dissenting. I continue to adhere to my view that the imposition of the death penalty constitutes cruel and unusual punishment under our state constitution and is therefore prohibited. State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994) (Berdon, J., dissenting), cert. denied, U.S. , 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). Accordingly, I would remand this case to the trial court, not for a new sentencing hearing as the majority does, but rather for the imposition of the sentence of life imprisonment without the possibility of release.1
*261Justice Palmer today becomes the third justice of this seven justice court to hold that the imposition of the death penalty does not offend our state constitution. He joins Chief Justice Peters and Justice Callahan, who were in the majority in State v. Ross, supra, 230 Conn. 183, and again are part of the majority in this case.2 These three justices, in holding that the death penalty does not constitute cruel and unusual punishment, obviously agree that it satisfies contemporary standards of decency — that is, among other things, that a sentence of death does not degrade the dignity of the human being, is not arbitrary and capricious, is not imposed in a discriminatory manner and serves a legitimate purpose. I vehemently disagree. As I wrote in my dissent in Ross, “[n]ot only does the death penalty degrade the individuals who are sentenced to die, but it also degrades and dehumanizes a society that permits it to be imposed, calling into question the morality of every one of us.” Id., 334.
Because I explained at length in Ross why I believe the death penalty constitutes cruel and unusual punishment, I will not repeat that entire analysis here. Nevertheless, I feel compelled to elaborate on the discriminatory application of the death penalty. In addition, because the death penalty is the law of this state, at least until the other three justices of this court3 have an opportunity to speak on the issue, I also address two other issues: (1) the majority’s conclusion that the defendant, Robert J. Breton, Sr., failed to prove the existence of a mitigating factor; and (2) the requirement *262that the jury be made sufficiently aware that it alone bears the ultimate responsibility for deciding whether the defendant will live or die.
I
In Ross, I explained that an important consideration in determining whether the death penalty violates contemporary standards of decency, and consequently our state constitution’s ban on cruel and unusual punishment, is “the fact that the death penalty is imposed in a discriminatory fashion.” State v. Ross, supra, 230 Conn. 310 (Berdon, J., dissenting).
I supported this conclusion that the imposition of the death penalty is discriminatory with reports and information gathered by the federal government and statistics showing nationwide trends in the administration of the death penalty.4 These sources demonstrated that, on a national level, the death sentence is disproportionately carried out on the poor, on African-Americans, and on members of impopular groups. See id., 311. I farther wrote that “defendants who are convicted of murdering whites are much more likely to be sentenced to death than those convicted of murdering African-Americans.” Id., 310. Although I indicated that these “familiar patterns of discrimination are reflected in the current administration of the death penalty in Connecticut,” I was also under the impression that there was insufficient data upon which to base a definitive conclusion. Id.
Since then, however, this court has been provided with information that suggests that the nationwide discrimination trends that I identified in Ross are, indeed, also occurring in Connecticut. In State v. Cobb, Supreme *263Court Docket No. 14384, another death penalty case pending before this court, the defendant provided this court with disturbing preliminary data, the accuracy of which the state did not challenge.5 This data suggests that “[i]f the defendant is an African-American, he is more likely to receive the death penalty than if he were white. If the victim is white, a defendant also is more likely to receive the death penalty. If the defendant is an African-American and the victim is white, the defendant is highly more likely to receive the death penalty.” State v. Cobb, 234 Conn. 735, 768, 663 A.2d 948 (1995) (Berdon, J., dissenting).6
*264I recognize that this data is preliminary and that additional research, as well as mathematical analysis, must be conducted in order to determine whether these results are statistically significant. Nevertheless, I have no reason to believe that the administration of the death penalty will prove to be any less discriminatory in Connecticut than it has been throughout the rest of the country. Indeed, the Cobb data serves only to confirm what I expressed in Ross — that because of the racially biased manner in which we decide who shall five and who shall die, the death penalty cannot withstand state constitutional scrutiny.
