State v. Webb

BERDON, J., with whom KATZ, J., joins, and NORCOTT, J.,

joins with respect to parts III and IV, dissenting. I continue to believe that the death penalty violates the state constitution’s prohibition against cruel and unusual punishment, and I would remand this case to the trial court with direction to vacate the penalty of death and to impose a sentence of life imprisonment without the possibility of release.

Although I have previously written at length with respect to the unconstitutionality of the death penalty in two previous dissents, which I incorporate by reference in this dissent; State v. Breton, 235 Conn. 206, 260, 663 A.2d 1026 (1995); State v. Ross, 230 Conn. 183, 286, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995) (Ross II);1 I wish *552to elaborate on two of the cruel and unusual aspects of this ultimate penalty. First, however, a few preliminary matters need to be addressed.

I

Today is the first time that each of the justices of the Supreme Court of Connecticut has had an opportunity to speak on the issue of whether the death penalty violates our state constitution.2 The majority of this court, consisting of Chief Justice Peters and Justices Callahan, Borden and Palmer, now concludes that death at the hands of the state is not cruel and unusual punishment, while three justices — Justices Norcott, Katz and myself — would hold that the penalty is unconstitutional under the state constitution.3 The majority’s decision today prevents Connecticut from joining those humane and enlightened states and nations that continue to ban the penalty of death. The only remaining issue in this case is by which means Mr. Webb will be put to death.4

Whether a penalty constitutes cruel and unusual punishment depends in large part upon contemporary standards of decency. Unlike other constitutional precedents, this standard of review evolves and therefore the question must be evaluated in each case.5 I am *553confident that eventually both the judicial system and the citizens of this state will reflect back on this day with the same disbelief and sense of outrage that we currently hold in regard to those punishments that were inflicted during the eighteenth6 and nineteenth7 centuries in this state. The realization that the penalty of death fails to comport with contemporary standards of decency does not, however, depend upon the passage of time measured by centuries. During his tenure on the United States Supreme Court, Justice Blackmun came to the realization that the death penalty is imposed in an arbitrary, capricious and racist manner, and is therefore unconstitutional: “From this day forward, I no longer shall tinker with the machinery of death.” Callins v. Collins, 510 U.S. 1141, 1145, 114 S. Ct. 1127, *554127 L. Ed. 2d 435 (1994) (Blackmun, J., dissenting). Similarly, after retiring from the bench, Justice Powell revised his thoughts and came to believe that capital punishment should be abolished.8 Unfortunately, Justice Powell’s insight came too late to save Warren McCleskey, for in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), five of the nine justices, including Justice Powell, held that the death penalty was constitutional.

Furthermore, I must add that, as judges, we cannot eschew our individual responsibility for the death penalty that the court approves today simply because it is a legislative directive. We have a duty, as the final arbiters of the state constitution, to determine whether the punishment of death meets contemporary and moral standards of decency. If a penalty exceeds those bounds, as I believe the death penalty does, we have a constitutional obligation to declare it unconstitutional, just as we would if the legislature provided for punishment by the rack, the screw or the wheel.

II

I concluded in Ross II, after an examination of several factors,9 that the death penalty fails to comport with *555contemporary standards of decency and thereby violates our state constitution’s prohibition against cruel and unusual punishment. Two of those factors are (1) the death penalty, as imposed, may discriminate against African-Americans; and (2) the penalty is imposed in an arbitrary and capricious manner.

