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State v. Peeler

Supreme Court of Connecticut

May 26, 2016

STATE OF CONNECTICUT
v.
RUSSELL PEELER

          Argued January 7, 2016

          Mark Rademacher, assistant public defender, with whom was Lisa J. Steele, for the appellant (defendant).

          Harry Weller, senior assistant state’s attorney, with whom, on the brief, were Kevin T. Kane, chief state’s attorney, John C. Smriga, state’s attorney, Jonathan Benedict, former state’s attorney, Susan C. Marks, supervisory assistant state’s attorney, Marjorie Allen Dauster and Joseph Corradino, senior assistant state’s attorneys, and Matthew A. Weiner, assistant state’s attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          PER CURIAM.

         A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court, Devlin, J., rendered judgment imposing two death sentences.[1] This appeal of the defendant’s death sentences is controlled by State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), in which a majority of this court concluded that, following the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), executing offenders who committed capital crimes prior to the enactment of P.A. 12-5 would offend article first, §§ 8 and 9, of the Connecticut constitution. See, e.g., Con-way v. Wilton, 238 Conn. 653, 658–62, 680 A.2d 242 (1996) (explaining scope of and rationale for rule of stare decisis). Our conclusion that the defendant’s death sentences must be vacated as unconstitutional in light of Santiago renders moot the defendant’s other appellate claims.

         The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects.

          In this opinion ROGERS, C.J, and PALMER, EVE-LEIGH, McDONALD and ROBINSON, Js., concurred.

          ROGERS, C.J., concurring.

         Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason-my respect for the rule of law. To reverse an important constitutional issue within a period of less than one year solely because of a change in justices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court’s integrity and the rule of law in the state of Connecticut.

         Having carefully considered the arguments presented by the parties, I am not persuaded by the state’s contention that principles of stare decisis should not control the outcome of this case. Although I agree that ‘‘stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, Boys Markets, Inc. v. [Retail Clerks Union, Local 770], 398 U.S. 235, 241 [90 S.Ct. 1583, 26 L.Ed.2d 199] (1970), it is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch, which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon an arbitrary discretion. The Federalist, No. 78, p. 490 (H. Lodge ed. 1888) (A. Hamilton). See also Vasquez v. Hillery, 474 U.S. 254, 265 [106 S.Ct. 617, 88 L.Ed.2d 598] (1986) (stare decisis ensures that the law will not merely change erratically and permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals).’’ (Internal quotation marks omitted.) Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). ‘‘[N]o judicial system could do society’s work if it eyed each issue afresh in every case that raised it. . . . Indeed, the very concept of the rule of law underlying our own [c]onstitution requires such continuity over time that a respect for precedent is, by definition, indispensable.’’ (Citation omitted.) Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992); see also George v. Ericson, 250 Conn. 312, 318, 736 A.3d 889 (1999) (‘‘Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. . . . It is the most important application of a theory of [decision-making] consistency in our legal culture and it is an obvious manifestation of the notion that [decision-making] consistency itself has normative value.’’ [Citation omitted; internal quotation marks omitted.]).

         ‘‘While stare decisis is not an inexorable command . . . particularly when we are interpreting the [c]onstitution . . . even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification.’’ (Citations omitted; internal quotation marks omitted.) Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). ‘‘Such justifications include the advent of subsequent changes or development in the law that undermine a decision’s rationale . . . the need to bring [a decision] into agreement with experience and with facts newly ascertained . . . and a showing that a particular precedent has become a detriment to coherence and consistency in the law . . . .’’ (Citations omitted; internal quotation marks omitted.) Payne v. Tennessee, 501 U.S. 808, 849, 111 S.Ct. 2579, 115 L.Ed.2d 720 (1991) (Marshall, J., dissenting).

         When neither the factual underpinnings of the prior decision nor the law has changed, ‘‘the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided.’’ Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 864.

