State v. Santiago - dissenting opinion of Chief Justice Rogers

Rogers, C.J., dissenting.

The majority concludes that the death penalty is unconstitutional under the state constitution. Every step of its analysis, however, is fundamentally flawed. First, the majority engages in an extensive discussion of the ancient history of the death penalty in this state pursuant to State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), and concludes that these “constitutional facts” are “unique and expansive.” The majority identifies absolutely nothing in our state's distant past, however, that would remotely support the conclusion that there has ever been a societal consensus in this state that the death penalty is an inappropriate punishment for the most heinous murders. Thus, this history is entirely irrelevant to the question before the court. Indeed, in apparent acknowledgment of the complete absence of any historical support for the conclusion that the state constitution provides materially different protections from cruel and unusual punishments than does the eighth amendment to the federal constitution in this context, the majority ultimately concludes that the proper framework for evaluating the defendant's claim is the same as “the framework that the federal courts have used to evaluate eighth amendment challenges.” See part I F of the majority opinion. Under that framework, the court is required to determine whether the death penalty is consistent with contemporary standards of decency. Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“an assessment of contemporary values concerning the infliction of a challenged sanction is *232 relevant to the application of the [e]ighth [a]mendment”); see also Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958) (eighth amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society”). Even assuming that the federal contemporary standards of decency rubric is the proper standard for evaluating a claim that the death penalty is categorically unconstitutional under the state constitution, however, this court rejected a claim that the death penalty is inconsistent with the contemporary societal mores of this state a mere four years ago, concluding that, as of 2011, “there remains powerful evidence of strong public support for the death penalty” in this state. State v. Rizzo, 303 Conn. 71, 198, 31 A.3d 1094 (2011), cert. denied, ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). Nevertheless, the majority concludes that, as the result of the enactment of No. 12–5 of the 2012 Public Acts (P.A. 12–5), in which the legislature abolished the death penalty for crimes committed after the effective date of the act, April 25, 2012, the death penalty is somehow now unconstitutional. In making this determination, the majority disregards the obvious: the legislature, which represents the people of the state and is the best indicator of contemporary societal mores, expressly retained the death penalty for crimes committed before the effective date of P.A. 12–5. The majority's reasoning also contains a glaring contradiction that cannot be reconciled: at the same time that the majority concludes that the prospective repeal of the death penalty demonstrates that the people of this state have rejected the death penalty as an appropriate punishment for the most egregious murders, it concludes that the retention of the death penalty for capital offenses committed before April 25, 2012, evinces a constitutionally impermissible societal desire to wreak vengeance against the *233 perpetrators of such crimes.1 **138 Moreover, in making its determination that the death penalty violates contemporary standards of decency in this state, the majority: (1) addresses societal factors affecting the constitutionality of the death penalty that the defendant, Eduardo Santiago, has not raised and that neither party has had an opportunity to address; (2) relies on contested and slanted extra-record materials that neither party has had an opportunity to review or respond to; and (3) improperly applies the governing legal standard. Thus, the majority's determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.

...

**140 *237 II

With this procedural history in mind, I turn to the merits of the majority's opinion. I begin with the majority's Geisler analysis.4 After reviewing the Geisler factors, the majority concludes that: (1) the United States Supreme Court's repeated holdings that the death penalty “comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner” carry no weight because that court has never considered whether the death penalty may be constitutionally imposed after a prospective repeal; (2) the silence of our state constitution on the question of cruel and unusual punishment reveals nothing about the intent of the constitutional framers; (3) the preconstitutional roots of the freedom from cruel and unusual punishment establish that “Connecticut citizens enjoyed a quasi-constitutional freedom from cruel punishment, one that reflected our unique social and political traditions and that far exceeded the protections *238 recognized in England at the time” because, during the 1600s, 1700s and early 1800s, this state's (or the predecessor colony's) courts and public leaders were more “progressive” and less tolerant of harsh punishment than their English contemporaries and forebearers; and (4) this court's previous holdings that the due process provisions of the state constitution do not bar the imposition of the death penalty for the most heinous murders are now questionable because they have been overtaken by “new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to abolish the death penalty prospectively” **141 ;5 and (5) precedents from other states support the conclusion that, in determining whether the death penalty comports with contemporary societal mores, the relevant societal mores are those of this state.

With respect to the first, fourth and fifth Geisler factors, relating to federal precedents, the precedents of this court and the precedents of other states, the majority appears to concede that these factors do not support the conclusion that the death penalty is now unconstitutional under the state constitution, and I would agree with that conclusion. I also agree with the majority that these precedents support the conclusion that a new look at the constitutionality of the death penalty in this state under the state constitution is warranted in light of the legislature's enactment of P.A. 12–5 and I am willing to assume for purposes of this opinion that, in determining whether the death penalty is still constitutional *239 under the state constitution, we must consider the current societal mores of this state. As I discuss in part III of this dissenting opinion, however, I believe that the majority misapplies the evolving standards of decency rubric and, under a proper application of that standard, the death penalty does not violate the state constitution. For the reasons that I have discussed in part I of this dissenting opinion, I also believe that the validity of this court's previous holdings that the death penalty is constitutional under the state constitution is not properly before the court here because the sole claim that the defendant has raised is that P.A. 12–5 evinces a new societal consensus that the death penalty is unconstitutional.

