318 Conn. 1
Supreme Court of Connecticut.
STATE of Connecticut
v.
Eduardo SANTIAGO.*
No. 17413.
Argued April 23, 2013.
Decided Aug. 25, 2015.
Synopsis
Background: Defendant was convicted in the Superior Court, Judicial District of Hartford, Lavine, J., of capital felony, two counts of burglary in the first degree, conspiracy to commit murder and two counts of conspiracy to commit burglary in the first degree and was sentenced to death after the Court, Solomon, J., had earlier made pretrial determination that there was probable cause that defendant had committed capital felony by murder for hire. Defendant appealed. The Supreme Court, 305 Conn. 101, 49 A.3d 566, Norcott, J., affirmed in part, reversed in part, and remanded for new penalty phase hearing. Defendant filed motion for reconsideration, which was granted.
Holdings: The Supreme Court, Palmer J., held that:
1 as a matter of first impression, following its prospective abolition, death penalty no longer comported with contemporary standards of decency and, thus, violated state constitutional ban on excessive and disproportionate punishment as applied to capital sentences already imposed;
2 as a matter of first impression, following its prospective abolition, death penalty no longer measurably contributed to legitimate penological goals and, thus, violated state constitutional ban on cruel and unusual punishment, as applied to capital sentences already imposed;
3 parties were afforded adequate opportunity for briefing prior to Supreme Court's determination;
4 Supreme Court was not precluded from determining that, in light of its prospective abolition, death penalty violated state constitutional ban on excessive and disproportionate punishment, as applied to capital sentences already imposed, by fact that there was historical acceptance of capital punishment in state; and
5 Supreme Court was not precluded, out of deference to legislature, from determining that, in light of its prospective abolition, death penalty violated state constitutional ban on excessive and disproportionate punishment as applied to capital sentences already imposed.
Affirmed in part, reversed in part, and remanded.
Norcott and McDonald, JJ., filed concurring opinion.
Eveleigh, J., filed concurring opinion.
Rogers, C.J., filed dissenting opinion.
Zarella, J., with whom Espinosa, J., joined, filed dissenting opinion.
Espinosa, J., filed dissenting opinion.

Attorneys and Law Firms
**8 Mark Rademacher, assistant public defender, for the appellant (defendant).
Harry Weller, senior assistant state's attorney, with whom were Matthew A. Weiner, deputy assistant state's attorney, and, on the brief, Kevin T. Kane, chief state's attorney, Gail P. Hardy, state's attorney, Susan C. Marks, supervisory assistant state's attorney, and Marjorie Allen Dauster, Donna Mambrino and John F. Fahey, senior assistant state's attorneys, for the appellee (state).
Constance de la Vega, pro hac vice, and Hope R. Metcalf, New Haven, filed a brief for experts on international human rights and comparative law as amicus curiae.
Alex V. Hernandez and Brian W. Stull filed a brief for legal historians and scholars as amicus curiae.
Close
Sandra J. Staub
Dockets:36
Cases:28
Appellate Court Documents:9
See Full Profile
Sandra J. Staub, David J. McGuire and Lauren R. Masotta filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae.
Kent S. Scheidegger, pro hac vice, and Judith Rossi, Rocky Hill, filed a brief for the Criminal Justice Legal Foundation as amicus curiae.

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, EVELEIGH, McDONALD and ESPINOSA, Js.**

Opinion
PALMER, J.

Zarella, J., with whom Espinosa, J., joins, dissenting.

The majority claims that it is not deciding that *342 the death penalty is per se unconstitutional;1 nor is it deciding that Public Acts 2012, No. 12–5 (P.A. 12–5), is unconstitutional. Rather, the majority claims that, following the passage of P.A. 12–5, the death penalty is unconstitutional under the Connecticut constitution because it “no longer comports with contemporary standards of decency [in this state] and no longer serves any legitimate penological purpose.” The majority thus treats the claim of the defendant, Eduardo Santiago, as a “hybrid” claim, falling somewhere between a per se challenge and a statutory challenge, in order to avoid the tests we long ago adopted to determine whether the death penalty is unconstitutional on per se grounds or whether a particular death penalty statute is unconstitutional on due process grounds. For example, when determining whether the death penalty is per se unconstitutional, we have applied the six-pronged test set forth in State v. Geisler, 222 Conn. 672, 684–85, 610 A.2d 1225 (1992). See State v. Ross, 230 Conn. 183, 249, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995); see also State v. Rizzo, 303 Conn. 71, 185, 31 A.3d 1094 (2011), cert. denied, U.S., ––– U.S. ––––, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). In contrast, when determining whether a death penalty statute is unconstitutional, we have applied the due process principles relevant to the resolution of a statutory claim;2 see State v. Ross, supra, at 253, 646 A.2d 1318; except *343 when a Geisler analysis is required to determine whether the state constitution provides broader protections under our capital sentencing scheme than the federal constitution. See, e.g., State v. Rizzo, supra, at 136, 31 A.3d 1094; see also State v. Colon, 272 Conn. 106, 327, 382–83, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005); **204 State v. Ross, 269 Conn. 213, 257–60, 849 A.2d 648 (2004). The advantage of treating the defendant's claim as a hybrid claim, as opposed to a per se claim or a statutory claim, is that the majority frees itself to create a new and different hybrid test to determine the constitutionality of the death penalty. The majority does this by claiming that the question is not whether P.A. 12–5 is unconstitutional but whether the prospective repeal provision in P.A. 12–5 makes the death penalty unconstitutional. In my view, this is a distinction without a difference. The majority nonetheless relies on it to conjure up a new test, a test this court has never previously applied before in any death penalty case.