         I cannot identify any change or development in the law since the decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), was issued or any new experiences or facts that have come to light. Because there also has been no showing that the substance of the opinion has or will become a detriment to coherence and consistency in the law, applying the doctrine of stare decisis is appropriate. Moreover, although the state has now had an opportunity to present new arguments in the present case that it had no reason to present in Santiago because it was not on notice that this court would consider them, the three members of the current court who were in the majority in that case have rejected those arguments on the merits and the fourth member of the majority in Santiago, Justice Norcott, had for many years before that decision expressed his view that the death penalty is unconstitutional per se. See, e.g., State v. Rizzo, 303 Conn. 71, 203, 31 A.3d 1094 (2011) (Norcott, J., dissenting) (‘‘the death penalty per se is wrong, violates the state constitution’s prohibition against cruel and unusual punishment [and] . . . our statutory scheme for the imposition of the death penalty cannot withstand constitutional scrutiny because it allows for arbitrariness and racial discrimination in the determination of who shall live or die at the hands of the state’’ [internal quotation marks omitted]), cert. denied, U.S., 133 S.Ct. 133, 184 L.Ed.2d 64 (2012). Accordingly, it is clear that, if these issues had been raised and briefed in Santiago, the result would have been no different. In fact, the only change that has occurred is a change in the makeup of this court, which occurred after oral argument in Santiago but before the decision was released. I strongly believe that, in and of itself, a change in the membership of this court within a relatively short period of time cannot justify a departure from the basic principle of stare decisis, especially on an issue of such great public importance.[1]See Payne v. Tennessee, supra, 501 U.S. 850 (Marshall, J., dissenting) (change in court’s personnel ‘‘has been almost universally understood not to be sufficient to warrant overruling a precedent’’ [emphasis in original]); Taylor v. Robinson, 196 Conn. 572, 578, 494 A.2d 1195 (1985) (Peters, C. J., concurring) (‘‘[a] change in the constituency of this court is not a sufficiently compelling reason to warrant departure from a [recent decision]’’), appeal dismissed, 475 U.S. 1002, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986); Tileston v. Ullman, 129 Conn. 84, 86, 26 A.2d 582 (1942) (‘‘a change in the personnel of the court affords no ground for reopening a question which has been authoritatively settled’’), appeal dismissed, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943). Any other conclusion would send the message that, whenever there is a hotly contested issue in this court that results in a closely divided decision, anyone who disagrees with the decision and has standing to challenge it need only wait until a member of the original majority leaves the court to mount another assault. In my view, that would be a very dangerous message to send. See Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 854 (‘‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it’’); Wheatfall v. State, 882 S.W.2d 829, 843 (Tex.Crim.App. 1994) (If new personnel were the reason to overrule precedent, ‘‘this [c]ourt would be forced to reconsider every decision of . . . our [c]ourt upon changes in membership. Such an endeavor would defeat one of the essential purposes of stare decisis.’’), cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 644 (1995).

         Regardless of any reliance on the majority decision in Santiago, or lack thereof, stability in the law and respect for the decisions of the court as an institution, rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.[2] See Vasquez v. Hillery, supra, 474 U.S. 265 (stare decisis ‘‘ensure[s] that the law will not merely change erratically, but will develop in a principled and intelligible fashion’’); George v. Eric-son, supra, 250 Conn. 318 (‘‘[decision-making] consistency itself has normative value’’ [internal quotation marks omitted]); People v. Hobson, 39 N.Y.2d 479, 491, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976) (It would be ‘‘scandalous for a court to shift within less than two years because of the replacement of one of the majority in the old court by one who now intellectually would have preferred to have voted with the old minority and the new one. The ultimate principle is that a court is an institution and not merely a collection of individuals . . . . This is what is meant, in part, as the rule of law and not of men.’’ [Emphasis added.]). Indeed, I believe that overruling the flawed majority decision in Santiago under these circumstances would inflict far greater damage on the public perception of the rule of law and the stability and predictability of this court’s decisions than would abiding by the decision. See Planned Parenthood of Southeastern Pennsylvania v. Casey, supra, 505 U.S. 864 (‘‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the [g]overnment. No misconception could do more lasting injury to this [c]ourt and to the system of law which it is our abiding mission to serve . . . .’’ [Citation omitted; internal quotation marks omitted.]), quoting Mitchell v. W. T. Grant Co., 416 U.S. 600, 636, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) (Stewart, J., dissenting).[3]

         Accordingly, I concur with the majority opinion.

          PALMER, J., with whom EVELEIGH and McDONALD, Js., join, concurring.

         In State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), a majority of this court concluded that, following the legislature’s April, 2012 decision to abolish the death penalty for all future offenses; see Public Acts 2012, No. 12-5 (P.A. 12-5); capital punishment no longer comports with the state constitutional prohibition against cruel and unusual punishment. See State v. Santiago, supra, 10, 86, 118–19, 140; see also Conn. Const., art. I, §§ 8 and 9. Specifically, we determined that to execute individuals convicted of committing capital felonies prior to April, 2012, now that the legislature has determined that the death penalty is neither necessary nor appropriate for any crimes committed after that date, no matter how atrocious or depraved, would be out of step with contemporary standards of decency and devoid of any legitimate penological justification. See State v. Santiago, supra, 9, 14–15. Accordingly, we vacated the death sentence of the defendant in that case, Eduardo Santiago, and we ordered that he be resentenced to life in prison without the possibility of release. Id., 140.

         The present appeal is brought by another defendant, Russell Peeler, who, like Santiago, committed a capital felony and was sentenced to death prior to the enactment of P.A. 12-5. Ordinarily, our determination in Santiago that the death penalty is no longer constitutional would control the outcome of the present case as well, and the defendant and others similarly situated would be entitled to resentencing consistent with our decision in Santiago. The state, however, has argued that Santiago was decided without the benefit of adequate briefing by the parties and that, as a result, the majority in Santiago made a series of legal and historical errors that led to an incorrect decision. Indeed, the state goes so far as to contend that our decision in Santiago was so unjust, and so completely devoid of legitimacy, that it should be afforded no precedential value and now may be overturned, only nine months later, merely because the composition of this court has changed.