With respect to the second Geisler factor, the text of the respective constitutional provisions, the majority concludes that despite the fact that, unlike the eighth amendment to the federal constitution, article first, §§ 8 and 9, of our state constitution are silent with respect to the imposition of cruel and unusual punishments, this factor does not weigh in favor of the constitutionality of the death penalty under the state constitution. Surely, however, the fact that the framers of the state constitution, both in 1818 and in 1965, declined to adopt the “cruel and unusual” language of the eighth amendment as part of our state constitution suggests that they were less, or, at a minimum, that they were not more, concerned with this problem than the framers of the eighth amendment.6 I **142 fail to understand how the lesser or *240 coextensive concern of the framers of the state constitution could possibly imply the existence of a broader right.7 Moreover, there are, as Justice Zarella points out in his dissenting opinion, repeated textual references *241 to capital offenses in the state constitution.8 See Conn. Const., art. I, §§ 8 and 19, as amended by article four of the amendments. The 1818 constitution also expressly referred to the death penalty and capital offenses; see Conn. Const. (1818), art. I, §§ 9 and 14; and the death penalty was authorized by statute for numerous offenses, including nonhomicide offenses, when that constitution was adopted.9 See General Statutes (1796 **143 Rev.) p. 182; General Statutes (1808 Rev.) tit. LXVI, c. I. Thus, there can be no doubt that the framers of both the 1818 and 1965 constitutions believed that the death penalty for the most heinous crimes was entirely compatible with this state's fundamental law. See State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094 (“[W]e remain cognizant that our constitution contains explicit references to capital punishment ... and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.... The defendant's claim must be evaluated against this clear textual backdrop.” [Citations omitted; internal quotation marks omitted.] ). Indeed, the majority concedes as much.

With respect to the third prong of Geisler, historical insights into the intent of our constitutional forebearers, the majority undertakes an extensive review of the attitudes *242 of this state's citizenry and public leaders toward criminal punishments before the adoption of the 1818 and 1965 state constitutions. It contends that, during the 1600s and 1700s, this state was increasingly intolerant of certain brutal forms of corporal punishment and “came to believe that the death penalty should be reserved for only the most heinous and universally condemned offenses.” See part I B 1 of the majority opinion. I fail to perceive, however, why the fact that this state rejected brutal forms of corporal punishment and believed that the death penalty should be reserved for only the most heinous crimes supports the conclusion that imposing the death penalty for the most heinous crimes may now be inconsistent with the state constitutional prohibition on cruel and unusual punishments. Indeed, the majority's analysis is riddled with non sequiturs. Although to enumerate all of them would greatly and unnecessarily increase the length of this dissenting opinion, I offer the following glaring examples. First, the majority appears to suggest that the execution of Peter Lung in 1816 shows that this state had developed a broader conception of cruel and unusual punishment than that of the federal framers because the execution was not met with public celebration.10 Second, the majority concludes in footnote 31 of its opinion that the fact that the state opened a new prison in 1964 that was “ ‘primarily devoted to preparing inmates for adjusting to community living and responsibility when they are released’ ” shows that “our state's understanding of the permissible nature and purposes of punishment had undergone a thorough transformation” from 1818 to 1965. The question that the majority is addressing, however, is not whether the underlying theory of punishment for noncapital crimes has changed *243 in this state over the years, but whether our state constitution now bars capital punishment for the most heinous murders. Neither the opening of the Somers prison in 1964 nor anything else in the majority's review of the history of this state remotely supports the conclusion that it does. Indeed, in yet another glaring inconsistency, the majority itself concedes that the ancient history of this state and the historical attitudes of its citizens toward criminal punishment say “little about [the] legal status [of the death penalty] two centuries later.”

Finally, although the majority refers to our “unique and expansive constitutional **144 and preconstitutional history”; see part I F of the majority opinion; it makes no attempt to compare the history of this state with the history of the other states that were in existence when the eighth amendment was proposed in 1789 and ratified in 1791. Accordingly, any suggestion that the “rapid evolution in penology” that had occurred in this country and its predecessor colonies from the early colonial days to the late 1700s was “especially pronounced in Connecticut” is pure speculation. For the same reason, the majority's reference to “our state's unique and expansive constitutional and preconstitutional history” is devoid of any substantive content. Finally, even if it were true that this state has a history that supports a unique and expansive interpretation of the protections afforded by the due process provisions of the state constitution, I must reiterate that there is absolutely nothing in the history of this state that supports the conclusion that its citizens have ever rejected capital punishment as an inappropriate punishment for the most heinous murders.