The majority's new hybrid test is a confusing combination of the six factor test set forth in Geisler, a test we routinely have used to determine whether the death penalty is per se unconstitutional, and a legal standard derived from federal law that the majority incorrectly claims was adopted by this court in Ross and applied in Rizzo.3 In applying this new hybrid test, however, the majority pays only lip service to the Geisler factors because it focuses on cruel and unusual punishment instead of on capital punishment. It also disregards the sixth Geisler factor and does not consider the relative importance of each Geisler factor. This is apparently *344 because the majority wishes to avoid weighing repeated references to capital punishment in the text of our state constitution, the historical roots of capital punishment, Connecticut precedent upholding the constitutionality of capital punishment, and precedent from other state and federal jurisdictions against the federal evolving standards of decency standard on which it relies to determine whether capital punishment is constitutional. The only federal case in which the evolving standards of decency standard has been used to determine whether capital punishment is constitutional, however, is Gregg v. Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion announcing judgment), and the standard was applied in that case only after the court examined the text of the federal constitution, the history of capital punishment, and federal precedent. See id., at 176–79, 96 S.Ct. 2909 (opinion announcing judgment). The majority thus disregards Gregg as well as our own precedent in refusing to weigh and balance all of the Geisler factors in the context of capital punishment. Accordingly, because I strongly protest the majority's unorthodox reasoning in this case, I emphatically dissent.4

II

GEISLER ANALYSIS

A

Constitutional Text

I begin with the text of the Connecticut constitution. In an analysis that would mystify anyone intent on understanding whether the constitutional text sustains the validity of capital punishment in Connecticut, the majority completely ignores language in the state constitution referring to capital punishment. The majority instead indulges in a meandering, speculative and entirely irrelevant examination of why no cruel and unusual punishment clause was included in the 1818 *353 constitution. As the majority well knows, however, that is not what is expected or required under Geisler.

In explaining the textual approach to construing the contours of our state constitution, Geisler instructs that, “[u]nless there is some clear reason for not doing so, effect must be given to every part of and each word in the constitution.” (Emphasis added; internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225; see also State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990) (“[i]n examining the text of [the state constitution] to determine the extent to which it supports the defendant's claim, we must assume that infinite care was employed to couch in scrupulously fitting language a proposal aimed at establishing or changing the organic law of the state” [internal quotation marks omitted] ). Consequently, a textual analysis under Geisler necessarily requires that the court acknowledge all references in the Connecticut constitution to capital punishment and capital offenses, as this court has done each time it has conducted a textual analysis in the past.
In the present case, even a cursory examination of the text reveals that the Connecticut constitution contains repeated references to capital punishment and capital offenses. Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: “In all criminal prosecutions, the accused shall have a right to ... be released on bail upon sufficient security, **210 except in capital offenses, where the proof is evident or the presumption great....” (Emphasis added.) Article first, § 8, further provides: “No person shall ... be deprived of life, liberty or property without due process of law,” and “[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law....” (Emphasis added.) Finally, article first, § 19, of the Connecticut *354 constitution, as amended by article four of the amendments, provides in relevant part: “[N]o person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent....” (Emphasis added.) Thus, multiple references to capital punishment in the state constitution support the conclusion that, from a textual standpoint, the death penalty does not fall within the implied prohibition of cruel and unusual punishment because it was contemplated not only in 1818, when the relevant language in article first, § 8, was adopted as part of the original constitution; see Conn. Const. (1818), art. I, § 9; but also in 1972, when the provision referring to capital punishment in article first, § 19, was added by article four of the amendments. This court reached the same conclusion when it conducted a Geisler analysis of the Connecticut constitution in Ross and Rizzo. See State v. Ross, supra, 230 Conn. at 249–50, 646 A.2d 1318 (“our state constitution makes repeated textual references to capital offenses and thus expressly sustains the constitutional validity of such a penalty in appropriate circumstances”); see also State v. Rizzo, supra, 303 Conn. at 185, 31 A.3d 1094 (same).
Article first, § 1, of the Connecticut constitution, which describes the constitution as a social compact,8 provides additional textual support for the conclusion that capital punishment is deemed morally acceptable in Connecticut. A social compact is an agreement “between the people and the government they create [that] binds the agencies of government to respect the blueprint of government and the rights retained by the people.” L. Henkin, “The United States Constitution As Social Compact,” in American Philosophical Society, “A More Perfect Union: Essays on the Constitution,” 131 Proc. Am. Phil. Society 261, 265 (1987); see also Moore v. Ganim, 233 Conn. 557, 598, 660 A.2d 742 (1995) *355 “The social compact theory posits that all individuals are born with certain natural rights and that people, in freely consenting to be governed, enter a social compact with their government by virtue of which they relinquish certain individual liberties in exchange ‘for the mutual preservation of their lives, liberties, and estates.’ J. Locke, ‘Two Treatises of Government,’ book II [Hafner Library of Classics Ed.1961] ¶ 123, p. 184; see also 1 Z. Swift, A System of the Laws of the State of Connecticut [1795] pp. 12–13.”). Accordingly, repeated references to capital punishment and capital offenses throughout the constitution, which never have been challenged or eliminated by constitutional amendment, suggest that the people of Connecticut always have accepted, and continue to accept, capital punishment as an integral part of the social compact for the purpose of maintaining public order, preserving their freedom to live in peace and tranquility, and “perpetuat[ing] the liberties, rights and privileges which they have derived from their ancestors....”9 Conn. Const., preamble.

**211 *356 B

Historical Insights

With respect to the relevant constitutional history, Geisler explains that the “historical approach” includes consideration of “the historical constitutional setting and the debates of the framers....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. Ross thus examined “historical insights into the intent of our constitutional forbearers”; State v. Ross, supra, 230 Conn. at 249, 646 A.2d 1318; and observed that “Connecticut's history has included a death penalty statute since 1650, when it was incorporated into Ludlow's Code ... and such a penalty was considered constitutional at the time of the adoption of the constitution of 1818.” (Citation omitted; footnote omitted.) Id., at 250, 646 A.2d 1318. Nevertheless, the majority not only fails to acknowledge the historical roots of capital punishment in Connecticut, but diverts the discussion to an expansive and wholly irrelevant analysis of our state's “unique and expansive constitutional and preconstitutional history” relating to the freedom from cruel and unusual punishment. This is the same approach the majority employs in its analysis of the relevant constitutional provisions by dismissing language in the state constitution referring to capital punishment and capital offenses.

*357 If the majority had conducted the historical analysis required under Geisler and conducted in Ross, the only conclusion it could have drawn is that capital punishment has deep roots in Connecticut going back to early colonial times and that the framers of the Connecticut constitution in 1818 and the convention delegates in 1965 **212 had no intention of eliminating death as the most severe penalty in a proportional system of punishments.

