one for the other, but
they also reflect the growth in magisterial power
. . . .’’ (Emphasis added.) Id.4 The state’s heavy reliance
on the language of Ludlow’s Code also misses the point.
Ludlow’s Code authorized not only those punishments
established by express legislative enactment, but also,
in the absence of a controlling statute, penal sanctions
imposed on the basis of the magistrates’ own under-
standing of ‘‘the word of God.’’ (Internal quotation
marks omitted.) L. Goodheart, supra, p. 12.
Even more troubling is the state’s representation that
this court’s decision in Pratt v. Allen, 13 Conn. 119,
125 (1839), stands for the proposition that, ‘‘[w]ith the
exception of moving the judiciary to an independent
body, the 1818 constitution ‘left the legislative depart-
ment as it found it.’ ’’ (Emphasis added.) The state
uses the quoted passage from Pratt in an attempt to
demonstrate that the judiciary, which, the state alleges,
had no authority to review the appropriateness of legis-
latively imposed punishments under the colonial com-
mon law, obtained no greater authority in this respect
under the 1818 constitution. The state, however,
neglects to account for the sentence in Pratt immedi-
ately preceding the one that it quotes. The full passage
reads as follows: ‘‘The [constitution of Connecticut], so
far as it respects the legislature, is conversant princi-
pally with its organization, the authority of its separate
branches, and the privileges of its members. But we
look in vain for the character of its legislative acts any
further than as they are, in some measure, restrained,
by the bill of rights. In short, with few limitations, it
left the legislative department as it found it.’’ (Emphasis
added.) Pratt v. Allen, supra, 125. The only fair reading
of Pratt, then, is that the creation of an independent
judiciary was not the only change effected by the state
constitution, as the state suggests. Rather, the high-
lighted portions of the foregoing passage, which the
state omits, clearly indicate that the constitution, in
tandem with the creation of an independent judiciary,
constrained the authority of the legislature to enact
laws that infringe our basic liberties.
A thorough review of the cited historical sources and
our related cases thus leaves one with the discomforting
impression that the state, in its apparent zeal to retain
the death penalty, has mischaracterized not only this
court’s precedents but history itself. For all of these
reasons, I reject the state’s contention that this court,
in Santiago, relied on a flawed historical analysis or
exercised its powers of judicial review in a manner
precluded by either tradition or precedent.
II
DELAYS AND INFREQUENCY
OF IMPLEMENTATION
The state’s next argument is that, in Santiago, we
improperly considered the infrequency with which the
death penalty is imposed in Connecticut, as well as
the lengthy delays in carrying out capital sentences, in
determining that capital punishment no longer com-
ports with contemporary standards of decency and no
longer serves any legitimate penological purpose. Spe-
cifically, the state contends that (1) this court rejected
these arguments in State v. Rizzo, 303 Conn. 71, 191–94,
31 A.3d 1094 (2011), cert. denied, U.S. , 133 S.
Ct. 133, 184 L. Ed. 2d 64 (2012), (2) nothing has changed
since our decision in Rizzo to justify a different out-
come, and (3) in any event, our conclusion that delays
in carrying out capital sentences render the punishment
unconstitutional is precluded by this court’s decision
in State v. Smith, 5 Day (Conn.) 175 (1811). I consider
each argument in turn.
Nothing in our decision in Rizzo precluded the result
we reached in Santiago. In Rizzo, we looked at the
growing infrequency of capital sentencing and execu-
tions throughout the country. See State v. Rizzo, supra,
303 Conn. 192–94 and nn. 89–94. At that time, we did
not reject out of hand the argument of the defendant,
Todd Rizzo, that the death penalty had come to be so
rarely used in the United States as to constitute cruel
and unusual punishment. Nor did we specifically con-
sider recent developments in this state. Rather, we rec-
ognized that both capital sentences and executions
were declining in number nationwide, and we acknowl-
edged that several of the likely causes of those declines
suggested diminishing public support for capital punish-
ment. See id., 192–94. At the same time, however, we
noted that the decline also might reflect other, short-
term factors, such as the economic recession, supply
shortages of one of the lethal injection drugs, and tem-
porary uncertainty about the legal status of capital pun-
ishment pending the United States Supreme Court’s
decision in Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520,
170 L. Ed. 2d 420 (2008). State v. Rizzo, supra, 192–94.
We also noted that the number of executions carried
out nationally in 2007 and 2008, although a recent low,
remained substantially higher than during the early
1990s, just prior to our decision in State v. Ross, supra,
230 Conn. 183. See State v. Rizzo, supra, 192. Accord-
ingly, and in light of the fact that capital punishment
remained legal in most states; see id., 190; we could
not conclude at that time that infrequency of imposition
alone was sufficient evidence that the death penalty
had become impermissibly cruel and unusual. See id.,
194. Because capital punishment remained legal, and
so presumably retained some deterrent value, we also
did not have cause at that time to consider whether
lengthy delays in carrying out capital sentences
deprived capital punishment of its retributive value.