         I agree with and join the per curiam opinion in this case, in which the majority concludes that Santiago remains binding and valid authority, and that other convicted capital felons who have been sentenced to death are, therefore, entitled to be resentenced forthwith consistent with that decision. I write separately because I categorically reject any suggestion that the parties did not have the opportunity to brief these issues in Santiago, or that the court in that case overlooked key authorities, arguments, or historical developments that, if properly considered, would have resulted in a different outcome. We already have explained at some length why the parties, and particularly the state, had a full and fair opportunity to address the issues on which our decision in Santiago was based. See id., 120–26; see also State v. Santiago, 319 Conn. 935, 936–40, 125 A.3d 520 (2015) (denying state’s motion for stay of execution of judgment in Santiago pending resolution of appeal in present case). In this concurring opinion, I briefly address the state’s principal historical and legal arguments and explain why they are unpersuasive.

         I

         HISTORICAL ANALYSIS

         The state first argues that, in Santiago, we ‘‘relied on flawed historical analysis to justify [our] departure from well established principles of law . . . .’’ Specifically, the state contends that we incorrectly concluded that, prior to the adoption of the 1818 constitution, Connecticut courts were authorized to review the constitutionality of allegedly cruel and unusual punishments. In reality, the state contends, the authority to review and determine the propriety of a punishment always has rested solely with the legislature. In so arguing, the state fundamentally misunderstands the relevant Connecticut history, this court’s precedents, and the basis of our decision in Santiago. Although a full review of the relevant history and the scope of the state’s confusion in this regard lies beyond the ambit of this opinion, Ibriefly address three of the most significant flaws in the state’s analysis.

         First, the state misperceives the purpose of the discussion in part I of our decision in State v. Santiago, supra, 318 Conn. 15–46, and the role that that discussion played in the outcome of the case. Our goal in part I of Santiago was not to establish that this court has the constitutional authority to strike down legislatively enacted punishments as impermissibly cruel and unusual. There was no need to establish that principle because, as the defendant explains, and as the state ultimately concedes, the state lost that argument decades-if not centuries-ago. Just four years after the adoption of the 1818 constitution, Chief Justice Stephen Titus Hosmer, writing for the Connecticut Supreme Court of Errors, rejected the asserted ‘‘omnipotence of the legislature’’ with respect to punitive sanctions such as imprisonment and clarified that the review of such laws was properly within the purview of the judiciary. Goshen v. Stonington, 4 Conn. 209, 225 (1822); see also C. Collier, ‘‘The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition, ’’ 15 Conn. L. Rev. 87, 97 (1982) (‘‘the delegates to the Connecticut [c]onstitutional [c]onvention of 1818 overrode the protestations of the Federalist old republicans who still clung to a faith in legislative supremacy and the common law to uphold all of the natural rights of individuals’’). More recently, in State v. Lamme, 216 Conn. 172, 179–80, 579 A.2d 484 (1990), and again in 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), we rejected the state’s argument that our state constitution confers the authority to determine what constitutes cruel and unusual punishment solely on the legislature.[1]Our purpose in part I of Santiago, then, was merely to trace in greater detail than we previously had the origins and contours of our state constitutional freedoms from cruel and unusual punishment. In other words, the question we considered in Santiago was the scope of the rights at issue, and not which branch of government is charged with securing their enforcement.[2]

         The second fundamental flaw in the state’s historical analysis is its suggestion that, prior to 1818, Connecticut courts played no role in securing our common-law and statutory freedoms from cruel and unusual punishment. In Santiago, we reviewed numerous instances and contexts in which each of the three branches of government at times sought to temper what were perceived as cruel or unusual punishments. With respect to the judiciary, for example, we noted agreement among scholars of early Connecticut history that (1) magistrates enforced the criminal law during the colonial period so as to avoid needless cruelty, especially with regard to capital crimes; State v. Santiago, supra, 318 Conn. 29–31; (2) Connecticut courts began to nullify dubious capital sentences as early as the 1660s; id., 31–32 n.27; and (3) in the years leading up to the adoption of the 1818 constitution, ‘‘courts were adopting a milder practice in applying the capital law.’’ (Internal quotation marks omitted.) Id., 36. Indeed, the very source on which the state relies explains at the outset how this preconstitutional history sowed the seeds that ultimately blossomed into this court’s judicial review authority: ‘‘When we speak of law in early Connecticut-legislation, adjudication, and executive administration-we speak of the law of the magistrates.’’ E. Goodwin, The Magistracy Rediscovered: Connecticut, 1636–1818 (1981) p. 11. ‘‘The Puritan’s peculiar concept of the magistracy was . . . a unique contribution to the development of later concepts of independent judiciaries, distinct functions for courts of law, and even, perhaps, the distinctively American notion of judicial review.’’ Id. In Lamme, having reviewed this history, we concluded that ‘‘the most significant aspect of the pre-1818 declaration of rights is that it had constitutional overtones even though it was statutory in form. The [d]eclaration and supplementary statutes relating to individual rights were grounded in the Connecticut common law and viewed as inviolate. Abridgements perpetrated by the government were considered void on their face and courts were to refuse to enforce them.’’ (Emphasis added; internal quotation marks omitted.) State v. Lamme, supra, 216 Conn. 179, quoting C. Collier, supra, 15 Conn. L. Rev. 94; see also Binette v. Sabo, 244 Conn. 23, 79, 710 A.2d 688 (1998) (Katz, J., concurring in part and dissenting in part). Accordingly, although the state is certainly correct that the legislature played a central role in establishing and enforcing our traditional freedoms from cruel and unusual punishment during Connecticut’s preconstitutional era, the state has offered no reason to conclude, counter to well established authority, that the legislature has been the exclusive guardian of those freedoms.[3]

