State v. Santiago - dissenting opinion of Justice Espinosa

Espinosa, J., dissenting.

I agree with and join Justice Zarella's dissenting opinion, and generally agree with the dissenting opinion of Chief Justice Rogers. Both of those opinions thoroughly explain the myriad flaws in the majority's rationale, and make clear that the majority's conclusion that the passage of No. 12–5 of the 2012 Public Acts (P.A. 12–5) has rendered the death penalty unconstitutional is without basis. I write separately to highlight the majority opinion's apparent disregard of both the people of this state and their elected representatives. The majority's decision ignores the will of the people of Connecticut by abolishing the death penalty in a violation of the separation of powers, and essentially passes an amendment to P.A. 12–5 by a vote of four, abolishing that portion of the act that *389 preserved the penalty of death for the eleven men currently on death row. This type of decision making is reminiscent of the same type of judicial activism that I spoke out against in my dissent in Lapointe v. Commissioner of Correction, 316 Conn. 225, 439, 112 A.3d 1 (2015), and, just as in that decision, today's majority decision “reflects a complete misunderstanding of the proper role that this court should play within the rule of law.” Id.

This court has developed an apparent practice of exceeding the constitutional bounds of its power in order to impose its personal notion of what justice and fairness require. In Lapointe, I expressed my strong disagreement with the majority's decision to abandon our role as an impartial reviewing court by acting as an advocate for the petitioner in that case and by usurping the role of the trial court in defiance of the constitutional limits on our power. Id. I also expressed concern that the decision in Lapointe marked a growing tendency by this court to go beyond the great power entrusted to it, a trend that traces its more recent roots to this court's decision in Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014). Lapointe v. Commissioner of Correction, supra, 316 Conn. at 452, 112 A.3d 1. In Lapointe, I questioned whether the clouds cast over this court by its abuse of our supervisory authority in Blumberg Associates Worldwide, Inc. and Lapointe were not isolated squalls, but portended an approaching storm—one that would wash away any remaining pretense that this court is guided by the rule of law. See id., at 440–41, 112 A.3d 1.

Today, that perfect storm has arrived. Today's majority continues this court's unwarranted and unconstitutional expansion of its power, this time by usurping the role of our legislature, undermining the rule of the people and legislating from the bench in violation of *390 the separation of powers. Using the guise of a contemporary standards analysis, today's majority tosses aside the moral standards held by the people of this state, as expressed through their legislature and their juries, and it imposes its own beliefs about what punishment should be appropriate for the worst criminal offenders in this state. In effect, the majority elevates itself to the ultimate political branch in our democracy with the power to impose its policies on the people—a result that is especially paradoxical when one considers that none of the members of this court were put here through a popular election. Importantly, however, because the majority opinion has grounded its decision on the conclusion, albeit incorrect, that the death penalty no longer comports with evolving standards of decency, the legislature has the power to reenact the death penalty. To be clear, after today's decision, the legislature is free to scrap the prospective repeal or adopt different legislation reinstating or preserving the use of the death penalty in future cases. As the **230 majority acknowledges, legislative enactments are “the clearest and most reliable objective evidence of contemporary values....” Atkins v. Virginia, 536 U.S. 304, 312, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). As the majority recognizes, there is nothing that requires that the standards of decency evolve only in one direction.

Before I proceed to my analysis, I offer the following observation. The question of whether the state should be able to execute its citizens for committing crimes held by society to be the most egregious entails thorny and essential legal, political, ethical and religious issues. It is unsurprising, therefore, that the death penalty is one of those issues about which people hold strong beliefs. The issue is necessarily entangled with the world view that one holds. Of course, we come to the bench not as automatons, but as persons, with fully developed world views, shaped by our experience and *391 character. I am not suggesting that we must, or even should, leave those experiences at the door when we enter the courtroom. As United States Supreme Court Justice Sonia Sotomayor has eloquently acknowledged, the experience of a Latina jurist brings a different and valuable perspective to judicial decision making. S. Sotomayor, “A Latina Judge's Voice,” 13 Berkeley La Raza L.Rev. 87, 91–92 (2002). The same can be said of the various backgrounds of my esteemed colleagues—each of us brings the value of our diverse and individual experiences to the work of the court. At the same time, of course, we are all bound by the rule of law. The line that we must walk as judges, therefore, is a fine one. We bring our individual perspectives to each decision, but our personal world views must yield to the rule of law when the two conflict. It is much more challenging to walk that line when the question is one that engenders the level of passion inspired by the question of capital punishment. The fundamental failure of the majority is that it has failed to walk the line.