Much has changed since Rizzo. Two additional
states—Maryland and Nebraska—have abolished capi-
tal punishment.5 The number of executions carried out
nationally has continued to decline, falling by more than
one third from 2011 to 2015, and is now lower than
at any time since 1991.6 The number of new capital
sentences imposed likewise continues to fall; the total
fell by nearly 40 percent between 2011 and 2015, and
is now by far the lowest of the post-Furman7 era.8 It
has been more than one decade since the last execution
was carried out in New England (Michael Ross, who
essentially volunteered to die, in 2005), and more than
five decades since the one before that (Joseph Taborsky
in 1960). That this is all true even though many of the
short-term factors we considered in Rizzo no longer
apply strongly suggests that the persistent, long-term
declines in capital punishment are just what they appear
to be—evidence that contemporary standards of
decency have evolved away from execution as a neces-
sary and acceptable form of punishment. Significantly,
the Death Penalty Information Center has published
its 2015 year-end summary, and the statistics for 2015
continue to reflect a substantial decline in the imposi-
tion and implementation of the death penalty nation-
wide.9 If anything, the pace of decline is accelerating.
Since our decision in Rizzo, a number of respected
jurists also have concluded that the infrequent imposi-
tion and delayed execution of the death penalty call
its constitutionality into question. See, e.g., Glossip v.
Gross, U.S. , 135 S. Ct. 2726, 2764–76, 192 L. Ed.
2d 761 (2015) (Breyer, J., with whom Ginsburg, J., joins,
dissenting); Jones v. Chappell, 31 F. Supp. 3d 1050,
1065–67 (C.D. Cal. 2014) (Carney, J.), rev’d sub nom.
Jones v. Davis, 806 F.3d 538 (9th Cir. 2015). At the same
time, new legal scholarship has emerged that power-
fully debunks the state’s argument that the rarity with
which the death penalty is imposed in Connecticut
merely indicates that our capital felony statutes are
working as intended, and that the ultimate punishment
is being reserved for the very worst offenders.10
Most significant, however, is the fact that, in 2012,
the year after we decided Rizzo, the legislature enacted
P.A. 12-5, which prospectively abolished the death pen-
alty in Connecticut. Legislative abolition fundamentally
altered the constitutional calculation we conducted in
Rizzo. It cast in a new light all of the various factors
pointing to reduced societal acceptance of capital pun-
ishment. It swept away the most compelling arguments
that capital punishment serves legitimate penological
functions. And it reflected the awareness of the legisla-
ture that the infrequency with which the death penalty
is imposed and the slowness with which it is carried
out dramatically undermine its ability to serve a valid
retributive function and to secure justice and peace for
the families of murder victims. See State v. Santiago,
supra, 318 Conn. 103 and n.99. In light of these dramatic,
recent changes in the constitutional landscape, it is
difficult to comprehend how the state can argue with
a straight face that ‘‘[t]here is nothing new under the
sun . . . .’’ (Footnote omitted.)
Lastly, I am not persuaded by the state’s assertion
that State v. Smith, supra, 5 Day (Conn.) 175, a case
decided two decades before the invention of the type-
writer, somehow precludes the result this court reached
in Santiago. Smith was the first published case in which
this court considered whether two sentences of impris-
onment may be imposed to run consecutively without
offending the state’s common-law prohibition against
cruel and unusual punishment. See id., 178. Because
‘‘such ha[d] been the usage of our courts, for many
years past,’’ we concluded that postponing the com-
mencement of the second term of imprisonment until
the first had been completed was neither unprece-
dented nor cruel. Id., 179. Nowhere in the court’s brief
discussion of that issue, however, did it consider or
decide any of the novel questions raised in Santiago
and in the present appeal: (1) whether a method of
punishment that is only imposed a few times per decade
and only carried out a few times per century may be
deemed to violate contemporary standards of decency;
(2) whether the retributive value of a punishment—both
to the offender and to the victims—dissipates when
decades pass before it is carried out; and (3) whether
the various procedural safeguards established by the
federal and state legislatures and courts, which permit
individuals on death row to pursue nearly endless appel-
late and postconviction remedies, reflect society’s
reluctance to impose the ultimate punishment and
unwillingness to see it imposed erroneously. For these
reasons, there is no doubt that, in Santiago, we properly
considered the actual practices of this state with respect
to the imposition and carrying out of capital sentences
in concluding that capital punishment constitutes what
has come to be seen as cruel and unusual.
III
RACIAL DISPARITIES AND PROSECUTORIAL
DISCRETION
The state next contends that, in Santiago, when we
observed that ‘‘the selection of which offenders live
and which offenders die appears to be inescapably
tainted by caprice and bias’’; State v. Santiago, supra,
318 Conn. 106–107; we improperly relied on statistical
evidence suggesting that people of color who offend
against white victims are more likely than other offend-
ers to be capitally charged and sentenced to death. The
state argues that (1) a court in a habeas case currently
pending on appeal before this court rejected these sta-
tistical claims; see In re Death Penalty Disparity
Claims, Docket No. TSR-CV-05-4000632-S, 2013 WL
5879422 (Conn. Super. October 11, 2013); (2) studies
that have documented racial disparities in other juris-
dictions are not relevant to this state because, in the
1970s, Connecticut enacted the narrowest capital sen-
tencing scheme in the country, and (3) in any event,
such claims were not properly before us in Santiago.