         Of course, any discussion of the relationship between the judicial and legislative authorities during the pre-constitutional era, and especially prior to the creation of this court in 1784, must be qualified by the recognition that the General Court, which, at the end of the seventeenth century, was renamed the General Assembly, blended and simultaneously exercised both judicial and lawmaking functions during that period. See, e.g., H. Cohn & W. Horton, Connecticut’s Four Constitutions (1988) p. 21; E. Goodwin, supra, pp. 33–35, 52–54. In some sense, then, any discussion of whether the legislature or the judiciary was responsible for securing the people’s freedom from cruel and unusual punishment is academic. In any event, it is clear that the adoption of the state’s first formal constitution in 1818 was motivated in no small part by a desire to create an independent judiciary tasked with securing those basic constitutional liberties, and that these changes embodied a rejection of the belief ‘‘that republican government with legislative supremacy was the best safeguard of personal liberties.’’ (Internal quotation marks omitted.) State v. Lamme, supra, 216 Conn. 180; see also Starr v. Pease, 8 Conn. 541, 546–48 (1831) (declaration of rights contained in 1818 constitution imposed limitations on excessive powers previously wielded by legislature); H. Cohn & W. Horton, supra, p. 23 (call for independent judiciary was primary reason for constitutional convention).

         The third fundamental flaw in the state’s historical analysis is the state’s failure to adequately and accurately document its theory that the freedoms from cruel and unusual punishment enshrined in the state constitution arose from and were limited to legislative efforts to circumscribe the harsh and arbitrary punishments imposed by colonial magistrates. Although the state weaves a lengthy and intriguing narrative in support of this theory, the state’s account is sparse on citation, and, it must be said, one searches the cited authorities in vain for the propositions that the state attributes to them. Nowhere in the cited text, for example, does Professor Lawrence B. Goodheart state that the Ludlow Code of 1650-from which article first, § 9, of the state constitution derives its origins-was drafted to address public concerns that magistrates were wielding excessive power or imposing arbitrary penal sanctions. See L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 11–12. Quite the contrary. In the section of his book on which the state relies, Goodheart explains that the colonists generally deferred to magistrates’ interpretation of Biblical authority; see id., p. 9; and he discusses at some length the key role that the magistrates played in securing fundamental liberties and tempering the colonies’ draconian capital statutes: ‘‘The statutes are deceptive as to what occurred in practice. The laws represented a religious ideal, a public declaration, as the 1672 [colonial] code put it, of what was ‘suitable for the people of Israel.’ The judicial system was much more lenient. The courts aspired to be scrupulous and fair. There was concern to balance individual protection with the greater good. Drawing on centuries of English tradition, the Puritans upheld civil rights, including . . . no torture [and] no cruel or barbarous punishments . . . . Attorneys did not usually function in either colony; the wise and impartial rule of the magistrates was deemed sufficient.’’ (Footnotes omitted.) Id., p. 14.

         The state’s reliance on Everett Goodwin’s book, The Magistracy Rediscovered: Connecticut, 1636–1818, is similarly misplaced. The state cites page 103 of Goodwin’s book for the proposition that, in the state’s words, ‘‘Connecticut’s history is unique in selecting the legislature as the body ‘safeguarding’ citizens from abusive, unlegislated, court-imposed punishments, and not the other way around.’’ The cited passage, however, contains no mention whatsoever of abusive, court-imposed punishments. Rather, Goodwin merely discusses the fact that, as a general matter, Connecticut’s early legal system relied less on English common law than did the other American colonies. E. Goodwin, supra, p. 103. He also references the evolution in Chief Justice Zephaniah Swift’s thinking with respect to the separation of powers; although Swift initially believed in the primacy of the legislature; see id., pp. 99–100, 103; he ultimately came to conclude that, because the legislature is vulnerable to ‘‘ ‘undue and improper influence’ ’’; id., p. 114; the courts must play an important role with respect to the constitutional review of statutes. See id., pp. 99, 101, 103, 109–10, 114, 160 n.34. In other parts of his book, Goodwin explains that the colonists codified an extreme version of the criminal law but ‘‘[left] the mitigation to the discretion of the [m]agistrate’’; (internal quotation marks omitted) id., p. 27; and that the discretion invested in the magistrates reflected the Puritans’ confidence in their wisdom and godliness. Id., p. 30. Like Goodheart, then, Goodwin provides little support for the state’s account.