II
I disagree with the majority’s conclusion that the defendant failed to prove the existence of a mitigating factor that would have prevented him from being sentenced to death. My analysis begins with the burden of persuasion that the defendant must satisfy in order to prove a mitigating factor that would spare his life. That burden of persuasion is satisfied by a preponderance of the evidence. State v. Daniels, 207 Conn. 374, 385, 542 A.2d 306 (1988). The defendant meets that burden of persuasion when he proves that “all the evidence considered fairly and impartially [induces] a reasonable belief that it is more probable than not that the fact *265is true.” (Internal quotation marks omitted.) State v. Haggood, 36 Conn. App. 753, 768, 653 A.2d 216 (1995); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.4.1, p. 73 (“[i]t is not necessary that the proof negate all other possibilities or that it reach the degree of certainty that excludes every other reasonable conclusion”).
The statutory scheme enumerates the considerations that a jury must weigh when determining whether a mitigating factor exists: “Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.” General Statutes § 53a-46a (d).7
*266As it did in Ross, the majority professes to apply a “heightened” standard of review to the jury’s necessary finding that the defendant had failed to prove a mitigating factor. The majority, quoting from State v. Ross, supra, 230 Conn. 259, maintains that it subjects the jury’s finding to “ ‘the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding ....’” See State v. Greenfield, 228 Conn. 62, 68, 69, 634 A.2d 879 (1993) (rejecting deferential “clearly erroneous” standard of review for factual issues implicating constitutional claims; holding instead that facts found by trier must be “supported by substantial evidence”). I certainly agree that, at the very least, this court must adopt such a heightened standard of review in cases involving the death penalty. A punishment of death is fundamentally and qualitatively different than any other punishment that society can inflict and, as such, demands special and critical scrutiny by this court.
The majority, however, quoting from State v. Ross, supra, 230 Conn. 264, goes on to dilute that “heightened” standard by stating that it reviews “the evidence presented at the defendant’s penalty hearing in the light most favorable to sustaining the facts impliedly found by the jury.” (Emphasis added; internal quotation marks omitted.) This is the same standard of review that we apply to all factual determinations made by a jury. There is nothing “heightened” about it. Put simply, the majority on the one hand furnishes a theoretical standard of review that demonstrates concern about the finality of the penalty of death, but on the other hand applies that standard in a maimer that defers to the jury’s determination, even though the evidence presented would com*267pellingly support a different conclusion. The theory and the practice, as demonstrated by this case, are simply inconsistent.
If this court were to apply a truly “heightened” standard of review, involving an independent and scrupulous examination of the entire record, the court would be required to conclude, as a matter of law, that the defendant proved the existence of a mitigating factor by a fair preponderance of the evidence. The defendant presented evidence that he had endured a horrible childhood and that, as an adult, he suffers from severe psychological problems. The state did not present any evidence in opposition.
The evidence presented by the defendant may be summarized as follows. The defendant’s mother placed him in an orphanage when he was a little more than one year old. When she took him back three years later, “he looked like he had been horribly abused. His hair was [falling] out, he looked emaciated. He was frightened of people. He wouldn’t allow anybody to touch him. He was withdrawn, and [his aunt] and others thought that something terrible had happened while he was there.”
The defendant’s childhood did not improve after he returned from the orphanage. The defendant’s parents, who were alcoholics, “were violent people.” The defendant’s mother would strip him, lay him across the bed and beat him with a belt on his genitals and buttocks. This continued until the defendant was in his early to middle teens. The defendant’s father repeatedly threatened to kill him. The father would make a hangman’s noose, dangle it in front of the defendant, and say, “I’m going to kill you, you’re never going to reach twenty-one years of age.”
The defendant’s parents also were preoccupied with knives and engaged in deviant sexual practices. The *268defendant’s father would strap knives on his body and say that if anybody got in his way, he would use the knives on them. The defendant’s mother once took one of the family’s pet cats, placed it in a bucket, stabbed it repeatedly and then dismembered it, placing body parts in various places around her bedroom. The defendant’s father convinced the mother to prostitute herself, and the parents would host strip poker parties. The defendant’s mother and other men would be naked together in the house, and the mother would expose herself to the defendant. When he was thirteen or fourteen years old, she grabbed his genitals and “attempted sexual molestation.”