The short answer to the state’s arguments is simply
to reiterate what we stated in Santiago: the question
whether there are presently statistically significant
racial disparities in the imposition of the death penalty
in Connecticut was not before us in that case, as it is
not before us in the present case, and we did not reach
or rely on any such conclusion in holding the death
penalty unconstitutional. See State v. Santiago, supra,
318 Conn. 109 n.104. What we did consider in Santi-
ago—on the basis of an abundance of legal scholarship,
persuasive federal and state authority, a thorough
review of the relevant history, and our knowledge of
human nature—was the proposition that any sentencing
scheme that allows prosecutors not to seek and jurors
not to impose the death penalty for any reason ‘‘neces-
sarily opens the door’’ to caprice and bias of various
sorts, racial or otherwise. (Emphasis added.) Id., 108.
In other words, we agreed, as a matter of law, with
those judges and scholars who have concluded that
such a system cannot, in principle, ensure that the ulti-
mate punishment will be imposed fairly and objectively,
as it must be. The factual question of the extent to
which the undisputed facial disparities in Connecticut’s
capital charging and sentencing system do in fact result
from subconscious racial biases never entered into
our analysis.11
The state’s argument to the contrary—that Connecti-
cut law does not afford jurors unlimited discretion to
find mitigating factors—is unavailing. ‘‘It is well estab-
lished that federal constitutional . . . law establishes
a minimum national standard for the exercise of individ-
ual rights . . . .’’ (Internal quotation marks omitted.)
State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993);
see also State v. Santiago, supra, 318 Conn. 18–19 (rule
applies to eighth amendment protections). The United
States Supreme Court repeatedly has instructed that
juries must retain the discretion to consider any poten-
tially mitigating factors when deciding whether to
impose a capital sentence,12 and the supremacy clause
of the federal constitution bars both our legislature and
this court from abridging that discretion. It is true that
the United States Supreme Court has explained, and
we have recognized, that the states remain free to chan-
nel the manner in which jurors exercise their broad
discretion, such as by instructing that mitigating factors
should be considered in light of ‘‘all the facts and cir-
cumstances of the case.’’ (Internal quotation marks
omitted.) State v. Ross, supra, 230 Conn. 284; see also
id. (ultimately concluding that ‘‘[t]he instructions as
given did not preclude the jury from giving mitigating
force to any fact, taken alone or taken in conjunction
with any other facts presented’’ [emphasis added]). Ulti-
mately, however, there is nothing in the law of Connecti-
cut or in this court’s precedents that prevents a capital
jury from considering racial, ethnic, or other such fac-
tors when deciding whether to impose the ultimate
punishment. None of the cases cited by the state are
to the contrary.
Because we did not rely on any factual finding of
recent racial disparities in Santiago, and we do not do
so now, it is not necessary to address fully the state’s
first and second arguments. I would, however, briefly
note my disagreement with each.
With respect to In re Death Penalty Disparity
Claims, I do not understand the court in that case to
have rejected the petitioners’ claim that there is statisti-
cally significant evidence that people of color who kill
white victims are capitally charged, and thus placed at
risk of death, at a much higher rate than are other
offenders, and that those disparities cannot reasonably
be accounted for by innocuous, nonracial factors.
Rather, I understand the court to have acknowledged
that there are significant racial disparities in capital
charging (but not sentencing) in Connecticut; see In
re Death Penalty Disparity Claims, supra, 2013 WL
5879422 *19, *24–*25; but to have concluded that, as a
matter of federal constitutional and discrimination law,
such disparities do not impair the validity of capital
sentences imposed in this state. See id., *7, *10, *16–*18,
*22–*25. The court further concluded, as a matter of
law, that the constitution of Connecticut affords no
greater protections than does federal law in this regard.
Id., *3, *8. Whether the court in In re Death Penalty
Disparity Claims was correct with respect to the latter
conclusion is a question that this court has yet to
answer.
Turning to the state’s second argument, I am troubled
by its repeated contention that the abundant evidence
of racial disparities in other jurisdictions is irrelevant
to the Connecticut experience because, ‘‘[i]n response
to Furman [v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.
Ed. 2d 346 (1972)], Connecticut enacted the narrowest
capital sentencing scheme in the country.’’ The state
relies on the following footnote in a 1980 law review
article to support its proposition: ‘‘Connecticut’s capital
punishment law is unique in one regard. It enumerates
five mitigating circumstances. But it states that the sen-
tence shall not be death, if any mitigating factor exists,
whether statutorily defined or not. In other words,
unlike the practice in every other state (except to some
extent Colorado), a Connecticut jury, once it finds a
mitigating fact, whether enumerated or not, does not
have the power to balance or weigh the mitigating fact
against any aggravating fact that may be present. The
very existence of a mitigating fact precludes a death
sentence.’’ S. Gillers, ‘‘Deciding Who Dies,’’ 129 U. Pa.
L. Rev. 1, 104 n.10 (1980). Setting aside the question of
whether the quoted passage even stands for the proposi-
tion for which the state cites it, the state is well aware
that Connecticut’s capital punishment law has not been
as Gillers describes it for more than two decades. In
1995, the legislature amended General Statutes (Rev.
to 1995) § 53a-46a to eliminate the provision on which
the state relies. See Public Acts 1995, No. 95-19, § 1.