         The other sources on which the state relies likewise fail to support-and in some cases flatly belie-the state’s theory that Connecticut’s traditional freedoms from cruel and unusual punishment originated from and were limited to a commitment to statutory law as a bulwark against abusive judicial sentencing practices. William Holdsworth, for example, explains that magistrates in both the Connecticut and New Haven colonies ‘‘repeatedly avoided imposing the full penalties prescribed by . . . [law]’’; W. Holdsworth, Law and Society in Colonial Connecticut, 1636–1672 (1974) p. 124 (unpublished doctoral dissertation, Claremont Graduate School); and that, although Connecticut’s first criminal statutes were more severe than those of Massachusetts, Connecticut’s colonial code actually ‘‘placed fewer restrictions on the discretionary powers of the magistrates, and increased the penalties they could impose for certain crimes . . . .’’ Id., p. 132. Holds-worth explains that ‘‘these differences reflect a greater consensus in Connecticut between rulers and ruled and a greater degree of trust of the one for the other, but they also reflect the growth in magisterial power . . . .’’ (Emphasis added.) Id.[4] The state’s heavy reliance on the language of Ludlow’s Code also misses the point. Ludlow’s Code authorized not only those punishments established by express legislative enactment, but also, in the absence of a controlling statute, penal sanctions imposed on the basis of the magistrates’ own understanding of ‘‘the word of God.’’ (Internal quotation marks omitted.) L. Goodheart, supra, p. 12.

         Even more troubling is the state’s representation that this court’s decision in Pratt v. Allen, 13 Conn. 119, 125 (1839), stands for the proposition that, ‘‘[w]ith the exception of moving the judiciary to an independent body, the 1818 constitution ‘left the legislative department as it found it.’ ’’ (Emphasis added.) The state uses the quoted passage from Pratt in an attempt to demonstrate that the judiciary, which, the state alleges, had no authority to review the appropriateness of legislatively imposed punishments under the colonial common law, obtained no greater authority in this respect under the 1818 constitution. The state, however, neglects to account for the sentence in Pratt immediately preceding the one that it quotes. The full passage reads as follows: ‘‘The [constitution of Connecticut], so far as it respects the legislature, is conversant principally with its organization, the authority of its separate branches, and the privileges of its members. But we look in vain for the character of its legislative acts any further than as they are, in some measure, restrained, by the bill of rights. In short, with few limitations, it left the legislative department as it found it.’’ (Emphasis added.) Pratt v. Allen, supra, 125. The only fair reading of Pratt, then, is that the creation of an independent judiciary was not the only change effected by the state constitution, as the state suggests. Rather, the highlighted portions of the foregoing passage, which the state omits, clearly indicate that the constitution, in tandem with the creation of an independent judiciary, constrained the authority of the legislature to enact laws that infringe our basic liberties.

         A thorough review of the cited historical sources and our related cases thus leaves one with the discomforting impression that the state, in its apparent zeal to retain the death penalty, has mischaracterized not only this court’s precedents but history itself. For all of these reasons, I reject the state’s contention that this court, in Santiago, relied on a flawed historical analysis or exercised its powers of judicial review in a manner precluded by either tradition or precedent.

         II

         DELAYS AND INFREQUENCY OF IMPLEMENTATION

         The state’s next argument is that, in Santiago, we improperly considered the infrequency with which the death penalty is imposed in Connecticut, as well as the lengthy delays in carrying out capital sentences, in determining that capital punishment no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. Specifically, the state contends that (1) this court rejected these arguments in State v. Rizzo, 303 Conn. 71, 191–94, 31 A.3d 1094 (2011), cert. denied, U.S., 133 S.Ct. 133, 184 L.Ed.2d 64 (2012), (2) nothing has changed since our decision in Rizzo to justify a different outcome, and (3) in any event, our conclusion that delays in carrying out capital sentences render the punishment unconstitutional is precluded by this court’s decision in State v. Smith, 5 Day (Conn.) 175 (1811). I consider each argument in turn.

         Nothing in our decision in Rizzo precluded the result we reached in Santiago. In Rizzo, we looked at the growing infrequency of capital sentencing and executions throughout the country. See State v. Rizzo, supra, 303 Conn. 192–94 and nn. 89–94. At that time, we did not reject out of hand the argument of the defendant, Todd Rizzo, that the death penalty had come to be so rarely used in the United States as to constitute cruel and unusual punishment. Nor did we specifically consider recent developments in this state. Rather, we recognized that both capital sentences and executions were declining in number nationwide, and we acknowledged that several of the likely causes of those declines suggested diminishing public support for capital punishment. See id., 192–94. At the same time, however, we noted that the decline also might reflect other, short-term factors, such as the economic recession, supply shortages of one of the lethal injection drugs, and temporary uncertainty about the legal status of capital punishment pending the United States Supreme Court’s decision in Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008). State v. Rizzo, supra, 192–94. We also noted that the number of executions carried out nationally in 2007 and 2008, although a recent low, remained substantially higher than during the early 1990s, just prior to our decision in State v. Ross, supra, 230 Conn. 183. See State v. Rizzo, supra, 192. Accordingly, and in light of the fact that capital punishment remained legal in most states; see id., 190; we could not conclude at that time that infrequency of imposition alone was sufficient evidence that the death penalty had become impermissibly cruel and unusual. See id., 194. Because capital punishment remained legal, and so presumably retained some deterrent value, we also did not have cause at that time to consider whether lengthy delays in carrying out capital sentences deprived capital punishment of its retributive value.

