dissenting. The issue in this case is not, as the majority puts it, the constitutionality of the Connecticut excise tax on cigarettes purchased by state correctional institutions. Rather, the issue is whether revoking the exemption from the excise tax for cigarettes sold in state correctional institutions, while retaining such an exemption for cigarettes sold in other *548state institutions, violates the fourteenth amendment to the United States constitution.1
For approximately forty years, the state exempted from the excise tax all cigarettes sold to state institutions2 for distribution to inmates and patients confined in those institutions. Upon enactment of No. 89-16, § 28, of the 1989 Public Acts (hereinafter § 28), the exemption was repealed for cigarettes sold to correctional institutions for distribution to inmates. Section 28 effectively placed a minimum tax of twenty mills on each cigarette sold to an inmate of a facility under the control of the commissioner of correction, but continued the excise tax exemption for inmates and others housed in other state institutions such as the Whiting Forensic Institute, mental health facilities, the Veterans Home and Hospital, and mental retardation *549facilities. Section 28 nearly doubled the cost of cigarettes for inmates located in correctional institutions.3
Prior to the revocation of the tax exemption, most of the inmates at correctional institutions who worked could purchase one pack of cigarettes per day after paying for personal items, such as envelopes, soap, deodorant, and other personal hygiene and food items. This reflected the historical basis for the payment of wages to inmates—that is, inmates were paid for their labor at a rate that enabled them to purchase one pack of cigarettes per day.4 Since inmate wages were not increased after § 28 was enacted, the parity between work and cigarettes was completely destroyed.
The plaintiff, Douglas E. Johnson, an inmate serving a sentence of eighty-five years for murder, arson and larceny, brought this action against the defendant James F. Meehan, commissioner of revenue services,5 seeking, among other things, a judgment declaring that the revocation of the exemption by § 28 violated *550his constitutional right to equal protection. Because I believe that § 28 deprives the plaintiff of these rights, I would reverse the trial court and remand the case with instructions to render summary judgment in favor of the plaintiff, and for further proceedings.
I agree with the majority that great deference should be afforded to the legislature when it establishes economic classifications. “The appropriate standard of review is whether the difference in treatment . . . rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification . . . the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker . . . and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational .... This standard is especially deferential in the context of classifications made by complex tax laws.” (Citations omitted.) Nordlinger v. Hahn, 505 U.S. , 112 S. Ct. 2326, 2332, 120 L. Ed. 2d 1 (1992). I also agree that, generally, “[t]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” (Internal quotation marks omitted.) Miller v. Heffernan, 173 Conn. 506, 510, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978).
Nevertheless, I must depart from the majority’s analysis in this particular case. It is clear, as the majority concedes, that persons do not forfeit their rights under the fourteenth amendment just because they are incarcerated following conviction of a crime. See Lee v. Washington, 390 U.S. 333, 88 S. Ct. 994, 19 L. Ed. 2d 1212 (1968). Further, although the legislature possesses the “greatest freedom” in making classifications for taxing purposes; Harbor Ins. Co. v. Groppo, 208 Conn. 505, 510, 544 A.2d 1221 (1988); these classifications *551must bear some semblance of rationality. Circuit-Wise, Inc. v. Commissioner of Revenue Services, 215 Conn. 292, 301, 576 A.2d 1259 (1990). Rational basis review is not merely “a toothless” scrutiny. Mathews v. Lucas, 427 U.S. 495, 510, 96 S. Ct. 2755, 49 L. Ed. 2d 651 (1976). The legislative power to create classifications is not unlimited; even tax classifications “cannot be arbitrary but must rest upon some ground of difference having a fair and substantial relation to the object of the legislation.” (Internal quotation marks omitted.) Harbor Ins. Co. v. Groppo, supra, 510-11.
The Supreme Court of the United States has held that when the classification disadvantages a politically powerless or unpopular group, the record must affirmatively establish a rational basis for the classification, even though heightened scrutiny is not required. In other words, in situations in which the disadvantaged group has no political power or is recognized as being unpopular and subject to political bashing, the court has been unwilling to uphold a classification based upon a state of facts that can reasonably be conceived.6 *552Instead, the facts that are necessary to establish a rational basis for the classification must be established in the record.
For example, in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985), the court reviewed an equal protection challenge to a zoning ordinance that required a special permit to operate a group home for the mentally retarded, but not a nursing home, boarding house, hospital or other group living facility. The court held that, for the ordinance to be upheld, the “record” had to reveal a legitimate and rational basis for treating the retarded differently from other groups. Id., 448. The court rejected the rationales for the ordinance offered by the defendant city, stating: “At least this record does not clarify how, in this connection, the characteristics of the intended occupants of the . . . [group home for the retarded] rationally justify denying to those occupants what would be permitted to groups occupying the same site for different purposes. . . . The short of it is that requiring the permit in this case appears to us to rest on an irrational prejudice against the mentally retarded . . . .” Id., 450.