Since then, juries in capital cases in Connecticut have
balanced aggravating and mitigating factors in deciding
whether to impose the ultimate punishment, just as
they do in our sister states. In addition, any past idiosyn-
crasies in Connecticut’s capital sentencing scheme are
simply irrelevant to the central question of whether
minority defendants accused of offending against white
victims are capitally charged at a disproportionately
high rate.
IV
EXECUTION OF THE INNOCENT
The state next contends that, in Santiago, we improp-
erly considered the possibility that an innocent person
may be erroneously executed as one reason why the
death penalty fails to serve a legitimate retributive pur-
pose. Although the state does not dispute the growing
body of research that recently persuaded two justices
of the United States Supreme Court that capital punish-
ment is likely unconstitutional for this reason; see
Glossip v. Gross, supra, 135 S. Ct. 2756–59 (Breyer, J.,
with whom Ginsburg, J., joins, dissenting); the state
contends that the possibility of error is no longer a
concern in this state because none of the eleven men
currently subject to a sentence of death in Connecticut
has professed his innocence.
Even if this were true, and even if it were properly
subject to judicial notice, the state simply ignores the
fact that, under P.A. 12-5, new prosecutions can still be
brought at any time for capital felonies committed prior
to April, 2012. Of the thousands of murders committed
in Connecticut over the past several decades, some of
which would be death eligible, many remain unsolved.13
Accordingly, it is not at all unlikely that, if the death
penalty were to remain available, the state would con-
tinue to seek it for some who have been accused of
committing those crimes, with the possibility that an
innocent person could wrongly be sentenced to die.
Indeed, in the four years since the legislature prospec-
tively abolished capital punishment, one additional
offender has been sentenced to death,14 and at least
one other likely would have been capitally charged if
not for our decision in Santiago.15 The state is fully
aware of this possibility, as both the majority and a
dissenting justice discussed it in Santiago. See State
v. Santiago, supra, 318 Conn. 106 and n.102; id., 397
(Espinosa, J., dissenting). I am, therefore, perplexed
as to why the state continues to press this argument.
V
STATUTORY INTERPRETATION
The state next contends that, in Santiago, we improp-
erly departed from our ordinary approach to questions
of statutory interpretation. The basis of the state’s
objection is not entirely clear. For example, the state
contends that, in Santiago, we failed to make what it
considers to be ‘‘the required predicate finding that the
language of [P.A. 12-5] itself is ambiguous,’’ but, in the
very next paragraph of its brief, the state quotes our
conclusion in Santiago that ‘‘the policy judgments
embodied in the relevant legislation are ambiguous.’’
State v. Santiago, supra, 318 Conn. 89; see also id., 89
n. 91 (discussing textual ambiguity); id., 59–73 (consid-
ering competing interpretations of statutory text). More
fundamentally, the state appears to assume that Santi-
ago presented a conventional question of statutory
interpretation, for which we are constrained to follow
the dictates of General Statutes § 1-2z, which embodies
the plain meaning rule. At the same time, the state also
appears to recognize that claims that a penal sanction
constitutes cruel and unusual punishment are reviewed
according to a unique standard of review that requires
us to assess ‘‘what a penal statute actually indicates
about contemporary social mores.’’ (Emphasis in origi-
nal.) Id., 72 n.62.
In any event, to the extent that it was not transparent
from our decision in Santiago, I take this opportunity to
clarify that a claim that a penal sanction impermissibly
offends contemporary standards of decency is not a
question of statutory interpretation subject to § 1-2z and
the attendant rules of construction.16 When a reviewing
court considers whether a challenged punishment is
excessive and disproportionate according to current
social standards, legislative enactments are just one—
albeit the most important—factor to be considered.
Moreover, our goal in evaluating those enactments is
not merely to determine what the legislature intended
to accomplish through the enabling legislation (the
touchstone of statutory interpretation), but also to
understand what the legislation says and signifies
about our society’s evolving perspectives on crime and
punishment. In that respect, we look not only to the
words of the statute, but also to its legislative history,
the aspirations and concerns that were before the legis-
lature as it deliberated, and, to the extent we can per-
ceive them, the political motivations and calculations
that affected or effected the outcome of those delibera-
tions. The latter, as much as anything else, offer a portal
into what the final legislative product indicates about
our contemporary standards of decency.
VI
RETRIBUTION AND VENGEANCE
The state next argues that, in Santiago, we incor-
rectly concluded that the death penalty now lacks any
legitimate penological purpose because, among other
things, the legislature’s decision to retain it on a retroac-
tive only basis was intended primarily to satisfy a public
thirst for vengeance toward two especially notorious
inmates, rather than to accomplish permissible retribu-
tive purposes. The state counters that (1) the legislature
regularly and properly crafts penal statutes in response
to public reactions to specific notorious and vicious
crimes, and (2) P.A. 12-5 was crafted to make good on
a promise to the families of murder victims that death
would be repaid with death, and making good on such
a promise is a legitimate manifestation of retributive
justice.