         Much has changed since Rizzo. Two additional states-Maryland and Nebraska-have abolished capital punishment.[5] The number of executions carried out nationally has continued to decline, falling by more than one third from 2011 to 2015, and is now lower than at any time since 1991.[6] The number of new capital sentences imposed likewise continues to fall; the total fell by nearly 40 percent between 2011 and 2015, and is now by far the lowest of the post-Furman[7] era.[8] It has been more than one decade since the last execution was carried out in New England (Michael Ross, who essentially volunteered to die, in 2005), and more than five decades since the one before that (Joseph Taborsky in 1960). That this is all true even though many of the short-term factors we considered in Rizzo no longer apply strongly suggests that the persistent, long-term declines in capital punishment are just what they appear to be-evidence that contemporary standards of decency have evolved away from execution as a necessary and acceptable form of punishment. Significantly, the Death Penalty Information Center has published its 2015 year-end summary, and the statistics for 2015 continue to reflect a substantial decline in the imposition and implementation of the death penalty nation-wide.[9] If anything, the pace of decline is accelerating.

         Since our decision in Rizzo, a number of respected jurists also have concluded that the infrequent imposition and delayed execution of the death penalty call its constitutionality into question. See, e.g., Glossip v. Gross, U.S., 135 S.Ct. 2726, 2764–76, 192 L.Ed.2d 761 (2015) (Breyer, J., with whom Ginsburg, J., joins, dissenting); Jones v. Chappell, 31 F.Supp. 3d 1050, 1065–67 (C.D. Cal. 2014) (Carney, J.), rev’d sub nom. Jones v. Davis, 806 F.3d 538 (9th Cir. 2015). At the same time, new legal scholarship has emerged that powerfully debunks the state’s argument that the rarity with which the death penalty is imposed in Connecticut merely indicates that our capital felony statutes are working as intended, and that the ultimate punishment is being reserved for the very worst offenders.[10]

         Most significant, however, is the fact that, in 2012, the year after we decided Rizzo, the legislature enacted P.A. 12-5, which prospectively abolished the death penalty in Connecticut. Legislative abolition fundamentally altered the constitutional calculation we conducted in Rizzo. It cast in a new light all of the various factors pointing to reduced societal acceptance of capital punishment. It swept away the most compelling arguments that capital punishment serves legitimate penological functions. And it reflected the awareness of the legislature that the infrequency with which the death penalty is imposed and the slowness with which it is carried out dramatically undermine its ability to serve a valid retributive function and to secure justice and peace for the families of murder victims. See State v. Santiago, supra, 318 Conn. 103 and n.99. In light of these dramatic, recent changes in the constitutional landscape, it is difficult to comprehend how the state can argue with a straight face that ‘‘[t]here is nothing new under the sun . . . .’’ (Footnote omitted.)

         Lastly, I am not persuaded by the state’s assertion that State v. Smith, supra, 5 Day (Conn.) 175, a case decided two decades before the invention of the typewriter, somehow precludes the result this court reached in Santiago. Smith was the first published case in which this court considered whether two sentences of imprisonment may be imposed to run consecutively without offending the state’s common-law prohibition against cruel and unusual punishment. See id., 178. Because ‘‘such ha[d] been the usage of our courts, for many years past, ’’ we concluded that postponing the commencement of the second term of imprisonment until the first had been completed was neither unprecedented nor cruel. Id., 179. Nowhere in the court’s brief discussion of that issue, however, did it consider or decide any of the novel questions raised in Santiago and in the present appeal: (1) whether a method of punishment that is only imposed a few times per decade and only carried out a few times per century may be deemed to violate contemporary standards of decency; (2) whether the retributive value of a punishment-both to the offender and to the victims-dissipates when decades pass before it is carried out; and (3) whether the various procedural safeguards established by the federal and state legislatures and courts, which permit individual son death row to pursue nearly endless appellate and post conviction remedies, reflect society’s reluctance to impose the ultimate punishment and unwillingness to see it imposed erroneously. For these reasons, there is no doubt that, in Santiago, we properly considered the actual practices of this state with respect to the imposition and carrying out of capital sentences in concluding that capital punishment constitutes what has come to be seen as cruel and unusual.

         III

         RACIAL DISPARITIES AND PROSECUTORIAL DISCRETION

         The state next contends that, in Santiago, when we observed that ‘‘the selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias’’; State v. Santiago, supra, 318 Conn. 106–107; we improperly relied on statistical evidence suggesting that people of color who offend against white victims are more likely than other offenders to be capitally charged and sentenced to death. The state argues that (1) a court in a habeas case currently pending on appeal before this court rejected these statistical claims; see In re Death Penalty Disparity Claims, Docket No. TSR-CV-05-4000632-S, 2013 WL 5879422 (Conn. Super. October 11, 2013); (2) studies that have documented racial disparities in other jurisdictions are not relevant to this state because, in the 1970s, Connecticut enacted the narrowest capital sentencing scheme in the country, and (3) in any event, such claims were not properly before us in Santiago.