In practice, the death penalty has been imposed in Connecticut from the founding of the colony in 1636 until the first constitutional convention in 1818. Between 1636 and 1699, when the rationale for the death penalty was embedded in the religious foundation of New England and punishment was regarded as divinely mandated, capital punishment applied at different times to as few as twelve and as many as twenty-three crimes,10 and thirty-one persons were executed. L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011), pp. 4, 7, 10–13. Thereafter, during the first seven decades of the eighteenth century, when a more worldly society emerged and the legal culture was transformed to reflect an increasingly secular ethic; id., at p. 39; capital punishment applied to between twelve and nineteen crimes,11 and seventeen persons were executed. Id., at pp. 4, 45, 49. Even when the legal system experimented unsuccessfully with reform from 1773 to 1827, capital punishment applied at different times to between six and eleven crimes,12 and sixteen *358 persons were executed. Id., at pp. 4, 75, 79. Thus, when Connecticut held its first constitutional convention in 1818, capital punishment was firmly entrenched and thoroughly accepted as the most severe penalty available to punish criminal offenders.

Public support for capital punishment also was reflected in the views of Zephaniah Swift, who was the chief justice of the Connecticut Supreme Court of Errors from 1815 to 1819, the state's “leading jurist [at the time of the 1818 constitutional convention] and the person most responsible for the major reform of Connecticut's judicial system during” the late eighteenth and early nineteenth centuries. Id., at p. 71. Because of Swift's role as “[a] pioneer in the development of an American common law distinct from England”; W. Horton, “Connecticut Constitutional History 1776–1988,” 64 Conn. B.J. 355, 358 (1990); his ideas on the law “take on great significance in determining what the framers had in mind when adopting the language of the constitution.” State v. Joyner, 225 Conn. 450, 490, 625 A.2d 791 (1993) (Berdon, J., dissenting). These ideas are principally understood through his two legal treatises, published in 1796 and 1823,13 respectively, “setting forth the common law of Connecticut based on the actual practices of local judges.” W. Horton, The Connecticut State Constitution (2d Ed.2012) p. 23. Both treatises are relevant because they describe Swift's views on capital punishment, as well as those of the framers, both before and directly after the 1818 constitutional convention.
**213 In his 1796 treatise, Swift expressed strong support for the death penalty if properly imposed within a proportional system of punishments, explaining that “[i]t *359 is a fundamental principle, that the sole end of punishment is the prevention of crimes, and that every punishment ought to be proportioned to the [offense].” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 293. He thus approved of the legislature's attempt to create the type of proportional system he advocated by establishing three grades of punishment, these being death, confinement to hard labor and coarse fare, and corporal and pecuniary pains and penalties. Id., at p. 296. He disapproved, however, of the number of crimes the legislature had deemed deserving of the ultimate punishment, which included “treason, murder, rape, the crime against nature, mayhem, and arson, where some life is endangered”; id.; believing instead that “[t]he dreadful punishment of death, ought only to be inflicted [for] those crimes which directly and immediately tend to the destruction of society and the human race, as treason, and murder.” Id.

When Swift updated his 1796 treatise in the early 1820s, immediately following the constitutional convention, he maintained his belief that punishments should be proportional to the offense and continued to support the death penalty,14 contending that it should apply not only to treason and murder, but to other crimes as well.15 2 Z. **214 Swift, A Digest of the Laws of the State of *360 Connecticut (1823) p. 262. He wrote: “Treason, murder, rape, and arson, where life is destroyed or endangered, ought to be punished with death. These crimes are of such an atrocious nature, that the interest of the community requires they should not only be punished in the severest manner, but the offender ought to be deprived of the power of repeating the crime. The punishment of death will not only be sanctioned by public opinion, but there is no probability that executions will be so frequent in such cases, as to weaken their effect on the community.” Id. Accordingly, to the extent the majority suggests that Swift and other reformers rejected harsh punishments and became increasingly uneasy with capital punishment by the time of the constitutional convention, it indulges in revisionist thinking.
*361 Approval of capital punishment by our constitutional forbearers is also reflected in their handling of an event that led directly to the calling of the 1818 constitutional convention, namely, legislative interference with a criminal conviction and sentence of death in Lung's Case, 1 Conn. 428 (1815). See W. Horton, The Connecticut State Constitution, supra, at p. 12. In response to the legislature's action, “Swift convened a special court to try Peter Lung for murder. After being duly convicted and sentenced to die, Lung filed a petition with the General Assembly claiming that the trial had been procedurally improper. The General Assembly agreed, set aside the conviction, and ordered a new trial, at which Lung was promptly convicted, and he was hanged.” Id. “The case outraged the Connecticut judges, who were Federalist to a man. Led by Swift, who wrote a pamphlet in 1816 attacking legislative interference with a judicial decision, the judiciary demanded separation of powers.” Id., citing Z. Swift, “A Vindication of the Calling of the Special Superior Court, at Middletown, on the 4th Tuesday of August, 1815, For the Trial of Peter Lung, Charged with the Crime of Murder. With Observations on the Constitutional Power of the Legislature to Interfere with the Judiciary in the Administration of Justice” (1816) p. 42 (A Vindication of the Calling of the Special Superior Court).
What is striking about this case, in addition to the fact that it led in part to the 1818 constitutional convention and the adoption of a new state constitution formalizing the separation of powers in Connecticut, is the lack of any suggestion by the legislature or judiciary that the imposition of the death penalty was wrong. Connecticut judges were inflamed because the legislature had interfered with Lung's conviction and verdict due to perceived procedural irregularities, and the fact *362 that he had been condemned to die was simply not an issue.16