Current statistics suggest that the race of the victim and that of the defendant may affect whether a defendant is sentenced to death. As I explained in Ross II, “defendants who are convicted of murdering whites are much more likely to be sentenced to death than those convicted of murdering African-Americans.”10 Ross II, supra, 230 Conn. 310 (Berdon, J., dissenting). I also noted that “African-American defendants are more likely to receive the death penalty than white defendants, especially where the victim is white, and poor defendants are more likely to receive the death penalty than defendants generally.” Id., 311. These conclusions were based on national statistics gathered by the United States General Accounting Office and other national studies.11 Since Ross II, alarming statistics have been presented to this court that indicate that the death penalty in Connecticut may also be imposed in a racially biased manner. State v. Cobb, 234 Conn. 735, 768, 663 A.2d 948 (1995).12 Of course, even if the penalty is imposed in such a manner, there are exceptions. Afflu*556ence, which allows a defendant to finance a “dream team” of defense counsel, may counter the effects of race, for it has been said that you simply cannot hang a multimillionaire in America.

In addition to the concern regarding discrimination, the imposition of the death penalty is arbitrary and capricious. As summarized by Justice Thurgood Marshall, “[t]here can be no doubt that the conclusion *557drawn in McGautha13 was properly repudiated in Fur-man,14 where the [United States Supreme] Court made clear that the arbitrary imposition of the death penalty is forbidden by the Eighth and Fourteenth Amendments. But I believe that the Court in McGautha was substantially correct in concluding that the task of selecting in some objective way those persons who should be condemned to die is one that remains beyond the capacities of the criminal justice system. For this reason, I remain hopeful that even if the Court is unwilling to accept the view that the death penalty is so barbaric that it is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, it may eventually conclude that the effort to eliminate arbitrariness in the infliction of that ultimate sanction is so plainly doomed to failure that it — and the death penalty — must be abandoned altogether.” Godfrey v. Georgia, 446 U.S. 420, 442, 100 S. Ct. 1759, 64 L. Ed. 2d 398 (1980) (Marshall, J, concurring). More recently, Justice Blackmun echoed Justice Marshall’s concerns: “It seems that the decision whether a human being should live or die is so inherently subjective — rife with all of life’s understandings, experiences, prejudices, and passions — that [the death penalty] inevitably defies the rationality and consistency required by the Constitution.” Callins v. Collins, supra, 510 U.S. 1153 (Blackmun, J., dissenting).15

*558Connecticut has not been immune from the capricious imposition of the death penalty. Indeed, as I have previously indicated, the prosecutions of Michael Ross, who is currently awaiting a new penalty hearing, “[demonstrate] the inherent arbitrariness of our death penalty. After the defendant had confessed to the murders of six young women in Connecticut, he was charged with capital felony in the judicial district of Windham for two of the murders. The state’s attorney in that case, with full knowledge of all of the murders that had been committed by the defendant, allowed him to plead nolo contendere to two counts of first degree murder and to be sentenced to two consecutive terms of life imprisonment (120 years). When the defendant was subsequently prosecuted in the judicial district of New London for the other four murders, a different state’s attorney decided to proceed to trial on the capital felony charges and seek the death penalty. As a result, the defendant was convicted and sentenced to death.16 [Although his death sentence was subsequently set aside on other grounds,] [t]his life-and-death difference between the sentences received by the defendant for identical crimes proves that an unacceptable level of arbitrariness exists due to prosecutorial discretion . . . .” Ross II, supra, 230 Conn. 306 (Berdon, J., dissenting). Just recently, the capriciousness of prosecutorial discretion was again demonstrated before this court. The state’s attorney who is now prosecuting Ross, while arguing a collateral matter before this court, stated that he may decide not to seek the death penalty again: “[The case] could go back. It could be that somehow I’ve reviewed the file and decided that I don’t want to proceed with a death penalty hearing on behalf of the state. That, in fact, we will recommend no further hearing, thus recommend life imprisonment.” (Empha*559sis added.)17 The life or death decision of an aberrant prosecutor is no less capricious than that of a jury.

Racial bias and arbitrariness cannot be tolerated, especially in a process that could result in the termination of an individual’s life. Accordingly, it is patently evident that the death penalty fails to satisfy contemporary standards of decency and therefore must be stricken as unconstitutional under the state constitution.