After reviewing these Geisler factors, the majority states that its review has led it to conclude that it should “broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges.” *244 See part I F of the majority opinion. At the same time, the majority makes it clear that it may “conclude that practices and punishments that the United States Supreme Court has expressly approved are nevertheless unconstitutionally cruel and unusual in Connecticut ... either because our state's contemporary standards of decency differ from those of the nation as a whole, or because this court simply reaches a different conclusion when applying to the relevant constitutional facts, as a matter of state constitutional law, standards similar or even identical to those that the United States Supreme Court has articulated.” (Citation omitted; emphasis added.) See footnote 17 of the majority opinion. Thus, the majority again tries to have its cake and eat it too. First, the majority declines to conclude that the due process provisions of the state constitution provide broader protection from the death penalty for the most heinous murders than the eighth amendment does, presumably because it knows that any such conclusion would be simply unsupportable; then the majority declines to be bound by the Supreme Court's understanding of eighth amendment jurisprudence, presumably because it wants to ensure that its decision is insulated from any further review.11

In light of the majority's failure to reach any definitive conclusions as to the relative scopes of the right to be free from cruel and unusual punishments under the state and federal constitutions, I can only conclude that the majority has undertaken this extended analysis of the state's ancient history in the misguided belief that, if it can somehow imply that the attitude of this state's *245 citizens toward any form of criminal punishment was ever ahead of the curve of broader societal attitudes, it must follow as the night follows the day that societal attitudes have been, are now and always will be “progressive” for all forms of punishment, including the death penalty **145 for the most heinous murders.12 The reality, however, is that neither the text of the state constitution nor our state's history in any way supports the view that Connecticut citizens were ever against the penalty of death for the most heinous crimes. Moreover, the majority's belief is entirely inconsistent with its ultimate conclusion that the constitutional standard for determining whether the death penalty is cruel and unusual under the state constitution is whether it comports with the contemporary societal mores of this state—not whether the death penalty comports with societal mores that existed hundreds of years ago, not whether the existing societal mores of this state continue to be ahead of the curve, and not whether the death penalty comports with the contemporary mores of certain members of this court.13 Because they shed no light on the broad issue that the majority has taken upon itself to address, the second and third Geisler *246 factors are irrelevant to its analysis. Indeed, the majority concedes as much when it concludes that it should apply the evolving standards of decency rubric that applies to eighth amendment claims, which requires the courts to consider contemporary standards of decency. Although those factors may be relevant to the extent that they shed light on the question of whether the death penalty was considered cruel and unusual punishment when the 1818 and 1965 constitutions were adopted, there is no dispute that it was not considered as such.

III

I next address the majority's conclusion that the death penalty is incompatible with the current societal mores of this state. In making its determination that the death penalty violates the state constitution, the majority applies the “evolving standards of decency” rubric that is applied under the federal constitution. See Trop v. Dulles, supra, 356 U.S. at 101, 78 S.Ct. 590 (eighth amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”). I would note that, although the United States Supreme Court has applied this rubric to determine the constitutionality of the death penalty for certain crimes and for certain classes of defendants, it is unclear whether that court would ever find that societal rejection of the death penalty rendered the death penalty categorically unconstitutional, despite the language of federal constitution expressly contemplating the death penalty and this country's historical acceptance of the death penalty as the appropriate punishment for the most heinous crimes. See Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2747, 192 L.Ed.2d 761 (2015) (Scalia, J., concurring) **146 (“[N]ot once in the history of the American Republic has this [c]ourt ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates. The [f]ifth *247 [a]mendment provides that ‘[n]o person shall be held to answer for a capital ... crime, unless on a presentment or indictment of a [g]rand [j]ury,’ and that no person shall be ‘deprived of life ... without due process of law.’ ” [Emphasis in original.] ). Even assuming, however, that evolving standards of decency could render the death penalty unconstitutional in this state under the Trop standard, despite the language of our constitution expressly contemplating the death penalty; see part II of this dissenting opinion; the majority has failed to establish that the death penalty for the most heinous murders is inconsistent with contemporary standards of decency in this state.14
In analyzing this issue, it is important to distinguish between the applicable standard for determining whether there has been a violation of the constitution and the scope of the right at issue. Specifically, it is clear to me that the standard applied under the state constitution is the same as under the eighth amendment: a punishment is unconstitutionally cruel and *248 unusual under the state constitution if it violates contemporary standards of decency in this state. Obviously, however, the societal mores of this state may be less (or more) tolerant of particular types of punishment than the societal mores of the nation as a whole and, accordingly, a punishment that is cruel and unusual under our state constitution will not necessarily violate the eighth amendment. Thus, to the extent that the societal mores of this state are less tolerant of harsh punishment than national mores, the scope of the right may be considered “broader” in this state, although the fundamental nature of the right is the same. Cf. State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094 (“[T]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change.” [Emphasis added; internal quotation marks omitted.] ).15