Although it is undoubtedly true that the legislature
is naturally responsive to powerful public sentiments,
in the arena of criminal law as in other areas, that alone
does not insulate a penal statute from constitutional
scrutiny. As we explained in Santiago, if the mere fact
that a punishment arose out of the democratic process
established that it served a legitimate penological pur-
pose, then the eighth amendment and its state constitu-
tional counterparts would be largely superfluous. See
id., 134–35. Rather, as the United States Supreme Court
explained in United States v. Brown, 381 U.S. 437, 85
S. Ct. 1707, 14 L. Ed. 2d 484 (1965), ‘‘in a representative
republic . . . [in which] the legislative power is exer-
cised by an assembly . . . [that] is sufficiently numer-
ous to feel all the passions [that] actuate a multitude
. . . yet not so numerous as to be incapable of pursuing
the objects of its passions . . . barriers [must] be
erected to ensure that the legislature [does] not over-
step the bounds of its authority . . . .’’ (Emphasis omit-
ted; internal quotation marks omitted.) Id., 443–44.
‘‘Nothing is more common than for a free people, in
times of heat and violence, to gratify momentary pas-
sions, by letting into the government principles and
precedents [that afterward] prove fatal to themselves.’’
(Internal quotation marks omitted.) Id., 444. The court
further emphasized that, in a government of divided
powers in which each checks the others, the judiciary
must play a central role in tempering the legislature’s
‘‘[peculiar] susceptib[ility] to popular clamor,’’ espe-
cially with respect to the levying of punishments against
particular infamous persons. (Internal quotation marks
omitted.) Id., 445. It is that task that we undertook
in Santiago.
 With respect to promises made to families and friends
of the victims, we all have deep compassion for those
who have been made to suffer the curse of crime. See,
e.g., Luurtsema v. Commissioner of Correction, 299
Conn. 740, 772, 12 A.3d 817 (2011). As we explained in
Santiago, however, whatever vows the state has made
that it will seek and impose the ultimate penalty have
proved to be unkeepable. Of the thousands of heinous
murders that have been committed in Connecticut in
the last six decades, only two have resulted in execu-
tions, and those only after the offenders renounced
their appellate and habeas remedies and, in essence,
volunteered to die. For the countless other families
and secondary victims, the promise that they will find
‘‘restoration and closure’’17 in the hangman’s noose, or
an infusion of sodium thiopental, has proved to be a
false hope. The vast majority of even the worst of the
worst offenders are never sentenced to die, and, for
the minuscule number who are, the delays are endless.
Accordingly, although I am sensitive to the state’s plea,
I remain convinced that the death penalty, as it has
been implemented in Connecticut over the past one-
half century, serves no useful retributive purpose.18
VII
CONSTITUTIONAL TEXT
The state next argues that the death penalty can never
be held unconstitutional because ‘‘it is expressly permit-
ted by the Connecticut constitution.’’ The state further
argues that our reliance in Santiago on People v. Ander-
son, 6 Cal. 3d 628, 493 P.2d 880, 100 Cal. Rptr. 152, cert.
denied, 406 U.S. 958, 92 S. Ct. 2060, 32 L. Ed. 2d 344
(1972);19 see State v. Santiago, supra, 318 Conn. 131; was
misplaced because that decision has been the subject of
some judicial and scholarly criticism. Instead, the state
recommends for our consideration a concurring opin-
ion authored by Justice Antonin Scalia, who opines that
‘‘[i]t is impossible to hold unconstitutional that which
the [c]onstitution explicitly contemplates.’’ (Emphasis
omitted.) Glossip v. Gross, supra, 135 S. Ct. 2747 (Scalia,
J., concurring).
The dissenting justices in Santiago raised similar
objections. See, e.g., State v. Santiago, supra, 318 Conn.
246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella,
J., dissenting). The majority responded to them at some
length in that decision; see id., 129–32; and no useful
purpose would be served by rehashing those arguments
here. I would, however, make a few additional points.
Regardless of whether one considers Anderson itself
to be persuasive authority, recent scholarship both vin-
dicates the reasoning of that case and sheds light on
the defects in Justice Scalia’s position. As Professor
Joseph Blocher explains, ‘‘some supporters of the death
penalty continue to argue . . . that the death penalty
must be constitutional because the [f]ifth [a]mendment
explicitly contemplates it. The appeal of this argument
is obvious, but its strength is largely superficial, and is
also mostly irrelevant to the claims being made against
the constitutionality of capital punishment. At most,
the references to the death penalty in the [constitution]
may reflect a founding era assumption that it was consti-
tutionally permissible at that time. But they do not
amount to a constitutional authorization; if capital pun-
ishment violates another constitutional provision, it is
unconstitutional.’’ J. Blocher, ‘‘The Death Penalty and
the Fifth Amendment’’ (December 16, 2015) p. 1 (unpub-
lished manuscript), available at http://scholarship.law.
duke.edu/cgi/viewcontent.cgi?article=6227&context=
faculty_scholarship; see also B. Ledewitz, ‘‘Judicial
Conscience and Natural Rights: A Reply to Professor
Jaffa,’’ 10 U. Puget Sound L. Rev. 449, 459 (1987) (‘‘The
fifth amendment represents a limitation on capital pun-
ishment, that it was not to be carried out in the future
as it had been in the past. One could hardly call the
due process clause an endorsement of capital pun-
ishment.’’).