Ill

Even if I were to believe that the death penalty did not offend the state constitution, I would, at the very least, order that the universe of cases for statutory proportionality review be expanded. General Statutes § 53a-46b (b), which provides for proportionality review, simply requires that “[t]he supreme court shall affirm the sentence of death unless it determines that ... (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.”

In defining and applying § 53a-46b (b), statutory proportionality review must first be distinguished from the proportionality review commanded under the eighth amendment of the United States constitution. This distinction was made clear by the United States Supreme Court in Pulley v. Harris, 465 U.S. 37, 104 S. Ct. 871, 79 L. Ed. 2d 29 (1984). The Pulley court defined eighth amendment and statutory proportionality review as follows: “Traditionally, [under the eighth amendment] ‘proportionality’ has been used with reference to an abstract evaluation of the appropriateness of a sentence *560for a particular crime. Looking to the gravity of the offense and the severity of the penalty, to sentences imposed for other crimes, and to sentencing practices in other jurisdictions, this Court has occasionally struck down punishments as inherently disproportionate, and therefore cruel and unusual, when imposed for a particular crime or category of crime. . . . The proportionality review sought by . . . and provided for in numerous state statutes [referring specifically to Georgia’s] is of a different sort. This sort of proportionality review presumes that the death sentence is not disproportionate to the crime in the traditional [constitutional] sense. It purports to inquire instead whether the penalty is nonetheless unacceptable in a particular case because [it is] disproportionate to the punishment imposed on others convicted of the same crime.” Id., 42-43. As succinctly stated by the New Jersey Supreme Court in State v. Marshall, 130 N.J. 109, 127, 613 A.2d 1059 (1992): Eighth amendment proportionality review inquires, “does the punishment fit the crime?” See, e.g., Gregg v. State, 233 Ga. 117, 210 S.E.2d 659 (1974) (death penalty vacated because it is rarely imposed for armed robbery). On the other hand, statutory proportionality review asks whether, in light of how the death penalty has been imposed in the jurisdiction, the “punishment fits the criminal.” State v. Marshall, supra, 129.

The majority narrowly defines the universe of cases eligible for review under § 53a-46b (b) (3) in a manner that is adverse to the rights of defendants and to the achievement of justice. In order for statutory proportionality review to be of any substance, the universe must include all cases involving death eligible homicides. Only in this manner can this court determine whether comparable criminal conduct is receiving comparable penalties. Such a universe would include not only those cases that were prosecuted as capital offenses, but also those cases that are death eligible in *561which the prosecutor decided to accept a plea for life imprisonment and those cases in which the prosecutor decided to prosecute the case as a noncapital offense. “Accordingly, one of the purposes served by a universe expanded to include such death-eligible homicides not prosecuted as capital crimes is that the proportionality-review process can then consider bo ¿/¿jury and prosecutorial decisions about deathworthiness in determining whether a specific death sentence is disproportionate.” (Emphasis in original.) Id., 135; see also Tichnell v. State, 297 Md. 432, 466, 468 A.2d 1 (1983) (proportionality review may take into account noncapital murder cases); State v. Moore, 210 Neb. 457, 476, 316 N.W.2d 33, cert. denied, 456 U.S. 984, 102 S. Ct. 2260, 72 L. Ed. 2d 864 (1982) (proportionality review includes all other first degree murder convictions); State v. Williams, 205 Neb. 56, 75, 287 N.W.2d 18 (1979), cert. denied, 449 U.S. 891, 101 S. Ct. 255, 66 L. Ed. 2d 120 (1980) (same); Commonwealth v. Pursell, 508 Pa. 212, 240-41, 495 A.2d 183 (1985) (proportionality review includes all other first degree murder cases in which evidence could support an aggravating circumstance); State v. Rupe, 108 Wash. 2d 734, 767, 743 P.2d 210 (1987), cert. denied, 486 U.S. 1061, 108 S. Ct. 2834, 100 L. Ed. 2d 934 (1988) (for purposes of proportionality review, similar cases include cases in which defendants were convicted of first degree murder regardless of whether death penalty was sought); State v. Harris, 106 Wash. 2d 784, 798-99, 725 P.2d 975 (1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987) (proportionality review of death sentence for contract murder included contract murder cases in which death penalty was not sought by prosecutor). Indeed, this standard was partially adopted by this court in Ross I, which the court now chooses to reject: “[W]e unanimously agree, in the circumstances of this case, to amend our existing definition of the class of similar cases to add any case in which *562a capital felony conviction has been obtained and the conviction was followed not by a hearing on the imposition of the death penalty but by the imposition of a sentence other than death, either by virtue of a plea agreement or by virtue of the fact that the state did not seek the death penalty.” Ross I, supra, 225 Conn. 561. For these reasons, the court should order an expansion of the universe of cases and rebriefing on the issue of statutory proportionality review.