**147 The majority identifies “five objective indicia of society's evolving standards of decency: (1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations. See, e.g., Graham v. Florida, [560 U.S. 48, 61–67, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ]; Atkins v. Virginia, [536 U.S. 304, 311–16, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) ]; Thompson v. Oklahoma, [487 U.S. 815, 830, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) ]; Enmund v. Florida, [458 U.S. 782, 788–89, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) ]; *249 State v. Rizzo, supra, 303 Conn. at 187–96 [31 A.3d 1094].” (Footnote omitted.) In my view, this methodology misstates both the eighth amendment jurisprudence of the United State Supreme Court and the state constitutional jurisprudence of this court. In the four United States Supreme Court cases that the majority cites, the court relied primarily on two objective factors to guide its determination as to whether a particular punishment violated contemporary standards of decency: (1) “legislation enacted by the country's legislatures,” which provides the “clearest and most reliable objective evidence of contemporary values”; (internal quotation marks omitted) Atkins v. Virginia, supra, at 312, 122 S.Ct. 2242; Graham v. Florida, supra, at 62, 130 S.Ct. 2011; see also Thompson v. Oklahoma, supra, at 822, 108 S.Ct. 2687; and (2) “[a]ctual sentencing practices” in this country. Graham v. Florida, supra, at 62, 130 S.Ct. 2011; see also Thompson v. Oklahoma, supra, at 822, 108 S.Ct. 2687. The Supreme Court has also on occasion considered whether its determination “is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo–American heritage, and by the leading members of the Western European community.” Thompson v. Oklahoma, supra, at 830, 108 S.Ct. 2687. The court, however, does not consider views of other nations and, by extension, professional organizations, to determine the contemporary societal consensus in this nation regarding a particular punishment. See Graham v. Florida, supra, at 80, 130 S.Ct. 2011 (“[t]he [c]ourt has looked beyond our [n]ation's borders for support for its independent conclusion that a particular punishment is cruel and unusual,” but practices in other nations do “not control our decision”); Stanford v. Kentucky, 492 U.S. 361, 369 n. 1, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989) (“We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of [the] petitioners and their various amici ... that the sentencing practices of other countries are relevant. While [t]he practices of other nations, *250 particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores, but, text permitting, in our [c]onstitution as well ... they cannot serve to establish the first [e]ighth [a]mendment prerequisite, that the practice is accepted among our people.” [Citations omitted; emphasis in original; internal quotation marks omitted.] ), overruled on other grounds by Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005); State v. Rizzo, supra, 303 Conn. at 195, 31 A.3d 1094 (“the United **148 States Supreme Court at times has referenced international norms as support for its own determinations, while at the same time making clear that the opinions prevalent in other nations could never control over a domestic legislative climate running decidedly counter to such opinions”). After determining the contemporary societal consensus, the United States Supreme Court has then exercised its independent judgment to consider “the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment.... In this inquiry the [c]ourt also considers whether the challenged sentencing practice serves legitimate penological goals.” (Citations omitted.) Graham v. Florida, supra, at 67, 130 S.Ct. 2011; see also Atkins v. Virginia, supra, at 312–13, 122 S.Ct. 2242; Thompson v. Oklahoma, supra, at 833, 108 S.Ct. 2687.

I would conclude that, in determining whether the death penalty comports with contemporary societal mores in this state, this court, as a general matter, should follow the United States Supreme Court's methodology for determining national societal mores, but on a state level. Thus, the primary factors that this court should consider are the actions of our state legislature, which provide the “clearest and most reliable objective evidence of contemporary values”; (internal quotation *251 marks omitted) Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242; and the actual sentencing practices of Connecticut juries.16 Graham v. Florida, supra, 560 U.S. at 62, 130 S.Ct. 2011; see also Atkins v. Virginia, supra, at 312, 122 S.Ct. 2242 (judgments regarding evolving standards of decency “should be informed by objective factors to the maximum possible extent” [internal quotation marks omitted] ); Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969 (same). After making a determination on the basis of these objective factors, the court may test its conclusions by looking at the views expressed by respected professional associations and the practices in other jurisdictions, but it may not use those views and practices as evidence of this state's societal mores. Stanford v. Kentucky, supra, at 369 n. 1, 109 S.Ct. 2969. Finally, the court may exercise its independent judgment to consider whether “the challenged sentencing practice serves legitimate penological goals.” Graham v. Florida, supra, at 67, 130 S.Ct. 2011.