The state’s argument appears to be that, with respect
to the Connecticut constitution in particular, the due
process clause of article first, § 8, cannot form the basis
for holding capital punishment unconstitutional when
that same clause authorizes the state to impose the
death penalty, as long as it affords adequate due process
of law. As the aforementioned authorities explain, how-
ever, this argument rests on two conceptual errors.
First, a declaration of rights such as that contained in
article first of the Connecticut constitution, or the fed-
eral Bill of Rights, is not a grant of governmental author-
ity; rather, it delineates the rights and freedoms of the
people as against the government. See State v. Conlon,
65 Conn. 478, 488–89, 33 A. 519 (1895); see also J.
Blocher, supra, pp. 3, 8–9. For the state to suggest that
one right (to be free from cruel and unusual punish-
ment) bars the exercise of another right (presumably,
to execute capital felons) is to fundamentally misunder-
stand the nature of the freedoms enshrined in article
first. States have powers, and the people have rights
vis-a`-vis the exercise of those powers; there is no gov-
ernmental right to kill.
A second, related conceptual error is the state’s
apparent failure to distinguish necessary from sufficient
conditions. See J. Blocher, supra, p. 9. Article first, § 8,
of the Connecticut constitution, as amended by article
seventeen and twenty-nine of the amendments, which
provides in relevant part that ‘‘[n]o person shall be . . .
deprived of life . . . without due process of law . . .
[or] held to answer for any crime, punishable by death
. . . unless upon probable cause,’’ indicates that, to the
extent that the death penalty is otherwise permissible
and authorized by law, it may be imposed only after
the defendant is afforded adequate due process. In other
words, due process is a necessary condition for the
imposition of the death penalty, and article first, § 8,
as amended, thereby restricts the circumstances under
which that penalty may be imposed. There is no textual
support, however, for the state’s apparent belief that
article first, § 8, as amended, makes the provision of
due process a sufficient condition for the imposition
of capital punishment, so that the state is authorized
to carry out executions as long as it has complied with
the requirements of due process. Of course, as we
explained in State v. Ross, supra, 230 Conn. 249–50,
the fact that the founders expressly referenced capital
punishment in the state constitution, and the fact that
such references were retained when article first, § 8,
was amended at the most recent constitutional conven-
tion in 1965, provides strong evidence that, at those
times, capital punishment was seen to be a legal and
permissible penalty that comported with standards of
decency of the day. But that implies at most that the
death penalty is not unconstitutional per se, at all times
and under all circumstances. As Blocher explains, ‘‘one
could grant Justice Scalia’s argument that the death
penalty is not ‘categorically impermissible’ while main-
taining that the conditions for its constitutional use are
not currently satisfied and perhaps never will be.’’ J.
Blocher, supra, p. 5.
VIII
STARE DECISIS
Lastly, the state argues that, to the extent that Santi-
ago was wrongly decided and resulted in an unjust
outcome, the principle of stare decisis, that is, the duty
of a court to adhere to established precedent, does
not require that we uphold the conclusion that capital
punishment offends the state constitution. The state
itself concedes, however, that ‘‘a court should not over-
rule its earlier decisions unless the most cogent reasons
and inescapable logic require it . . . .’’ (Citation omit-
ted; internal quotation marks omitted.) State v. Alvarez,
257 Conn. 782, 793–94, 778 A.2d 938 (2001). The state
has provided neither reasons nor logic to justify overrul-
ing our recent decision in Santiago.20
First, having fully reviewed the state’s arguments and
the authorities on which it relies, I find no reason to
conclude that Santiago was wrongly decided, let alone
unjust. The state has not pointed to any controlling
cases that we overlooked, persuasive arguments that
we failed to consider, or fatal defects in our reasoning.
Most of the state’s arguments are ones that we expressly
considered and rejected in Santiago, and the others
fail to hold up under scrutiny or simply miss the point.
In a disturbing number of instances, the authorities on
which the state relies do not even support the proposi-
tion for which the state cites them.
Second, the state has failed to identify any case, and
I am not aware of any, in which a court of last resort
has reversed its own landmark constitutional ruling
after a matter of just months. For this court to entomb
the death penalty in Santiago, and then to exhume and
revivify it nine months later, would be unprecedented
and would make a mockery of the freedoms enshrined
in article first of the state constitution. If the people
of Connecticut believe that we have misperceived the
scope of that constitution, it now falls on them to
amend it.21
Finally, I question whether a decision in this case to
overrule Santiago, and to revive the death penalty for
the defendant in the present case, could survive federal
constitutional scrutiny. The defendant in Santiago has
received the benefit of our decision therein, namely,
that capital punishment is an excessive and dispropor-
tionate punishment, and that he no longer may be exe-
cuted. The state now proposes that we reauthorize the
death penalty22 and proceed to execute the defendant,
Peeler, solely on the basis of the fact that a different
panel of this court, having considered essentially the
same arguments only months later, might reach a differ-
ent result. Nothing could be more arbitrary than to
execute one convicted capital felon who committed his
offense prior to the enactment of P.A. 12-5 but to spare
another, solely on the basis of the timing of their
appeals. For this reason as well, I reject the state’s
request that we overrule Santiago and revive the death
penalty in Connecticut.