In The Federalist No. 78, Alexander Hamilton described the role of the judiciary in relation to the other branches of government. In his famous essay describing the judiciary as the “least dangerous” of the three branches, Hamilton summarized its role in the following statement: “It may truly be said to have neither FORCE nor WILL, but merely judgment....” The Federalist No. 78, p. 356 (Alexander Hamilton) (Hallowell: Masters, Smith & Co. 1857). Force lies in the role of the executive; will properly is the function of the legislature. That is, the legislature is the branch of government that properly reflects and carries out the will of the people. The judiciary's role cannot be to reflect the will of the people or the will of individual judges—its role is to apply the rule of law and issue judgment. In the content of today's decision, the majority ignores its proper role and seeks to usurp that of the legislature by carrying *392 out a will—clearly, however, the will that the majority imposes is not the will of the people, but the will of the four unelected justices in the majority.

There is a good reason for Hamilton's view that the role of the judiciary should be one that is restricted to judgment and divorced from will. If the legislators fail to carry out that will, the people have the power to vote them out of office. As the Chief Justice observes in her dissent; see footnote 31 of the Chief Justice's dissenting opinion; at the time that P.A. 12–5 was passed, a Quinnipiac University poll revealed that Connecticut voters supported the death penalty by a huge margin, with 62 percent in favor and only 30 percent opposed. See Quinnipiac University, Release Detail (April 25, 2012), question 20, available at http://www.quinnipiac.edu/news-and-events/Quinnipiac-university- **231 poll/connecticut/release-detail?ReleaseID=1739 (last visited July 16, 2015). I also note that that same 2012 poll revealed that 37 percent of Connecticut voters said that a legislator's death penalty vote would be “[e]xtremely important” or “[v]ery important” to their vote in the upcoming election that year, and that most voters would be less likely to vote for a legislator who had voted to abolish the death penalty. See id., question 26. Obviously, the legislators who enacted P.A. 12–5 realized that popular support for abolishing the death penalty simply did not exist, hence the partial repeal. No such check exists for this court. The four justices in the majority do not need to answer to the voters for their decision to dismiss the will of the people, and impose the majority's will on them.

The judicial power of interpretation is one of this court's greatest powers. As United States Supreme Court Chief Justice John Marshall explained, “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). We *393 say what the law means. That is undeniably a great power. It is not, however, a power without limits. Although we interpret it, we do not make the law—that function, as explained by Hamilton in The Federalist No. 78, is emphatically the province of the legislature. The Federalist No. 78, supra, at p. 356.

The line between interpretation and legislation is the reason that, when a dispute brought to this court requires us to determine the constitutionality of an act by another branch of government, we must proceed cautiously; our forays into constitutional questions must give due respect to the decisions of our coordinate branches of government. Our analysis of the constitutionality of a law, accordingly, begins with the strong presumption that the law is valid. Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 155, 957 A.2d 407 (2008). This presumption is dispositive unless and until the party challenging the act shows beyond a reasonable doubt that it violates the mandates in our constitution. Id. We must indulge in every presumption in favor of sustaining its validity and we may not disregard a challenged act unless its invalidity is clear. State v. Matos, 240 Conn. 743, 748, 694 A.2d 775 (1997). If there is any reasonable doubt about whether a challenged act violates our constitution, we must uphold its validity and apply it to the case before us. See id.