         The short answer to the state’s arguments is simply to reiterate what we stated in Santiago: the question whether there are presently statistically significant racial disparities in the imposition of the death penalty in Connecticut was not before us in that case, as it is not before us in the present case, and we did not reach or rely on any such conclusion in holding the death penalty unconstitutional. See State v. Santiago, supra, 318 Conn. 109 n.104. What we did consider in Santiago-on the basis of an abundance of legal scholarship, persuasive federal and state authority, a thorough review of the relevant history, and our knowledge of human nature-was the proposition that any sentencing scheme that allows prosecutors not to seek and jurors not to impose the death penalty for any reason ‘‘necessarily opens the door’’ to caprice and bias of various sorts, racial or otherwise. (Emphasis added.) Id., 108. In other words, we agreed, as a matter of law, with those judges and scholars who have concluded that such a system cannot, in principle, ensure that the ultimate punishment will be imposed fairly and objectively, as it must be. The factual question of the extent to which the undisputed facial disparities in Connecticut’s capital charging and sentencing system do in fact result from subconscious racial biases never entered into our analysis.[11]

         The state’s argument to the contrary-that Connecticut law does not afford jurors unlimited discretion to find mitigating factors-is unavailing. ‘‘It is well established that federal constitutional . . . law establishes a minimum national standard for the exercise of individual rights . . . .’’ (Internal quotation marks omitted.) State v. Miller, 227 Conn. 363, 379, 630 A.2d 1315 (1993); see also State v. Santiago, supra, 318 Conn. 18–19 (rule applies to eighth amendment protections). The United States Supreme Court repeatedly has instructed that juries must retain the discretion to consider any potentially mitigating factors when deciding whether to impose a capital sentence, [12] and the supremacy clause of the federal constitution bars both our legislature and this court from abridging that discretion. It is true that the United States Supreme Court has explained, and we have recognized, that the states remain free to channel the manner in which jurors exercise their broad discretion, such as by instructing that mitigating factors should be considered in light of ‘‘all the facts and circumstances of the case.’’ (Internal quotation marks omitted.) State v. Ross, supra, 230 Conn. 284; see also id. (ultimately concluding that ‘‘[t]he instructions as given did not preclude the jury from giving mitigating force to any fact, taken alone or taken in conjunction with any other facts presented’’ [emphasis added]). Ultimately, however, there is nothing in the law of Connecticut or in this court’s precedents that prevents a capital jury from considering racial, ethnic, or other such factors when deciding whether to impose the ultimate punishment. None of the cases cited by the state are to the contrary.

         Because we did not rely on any factual finding of recent racial disparities in Santiago, and we do not do so now, it is not necessary to address fully the state’s first and second arguments. I would, however, briefly note my disagreement with each.

         With respect to In re Death Penalty Disparity Claims, I do not understand the court in that case to have rejected the petitioners’ claim that there is statistically significant evidence that people of color who kill white victims are capitally charged, and thus placed at risk of death, at a much higher rate than are other offenders, and that those disparities cannot reasonably be accounted for by innocuous, nonracial factors. Rather, I understand the court to have acknowledged that there are significant racial disparities in capital charging (but not sentencing) in Connecticut; see In re Death Penalty Disparity Claims, supra, 2013 WL 5879422 *19, *24–*25; but to have concluded that, as a matter of federal constitutional and discrimination law, such disparities do not impair the validity of capital sentences imposed in this state. See id., *7, *10, *16–*18, *22–*25. The court further concluded, as a matter of law, that the constitution of Connecticut affords no greater protections than does federal law in this regard. Id., *3, *8. Whether the court in In re Death Penalty Disparity Claims was correct with respect to the latter conclusion is a question that this court has yet to answer.

         Turning to the state’s second argument, I am troubled by its repeated contention that the abundant evidence of racial disparities in other jurisdictions is irrelevant to the Connecticut experience because, ‘‘[i]n response to Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)], Connecticut enacted the narrowest capital sentencing scheme in the country.’’ The state relies on the following footnote in a 1980 law review article to support its proposition: ‘‘Connecticut’s capital punishment law is unique in one regard. It enumerates five mitigating circumstances. But it states that the sentence shall not be death, if any mitigating factor exists, whether statutorily defined or not. In other words, unlike the practice in every other state (except to some extent Colorado), a Connecticut jury, once it finds a mitigating fact, whether enumerated or not, does not have the power to balance or weigh the mitigating fact against any aggravating fact that may be present. The very existence of a mitigating fact precludes a death sentence.’’ S. Gillers, ‘‘Deciding Who Dies, ’’ 129 U. Pa. L. Rev. 1, 104 n.10 (1980). Setting aside the question of whether the quoted passage even stands for the proposition for which the state cites it, the state is well aware that Connecticut’s capital punishment law has not been as Gillers describes it for more than two decades. In 1995, the legislature amended General Statutes (Rev. to 1995) § 53a-46a to eliminate the provision on which the state relies. See Public Acts 1995, No. 95-19, § 1. Since then, juries in capital cases in Connecticut have balanced aggravating and mitigating factors in deciding whether to impose the ultimate punishment, just as they do in our sister states. In addition, any past idiosyncrasies in Connecticut’s capital sentencing scheme are simply irrelevant to the central question of whether minority defendants accused of offending against white victims are capitally charged at a disproportionately high rate.