With respect to the enactments of our legislature, which provide the clearest evidence of contemporary societal mores, the majority contends that the enactment of P.A. 12–5 reveals that “[o]ur elected representatives have determined that the machinery of death is irreparable or, at the least, unbecoming to a civilized modern state.... The prospective abolition of the death penalty thus provides strong support for the conclusion that capital punishment no longer comports with contemporary standards of decency and, therefore, constitutes cruel and unusual punishment.”17 **149 (Citation *252 omitted; footnotes omitted.) To the contrary, however, the legislature's enactment of P.A. 12–5 supports neither the conclusion that the legislature believes that support for the death penalty is uncivilized nor the conclusion that the death penalty does not actually enjoy public support. I start with the obvious. The legislature enacted legislation that still allows for the death penalty to be imposed, because the minority of legislators who opposed the death penalty in all cases were *253 unable to convince a majority that it should be repealed retroactively.18 Moreover, the legislative history of P.A. 12–5 strongly supports the conclusion that the reason for the prospective repeal was not that a majority of legislators found the death penalty morally repugnant even for the worst crimes, or that they found life imprisonment an adequate substitute for the death penalty, but that they had determined that the death penalty simply had **150 become impracticable.19 Cf. *254 State v. Rizzo, supra, 303 Conn. at 190 n. 88, 31 A.3d 1094 (prospective repeal of death penalty does not establish that “legislature was convinced that the death penalty is intolerable under any and all circumstances”); id., at 199 n. 101, 31 A.3d 1094 (legislative history of prospective repeal by legislature that governor later vetoed showed that repeal “was motivated by practical rather than moral concerns”). I further note that the vote in the Senate was twenty in favor of passing the proposed legislation and sixteen against passage; 55 S. Proc., Pt. 3, 2012 Sess., p. 814; and the vote in the House of Representatives was eighty-six in favor of passage, sixty-two against passage and three not voting. 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1390. Thus, there was significant opposition to any form of repeal. Accordingly, it is simply untenable to conclude that the passage of P.A. 12–5 evinces a legislative determination or societal consensus that the death penalty is immoral in all cases. Rather, the evidence strongly supports the *255 conclusion that, despite the legislature's belief that the death penalty is the appropriate punishment for certain crimes, after **151 considering all of the societal costs of imposing the death penalty for future crimes of this type, the legislature's acceptance of a less severe form of punishment for those future crimes was a necessary and tolerable legislative compromise. This belief that the death penalty is appropriate for certain crimes is evinced by the fact that the legislature left the death penalty in place for all capital crimes committed before the effective date of P.A. 12–5, which provides the clearest evidence of contemporary societal mores in this state.

The majority states that, to the contrary, “[d]uring the legislative debates, of the three dozen senators and representatives who rose to speak in favor of P.A. 12–5, nearly every one stated that they had come to oppose capital punishment as a matter of conscience or principle.”20 Of course, there is no dispute that some legislators *256 who were considering P.A. 12–5 believed that the death penalty is immoral under any circumstances and would have repealed it retroactively if they had been able to muster the votes to do so. The majority simply ignores the fact, however, that these legislators constituted a small minority. Even assuming that all of the “three dozen” legislators cited by the majority opposed the death penalty on moral grounds, that would mean that seventy legislators voted in favor of P.A. 12–5 without expressing any moral objections to the death penalty. In addition, seventy-eight legislators voted against P.A. 12–5, thereby indicating that they had no objections to the death penalty, moral or otherwise. See 55 S. Proc., supra, at p. 814; 55 H.R. Proc., supra, at p. 1390. Thus, for a large majority of legislators—148 out of 184, or 80 percent—there is no evidence that they had any moral qualms about the appropriateness of the death penalty for the most heinous murders.21

**152 Indeed, it is the majority's improper and illogical assumption that those who opposed retroactive repeal *257 but voted for prospective repeal had moral objections to the death penalty that creates the troubling specter of moral incoherence.22 In my view, this court should not lightly assume that our legislators voted to retain what they believed to be an immoral punishment for improper reasons. Rather, the constitutional principle that this court must presume that the legislature has acted for legitimate reasons23 compels the following conclusions: (1) The legislature voted to retain the death penalty for crimes occurring before the effective date of P.A. 12–5 for the simple reason that a majority of legislators had no moral objection to imposing the death penalty on defendants who committed heinous murders when such crimes were punishable by death; *258 and (2) the legislature voted to repeal the death penalty prospectively for the simple reason that many of the legislators who found the death penalty morally unobjectionable had come to believe that it is simply unworkable in this state.24 Unlike the reasons proposed by *259 the majority, **153 these reasons are mutually consistent and they find ample support in the legislative history of P.A. 12–5.25 See footnote 19 **154 of this opinion. Moreover, contrary to the majority's suggestion, these reasons are consistent with the statements by various legislators that P.A. 12–5 involved a matter of conscience.26 No *260 moral principle would compel a legislator who believed that the death penalty is moral but unworkable to retain the death penalty going forward. Indeed, the state's commitment to the families of the victims who already had endured the agony of the lengthy litigation and appeal procedures required in death penalty cases would provide a perfectly legitimate reason to differentiate between defendants who already had been sentenced to death and those who will commit such crimes in the future for legislators who believed that the death penalty is the appropriate punishment for the worst *261 crimes, but who wanted to avoid the societal costs of capital punishment in future cases.27

