State v. Webb

NORCOTT, J.,

dissenting. Although I agree with Justice Berdon that Connecticut’s death penalty scheme violates the state constitution’s prohibition against cruel and unusual punishment, I reach that conclusion by somewhat different reasoning.11 do not believe that the penalty of death for certain crimes is necessarily forbidden by the state constitution, but I am persuaded that our statutory scheme for its imposition cannot *567withstand 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. Accordingly, I would vacate the death penalty in this case.

As an initial matter, I have always believed that the death penalty has no place in a civilized society where, ironically, the state, on the one hand, cherishes and reveres the value of life, and then pursuant to the guise of justice, on the other hand, takes it away by virtue of the death penalty. In my view, when the state engages in the exercise of ending life under the justification of punishment, it is treading on ground that is reserved for a different, higher authority.

Of course “[t]he question is not whether any one of us would vote to enact a death penalty if our role were that of a legislator. It is, rather, whether the defendant is correct in his contention that the death penalty [statute] ... is fundamentally offensive to evolving standards of human decency.” State v. Ross, 230 Conn. 183, 251, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995). My conclusion that the death penalty scheme is unconstitutional rests on an operational, rather than a philosophical, ground. I start from the premise that “[t]here is a heightened need for fairness in the administration of death . . . [because] death truly is different from all other punishments a society inflicts upon its citizens.” Callins v. Collins, 510 U.S. 1141, 1149, 114 S. Ct. 1127, 127 L. Ed. 2d 435 (1994). “Because of the qualitative difference of the death penalty, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (Internal quotation marks omitted.) Id.

*568Recognizing that the death penalty is unique both in its finality and in the quality of the punishment it inflicts, the United States Supreme Court has invalidated death penalty statutes that lacked either sufficient objective guidance for the sentencer; see Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972); or sufficient discretion for the sentencer to afford mercy. See Woodson v. North Carolina, 428 U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976) (invalidating mandatory death penalty statutes). As Justice Blackmun recently stated, any death penalty scheme must, under the federal constitution, achieve both “[Reasonable consistency . . . [requiring] that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice”; Callins v. Collins, supra, 510 U.S. 1144; and individual fairness, which “means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death.” Id. In Ross, we adopted these principles under the due process clauses of the state constitution. State v. Ross, supra, 230 Conn. 251-52 (principles articulated by United States Supreme Court “require, as a constitutional minimum, that a death penalty statute, on the one hand, must channel the discretion of the sentencing judge or jury so as to assure that the death penalty is being imposed consistently and reliably and, on the other hand, must permit the sentencing judge or jury to consider, as a mitigating factor, any aspect of the individual defendant’s character or record as well as the circumstances of the particular offense”).

Justice Blackmun further noted that the way in which legislatures have attempted to satisfy these principles is through “procedural rules and verbal formulas”; Callins v. Collins, supra, 510 U.S. 1144; designed to “pro*569vide judges and juries with sensible and objective guidelines for determining who should live and who should die.” Id., 1148. I agree with Justice Blackmun that the need to achieve both fairness to the individual and consistency has resulted in a “paradox,” which requires “sentencer discretion that is at once generously expanded and severely restricted.” Id., 1151. Moreover, I am persuaded by his conclusion, reached after twenty years of attempting to fashion workable standards for the imposition of the death penalty, that, despite the laudable efforts of many states, including our own, to strike the optimal balance between discretion and direction, this balance has not and perhaps cannot be reached. “[T]he 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 it inevitably defies the rationality and consistency required by the Constitution.” Id., 1153.

Further, I am also convinced that “[t]he arbitrariness inherent in the sentencer’s discretion to afford mercy is exacerbated by the problem of race.” Id. The United States Supreme Court itself has noted that “[bjecause of the range of discretion entrusted to a jury in a capital sentencing hearing, there is a unique opportunity for racial prejudice to operate . . . .” Turner v. Murray, 476 U.S. 28, 35, 106 S. Ct. 1683, 90 L. Ed. 2d 27 (1986). I believe that racial prejudice is, and will remain in the foreseeable future, the prevalent unresolved and divisive issue in this country. The specter of racial discrimination touches every facet of our lives and the statutory scheme for the imposition of the death penalty does not escape its pervasive evil. Every indication from the available evidence suggests that “race and poverty continue to determine who dies.” S. Bright, “Discrimination, Death and Denial: The Tolerance of Racial Discrimination in Infliction of the Death Penalty,” 35 Santa *570Clara L. Rev. 433, 434 (1995);2 Callins v. Collins, supra, 510 U.S. 1153 (“[e]ven under the most sophisticated death penalty statutes, race continues to play a major role in determining who shall live and who shall die”); see McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). “No matter how narrowly the pool of death-eligible defendants is drawn according to objective standards, Furman's promise still will go unfulfilled so long as the sentencer is free to exercise unbridled discretion within the smaller group and thereby to discriminate. The power to be lenient also is the power to discriminate.” Callins v. Collins, supra, 1153.

My review of the Connecticut death penalty scheme does not convince me that it is adequate to cure the influence of arbitrariness and race in the overall equation that results in the imposition of death. Given the history of racism and racial discrimination in this country, I am not convinced that there can ever be a scheme in any state that can reach so lofty a perch. I agree with Justice Blackmun that the continual legislative and judicial efforts to bring about a real sense of fairness in the imposition of the death penalty are delusional endeavors. See id., 1155. As long as racial prejudice is a factor in our lives, and it is an undeniable factor in every facet of American life, there can be no place for a capital penalty in our society.

I respectfully dissent.

I also agree with parts III and IV of Justice Berdon’s dissent concerning proportionality review.

In its mid-1995 annual report, the NAACP Legal Defense and Education Fund, Inc., reported that of the 3028 persons under the sentence of death in this country, more than one half were African-American, Latino, Native American or Asian; in 82 percent of the cases in which executions have been carried out, the victims of the underlying crimes were white. NAACP Legal Defense and Education Fund, Inc., “Death Row U.S.A.” (Summer 1995)