*553Similarly, in Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786, reh. denied, 458 U.S. 1131, 103 S. Ct. 14, 73 L. Ed. 2d 1401 (1982), the court invalidated on equal protection grounds a Texas statute that excluded Mexican children who were illegal aliens from the public schools. The court stated: “[W]e are unable to find in the congressional immigration scheme any statement of policy that might weigh significantly in arriving at an equal protection balance concerning the State’s authority to deprive these children of an education.” Id., 224-25. The state offered three rationales for the statute—that it protected the state against an influx of illegal immigrants, that undocumented children imposed special burdens on the school system that made it hard to provide high quality education, and that undocumented children are less likely to remain in the state and put their education to use there. Id., 228-30. The court, however, rejected all three rationales because they were unsupported by the record.7 See also United States Department of Agriculture v. Moreno, 413 U.S. 528, 534, 93 S. Ct. 2821, 37 L. Ed. 2d 782 (1973) (invalidating legislation intended to prevent “hippies” and “hippie communes” from participating in the food stamp program, since equal protection “must at the very least mean that [the] . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest” [emphasis in original]); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S. Ct. 1400, 31 L. Ed. 2d 768 (1972) (invalidating, on equal *554protection grounds, a workers’ compensation benefit statute that disadvantaged unacknowledged illegitimate children of deceased workers).
Accordingly, when a politically powerless or unpopular group is subjected to a legislative classification that significantly disadvantages it, the state not only must advance a justification that is rationally related to a legitimate state interest, but must also provide support for its claim in the record. Cleburne v. Cleburne Living Center, Inc., supra, 440, 448-50.
Just as the mentally retarded, illegal alien children, hippies and illegitimate children are politically powerless and unpopular, so too are prisoners convicted of crimes. Rhodes v. Chapman, 452 U.S. 337, 358, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981) (Brennan, J., concurring). This point was driven home during the legislative debate on § 28. One legislator who was amused by the hardship § 28 would impose on prisoners brought laughter from the House of Representatives when, citing “good public policy,” he quipped: “I can’t help but think that we should not raise this tax, because we should allow . . . [the prisoners] to smoke more . . . die sooner, get out of jails quicker and save money.” 32 H.R. Proc., Pt. 6, 1989 Sess., p. 1893.
Section 28 creates two sets of classifications, both of which violate the plaintiff’s constitutional right to equal protection. First, there is the distinction between inmates who purchase cigarettes in a correctional institution who must pay the excise tax and all others who purchase cigarettes in other state facilities, including other inmates. The majority holds that this classification is rational because “inmates in state correctional institutions have a greater opportunity to work and have the capacity to earn more income than patients or inmates in other state institutions . ...” I disagree.
*555The undisputed evidence before the trial court does not support the majority’s conclusion. Although the facts presented in the parties’ motions for summary judgment are confusing, it appears that approximately 33 percent of inmates are employed, 10 percent of mental health patients are employed, and 27 percent of mental retardation wards are employed. The evidence in the record simply does not support the conclusion of the trial court and the majority that the inmates have a greater financial ability to pay the resultant higher cost of cigarettes. The defendants admit in the documents supporting their motion for summary judgment that persons institutionalized outside the correction department receive, in addition to compensation for constructive work performed, compensation from the patient worker program, compensation from the workshop and volunteer service funds, and income from social security, veteran’s disability benefits, private pensions and the like.
The majority acknowledges that the general pay scale for inmates incarcerated in correctional institutions ranges from seventy-five cents to $2.40 per day for institutional work, and twenty-nine cents to seventy-one cents per hour for work in the regular prison industries program. From these funds, inmates must pay for personal items.
The majority’s suggestion that the plaintiff earns $639 in gross income and $430 in net income monthly, without more, is misleading. The plaintiff works in a special pilot program. Under this program, the plaintiff must pay a variety of expenses, including federal and state taxes, restitution payments, support for dependents, travel expenses to and from work, and the cost of prison room and board. See General Statutes §§ 18-90c and 18-101. Indeed, from the approximately $110 per week he nets after taxes, the plaintiff must pay the following: $25 for room and board, $15 for other *556food, and $65 for child and family support. This leaves the plaintiff with a net income of $5 per week, or a mere seventy-one cents per day. This is hardly sufficient to justify the conclusion that he and other inmates are more able to pay the excise tax than persons confined in other state institutions.
It is clear that any alleged distinction based upon the ability to pay will not pass muster in this case. Furthermore, the record is clear that the vast majority of persons confined in institutions—whether it be penal facilities, hospitals or retardation homes—do not work. Therefore, no rational classification can be made on the basis of the person’s status or location. Any such classification must be regarded as “so attenuated as to render the distinction arbitrary or irrational” and therefore violative of the equal protection clause. Cleburne v. Cleburne Living Center, Inc., supra, 446.