To be sure, we do not submit entirely to the legislature when considering whether a punishment is cruel and unusual, and we must review the validity of the challenged punishment in light of contemporary standards of decency. State v. Rizzo, 303 Conn. 71, 197, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). The standards of decency that we must consider, however, are those of the people of this state, not the judges of this court; our constitution does not give us a license to impose our own conceptions of decency on the people. Our cases recognize, *394 as they must, that the legislature's judgments are the “clearest and most reliable objective evidence of contemporary values....” (Internal quotation marks omitted.) Id., at 191, 31 A.3d 1094. Shaping our society's response to such a mutable problem as crime is quintessentially a legislative function, so our constitution properly “assigns to the legislature the power to enact laws defining crimes and fixing the degree and method of punishment....” State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976).

The democratically elected legislature is far better suited to evaluate and give effect to the social and moral choices of our **232 people than a group of appointed judges who are largely insulated from public contact and scrutiny. Reasonable people may disagree about the wisdom of using capital punishment, and “the value of [that sanction], and its contribution to acceptable penological goals, typically is a complex factual issue” primarily for the legislature to resolve. (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197, 31 A.3d 1094. We must, therefore, exercise our constitutional duty with “ ‘great restraint’ ” and may interfere with the democratic process only when there are compelling reasons to conclude that our criminal statutes are far out of step with contemporary mores. Id.

Of course, because there are no such compelling reasons to cast aside the legislature's recent decision to retain capital punishment for certain offenders, as demonstrated by the opinions of the Chief Justice and Justice Zarella, the majority applies nothing resembling this deferential framework. In the majority's view, the issue is simple. Despite indicators that capital punishment remains a decent and deserved form of punishment for certain offenders, including those already under a capital sentence, the majority's own extra-record fact-finding leads it to an extraordinary and inflammatory conclusion, that those who support capital *395 punishment are, at best, enemies of modern decency. Specifically, the majority cites approvingly to a report that states that “executions are overwhelmingly confined to the South (and states bordering the South), the very same jurisdictions that were last to abandon slavery and segregation, and that were most resistant to the federal enforcement of civil rights norms.” C. Steiker & J. Steiker, Report to the American Law Institute Concerning Capital Punishment, in A.L.I., Report of the Council to the Membership of The American Law Institute on the Matter of the Death Penalty (April 15, 2009) annex B, p. 29; see footnote 86 of the majority opinion. In this single statement, the majority suggests that Southerners are racists, and so are those who support the death penalty. Painting Southerners and supporters of the death penalty with the broad brush of racism could appear to some to be racist itself and reinforces stereotypes that have no foundation in fact or law. It is one thing to read about racism and believe that one understands it; it is an entirely different matter to live through it.

Indeed, the majority's insinuations about the moral values of those citizens in this state and elsewhere who continue to support capital punishment not only inappropriately stereotype those who support the death penalty, but they also miss the point that evaluating the current standards of decency is a complex task that cannot be accomplished by way of sweeping generalizations. The most that can be said in favor of finding capital punishment to be unconstitutionally cruel is that contemporary sentiment on the topic is mixed. Although there are citizens in our state who oppose capital punishment, there are certainly many fair-minded citizens who find it to be an appropriate punishment, at least for certain offenders, a sentiment reflected in the very recent judgment of our legislature and the decisions of our juries. Given the lack of any *396 real consensus on the matter, this would be a fitting issue to leave to the people to resolve, at least until a consensus on contemporary standards truly arises.
Rather than acknowledging that contemporary standards are mixed, the majority scours the legislative record and extra-record materials to suggest that there is a statewide consensus that the death penalty does not comport with standards of decency. The majority's decision to exceed this court's limited power appears to be designed **233 to eliminate capital punishment in this state. Rather than faithfully applying a true contemporary standards analysis, the majority applies only the appearance of such an analysis, selecting for consideration only those aspects of each factor that support its conclusion.