**215 To the extent the majority disagrees and cites a newspaper article published after Lung's execution “remarking on the ‘infrequency of capital punishment’ and observing that the ‘[behavior] of this unfortunate sufferer on this trying occasion, was such as to attract the tenderest sympathy of every rational beholder,’ ” it misunderstands the context in which the article was written. In his pamphlet on Lung's Case, Swift effectively countered any notion that capital punishment lacked broad public support when he observed that public sympathy for a capital offender as the execution drew near was “probably owing to the weakness incident to human nature.” A Vindication of the Calling of the Special Superior Court, supra, at p. 11. Swift further explained: “When a crime has been committed, public indignation is awakened, and all unite to bring about the conviction of the offender. But as soon as he is convicted, especially in capital cases—when the awful sentence of death is pronounced, then a sentiment of compassion begins to operate in [favor] of the unfortunate convict: the sense of justice is drowned in the feelings of compassion; and false humanity begins to run riot. His case will then be viewed in the most favorable light. Some will doubt about the evidence of his guilt—some will question the propriety of capital punishments *363 in any case, and some will hint at the possible unfairness of the trial. Prejudice will be excited even against the triers, who are then considered as having sought the blood of a fellow creature, and many will find fault with [everything] that has been done from a secret aversion to the law, and a natural disposition to pull down courts, and prostrate government. Artful and designing men well know how to fan the flame and profit by it. Such was the course of things in the case of Lung. As soon as he was removed from the theatre of his crimes, and the place of trial, the convicted murderer was transformed into an innocent sufferer, and many began to take a deep interest in his fate.” (Emphasis added.) Id., at pp. 11–12.
Whatever public sympathy may have been extended to Lung following his conviction, there is no indication in the annotated debates of the constitutional convention, two years after the uproar over Lung's Case, of decreasing public support for capital punishment. See generally W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Conn. B.J. SI–7 through SI–84 (1991). Nor is there evidence that any convention delegates sought to ban capital punishment or objected to the inclusion of language in the constitution referring to capital punishment. See id. The convention appointed a committee of twenty-four delegates to draft the new constitution. See id., at SI–14 through SI–15. The committee's proposed language in article first referring to capital offenses and to the deprivation of life without due process of law was based on language in the 1817 Mississippi Bill of Rights; see id., at SI–102 through SI–103; and was adopted by the convention delegates without comment. See id., at SI–31 through SI–32. Thereafter, language in article first referring to punishment by death that was proposed on the convention floor also was accepted without significant comment or debate. See id.

*364 Directly following the constitutional convention, public support for capital punishment continued unabated when the legislature endorsed the proportional system of punishment advocated by Swift, including the continued use of the death penalty, in revisions to the General Statutes for the purpose of ensuring their conformance **216 with the new constitution.17 See State v. Ellis, 197 Conn. 436, 450–51 n. 13, 497 A.2d 974 (1985). A note in the crimes and punishments section of the revised statutes explained that “the object has been ... to proportion the punishment according to the nature and grade of the crime” and that “[t]he experience of this state has [shown], not only that mild punishments are better calculated to prevent crimes, than those which are sanguinary; but that punishments must be attended with considerable severity, to operate as examples to others....” General Statutes (1821 Rev.) tit. 22, § 118, p. 177 n.5. To that effect, capital punishment, which had been imposed in 1805 for crimes such as bestiality, sodomy, false witness, arson resulting in death, treason, destruction of military property, dismemberment, murder and rape; see Acts and Laws of the State of Connecticut in America (1805), pp. 182, 321, 349, 419; was retained for, among other crimes, treason, murder, maiming, arson and rape. See General Statutes (1821 Rev.) tit. 22, §§ 1, 3, 6, 8, 10, pp. 151–52. The revised statutes also authorized the governor to reward persons who provided authorities with information leading to the timely capture of capital offenders. General Statutes (1821 Rev.) tit. 22, § 118, p. 176.

Almost 150 years later, Connecticut revisited its commitment to capital punishment when an amendment proposing abolition of the death penalty was submitted but soundly defeated at the 1965 constitutional convention, which adopted the state's present constitution. The *365 record of the 1965 proceedings reveals that a Greenwich delegate submitted a resolution entitled “Resolution Proposing an Amendment to the Constitution Concerning Capital Punishment” for the purpose of abolishing the death penalty. Constitutional Convention Record Index, Constitutional Convention of 1965 (August, 1965) p. 5. The resolution received an unfavorable report by the committee on resolutions, however, and was summarily rejected by the convention delegates. Journal of the Constitutional Convention of Connecticut 1965, p. 111. This explicit rejection of a direct attempt to abolish capital punishment in 1965 demonstrates, first, that the death penalty, which had been operative in this state since colonial times, always had been deemed constitutional and, second, that the convention delegates in 1965, like the framers in 1818, did not want to change the status quo. The state's commitment to capital punishment was renewed a second time on December 22, 1972, when article first, § 19, of the Connecticut constitution was amended to provide that “no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent.” (Emphasis added.) Conn. Const., amend. IV. There appears to have been no other attempt to amend the constitution for the purpose of abolishing capital punishment during the last 200 years.

To conclude, any suggestion that there was little or diminishing support for the death penalty before, during or directly after the constitutional conventions of 1818 and 1965 is a gross mischaracterization of the historical record. An examination of Connecticut's history reveals that, although the number of crimes to which capital punishment was applied diminished over the years, the punishment was accepted in Connecticut as the most severe penalty for a criminal offense not only in 1818, at the time of the first constitutional convention, but in 1972, as well, when the most recent constitutional *366 amendment **217 referring to capital offenses was adopted. Accordingly, a historical analysis under Geisler supports the conclusion that capital punishment was not deemed morally unacceptable by our constitutional forbearers.

C

Related Connecticut Precedents

A Geisler analysis also includes an examination of the “holdings and dicta of this court, and the Appellate Court....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. The majority nonetheless continues to disregard Geisler by failing to acknowledge this court's recent holdings rejecting challenges to capital punishment under the state constitution. Rather, the majority engages in a brief discussion regarding the degree of protection from cruel and unusual punishment provided under the due process clauses of the state constitution. In addition to fundamentally changing the required analysis, the consequence of this attempt to avoid revealing Connecticut's well established precedent upholding capital punishment is the majority's misrepresentation of the reasoning in Ross and Rizzo, neither of which adopted a federal evolving standards of decency test to evaluate challenges to allegedly cruel and unusual punishment, as the majority claims. See part I B of this opinion.