Further, there is not a scintilla of evidence in the legislative history of § 28 to support the ability to pay justification now advanced by the majority. Instead, the history reveals that the legislature wanted to raise additional revenues and felt that prisoners in correctional institutions did not deserve the same preferential treatment that persons confined in other state institutions received.8 The legislature sought further to *557punish persons in the plaintiff’s class for their crimes, a goal that has no relevance to the revenue raising purpose of the statute and cannot constitutionally support §28.
In Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966), the court considered a statute that required unsuccessful criminal appellants to reimburse the state for the costs of their trial transcripts out of their prison earnings. Unsuccessful appellants who were not incarcerated but instead were fined did not have to reimburse the state. The court invalidated the statute, because the distinction between incarcerated and nonincarcerated appellants was unrelated to the purpose of the statute, which was reimbursement of the cost of furnishing transcripts. The court noted that the “Equal Protection Clause does require that, in defining a class subject to legislation, the distinctions that are drawn have some relevance to the purpose for which the classification is made.” (Internal quotation marks omitted.) Id., 309.
The second classification established by § 28 distinguishes between inmates housed at state correctional institutions and inmates confined in state hospitals, since only the latter are allowed to maintain the tax exemption. The plaintiff’s challenge to this classification is not that the classification lacks “mathematical nicety,” as the majority characterizes it. Rather, *558the plaintiff rightly asserts that this classification is impermissible under State v. Reed, 192 Conn. 520, 473 A.2d 775 (1984).
In State v. Reed, supra, this court invalidated a statute that required a defendant confined to a mental institution following an insanity acquittal to reimburse the state for the cost of his or her care. A convicted defendant who was confined in a mental institution was not required to reimburse the state. Id., 525. This court held that the statutory distinction between insanity acquit-tees and convicted prisoners violated the state and federal equal protection clauses because the state could not point to “any . . . factor which might reasonably support the distinction the legislature has chosen to make by charging one but not the other.” Id., 532. The state argued that requiring acquittees to reimburse the state served the legitimate purpose of conserving state funds. Id., 531. The court, however, rejected this justification because excepting prisoners from the reimbursement requirement “whether or not they are able to pay such costs” was inconsistent with this purpose. Id. In the same way, taxing cigarette purchases by inmates in correctional institutions is unconstitutional if persons confined in other state institutions are exempted from the tax even though they may be able to afford it. The majority’s attempts to distinguish this case are simply unpersuasive.
Accordingly, I dissent and would hold that section 28 is unconstitutional because it violates the equal protection clause of the United States constitution.9
The plaintiff claims violations of both the state and federal equal protection clauses. Although there are substantial differences between the language of the state’s two equal protection clauses (i.e., article first, § 1, and article first, § 20, as amended by articles fifth and twenty-first) and the fourteenth amendment, the plaintiff in challenging this economic regulation does not claim that the state provisions provide any greater protection than the federal equal protection clause. Accordingly, my analysis and conclusions are predicated solely on the fourteenth amendment to the United States constitution.
Prior to the enactment of No. 89-16, § 28, of the 1989 Public Acts, General Statutes (Rev. to 1989) § 12-297 provided: “The tax imposed under the provisions of section 12-296 shall not apply to cigarettes sold to state institutions for distribution to patients or inmates, or to cigarettes purchased with revolving funds under the jurisdiction of state institutions, when the cigarettes purchased are to be consumed by patients or inmates confined at such institutions.”
General Statutes (Rev. to 1991) § 12-296 provided: “A tax is imposed on all cigarettes held in this state by any person for sale, said tax to be at the rate of twenty mills for each cigarette and the payment thereof shall be for the account of the purchaser or consumer of such cigarettes and shall be evidenced by the affixing of stamps to the packages containing the cigarettes as provided in this chapter.”
General Statutes § 12-296a provides for the imposition of additional taxes if the federal rate of taxation on cigarettes falls below certain levels.
Cigarettes cost inmates eighty-five cents per pack (sixty cents per pack for generic brands) before the repeal of the exemption, and $1.50 per pack ($1.10 per pack for generic brands) thereafter.
In his May 24, 1990 deposition, Larry R. Meachum, commissioner of correction, explained this historical parity between inmate employment and the cost of cigarettes as follows: “Historically back in the old, old days inmates did not get paid anything, they just worked, and then at some point in past generations corrections [facilities] across the country, not just in Connecticut, started to give inmates cigarettes as part of their incentive or reward or enticement to be able to work, and it was minim[al], but it seemed to be a matter of compassion. Through the years some inmates did not smoke, and so those that smoked got something, those who did not smoke did not get anything. So when institutions started to give them money, they gave them money equal to the [cost of a] pack of cigarettes, and if they wanted to buy cigarettes, they could do that, and if they wanted to spend it in the commissary, they could do that, but they would keep their pay at that level. So it was to some extent a belief ... in corrections that we should keep the two very commensurate.”