IV

I am greatly concerned that the majority of this court continues to evade the issue of whether racism exists with respect to the death penalty. Although this issue is not raised by the defendant, an African-American convicted of killing a white female, under his proportionality challenge, as I have previously stated, the concern of possible systemic racism is a factor that must be considered when deciding whether the death penalty constitutes cruel and unusual punishment, an issue which the defendant does raise.

In State v. Cobb, supra, 234 Conn. 766-68, I discussed in dissent those alarming statistics relating to Connecticut, to which I have previously referred,18 which the state did not challenge. Those statistics suggest “that of all the defendants who have been charged with a 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”; id., 766; and “that the death penalty is more likely to be imposed if the victim of the crime was white or otherwise not African-American.”19 Id., 767. I, along with the other *563dissenting justices in Cobb, implored the prevailing justices to allow the defendant an opportunity to develop the evidentiary undeipinnings with respect to the claims that the death penalty is racially biased.20 If race, either of the defendant or the victim, plays any role in subjecting an individual to this penalty, as the statistics suggest, then the imposition of the death penalty must be stricken as cruel and unusual. At the very least, such a punishment must fail statutory proportionality review.

As long as the question of race remains an issue, there will be a perception that the death penalty is racially imposed, which will pervade the entire judicial system.21 Furthermore, if it is demonstrated that Afri*564can-Ameiicans and other minorities are being subjected to the death penalty because of either their race or the race of the victim, I am confident that the majority today would reconsider their position regarding the constitutionality of the penalty. Therefore, in addition to ordering an expansion of the universe of cases to be considered under proportionality review, the court should stay all proceedings in which there has been a conviction of a capital felony and in which the state seeks to impose the penalty of death, to allow for an evidentiary hearing, in order to give defendants22 an opportunity collectively to pursue the issue. This court not only has the authority to order such action, but, under § 53a-46b,23 it has an obligation to do so given the legislature’s mandate: “In addition to its authority *565to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.24 . . . The supreme court shall affirm the sentence of death unless it determines that . . . [t]he sentence was the product of passion, prejudice or any other arbitrary factor .... The sentence review shall be in addition to direct appeal . . . .” The necessary findings required to satisfy § 53a-46b can only be obtained by an evidentiary hearing. Therefore, we should refer this issue to the trial court or to a special master in order to make the necessary factual findings so as to enable us to fulfill our legislative mandate.25

*566Finally, it bears restating an observation made by the three dissenting justices in State v. Cobb, supra, 234 Conn. 783 (Berdon, J., dissenting): “Death is irrevocable. It is the ultimate penalty that society can impose and, once imposed, cannot be reversed. This court has an undeniable legal and moral obligation to ascertain whether, as the defendant’s data suggests, race is at the core of the imposition of the death penalty in Connecticut. We cannot ignore the specter of racism, but must confront it and eradicate it from the administration of justice.”

Accordingly, I dissent.