Finally, I would point out that the majority has chosen to remain deliberately **155 vague on the question of whether a majority of this state's citizens oppose the death penalty on moral grounds. Although the majority attempts to point at purported evidence that the death penalty is inconsistent with the contemporary societal mores of this state's citizenry,28 it ultimately states that *262 “[s]ome legislators ... may **156 have seen a prospective repeal as an opportunity to retain the support of constituents committed to the execution of particular residents of death row, while leaving to this court the task of abolishing capital punishment retroactively.” Thus, the majority appears to acknowledge that the death penalty continues to enjoy strong public support. If that were the case, however—and I see no evidence to the contrary—then, even if the majority were correct that *263 the legislature retained the death penalty for crimes committed before the effective date of P.A. 12–5 in the hope that this court would invalidate it, the legislature would have been attempting to delegate to this court a difficult legislative decision.29 Any such attempt should be firmly rejected as a blatant violation of the constitutional principle of separation of powers.

With respect to the current sentencing practices of this state, the majority suggests that the death penalty *264 is now so rarely imposed that it no longer comports with our state's evolving standards of decency. This is a fact bound issue, however, that the defendant did not raise, that the parties have not had an opportunity to brief and on which the trial court made no factual findings. Thus, the record is clearly inadequate for review.30 Accordingly, **157 as I have explained in part I of this dissenting opinion, it is entirely inappropriate for the majority to consider that issue in this case.

Moreover, even if the majority were correct that juries in this state are reluctant to impose the death penalty, its conclusion that that reluctance is the result of a societal consensus that the death penalty is immoral is nothing more than an unsupported assumption. As this court recognized in State v. Rizzo, supra, 303 Conn. at 194 n. 94, 31 A.3d 1094 “declining imposition of capital punishment may indicate that the death penalty is being employed precisely as was intended, to punish only the very worst of society's criminals, and only after a vigorous legal *265 process has ensured that the defendant has been found guilty after a fair trial with demanding procedural safeguards. As the United States Supreme Court has observed, the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] ... may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. Gregg v. Georgia, supra, 428 U.S. at 182 [96 S.Ct. 2909].” (Internal quotation marks omitted.) In addition, although this court has recognized “the weaknesses inherent in public opinion polls as objective measures of the popular psyche”; State v. Rizzo, supra, at 195, 833 A.2d 363; public opinion polls certainly lend no support to the majority's conclusion that the infrequent imposition of the death penalty in this state reveals a moral repugnance against the death penalty in all cases. According to a Quinnipiac University poll released in March, 2013, 59 percent of Connecticut registered voters supported the death penalty for persons convicted of murder, while only 35 percent were opposed to it.31 Thus, there is no **158 factual *266 or legal support for a conclusion that the citizens of this state find the death penalty to be morally repugnant, even for the most horrific crimes.
The majority has cited no case in which the United States Supreme Court, or any other court, has concluded that there is no societal consensus against a particular punishment in a particular jurisdiction and then has gone on to determine that the punishment is unconstitutional on the basis of the views of other jurisdictions or professional organizations. Indeed, the majority itself has started with the premise that “the pertinent standards by which we judge the fairness, decency, and efficacy of a punishment are those of Connecticut.” (Emphasis added.) See part I E of the majority opinion. Accordingly, having concluded on the basis of these objective factors that there is no consensus against the death penalty in this state, I would conclude that the views of other states and professional organizations have little if any relevance to the constitutional question. Even if those factors were relevant, however, the majority's analysis is still flawed. Again, the defendant has made no claims and presented no evidence regarding the general sentencing trends or societal mores of other jurisdictions.32 Accordingly, this issue *267 is not properly before us. Moreover, in making its determination, the majority again relies on slanted and untested sources that neither party has had the opportunity to review or to respond to. See footnote 30 of this dissenting opinion. For similar reasons, the majority's reliance on the opinions and recommendations of professional associations is improper. Once again, the majority has addressed an issue that the defendant did not raise and, once again, neither party has had an opportunity to review or respond to the extra-record sources relied on by the majority or to test them in the trial court.