1
The state, while ultimately acknowledging that the court in Ross
‘‘employed an independent analysis of the facial validity of a [capital] sen-
tence,’’ suggests that we did so principally to review the procedural safe-
guards that must be followed before the death penalty may be imposed,
and not to review the constitutionality of the punishment itself. This argu-
ment ignores the fact that, in both State v. Ross, supra, 230 Conn. 245–52,
and State v. Rizzo, 303 Conn. 71, 184–201, 31 A.3d 1094 (2011), cert. denied,
U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012), we purported to conduct
a comprehensive analysis of precisely the question presented in Santiago
and the present case, namely, whether, as a general matter, the death penalty
had come to offend the state constitutional prohibition against cruel and
unusual punishment, either because it fails to comport with contemporary
standards of decency or because it no longer serves any legitimate penologi-
cal purpose. The fact that capital punishment survived constitutional scru-
tiny in Ross and Rizzo but failed to do so in Santiago does not indicate
that we applied a less deferential standard of review in the latter case, as
the state contends. Rather, it simply reflects the fact that the legislature’s
prospective abolition of the death penalty in 2012 fundamentally reshaped
the penological landscape and thus altered our constitutional calculation.
2
I further note that the state’s argument that our reliance on State v.
Smith, 5 Day (Conn.) 175 (1811), was misplaced because that decision failed
to address the constitutionality of the sentence at issue proves little and
less. I will return to the holdings and implications of Smith. For now, suffice
it to say that one should not expect that a case decided in 1811, seven years
before the adoption of this state’s first formal constitution, would speak to
the constitutionality of the sentence in question. Rather, to reiterate, in
Santiago, we cited to pre-1818 authority such as Smith and Lung’s Case,
1 Conn. 428 (1815), merely as evidence of the well established common-
law freedoms from cruel and unusual punishment that were incorporated
into the due process provisions of the 1818 constitution. This court’s power
of judicial review was never in question.
3
The other cases on which the state relies are readily distinguishable or
otherwise fail to support the propositions for which the state cites them.
See, e.g., State v. Lamme, supra, 216 Conn. 183 (indicating that cases on
which state relies in construing article first, § 9, are not binding precedent);
State v. Davis, 158 Conn. 341, 358–59, 260 A.2d 587 (1969) (relying on fact
that five successive legislatures had declined to abolish death penalty in
holding that penalty complied with federal constitution), vacated in part,
408 U.S. 935, 92 S. Ct. 2856, 33 L. Ed. 2d 750 (1972); State v. Williams, 157
Conn. 114, 120–21, 249 A.2d 245 (1968) (when sentence that ultimately was
imposed was not illegal, failure of jail physician to provide certain medication
prior to trial did not constitute cruel and unusual punishment), cert. denied,
395 U.S. 927, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969); Simborski v. Wheeler,
121 Conn. 195, 197–98, 201, 183 A. 688 (1936) (challenge to form of execution
was based on statutory rather than constitutional ground). Although the
state suggests that the United States Supreme Court vacated Davis on other
grounds, in truth, it was precisely this court’s determination that legislative
authorization insulated the death penalty from constitutional review that
the Supreme Court rejected, in light of its decision in Furman v. Georgia,
408 U.S. 238, 239–40, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
4
The portions of Holdsworth’s dissertation suggesting that early criminal
statutes were enacted in response to concerns over the abuse of magisterial
discretion primarily refer to the prevalence of such concerns in Massachu-
setts. See W. Holdsworth, supra, pp. 104, 109, 167–71. The state fails to
acknowledge that Holdsworth repeatedly emphasizes that such concerns
were less pronounced in the Connecticut and New Haven colonies and that,
in fact, those colonies continued to increase the authority and discretion
of the magistrates after the adoption of Ludlow’s Code. See id., pp. 104,
132, 137, 152–53, 171–72. As Holdsworth concludes, ‘‘[Ludlow] omitted most
of the Bay Colony’s liberties and permitted the magistrates greater discretion
in dealing with many crimes. At one time, Connecticut’s leaders were dis-
trustful of magisterial discretion, but they became less anxious about it
once they assumed the mantle of authority themselves, trusting themselves
to deal sternly but justly with the multitude of problems that beset their
commonwealth.’’ Id., pp. 171–72; but see J. Trumbull, Historical Notes on
the Constitutions of Connecticut, 1639–1818 (1901) pp. 9, 42 (noting that
prominent founders of Connecticut, such as Thomas Hooker, founded colony
to escape magisterial tyranny that they perceived in Massachusetts).
5
Death Penalty Information Center, ‘‘States With and Without the Death
Penalty,’’ available at http://www.deathpenaltyinfo.org/states-and-without-
death-penalty (last visited May 12, 2016) (Maryland abolished death penalty
in 2013, and Nebraska abolished death penalty in 2015).