The defendant’s psychiatrist, Walter Borden, testified that the defendant, as an adult, suffered from “severe mixed personality disorder with borderline schizoid, paranoid and depressive trends.” Borden explained that the defendant’s family background “is one of the most disturbed I’ve seen.” He testified that as a result of the defendant’s personality disorders, his depressive rage “caused him to destroy, to kill the very people he loved the most. That is what happened [in this case].” Borden concluded that at the time of the murders, the defendant’s mental capacity and his ability to conform his conduct to the requirements of the law had been significantly impaired, and that he had been suffering from extreme emotional disturbance.
A clinical psychologist, Anne Phillips, reached a similar conclusion. She testified that the defendant suffered from a severe mixed personality disorder with schizoid, paranoid and depressive features. According to Phillips, these problems likely originated when the defendant was an adolescent. She concluded that it was likely that the defendant’s mental capacity had been significantly impaired at the time of the offense.
The state did not offer any evidence in rebuttal. Instead, the state rested its case immediately upon con-*269eluding its cross-examination of the defendant’s witnesses after the defendant had proffered the foregoing evidence. On the basis of the evidence in the record, therefore, no jury reasonably could have concluded that the defendant had failed to prove the existence of a mitigating factor. Accordingly, the defendant’s sentence of death should also be reversed on this basis and he should be resentenced to life imprisonment without the possibility of release.
Ill
Finally, I am pleased that the majority has at least partially addressed the concerns that I expressed in part II of my Ross dissent. In Ross, I wrote that, although the jury was orally instructed on the consequences of their decision regarding the existence of an aggravating or mitigating factor with respect to a death sentence, such an instruction is insufficient. “While such an instruction is very beneficial, it is not a substitute for requiring the decision makers to look upon the accused — if they can — and render a verdict that society requires that he or she be put to death. It is not enough to instruct the jury that based on its factual determinations the judge will or will not impose the death penalty, because this procedure could lead the jury to believe that there is another level of decision making authority that will make the ultimate determination. If the ultimate punishment of death is to be inflicted, the decision makers must be fully aware that they have made the decision to inflict it, and this can be assured only if the decision makers are required to pronounce expressly a judgment of death.” State v. Ross, supra, 230 Conn. 322 (Berdon, J., dissenting).
In Connecticut, although the judge announces the formal sentence of death or life imprisonment, he or she must do so in accordance with the specific findings of the jury with regard to aggravating and mitigating *270factors.8 In reality, therefore, the jury is the sentencer, because it is the jury that makes the findings that determine whether the defendant lives or dies. “The United States Supreme Court has held that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere. . . . The reason for this requirement is that the capital sentencer is thereby required to view its task as the serious one of determining whether a specific human being should die at the hands of the State. . . . Requiring that, if capital punishment is to be imposed, the sentencer must specifically state that the defendant should be put to death forces the sentencer, be it jury or judge, to confront the truly awesome responsibility of decreeing death for a fellow human [so that the sentencer] will act with due regard for the consequence of [the] decision . . . .” (Citations omitted; internal quotation marks omitted.) Id., 320. Indeed, the United States Supreme Court has held that the death penalty may only be imposed as a “reasoned moral response to the defendant’s background, character, and crime.” (Emphasis in original; internal quotation marks omitted.) Penry v. Lynaugh, 492 U.S. 302, 319, 109 S. Ct. 2934, 106 L. Ed. 2d 256 (1989).
An oral instruction by the court that the jury’s factual findings will be the equivalent of sentencing the defendant to death or life imprisonment does not provide a sufficient guarantee of trustworthiness that the jury truly understands the magnitude of the task that it is *271being asked to undertake. As any trial judge or lawyer can attest, no matter how explicit, clear and unambiguous a court’s oral instructions, there is always a risk — indeed a high risk — that jurors will not understand the full scope of their responsibility. People who sit as jurors rarely are trained in the law. Indeed, for most of them, a term of jury duty is probably their first experience in a courtroom.