The majority also flouts the limits imposed by our constitution, engages in fact-finding limited to discovering only those facts supporting its conclusion, and ignores the import of facts that do not support its view. At every step in its analysis, the majority's selective review of the facts leads it to deliberately choose an explanation that undermines, rather than supports, the validity of the legislature's judgment that capital punishment remains a valid and appropriate punishment for those who committed their crimes prior to the enactment of P.A. 12–5. As the Chief Justice points out, the majority relies on floor speeches by a handful of legislators during the debate on P.A. 12–5 to find a legislative consensus that capital punishment is immoral, but gives short shrift to the legislature's ultimate and deliberate decision to retain capital punishment for certain offenders.

In reviewing actual sentencing practices, the majority cites a few misleading statistics from an extra-record source to find that our juries are reluctant to impose the death penalty, but the majority's selective quotation *397 of figures ignores the impact of other factors affecting the ratio of capital sentences, such as plea agreements and acquittals, and does not mention that our juries ultimately imposed a capital sentence in 43 percent of the cases presenting that option. J. Donohue, “An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?” 11 J. Empirical Legal Stud. 637, 641 (2014). The majority's extra-record fact-finding also leads it to conclude that the lengthy delay between sentencing and punishment results from society's moral rejection of capital punishment, a conclusion that ignores that the cause of this delay is not a state loath to carry out a duly imposed sentence, but the robust appeal process that the defendants themselves use to challenge their sentences.

Most tellingly, in concluding that the death penalty no longer comports with contemporary standards of decency, the majority gives no consideration to the fact that a Connecticut jury recently handed down a capital sentence in the only capital sentencing hearing to take place after the enactment of P.A. 12–5. Richard Roszkowski was convicted of murdering three people in 2006, before the effective date of P.A. 12–5. The victims included nine year old Kylie Flannery, her mother, Holly Flannery, and Thomas Gaudet. In March, 2014, nearly two years after P.A. 12–5 took effect, a jury of Roszkowski's peers determined that his crimes warranted society's ultimate punishment. State v. Roszkowski, Superior Court, judicial district of Fairfield, Docket No. FBT–CR–06–0218479–T. They did this despite the knowledge that the state had repealed the death penalty for later committed crimes. One juror was quoted as saying: “ ‘He deserved to be punished to the full extent of the law of the land at the time. And at that time, it was death.’ ” A. Griffin, “New Death Sentence: Killer Exempt from Execution Ban,” Hartford Courant, May 23, 2014, *398 pp. A1, A5. The majority relegates this crucial information to a brief footnote in its lengthy decision. See footnote 102 of the majority opinion.

The majority decision is replete with ironies that are so extreme that they reveal the lack of any rational basis for the opinion. The majority somehow extracts a public consensus in favor of prohibiting **234 capital punishment from a lack of public support for such a repeal. It concludes that our juries despise capital punishment, despite a willingness to impose a death sentence in nearly one half of the cases that presented such an option. And, the majority reasons, providing defendants with a robust and sometimes lengthy process to ensure the fairness of their convictions and sentences renders those sentences unconstitutionally cruel, essentially allowing those sentenced to death to render their own sentences invalid.

In deciding that a prospective repeal demonstrates a consensus against capital punishment, the majority ignores our recent observation in Rizzo rejecting the notion that a prospective repeal indicates a legislative judgment that the death penalty “is intolerable under any and all circumstances” and, instead, reflects a choice between valid modes of punishment. State v. Rizzo, supra, 303 Conn. at 190 n. 88, 31 A.3d 1094. Similarly, the majority's position that the narrowing of the offenses for which the death penalty is available supports a conclusion that capital punishment is unconstitutional directly conflicts with our decision in Rizzo. Specifically, in Rizzo, this court acknowledged that refinements to the application of capital sentences may not indicate a fundamental disapproval of the death penalty, but are consistent with the principle that society's ultimate sanction ought to be used sparingly. Id., at 189, 31 A.3d 1094. 

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(footnotes omitted.)