6
See Death Penalty Information Center, ‘‘Executions by Year,’’ available at
http://www.deathpenaltyinfo.org/executions-year (last visited May 12, 2016)
(detailing number of executions in United States since 1976).
7
Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
8
See Death Penalty Information Center, ‘‘Death Sentences by Year: 1976–
2014,’’ available at http://www.deathpenaltyinfo.org/death-sentences-year-
1977-2009 (last visited May 12, 2016); Death Penalty Information Center,
‘‘2015 Sentencing,’’ available at http://www.deathpenaltyinfo.org/2015-
sentencing (last visited May 12, 2016).
9
See generally Death Penalty Information Center, ‘‘The Death Penalty
in 2015: Year End Report,’’ available at http://www.deathpenaltyinfo.org/
documents/2015YrEnd.pdf (last visited May 12, 2016).
10
See J. Donohue, Capital Punishment in Connecticut, 1973–2007: A Com-
prehensive Evaluation from 4686 Murders to One Execution (2011) pp.
131–46, available at http://www.deathpenaltyinfo.org/documents/
DonohueCTStudy.pdf (last visited May 12, 2016) (finding little relationship
between egregiousness and rate at which cases are charged as capital felon-
ies, and noting that, of seventeen offenders potentially chargeable with
capital felony murder for hire, only thirteen were charged capitally and only
one—Santiago—was sentenced to death).
11
Nor did we conclude in Santiago that Connecticut’s prosecutors have
exercised their discretion with anything less than complete professionalism.
In Santiago, we opined only that, in light of the constraints imposed by
federal law, it is virtually impossible to exercise such discretion so as to
ensure that the imposition of the death penalty, writ large, will not be
arbitrary and capricious.
12
See, e.g., Johnson v. Texas, 509 U.S. 350, 361, 113 S. Ct. 2658, 125 L.
Ed. 2d 290 (1993); see also Walton v. Arizona, 497 U.S. 639, 663, 110 S. Ct.
3047, 111 L. Ed. 2d 511 (1990) (Scalia, J., concurring in part and concurring
in the judgment) (opining that state cannot preclude consideration of defen-
dant’s racial beliefs as mitigating evidence), overruled in part on other
grounds by Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d
556 (2002).
 13
See, e.g., Division of Criminal Justice, State of Connecticut, ‘‘Cold
Cases—Open,’’ available at http://www.ct.gov/csao/cwp/view.asp?a=1798&
q=291462 (last visited May 12, 2016).
14
See State v. Roszkowski, Superior Court, judicial district of Fairfield,
Docket No. FBT-CR-06-0218479-T.
15
See State v. Howell, Superior Court, judicial district of New Britain,
Docket No. HHB-CR-15-0279874-T.
16
For the same reasons, the state’s argument that our decision in Santiago
was precluded by Connecticut’s savings statutes, General Statutes §§ 1-1 (t)
and 54-194, also misses the mark.
17
The state notes in its brief that maintaining the death penalty could
serve a retributive purpose by ‘‘providing a sense of restoration and closure
to victims and their families . . . .’’
18
The state, which quotes from the Book of Ecclesiastes in its brief, would
do well to consider the following passage therefrom: ‘‘Better not vow at all
than vow and fail to pay.’’ Ecclesiastes 5:5, in The New English Bible: Old
Testament (Oxford University Press & Cambridge University Press 1970)
p. 931.
19
We relied on Anderson 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; they do not forever enshrine the
death penalty’s constitutional status as standards of decency continue to
evolve . . . .’’ State v. Santiago, supra, 318 Conn. 131.
20
Justice Espinosa, in her dissenting opinion in the present case, repeat-
edly suggests that Santiago is not binding precedent because it was decided
on the basis of the subjective moral beliefs of the majority, contrary to
precedent and in violation of our sworn duty to follow the law. We already
have said everything that needs to be said with respect to these baseless
assertions. See State v. Santiago, supra, 318 Conn. 86 n.89. With respect to
the issue of stare decisis, we merely reiterate that our decision in Santiago
did not overturn controlling precedent but, rather, applied the well estab-
lished evolving standards of decency test in the context of a fundamentally
new and different legal landscape, in which capital punishment has been
legislatively abolished—an issue of first impression never before addressed
by this or any other court prior to the adoption of P.A. 12-5. Justice Espinosa’s
reliance on Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 234, 115 S.
Ct. 2097, 132 L. Ed. 2d 158 (1995), therefore, is misplaced.
21
Whether capital punishment might be reinstated in Connecticut by
means other than a constitutional amendment is not before us in this case.
See State v. Santiago, supra, 318 Conn. 86 n.88.
22
I take no position on the question of whether, following our decision
in Santiago, this court has the power to reauthorize the death penalty
without new enabling legislation. Compare Jawish v. Morlet, 86 A.2d 96, 97
(D.C. 1952) (statute held to be unconstitutional is ‘‘not void in the sense
that it is repealed or abolished’’ but remains dormant, and may be revived
by subsequent judicial decision), with Dascola v. Ann Arbor, 22 F. Supp.
3d 736, 744–46 (E.D. Mich. 2014) (decision holding statute unconstitutional
essentially nullifies statute, and if court should later determine that it does
in fact pass constitutional muster, legislature must reenact it).