Finally, exercising its independent judgment to determine whether the death penalty serves any legitimate penological goals; see Graham v. Florida, supra, 560 U.S. at 67, 130 S.Ct. 2011; the majority concludes that it no longer has any deterrent or retributive value.33 As the **160 majority recognizes, *268 however, it is well established that “the value of *269 [capital punishment], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures.... Kennedy v. Louisiana, [554 U.S. 407, 441, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) ]; see also Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183 ( [i]n general we leave to the legislatures the assessment of the efficacy of various criminal penalty schemes); Gregg v. Georgia, supra, 428 U.S. at 175, 96 S.Ct. 2909 ( [i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people ...)....” (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094. Thus, courts “cannot invalidate a category of penalties because [they] deem less severe penalties adequate to serve the ends of penology,” although “the sanction imposed cannot be so “totally without penological justification *270 that it results in the gratuitous infliction of suffering.” (Internal quotation marks omitted.) Gregg v. Georgia, supra, at 182–83, 96 S.Ct. 2909.
The United States Supreme Court has held that “punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, supra, 554 U.S. at 420, 128 S.Ct. 2641. With respect to deterrence, the majority in the present case relies on Justice Harper's conclusory statement in his concurring and dissenting opinion in State v. Santiago, supra, 305 Conn. at 321, 49 A.3d 566 that, “[f]ollowing the abolition of the death penalty for all future offenses committed in Connecticut ... it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero.” (Emphasis in original.) No one, however, has revealed the source of this oracle. I believe that, to the contrary, the legislature reasonably could have concluded that its refusal to enforce the laws in effect when the crime was committed would send the message to potential offenders that the laws are unstable and that the state ultimately may be unwilling to enforce them, **161 thereby weakening their force. People v. Floyd, 31 Cal.4th 179, 191, 72 P.3d 820, 1 Cal.Rptr.3d 885 (2003) (“penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written” [internal quotation marks omitted] ). Indeed, that very argument was made during the legislative debate on P.A. 12–5. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2781, remarks of Kevin Barry (“It is perfectly proper for the [l]egislature to create a new sentencing procedure which operates prospectively only despite the disparity created by rendering different sentences after an admittedly arbitrarily chosen date ... because of the legitimate public purpose of assuring that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment *271 as written. You would be sending a message ... that you will carry out what you said you would do [and] there is deterrence in that....”). Thus, although I acknowledge that the prospective repeal of the death penalty has certainly diminished its deterrent value, imposing the punishment that was authorized at the time that the crime was committed still “serves an important purpose in promoting the stability of a society governed by law.” (Internal quotation marks omitted.) Gregg v. Georgia, supra, 428 U.S. at 183, 96 S.Ct. 2909.

Even if the majority were correct that the enactment of P.A. 12–5 has eliminated the deterrent value of the death penalty, however, a penalty need not have both a deterrent and a retributive purpose to be penologically justified. “The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not.” Id., at 184 n. 30, 96 S.Ct. 2909. The majority concludes that the death penalty no longer serves a legitimate retributive purpose because, by enacting P.A. 12–5, “the legislature necessarily has made a determination ... that life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes; that we can express our moral outrage, mete out justice, bring some measure of solace to the victims, and purge the blemish of murder on our community whilst the offender yet lives. If this is true, then, although the death penalty still might serve some minimal retributive function in Connecticut, it lacks any retributive justification.”34 (Emphasis in original.) Clearly, however, the *272 premise that the legislature has determined that life imprisonment is an adequate punishment for the most horrific crimes is not true. Rather, as I have explained, the prospective repeal most reasonably is understood as representing a legislative compromise based on a determination that, although the death penalty is the appropriate punishment for the most **162 egregious murders, it has become impracticable.