When the court considered a constitutional challenge to capital punishment in Ross, it relied on State v. Davis, 158 Conn. 341, 358, 260 A.2d 587 (1969), vacated on other grounds, 408 U.S. 935, 92 S.Ct. 2856, 33 L.Ed.2d 750 (1972), in concluding that “Connecticut case law has recognized the facial constitutionality of the death penalty under the eighth and fourteenth amendments to the federal constitution.” State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. Since Ross, capital punishment has been deemed facially constitutional in many other cases as *367 well. See State v. Santiago, 305 Conn. 101, 307, 49 A.3d 566 (2012); State v. Rizzo, supra, 303 Conn. at 184, 201, 31 A.3d 1094; State v. Colon, supra, 272 Conn. at 383, 864 A.2d 666; State v. Reynolds, 264 Conn. 1, 236–37, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004); State v. Cobb, 251 Conn. 285, 496–97, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S.Ct. 106, 148 L.Ed.2d 64 (2000); State v. Webb, 238 Conn. 389, 401–402, 411–12, 680 A.2d 147 (1996); State v. Breton, 235 Conn. 206, 218, 663 A.2d 1026 (1995).

This court also has implicitly endorsed the constitutionality of capital punishment under the social compact clause of the state constitution. In Webb, the court determined that the social compact clause does not preclude death penalty legislation in Connecticut because Connecticut's social compact does not confer on convicted offenders a natural and unenumerated right to life. State v. Webb, supra, 238 Conn. at 411–12, 680 A.2d 147. The court explained: “Unenumerated rights [such as a citizen's right to be protected from capital punishment] exist, if at all ... only if they are grounded in or derived from the constitutional text or Connecticut's unique historical record”; id., at 410, 680 A.2d 147; and “the constitutional text and historical record support the constitutionality of the death penalty statutes [in Connecticut].” Id., at 411 n. 21, 680 A.2d 147. Accordingly, relevant Connecticut precedent overwhelmingly supports the conclusion that capital punishment has continued to receive strong public support in Connecticut in recent years.

D

Persuasive Federal Precedents

Geisler further instructs the court to consider “federal constitutional precedents **218 that appropriately illuminate open textured provisions in our own organic document....” (Internal quotation marks omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. Although none *368 of the provisions in the Connecticut constitution referring to capital punishment is open textured, the court in Ross cited to Gregg v. Georgia, supra, 428 U.S. at 153, 96 S.Ct. 2909 for the proposition that federal constitutional law does not forbid the death penalty outright and that federal constitutional law is consistent with the repeated recognition of capital punishment in our own constitution. State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. Nonetheless, the majority disregards federal precedent holding that capital punishment is constitutional and directs its attention to the “minimum standards for what constitutes impermissibly cruel and unusual punishment” under the federal constitution. Text accompanying footnote 15 of the majority opinion.

The majority claims that the United States Supreme Court has identified as unconstitutionally cruel those punishments that are (1) inherently barbaric, (2) excessive and disproportionate, and (3) arbitrary or discriminatory, and contends that the court in Ross “broadly adopted, as a matter of state constitutional law, this federal framework for evaluating challenges to allegedly cruel and unusual punishments.” Text accompanying footnote 17 of the majority opinion. This is not the case. There is no reference in Ross to this federal framework as the basis for evaluating the constitutionality of capital punishment. The only references in Ross to capital punishment as being excessive or arbitrarily imposed are in the context of as applied challenges to the constitutionality of Connecticut's death penalty statutes. See State v. Ross, supra, 230 Conn. at 231, 232, 239, 646 A.2d 1318. As for the barbarity of capital punishment, the author of the dissenting opinion in Ross was the only member of the court to use that term. Id., at 298, 646 A.2d 1318 (Berdon, J., dissenting in part). Furthermore, as repeatedly noted in this opinion, the court in Ross adopted the framework established in Geisler to evaluate challenges to allegedly cruel and unusual punishments. Accordingly, *369 because the United States Supreme Court has not modified or rejected its conclusion in Gregg that capital punishment is not forbidden in all circumstances under federal constitutional law, federal precedent continues to support the constitutional validity of capital punishment under the Connecticut constitution.

E

Persuasive Precedents of Other State Courts

Geisler next requires an examination of “sister state decisions....” (Citations omitted; emphasis omitted.) State v. Geisler, supra, 222 Conn. at 685, 610 A.2d 1225. In Ross, the court followed this directive by observing that “[c]ourts in the overwhelming majority of our sister states have rejected facial challenges to the death penalty under their state constitutions.” State v. Ross, supra, 230 Conn. at 250, 646 A.2d 1318. The court specifically noted that, between 1972 and 1994, thirty-seven states had passed death penalty statutes, and, in the only two jurisdictions in which the state's highest court had deemed the death penalty facially unconstitutional, California and Massachusetts, subsequent constitutional amendments promptly abrogated those decisions. Id., at 250 n. 30, 646 A.2d 1318. Although the majority does not address this question as part of its Geisler analysis but, rather, as part of its subsequent discussion of evolving standards of decency, I note for the record the majority's concession that “capital punishment **219 remains legal in a majority of jurisdictions within the United States....” An analysis of persuasive state precedents thus supports the continued validity of capital punishment under the Connecticut constitution.

F

Economic and Sociological Considerations

The last Geisler factor, economic and sociological considerations, is the most challenging factor to interpret and apply. See State v. Geisler, supra, *370 222 Conn. at 285, 610 A.2d 590. The court in Geisler provided little guidance as how to conduct this analysis and merely cited to State v. Dukes, 209 Conn. 98, 547 A.2d 10 (1988), in which the court observed that “[c]onstitutional provisions must be interpreted within the context of the times”; id., at 114, 547 A.2d 10; and that the state constitution “should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” Id., at 115, 547 A.2d 10. Accordingly, the court in Ross determined that this factor requires an examination of “whether contemporary understandings of applicable economic and sociological norms compel the conclusion that any death penalty constitutes cruel and unusual punishment.” State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. The court explained: “The 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 is so inherently cruel and so lacking in moral and sociological justification that it is unconstitutional on its face because it is fundamentally offensive to evolving standards of human decency.” Id. The court then advised: “Judicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.”18 Id.

In an apparent attempt to circumvent this analysis, the majority replaces it with an entirely new standard, derived from federal law, that requires a determination as to whether capital punishment comports with evolving standards of decency. Apparently searching for *371 precedent in Connecticut's own capital punishment jurisprudence, the majority suggests that the federal standard pertaining to evolving standards of decency was adopted in Ross and followed in Rizzo. This is not the case.