The punishment of death cannot be taken lightly. The finality of it is awesome. The twelve men and women whose factual findings will ultimately determine whether a fellow human being lives or dies must understand the consequences of their actions. It is not enough that this court, on the basis of a transcript of oral instructions delivered by the trial court, concludes that the jury probably understood the task before it. A terrible injustice could go uncorrected if this court were to guess incorrectly, and if the jurors in fact had understood the judge to have the “last word,” or that he or she would correct any mistakes they had made. Indeed, in this case, it is necessary to read the trial court’s instructions in their entirety in order to conclude that the jury may not have been misled. Several of the trial court’s individual instructions informed the jury that the court, and not the jurors, would be solely responsible for the sentencing of the defendant, which suggested that the judge would have the last word on the fate of the defendant.9
*272Therefore, as the majority recognizes, both the trial court and this court must have objective evidence from which we can be absolutely certain that the jurors understood the great and final consequences that would inevitably flow from their factual determinations regarding aggravating and mitigating factors. I agree with the majority that the special verdict form, which must be signed by each juror before it is accepted by the court, must clearly inform the jury of what the trial court will be required to do as a result of the jury’s findings.
I am concerned, however, with that aspect of the instruction proposed by the majority that provides that the jury must be unanimous in failing to find an aggravating factor when it unanimously does not find a mitigating factor in order to sentence the defendant to life in prison.10 Although the dicta in State v. Daniels, supra, 207 Conn. 388-89, generally supports this instruction, I disagree that the jury must be unanimous in determining that there is no aggravant. Because the death penalty is qualitatively different than any other punishment society can impose, a distinction must be drawn between the state’s burden to prove the existence of an aggravating factor beyond a reasonable doubt and the defendant’s burden to prove the existence of a mitigating factor by a preponderance of the evidence. A less than unanimous verdict on a mitigating factor raises *273a substantial doubt, and no person should be put to death on this basis. Id., 387-88 (rejecting state’s claim that the defendant’s failure to persuade all jurors that a mitigating factor exists must result in imposition of the death penalty). On the other hand, if the state fails to persuade all of the jurors that an aggravating factor exists, the defendant should not have to endure the ordeal of another sentencing trial. Rather, in such a case, the court should impose a sentence of life imprisonment without the possibility of release.
In my view, the statutory scheme requires that if there is not a unanimous verdict regarding the existence of an aggravant, the issue is put to rest and the trial court must impose a sentence of life imprisonment without the possibility of release. Section 53a-46a makes clear that the only way the death penalty can be imposed is by proceeding in accordance with that section; General Statutes § 53a-46a (a); and that requires in part the decision maker must unanimously determine that an aggravating factor exists. General Statutes § 53a-46a (f); see State v. Daniels, supra, 207 Conn. 389. Therefore, if a jury fails unanimously to find an aggravating factor, the state has failed to sustain its burden of proof and the judge must sentence the defendant to life in prison. As this court acknowledged in Daniels, any other construction of the statute would place “Connecticut alongside a very small minority of jurisdictions with regard to the proper procedure to be followed when the jury cannot; unanimously agree. ” State v. Daniels, supra, 393.
We must always remember that it is death we are dealing with. “[TJhe penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the *274appropriate punishment in a specific case.” Woodson v. North Carolina, 428 U.S. 280, 305, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976).
I respectfully dissent.
General Statutes (Rev. to 1995) § 53a-46a (f); see footnote 3 of the majority opinion.
In Ross, only three Supreme Court Justices, Chief Justice Peters, Justice Callahan and Justice Berdon, were qualified to sit on the case because the remaining four justices had been disqualified. State v. Ross, supra, 230 Conn. 308 (Berdon, J, dissenting). In this case, Justice Palmer was qualified to sit. Three justices, Justice Borden, Justice Norcott and Justice Katz, have been disqualified in both cases, however, and have yet to address the state constitutionality of the death penalty.
See footnote 2 of this dissent.
See, e.g., U.S. General Accounting Office, Death Penalty Sentencing (February, 1990); Death Penalty Information Center, Facts About the Death Penalty (November 12,1993); The Challenge of Crime in a Free Society, A Report by the President’s Commission on Law Enforcement and Administration of Justice (1967).