State v. Ross, 225 Conn. 559, 624 A.2d 886 (1993) (Ross I), discusses the universe of cases included in a proportionality review pursuant to General Statutes § 53a-46b (b) (3), which was repealed by No. 95-16, § 3, of the 1995 *552Public Acts, effective April 12,1995. The proportionality review requirement that I discuss in part III of this dissent, however, is still mandatory for all capital felony cases pending at the time that act became effective. See State v. Cobb, 234 Conn. 735, 746 n.10, 663 A.2d 948 (1995).

A number of justices were disqualified from hearing Ross II and Breton.

This case was initially argued before a five justice panel consisting of Justices Callahan, Borden, Berdon, Norcott and Katz. After oral argument, we ordered rebriefing concerning the state constitutional issue of cruel and unusual punishment and reargument before the en banc panel.

The majority has remanded the case to the trial court “for a hearing limited to the defendant’s claim concerning the state constitutionality of lethal injection as a means of execution.”

“Perhaps the most important principle in analyzing cruel and unusual punishment questions is one that is reiterated again and again in the prior opinions of the Court: i.e., the cruel and unusual language must draw its meaning from the evolving standards of decency that mark the progress of *553a maturing society. Thus, a penalty that was permissible at one time in our Nation’s history is not necessarily permissible today.

“The fact, therefore, that the Court, or individual Justices, may have in the past expressed an opinion that the death penalty is constitutional is not now binding on us.” (Internal quo1 ation marks omitted.) Furman v. Georgia, 408 U.S. 238, 329, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (Marshall, J., concurring.)

“For example, contemporary standards of decency would certainly forbid the punishment imposed by a judge of the Connecticut Superior Court in 1773 for burglary: ‘[T]hat [the defendant] go from hence to the Goal from whence he Came and from thence to the place of Execution and then and there be branded on his forehead with the Capital Litter B on a hot Iron and have one of his Ears Nailed to a post and Cut off and also Whipt on his Naked body fifteen Stripes.’ 4 American Legal Records, The Superior Court Diary of William Samuel Johnson 1772-1773 (J. Farrell ed., 1942) pp. 91-92.” Ross II, supra, 230 Conn. 293.

Nineteenth century punishment included confinement at the Old New-Gate Prison which was “improvised . . . out of certain copper mines at Simsbury. L. Friedman, Crime and Punishment in American History (1993) p. 78. New-Gate was, by all accounts, a horrendous dungeon, a dark cave of horrid gloom. The dripping water trickling like tears from its sides; the unearthly echoes, all conspired to strike an observer aghast with amazement and horror. The prisoners were heavily ironed and secured by fetters; they ate pickled pork for dinner, while working at forges; a piece for each [was] thrown on the floor and left to be washed and boiled in the water used for cooling the iron wrought at the forges. . . . Id.” (Internal quotation marks omitted.) Ross II, supra, 230 Conn. 294.

According to his biographer, four years after his retirement from the United States Supreme Court, Justice Powell stated: “I have come to think that capital punishment should be abolished.” J. Jeffries, “A Change of Mind that Came too Late,” N.Y. Times, June 23,1994, p. A23, col. 1; Ross II, supra, 230 Conn. 316 (Berdon, J., dissenting).

The factors I considered in Ross II to determine whether the death penalty constitutes cruel and unusual punishment under civilized standards are: “(1) whether the punishment is degrading to the dignity of the human being; (2) whether the punishment is acceptable to the public; (3) whether the punishment has, in the past, been administered in an arbitrary and capricious manner; (4) whether the punishment has been imposed in a discriminatory fashion; (5) whether the punishment serves any legitimate purpose; and (6) whether the punishment is so final and complete that error cannot be corrected. Although each of these factors may be considered separately as a standard for determining whether a punishment is cruel and unusual, they are interrelated and should be considered collectively in *555determining whether contemporary standards of human decency and morality prohibit the state from imposing this ‘dreadful punishment.’” Ross II, supra, 230 Conn. 297-98 (Berdon, J., dissenting).