The majority initially contends that, when the court in Ross and Rizzo considered whether the death penalty was cruel and unusual punishment under the state constitution, it did not address the issue as a single constitutional claim but as “two distinct constitutional [claims],” the first being a per se claim that capital punishment violates the state constitution under all circumstances, and the second being a claim that capital punishment no longer comports with Connecticut's evolving standards of decency. The majority thus appears to rely on the existence of this purported second claim in Ross and Rizzo as precedent for framing the defendant's claim in the present case as a claim that capital punishment is unconstitutional because **220 it no longer comports with evolving standards of decency in Connecticut. Having identified Ross and Rizzo as precedent for the defendant's claim, the majority next contends that, although the court addressed the evolving standards of decency claim only briefly in Ross, it conducted “a more sweeping review” of a similar claim in Rizzo before concluding that there remained strong public support for capital punishment in this and other jurisdictions. The majority then adopts “five objective indicia of society's evolving standards of decency,” based on federal eighth amendment jurisprudence, to review the defendant's claim. These include (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 text accompanying footnote 43 of the majority opinion. For *372 the following reasons, I strongly disagree with the majority's misrepresentation of the reasoning in Ross and Rizzo for the apparent purpose of legitimizing its adoption of a wholly independent test derived from federal law and of avoiding the analysis required under the sixth Geisler factor.

First, in Ross and Rizzo, the court considered and decided only one claim challenging the constitutionality of capital punishment under the state constitution. In both cases, that claim was brought on per se grounds. State v. Rizzo, supra, 303 Conn. at 184, 31 A.3d 1094; State v. Ross, supra, 230 Conn. at 245, 646 A.2d 1318. There was no second claim in either case challenging the constitutionality of capital punishment on the ground that it failed to comport with evolving standards of decency.

Second, to the extent the court considered evolving standards of decency in Ross and Rizzo, it did so in the context of the sixth Geisler factor, which Ross described as requiring an examination of contemporary understandings of applicable economic and sociological norms. See State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318; see also State v. Rizzo, supra, 303 Conn. at 186–88, 31 A.3d 1094. There is no room for debate regarding these facts.

Third, although the court conducted a more expansive analysis in Rizzo than it did in Ross under the sixth Geisler factor, it did not go nearly as far as the majority contends. As previously discussed, Ross stated that evidence of contemporary understandings of applicable economic and sociological norms, or evolving standards of human decency, “are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.” State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. Thus, the court in Rizzo began its analysis of the sixth Geisler factor by noting that the “constitution contains explicit references to *373 capital punishment ... and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. at 188, 31 A.3d 1094. The court then examined developments in the capital punishment jurisprudence of the United States Supreme Court and our sister states, as instructed by Ross. See id., at 188–90, 31 A.3d 1094. In a departure from Ross, however, the court in Rizzo also considered actual practices in other states and determined that, because several thousand inmates were being held on death row in thirty-six states, the death penalty continued to be accepted in the nation generally. See **221 id., at 190–92, 31 A.3d 1094. All of the remaining discussion in Rizzo, which concerned a decline in the number of executions and in new death sentences, the results of public opinion polls, international norms, whether capital punishment continues to serve a legitimate penological purpose, and the passage but subsequent veto of legislation in Connecticut repealing capital punishment, was in response to arguments by the defendant in that case, and was not initiated by the court or necessary to the court's analysis under the sixth Geisler factor. See id., at 192–201, 31 A.3d 1094.

Fourth, the majority concedes that the “five objective indicia of society's evolving standards of decency” are largely derived from eighth amendment jurisprudence rather than Connecticut law. In addition to the fact that this is contrary to the majority's claim that it is deciding this case after “careful consideration of the defendant's claims in light of the governing constitutional principles and Connecticut's unique historical and legal landscape”; (emphasis added); the five indicia are drawn from four federal cases, each of which articulated a slightly different set of criteria in determining whether the penalty in question was constitutional. See *374 Graham v. Florida, 560 U.S. 48, 61–62, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (legislative enactments and actual sentencing practices); Atkins v. Virginia, 536 U.S. 304, 313–16, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (legislative enactments); Thompson v. Oklahoma, 487 U.S. 815, 822–23, 830, 108 S.Ct. 2687, 101 L.Ed.2d 702 (1988) (legislative enactments, jury determinations, views of respected professional organizations and views of other nations); Enmund v. Florida, 458 U.S. 782, 788–89, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982) (historical development of punishment, legislative enactments, international opinion, and sentencing decisions of juries). Moreover, a comparison of the majority's five indicia with those discussed in Ross shows that only two of the five overlap. These two common indicia are the history of the punishment in question and the laws and practices of other jurisdictions. The other three indicia, legislative enactments, the current practices of prosecutors and sentencing juries, and the opinions and recommendations of professional associations were not recognized in Ross. Correspondingly, the majority does not recognize the first and most important indicium recognized in Ross, the constitutional text, as one of the five indicia in its analysis. This discrepancy between the five indicia that the majority adopts in the present case and the indicia described in Ross is significant.
As previously discussed, Ross advised that “[j]udicial evaluation of evolving standards of human decency cannot proceed in a vacuum. Community standards of acceptable legislative policy choices are necessarily reflected in the text of our constitutional document, in our history and in the teachings of the jurisprudence of our sister states as well as that of the federal courts.” State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318. Ross thus viewed evolving standards of human decency in the broadest possible sense. Given this understanding, the current practices of prosecutors and sentencing juries, and the opinions and recommendations of professional associations, *375 are not particularly relevant because they are not representative of the community as a whole.19 In contrast, because the state constitution is a social compact that incorporates the principles by which an entire society is governed, it is far more likely to reflect the **222 views of the general population. In Connecticut, for example, the state constitution was amended fifty-nine times between 1818 and 1965, and thirty-one times since 1965; W. Horton, The Connecticut State Constitution, supra, at pp. 17, 22; and thus reflects not only the beliefs of the original framers but those of the people of Connecticut over the course of 200 years. Historical information, including events of more recent origin, likewise provides a broad view of social change within the state and is not unduly reflective of a single perspective. As for the jurisprudence of other jurisdictions, the court in Ross understood that Connecticut is not a self-contained entity that exists in a vacuum but is inextricably linked to other federal and state jurisdictions. Accordingly, the capital punishment jurisprudence of other jurisdictions may be influenced to some degree by the same events and historical developments that inform our own. I therefore do not take issue with the majority's reliance on the historical development of the punishment at issue or on the laws and practices of other jurisdictions, although I strongly disagree with the majority's analysis and conclusions.