In State v. Cobb, 234 Conn. 735, 764, 663 A.2d 948 (1995) (Berdon, J., dissenting), the defendant “moved this court to enlarge the class of cases that we should consider in determining whether his sentence of death was proportionate to the penalty that has been imposed on other defendants in ‘similar cases.’ ” By doing so, he argued, he would be able to demonstrate that, in Connecticut, the race of the victim and the race of the defendant impermissibly influence the decision of whether to sentence a criminal defendant to death. Id., 768. The motion in Cobb was not granted because a majority of the justices on this court failed to vote in favor if it. Three justices voted to grant the motion, three justices voted to deny it, and one was disqualified. Id., 769-70 n.11.
The defendant in State v. Cobb, supra, 234 Conn. 735, supplied this court with data that linked the race of a criminal defendant and the race of the victim to whether that defendant ultimately was sentenced to death. “First, the data indicates that of all the defendants who have been charged with capital felony, African-American defendants have been convicted twice as often — and, therefore, have been subjected to the death penalty twice as often — as defendants who are not African-American. In other words, if a defendant who is not African-American is charged with capital felony, there is a 200 percent greater chance that the jury will return a verdict of not guilty on that charge, and therefore not subject him to the death penalty, than if the defendant is African-American.
“Second, the data indicates that the death penalty is more likely to be imposed if the victim of the crime was white or otherwise not African-American. The defendant points to several specific instances:
“(1) Those defendants who murder African-Americans are substantially less likely to be charged with capital felony and, consequently, substantially less likely to be subject to the death penalty, than those defendants who murder persons who are not African-Americans.
“(2) None of the defendants now on death row was sentenced to death for the murder of an African-American, although 40 percent of those persons *264murdered in this state since 1976 have been African American.
“(3) Of the twenty-eight cases in which a person was convicted of capital felony, only four, or 14 percent, have involved a victim who was African-American. As indicated previously, however, 40 percent of murder victims since 1976 have been African-American.
“(4) Of the eighteen cases that have proceeded to the ‘death penalty phase’ hearing, only one, or 5.5 percent, involved a victim who was African-American.
“(5) If the victim was an African-American, those defendants who are accused of kidnapping and murder . . . will not be charged with capital felony, and therefore will not be subject to the death penalty.
“(6) Similarly, if the victim was an African-American, those defendants who are accused of sexual assault and murder . . . will very rarely be charged with capital felony, and therefore will very rarely be subject to the death penalty.” Id., 766-68 (Berdon, J, dissenting).
General Statutes § 53a-46a (d) provides: “In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and eireumsl anees of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.”
General Statutes § 53a-46a (g) provides: “The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that any mitigating factor exists The mitigating factors to be considered concerning the defendant shall include, but are not limited to, the following: That at the time of the offense (1) he was under the age of eighteen or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution or (4) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but, his *266participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (5) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.”
The defendant may waive his right to have a jury decide whether aggravating or mitigating factors are present. If the defendant waives this right, and if the court approves and the state consents, a three judge panel makes these determinations. See General Statutes (Rev. to 1995) §§ 53a-46a (b), 53a-45 (b). Under these circumstances, the three judge panel not only makes these factual determinations but also formally sentences the defendant to death or to life imprisonment.
The majority opinion quotes several of these individual instructions in footnote 37 of the majority opinion. They bear repeating here, with slightly different emphasis than the majority attributes to them:
(1) “Your sole responsibility m this portion of the trial is to decide . . . whether or not [aggravating and mitigating] factors exist, and then to inform the court of your findings with respect to [such] factors by rendering a special verdict .... Thus, although you have been previously made aware of the fact that the defendant’s sentence on the capital felony will ultimately depend on your findings, it’s your function to make the required findings and not to designate or impose the sentence. That is a responsibility that is solely vested in me as the judge (Emphasis added.)
(2) “You should clearly understand that in this state the explicit and *272limited function of the penalty phase jury is not to impose sentence but is to find the facts upon which the ultimate position of the sentence will prepare." (Emphasis added.)
(3) “Even though you will not be expressly deciding the life or death question in this case, you and you alone will be responsible for determining the existence of factors upon which the defendant’s liability, his exposure for the imposition of the death penalty depends.” (Emphasis added.)
The majority requires the following language to appear in an introductory statement to the special verdict form: “ ‘[T]he defendant will be sentenced to life imprisonment without the possibility of release if you unanimously find that the state has not proved the existence of an aggravating factor beyond a reasonable doubt ....’” (Emphasis added.)