The majority also contends that the legislature left the death penalty in place for crimes committed before the effective date of P.A. 12–5 “primarily to maintain the possibility of executing two particular offenders—the much reviled perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire's Petit family” and, therefore, the legislature did not have a proper retributive purpose, but was improperly motivated by vengeance. I agree with the majority that a majority of legislators, as well as a majority of the citizens of this state, believe that the death penalty is the appropriate penalty for the defendants who committed the Cheshire crimes. The majority has failed to establish, however, that these legislators and citizens do not believe that the death penalty is also the appropriate punishment for the crimes committed by the other defendants who are on death row, which involved the beating to death of a thirteen year old boy in order to experience what it was like to kill someone; State v. Rizzo, supra, 303 Conn. at 147–49, 31 A.3d 1094; the heinous and cruel beating and stabbing to death of a teenaged son and former wife; State v. Breton, 264 Conn. 327, 345–48, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S.Ct. 819, 157 L.Ed.2d 708 (2003); the shooting of a *273 policeman by a convicted felon; State v. Reynolds, 264 Conn. 1, 18–21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004); the kidnapping, robbery, rape, binding and heinous and cruel murder of the victim by drowning or strangling; State v. Cobb, 251 Conn. 285, 302–304, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000); and the kidnapping, rape, and heinous and cruel murder of the victim by repeatedly shooting her as she tried to escape and screamed for help; State v. Webb, 238 Conn. 389, 397–99, 680 A.2d 147 (1996), aff'd on remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S.Ct. 93, 148 L.Ed.2d 53 (2000); and for all particularly horrendous murders.35 Indeed, it is *274 reasonable to **163 conclude that the Cheshire case weighed particularly heavily on the minds of the public and of the legislators during the debates on P.A. 12–5, merely because it provided the most recent—and, admittedly, a most tragic and pointed—example of the type of crime for which the public and the legislature believed the death penalty to be an appropriate punishment. The conclusion that a majority of legislators believed that all heinous murders deserve the death penalty finds ample support in the legislative history of P.A. 12–5. See 55 H.R. Proc., supra, at pp. 1103–10, remarks of Representative *275 Jeffrey J. Berger (discussing details of crimes committed by defendants in Breton, Cobb, Rizzo and Reynolds, and arguing that people of state “scream out for justice” in form of death penalty); id., at p. 1151, remarks of Representative Al Adinolfi (arguing that defendants who committed Cheshire murders deserve death penalty, “and so do many of the others”); id., at pp. 1178–80, remarks of Representative Christopher Davis (discussing details of crime committed by defendant in Reynolds and arguing that defendant deserves death penalty); id., at pp. 1183–86, remarks of Representative Anthony J. D'Amelio (same); id., at pp. 1190–92, remarks of Representative Selim G. Noujaim (same); id., at p. 1209, remarks of Representative Themis Klarides (“I feel terrible for the ... family [of the victims of the Cheshire murders] ... but there are nine other people on death row. And their families, the victims in those cases, I feel just as badly for.”); id., at pp. 1236–37, remarks of Representative Larry B. Butler (discussing details of crimes committed by defendants in State v. Peeler, 271 Conn. 338, 857 A.2d 808 [ (2004) ], Rizzo and Reynolds, and arguing that defendants deserve death penalty); 55 H.R. Proc., supra, at p. 1300, remarks of Representative Jason **164 D. Perillo (discussing details of crime committed by defendant in Webb and arguing that defendant deserved death penalty); 55 H.R. Proc., supra, at p. 1304, remarks of Representative Ernest Hewett (discussing details of crime committed by defendant in Peeler and arguing that defendant deserved death penalty); 55 S. Proc., supra, at pp. 726–28, remarks of Senator Robert J. Kane (discussing details of crimes committed by defendants in Rizzo, State v. Colon, 272 Conn. 106, 864 A.2d 666 [ (2004) ], Peeler and Breton, and arguing that defendants deserved death penalty); Conn. Joint Standing Committee Hearings, supra, at pp. 2807–2809, remarks of Sergeant Richard Holton of the Hartford Police Department (referring to crime committed by defendant in *276 Reynolds and arguing in favor of death penalty); Conn. Joint Standing Committee Hearings, supra, at p. 2823 (referring to crimes committed by defendants in Cheshire case, Webb and Rizzo ).36 Accordingly, I would conclude that a majority of legislators have determined that the death penalty has a legitimate retributive purpose in this state, and I would defer to that legislative determination.

In summary, the majority has not based its determination that the death penalty violates the state constitutional ban on cruel and unusual punishment on an objective determination that the death penalty is inconsistent with contemporary societal mores in this state or a properly deferential determination that it lacks any penological justification. Rather, because there is no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution, I can only conclude that the majority has *277 improperly decided that the death penalty must be struck down because it offends the majority's subjective sense of morality. See Stanford v. Kentucky, supra, 492 U.S. at 369, 109 S.Ct. 2969 (“In determining what standards have evolved ... we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said, [e]ighth [a]mendment judgments should not be, or appear to be, merely the subjective views of individual [j]ustices; judgment should be informed by objective factors to the maximum possible extent.” [Footnote omitted; internal quotation marks omitted.] ).37 This court repeatedly **165 has recognized that the constitutional authority to define crimes and to fix the degree and method of punishment belongs to the legislature, not to this court, and “we leave to [the legislature] the assessment of the efficacy of various criminal penalty schemes” that it has enacted in achieving its chosen penological goals. (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 197–98, 31 A.3d 1094 quoting Roper v. Simmons, supra, 543 U.S. at 571, 125 S.Ct. 1183. Indeed, the primary right that our state constitution guarantees is the right to self-government. See Conn. Const., preamble; Conn. Const., art. I, § 2.38 The majority's decision *278 to strike down the death penalty in its entirety is a judicial invalidation, without constitutional basis, of the political will of the people. It is this usurpation of the legislative power—not the death penalty—that violates the societal mores of this state as expressed in its fundamental law.

Finally, I emphasize that, in reaching this conclusion, I do not in any way disparage the majority's personal views about the death penalty. Indeed, the lack of consistency in the way that it is sought and imposed in various jurisdictions around the state, the infrequency with which it is imposed, the interminable delays in its execution, legal standards that are designed simultaneously to limit and to remove limits on the jury' discretion in determining whether a particular defendant deserves death,39 and, perhaps most troubling, the growing concern that race and class have been and continue to be significant factors in charging and sentencing decisions, all point to the conclusion that the death penalty may very well have no place in a society that demands decency, fairness, consistency and efficiency from its system of criminal justice. These issues have not been raised, adjudicated or briefed, however, in the present case. Rather, the sole claims made by the defendant are that P.A. 12–5 evinces a rejection by the citizens of this state of the death penalty as the appropriate sentence for the most egregious murders and that the effective date provision of this legislation is arbitrary. Because I strongly disagree with both of these claims, I can reach no conclusion except that the death penalty is constitutional.

...

(footnotes omitted.)