I also disagree with the majority's reliance on legislative enactments as one of the five indicia of evolving standards of decency and with its specific reliance on the passage of P.A. 12–5 as the principal basis for determining that capital punishment is impermissible under the Connecticut constitution. The majority concedes at the outset that this is the most important part of its analysis, stating that, “[u]pon careful consideration *376 of the defendant's claims in light of the governing constitutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.” In my view, this is a serious mistake, not only because it is inconsistent with Connecticut precedent but because it places the legislature in a legally untenable position.

I note initially that the court in Ross did not contemplate judicial reliance on state legislation as a basis for determining evolving standards of decency in the context of a state constitutional claim. Rather, the court deliberately steered clear of this potential quagmire and made no reference to legislative enactments as one of the indicia of community standards in Connecticut, most likely because of the legal predicament that would have resulted from relying on legislative enactments to deem a criminal penalty unconstitutional.

The majority seems to believe that relying on legislation to determine evolving standards of decency is Rizzo, supra, 303 Conn. at 191, 31 A.3d 1094 quoting Atkins v. Virginia, supra, 536 U.S. at 312, 122 S.Ct. 2242. The majority, however, takes this language out of context. In Rizzo, the court did not recognize legislative enactments in Connecticut as a source of community standards in this state but cited Atkins in discussing recent developments in our sister states, which Ross had recognized as relevant under the sixth Geisler factor. See State v. Rizzo, supra, at 191–93, 31 A.3d 1094; State v. Ross, supra, 230 Conn. at 251, 646 A.2d 1318.

*377 The majority also fails to understand the difference between examining legislative enactments in a federal and a state constitutional analysis, and why it is appropriate in the former but makes no sense in the latter. The answer, however, is simple. In a federal analysis of a death penalty statute, the statute is compared to all of the other state statutory schemes in order to determine whether the statute under review is out of step with contemporary **223 norms. When analyzing the constitutionality of the death penalty under the state constitution, however, the majority reviews the state statute by comparing it against itself. This makes no sense. Thus, if P.A. 12–5 authorized drawing and quartering for those convicted of murder, the majority would conclude that the standards of decency in Connecticut are established by the public act and are therefore constitutional. This logical incoherence is why the court in Ross did not rely on legislative enactments to determine contemporary norms.

In my view, if the legislature decides to eliminate capital punishment, it is because it is authorized to do so under the state constitution; see State v. Darden, 171 Conn. 677, 679–80, 372 A.2d 99 (1976); and its decision has no implications regarding the constitutionality of the punishment itself. If, on the other hand, the legislature establishes capital punishment as the most severe penalty in a proportional system of punishments, it is because the Connecticut constitution expressly recognizes death as a viable penalty. Thus, the only way capital punishment may be deemed unconstitutional in Connecticut is by the approval of a constitutional amendment to that effect. Capital punishment also may be eliminated by legislative repeal of the death penalty in its entirety, but a legislative act eliminating capital punishment is not an indication that the punishment is unconstitutional. If social values have changed such that capital punishment no longer comports with contemporary *378 standards of decency in Connecticut, this will be reflected in legislative action or a constitutional amendment banning capital punishment. In the absence of a constitutional amendment, neither an act of the legislature nor a judicial edict can nullify explicit constitutional provisions expressly recognizing capital punishment or erase from the historical record the relatively recent rejection of a proposed abolition amendment during the 1965 constitutional convention. Accordingly, P.A. 12–5 cannot serve as the basis for concluding that capital punishment is unconstitutional in Connecticut under the federal test the majority adopts or, for that matter, under any other test. The only realistic constitutional claim that can be made regarding the effect of P.A. 12–5 on the defendant's sentence is that the statute is unconstitutional.

Rejecting the standard the majority adopts, and applying the standard on which the court in Ross relied, I believe contemporary understandings of applicable economic and sociological norms do not compel the conclusion that capital punishment is morally unacceptable in Connecticut. As previously discussed, the state constitutional text contains numerous references to capital punishment. See part II A of this opinion. Thus, I agree with Justice Scalia that “[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates.”(Emphasis in original.) Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2747, 192 L.Ed.2d 761 (2015) (Scalia, J., concurring). This is especially true in Connecticut, where there have been more than eighty-five amendments to the state constitution since 1818 and the delegates to the 1965 constitutional convention rejected an amendment abolishing capital punishment. The Connecticut constitution thus reflects current public attitudes toward capital punishment, as well as those of the original framers. At this time, state and federal jurisprudence also supports the conclusion *379 that capital punishment is morally acceptable under the state constitution. See part II D and E of this opinion. As for Connecticut's history, I disagree with the majority's claim that “new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to **224 abolish the death penalty prospectively ... [provide] a clear picture of the long, steady devolution of capital punishment in our state....”

The majority claims that various developments during the past 400 years “have resulted in capital punishment being available for far fewer crimes and criminals, and being imposed far less frequently, with a concomitant deterioration in public acceptance.” As Chief Justice Rogers discusses in her dissenting opinion, however, the historical record does not demonstrate a decline in public support for the death penalty in Connecticut as the most severe form of punishment, even in contemporary society, where persons accused of capital crimes are provided with many more legal protections than similar offenders were provided in the past.