As of 1995, in Connecticut, 100 percent of the victims of the defendants sentenced to death were white, while, since 1976,40 percent of the homicide victims in Connecticut have been African-American. State v. Cobb, 234 Conn. 735, 767, 663 A.2d 948 (1995) (Berdon, J., dissenting).

See generally, S. Bright, “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” 35 Santa Clara L. Rev. 433 (1995).

“[T]he defendant cites disturbing preliminary data, the accuracy of which the state does not challenge. First, the data indicates that of all the *556defendants 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 murdered 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 — two of the specific crimes of which the defendant in this case was convicted — 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' — also two of the specific crimes of which the defendant in this case was convicted — will very rarely be charged with capital felony, and therefore will very rarely be subject to the death penalty.” State v. Cobb, supra, 234 Conn. 766-68 (Berdon, J., dissenting).

McGautha v. California, 402 U.S. 183, 91 S. Ct. 1454, 28 L. Ed. 2d 711 (1971) (defendant’s constitutional rights were not infringed by allowing jury to impose death penalty without any governing standards).

Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972) (standardless death penalty statutes axe unconstitutional).

Likewise, I agree with Justice Norcott when he states in his dissent: “I am persuaded that our statutory scheme for its imposition [of the death penalty] cannot withstand constitutional scrutiny because that scheme, by its very nature, admits of an unacceptable opportunity for arbitrariness and the influence of racial discrimination to operate in the determination of who shall die at the hands of the state. A scheme for the imposition of this ultimate punishment that is so infected does not, in my view, comport with contemporary standards of decency.”

In Ross II, supra, 230 Conn. 286, this court set aside the imposition of the death penalty and ordered a new penalty hearing.

In State v. Ross, 237 Conn. 332, 335-36, 677 A.2d 433 (1996) (Ross III), both the defendant and the state petitioned this court to answer certain reserved questions pertaining to the death penalty hearing that this court had ordered. We unanimously declined to do so. Id., 338.

See footnote 11.

Paraphrasing and extrapolating from Justice Brennan’s dissent in McCleskey v. Kemp, supra, 481 U.S. 344: At some point during the trial, Daniel Webb and his family surely asked his lawyer whether the jury was *563likely to sentence him to death. On the basis of national and local statistics, the lawyer would have had to candidly answer in the affirmative, for the defendant’s crime involved the fatal racial combination: an indigent African-American defendant and a white victim.

In State v. Cobb, supra, 234 Conn. 764-65, the defendant moved “for 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 argues, he will be able to demonstrate that, in Connecticut, the race of the defendant and the race of the victim impermissibly influence the decision of whether a criminal defendant is sentenced to death. I would grant the defendant’s motion." (Berdon, J., dissenting.) Because one justice was disqualified, the panel consisted of six justices, who were equally divided. Consequently, the defendant’s motion was denied because a majority of the sitting justices did not vote in favor of granting it. Id., 769-70 n.11.

In 1992, the judicial branch appointed a task force on minority fairness. I take judicial notice of its summarized findings as follows:

“Reality

“This Minority Fairness Task Force report confirms that racial/ethnic bias and discrimination exist in the Connecticut judicial system, in spite of strides taken by the Judicial Branch. Every Task Force subcommittee heard concerns about how the system works to the disadvantage of minorities— whether they be defendants, litigants, family members, or victims. This is not surprising. The courts exist as an integral component of society and inevitably reflect the biases and discriminatory actions of that society. While the Judicial Branch has already responded proactively in a number of ways to some of these concerns, there is more to be done.

“Perception

“Profound differences exist in the way minorities and non-minorities perceive 1 he workings and attitudes of Connecticut’s judicial system. In some *564instances, these perceptions mask the realities of the system’s functioning; in others, the perceptions are so endemic that they become, in effect, the reality. While recent Connecticut research studies show that minorities in many instances are being treated more fairly by the criminal justice system than is perceived by defendants and the community at large, these perceptions of unfairness shape the reality of the issues the Judicial Branch must deal with, confront and address.” State of Connecticut, Judicial Branch, Task Force on Minority Fairness: Executive Report (April, 1996) p. 11.