Larry R. Meachum, commissioner of correction, is also named as a defendant. Meachum was not given an opportunity to express his views on the elimination of the exemption for inmates in correctional facilities before the legislature adopted No. 89-16, § 28, of the 1989 Public Acts.
This approach has been criticized by legal scholars. I am adopting it only because the plaintiffs case is predicated on the fourteenth amendment, and this analysis has been employed by a majority of the United States Supreme Court. Professor Tribe points out: “This sporadic move away from near-absolute deference to legislative judgment seems to be a judicial response to statutes creating distinctions among classes of residents based on factors the Court evidently regards as in some sense ‘suspect’ but appears unwilling to label as such. While there may be grounds for the reluctance to proliferate new categories of classifications overtly triggering closer scrutiny, its covert use under the minimum rationality label presents dangers of its own. The lack of openly acknowledged criteria for heightened scrutiny permits arbitrary use of the type of inquiry undertaken in Cleburne [v. Cleburne Living Center, Inc., 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985)], for which courts will remain essentially unaccountable. With no articulated principle guiding the use of this more searching inquiry, even routine economic regulations may from time to time succumb to a form of review reminiscent of the Lochner [v. New York, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905)] era.” (Emphasis in original.) L. Tribe, American Constitutional Law (2d Ed. 1988) § 16-3, p. 1445.
In my view, rational basis review should be abandoned in favor of a higher level of scrutiny when a legislative classification burdens the politically *552powerless or unpopular, or when the only time that a purpose is advanced for a classification is in the argument of counsel. This approach was used in Schweiker v. Wilson, 450 U.S. 221, 101 S. Ct. 1074, 67 L. Ed. 2d 186 (1981), in which four members of the court held that a heightened review should be employed. “When a legislative purpose can be suggested only by the ingenuity of a government lawyer litigating the constitutionality of a statute, a reviewing court may be presented not so much with a legislative policy choice as its absence. In my view, the Court should receive with some skepticism post hoc hypotheses about legislative purpose, unsupported by the legislative history. When no indication of legislative purpose appears other than the current position of the Secretary, the Court should require that the classification bear a ‘fair and substantial relation’ to the asserted purpose. See F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 [40 S. Ct. 560, 64 L. Ed. 989] (1920). This marginally more demanding scrutiny indirectly would test the plausibility of the tendered purpose, and preserve equal protection review as something more than ‘a mere tautological recognition of the fact that Congress did what it intended to do.’ ” Id., 244-45 (Powell, J., dissenting).
In rejecting these three rationales, the court in Plyler v. Doe, 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786, reh. denied, 458 U.S. 1131, 103 S. Ct. 14, 73 L. Ed. 2d 1401 (1982), stated: “There is no evidence in the record suggesting that illegal entrants impose any significant burden on the State’s economy”; id., 228; “the record in no way supports the claim that exclusion of undocumented children is likely to improve the overall quality of education in the State”; id., 229; “the record is clear that many of the undocumented children . . . will remain in this country indefinitely, and that some will become lawful residents or citizens . . . .” Id., 230.
One legislator argued: “Today we have proposals before us to tax the honest, hardworking citizens of the State of Connecticut, while we have convicted felons, people who have raped, who have murdered, who have maimed some of our own constituents getting a free ride and not paying their minimal fair share of taxes.
“Do I need to remind any of you that it costs approximately $20,000 per year per inmate for the State of Connecticut, for us to house these individuals. I only believe it fair that they pay their minimal share of taxes, and I would hope that this would be a bipartisan effort and be unanimously adopted.” 32 H.R. Proc., Pt. 6, 1989 Sess., pp. 1892-93.
Another said: “[U]nder our current system, nobody stays in jail very long. They are not there long enough. Five year sentence for selling drugs? You serve six months. Let’s not give them a tax break to go with the other. Let’s not [let] them stock up on cigarettes in their brief stay in our prison *557system. We have got enough problems there. Let’s at least let convicted felons that don’t do much time, pay tax on their cigarettes while they are doing that little tiny bit of time.
“We have got enough problems in the system. Don’t give them a tax break, which we have been giving them, hopefully inadvertently, all along. Let’s adopt this very reasonable amendment and the funds go to Drug and Alcohol Abuse Council, under this amendment, so that we can deal with some of the drug abuse problems at the same time.” 32 H.R. Proc., Pt. 6, 1989 Sess., pp. 1893-94.
I therefore do not reach the plaintiff’s due process claims.