The “new insights” to which the majority refers appear to come entirely from the author of a recently published book, Lawrence B. Goodheart, who repeatedly demonstrates his bias in favor of abolishing capital punishment in his commentary, in his selection and presentation of the historical evidence, and in numerous other published articles. See, e.g., L. Goodheart, supra, at p. 2 (opining that “the death penalty in Connecticut is contradictory in principle and unworkable in practice”); L. Goodheart, “Changing Use of Death Penalty Argues For Abolition,” Hartford Courant, April 23, 2011, p. A7 (“[m]y research has convinced me that it's time to abolish a law that is unenforceable, unfair and unethical,” and “I've come to the belief that we can no longer enforce this law, it was never effective and it was unfairly applied”); see also M. Kirk, “The History of the Death Penalty in Connecticut,” UCONN Today, October *380 24, 2011, available at http://today.uconn.edu/2011/10/the-history-of-the-death-penalty-in-connecticut/ (last visited July 27, 2015) (quoting from interview in which Goodheart expresses opposition to death penalty). Accordingly, Goodheart does not discuss the historical facts on which he relies in a completely objective fashion. Nevertheless, even Goodheart concedes that public support for capital punishment has remained strong in Connecticut during the past four centuries. For example, he observes that, in the more recent past, “[d]espite a petition campaign and gubernatorial support, opponents [of capital punishment] during an era of reform in the 1840s and 1850s failed to sway the legislature....” L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, at p. 3. Similarly, “[a]fter the horrors of World War II, Governor Abraham Ribicoff ... supported broad-based efforts to end capital punishment, but the General Assembly voted down abolition....” Id., at pp. 3–4. Thereafter, in 1963, “the House voted overwhelmingly, once again, to retain capital punishment” because of “popular support for the execution of hardened criminals”; id., at p. 201; and, “[i]n 1965, the House voted ... 167 to 67 to retain the death penalty.” Id., at p. 202. Goodheart also observes that, in the 1970s, following the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), in which, according to Goodheart, the nation's highest court “found that the arbitrary and inconsistent imposition of the death penalty violated the [e]ighth and [f]ourteenth amendments [of the federal constitution] concerning cruel and unusual punishment and due process of the law”; L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut, supra, at p. 196; Connecticut did not abolish capital punishment but “was one of thirty-seven states to rewrite its capital code to comply with the revised standard.” Id.
*381 In explaining why the death penalty retains strong public support in Connecticut, **225 Goodheart states that “[s]urveys of public opinion provide an answer. A Quinnipiac University poll in January [of] 2005 indicated that 59 percent of Connecticut residents favored the death penalty,” which was “comparable to national sentiment.” Id., at p. 249. Goodheart also observes that, more recently, “[p]ublic opinion, the General Assembly (except in 2009), most governors, and the courts (state and federal) sustain the death penalty, at least for particularly cruel and heinous murders.” Id., at p. 2. He further acknowledges that, “[a]fter nearly four centuries of capital punishment, Connecticut is exceptional in its region in still carrying out the [capital punishment] statute. It appears that a substantial majority of the state's citizens wish to preserve the death penalty, at least for multiple murderers....” Id., at p. 5. At other times, he explains that “[t]he death penalty remains on the books because enough citizens believe that it is a necessary and just retribution”; id., at pp. 5–6; and that “[m]ost citizens in Connecticut [have] approved the death penalty when it applie[s] to horrific murders.” Id., at p. 250. For example, Goodheart states that 70 percent of those polled supported the execution of Michael Ross in 2005, the last person executed in Connecticut, and that “[o]ne-fourth of those who had previously indicated they opposed the death penalty wanted Ross executed.” Id. Goodheart ultimately concludes, without qualification, that, despite a vocal minority, “[p]ublic opinion supports the death penalty for [the worst] killers....” Id., at p. 252. Goodheart's statistics are consistent with statistics cited by Chief Justice Rogers in her dissenting opinion, which indicate that 62 percent of Connecticut voters favored the death penalty in April, 2012, and 59 percent in March, 2013, for persons convicted of murder. See footnote 31 of Chief Justice Rogers' dissenting opinion and accompanying text. Thus the “facts” cited by the *382 majority's own “historian” do not support its claim that there has been a significant “deterioration in public acceptance” of the death penalty.

That capital punishment in Connecticut has been applied to a steadily decreasing number of crimes during the past 400 years and has been carried out infrequently in more recent decades does not mean that capital punishment for the most terrible crimes is lacking in significant public support. There always has been public debate as to the type and number of crimes to which capital punishment should apply, and the protections afforded to offenders before the punishment is carried out have grown over the years, thus extending the time between sentencing and execution. Capital punishment nonetheless continues to receive public support in Connecticut. This was reflected most recently in the inability of the legislature to override former Governor M. Jodi Rell's veto following the passage of an act intended to repeal the death penalty prospectively in 2009; see Public Acts 2009, No. 09–107; in the failure of similar legislation to achieve a full vote in either chamber of the legislature after advancing through the Judiciary Committee in 2011; see State v. Rizzo, supra, 303 Conn. at 199, 31 A.3d 1094; and in the fact that P.A. 12–5 provides only for the prospective repeal of capital punishment, while retaining it for current death row inmates.

The majority declares that the passage of P.A. 12–5 is a tipping point in the history of capital punishment in Connecticut, in that it represents such a significant change in public mores that capital punishment no longer comports with contemporary standards of decency. The majority's argument, in a nutshell, is that the passage of P.A. 12–5 is an expression of moral outrage against what the majority describes **226 as the barbaric, excessive, arbitrary and discriminatory penalty of death. In reaching this conclusion, however, the majority *383 rejects alternative explanations as to why the legislature may have passed P.A. 12–5, including that the death penalty is too expensive, that it takes too long to be carried out, or that it is merely an exercise of the legislative prerogative to establish penalties for crimes. The majority's narrow-minded view, however, is unsupported by the facts. If the legislature, as the majority claims, had rejected the death penalty only on the ground that it is barbaric, excessive, arbitrary and discriminatory, then why would it have enacted a retention provision specifically allowing executions to go forward for all current death row inmates, and why would it have permitted future arrests, indictments, the commencement of trials, and executions to be carried out with respect to those who had not yet been charged with a capital crime but who had committed such a crime before the effective date of P.A. 12–5? One need not be a legal scholar to understand that the majority's conclusion is not only out of step with the intent of P.A. 12–5, but is disrespectful to a coequal branch of government.

In sum, there is no support for the majority's determination that capital punishment no longer comports with evolving contemporary standards of decency or with understandings of applicable economic and sociological norms under the sixth Geisler factor. Nor can any support for its conclusion be drawn from the passage of P.A. 12–5. Accordingly, all six Geisler factors support the conclusion that capital punishment remains morally acceptable to the people of Connecticut in appropriate circumstances and is not cruel and unusual punishment under the state constitution following the passage of P.A. 12–5.

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.)

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. 

...

(footnotes omitted.)