In addition to Cobb, there is at least one motion pending before this court in which the defendant seeks an opportunity to address this issue: State v. Reynolds, Supreme Court Docket No. 15258.

General Statutes § 53a-46b provides: “(a) Any sentence of death imposed in accordance with the provisions of section 53a-46a shall be reviewed by the supreme court pursuant to its rules. In addition to its authority to correct errors at trial, the supreme court shall either affirm the sentence of death or vacate said sentence and remand for imposition of a sentence in accordance with subdivision (1) of section 53a-35a.

“(b) The supreme court shall affirm the sentence of death unless it determines that: (1) The sentence was the product of passion, prejudice or any other arbitrary factor; (2) the evidence fails to support the finding of an aggravating factor specified in subsection (h) of section 53a-46a; or (3) the sentence is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.

“(c) The sentence review shall be in addition to direct appeal and, if an appeal is taken, the review and appeal shall be consolidated for consideration. The court shall then render its decision on the legal errors claimed and the validity of the sentence.”

General Statutes § 53a-35a provides in relevant part: “For any felony committed on or after July 1, 1981, the sentence of imprisonment shall be a definite sentence and the term shall be fixed by the court as follows . . . (1) For a capital felony, a term of life imprisonment without the possibility of release unless a sentence of death is imposed in accordance with section 53a-4Ga.”

The majority suggests that the issue of the possible impact of race upon the imposition of the death penalty can be raised by the defendant by way of a writ of habeas corpus. Reliance on the writ is inappropriate for several reasons.

First, the legislature has mandated, regardless of whether a defendant takes an appeal, that this court must review each death sentence to determine whether it “was the product of passion, prejudice or any other arbitrary factor”; General Statutes § 53a-46b (b) (1); and whether “the sentence is excessive or disproportionate to the penalty imposed in similar cases . . . .” General Statutes § 53a-46b (b) (3). The prevailing justices in Cobb conceded that the possible relationship between race and the imposition of the death penalty is properly raised under § 53a-46b (b) (1). State v. Cobb, supra, 234 Conn. 741, 760-62. By enacting § 53a-46b, the legislature clearly intended for this court to determine whether the imposition of the death sentence is the product of “prejudice,” just as this court is the forum that must determine, under the same statute, whether the penalty of death is “excessive or disproportionate,” the latter of which the majority does not question.

Second, a defendant should know at the earliest moment whether he or she will be subject to the death penalty. “[W]hen a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty ... [as to when the punishment will be inflicted].” In re Medley, 134 U.S. 160, 172, 10 S. Ct. 384, 33 L. Ed. 835 *566(1890). Furthermore, because this court should be concerned with the public perception of justice, the issue that systemic racism may exist must be addressed as soon as possible.

Finally, habeas corpus review by a trial court is not a substitute for the review we are required to conduct under § 53a-46b. If the sole avenue left to the defendant to raise this issue is the writ of habeas corpus, this court may never have an opportunity to address this pressing concern. This court has recently restricted the writ of habeas corpus and held that individuals do not have a right to appeal from denial of the writ. Carpenter v. Meachum, 229 Conn. 193, 202, 640 A.2d 591 (1994). If certification to appeal is denied by the trial court, an individual may only have the merits of his or her writ reviewed if he or she convinces an appellate court that “the habeas court’s denial of certification was an abuse of that court’s discretion.” Simms v. Warden, 229 Conn. 178, 187, 640 A.2d 601 (1994). Furthermore, even if this court does have the occasion to reach this issue, the standard for relief under habeas may be more onerous. See Summerville v. Warden, 229 Conn. 397, 419, 641 A.2d 1356 (1994).