         IV

         EXECUTION OF THE INNOCENT

         The state next contends that, in Santiago, we improperly considered the possibility that an innocent person may be erroneously executed as one reason why the death penalty fails to serve a legitimate retributive purpose. Although the state does not dispute the growing body of research that recently persuaded two justices of the United States Supreme Court that capital punishment is likely unconstitutional for this reason; see Glossip v. Gross, supra, 135 S.Ct. 2756–59 (Breyer, J., with whom Ginsburg, J., joins, dissenting); the state contends that the possibility of error is no longer a concern in this state because none of the eleven men currently subject to a sentence of death in Connecticut has professed his innocence.

         Even if this were true, and even if it were properly subject to judicial notice, the state simply ignores the fact that, under P.A. 12-5, new prosecutions can still be brought at any time for capital felonies committed prior to April, 2012. Of the thousands of murders committed in Connecticut over the past several decades, some of which would be death eligible, many remain unsolved.[13]Accordingly, it is not at all unlikely that, if the death penalty were to remain available, the state would continue to seek it for some who have been accused of committing those crimes, with the possibility that an innocent person could wrongly be sentenced to die. Indeed, in the four years since the legislature prospectively abolished capital punishment, one additional offender has been sentenced to death, [14] and at least one other likely would have been capitally charged if not for our decision in Santiago.[15] The state is fully aware of this possibility, as both the majority and a dissenting justice discussed it in Santiago. See State v. Santiago, supra, 318 Conn. 106 and n.102; id., 397 (Espinosa, J., dissenting). I am, therefore, perplexed as to why the state continues to press this argument.

         V

         STATUTORY INTERPRETATION

         The state next contends that, in Santiago, we improperly departed from our ordinary approach to questions of statutory interpretation. The basis of the state’s objection is not entirely clear. For example, the state contends that, in Santiago, we failed to make what it considers to be ‘‘the required predicate finding that the language of [P.A. 12-5] itself is ambiguous, ’’ but, in the very next paragraph of its brief, the state quotes our conclusion in Santiago that ‘‘the policy judgments embodied in the relevant legislation are ambiguous.’’ State v. Santiago, supra, 318 Conn. 89; see also id., 89 n. 91 (discussing textual ambiguity); id., 59–73 (considering competing interpretations of statutory text). More fundamentally, the state appears to assume that Santiago presented a conventional question of statutory interpretation, for which we are constrained to follow the dictates of General Statutes § 1-2z, which embodies the plain meaning rule. At the same time, the state also appears to recognize that claims that a penal sanction constitutes cruel and unusual punishment are reviewed according to a unique standard of review that requires us to assess ‘‘what a penal statute actually indicates about contemporary social mores.’’ (Emphasis in original.) Id., 72 n.62.

         In any event, to the extent that it was not transparent from our decision in Santiago, I take this opportunity to clarify that a claim that a penal sanction impermissibly offends contemporary standards of decency is not a question of statutory interpretation subject to § 1-2z and the attendant rules of construction.[16] When a reviewing court considers whether a challenged punishment is excessive and disproportionate according to current social standards, legislative enactments are just one- albeit the most important-factor to be considered. Moreover, our goal in evaluating those enactments is not merely to determine what the legislature intended to accomplish through the enabling legislation (the touchstone of statutory interpretation), but also to understand what the legislation says and signifies about our society’s evolving perspectives on crime and punishment. In that respect, we look not only to the words of the statute, but also to its legislative history, the aspirations and concerns that were before the legislature as it deliberated, and, to the extent we can perceive them, the political motivations and calculations that affected or effected the outcome of those deliberations. The latter, as much as anything else, offer a portal into what the final legislative product indicates about our contemporary standards of decency.

         VI

         RETRIBUTION AND VENGEANCE

         The state next argues that, in Santiago, we incorrectly concluded that the death penalty now lacks any legitimate penological purpose because, among other things, the legislature’s decision to retain it on a retroactive only basis was intended primarily to satisfy a public thirst for vengeance toward two especially notorious inmates, rather than to accomplish permissible retributive purposes. The state counters that (1) the legislature regularly and properly crafts penal statutes in response to public reactions to specific notorious and vicious crimes, and (2) P.A. 12-5 was crafted to make good on a promise to the families of murder victims that death would be repaid with death, and making good on such a promise is a legitimate manifestation of retributive justice.

         Although it is undoubtedly true that the legislature is naturally responsive to powerful public sentiments, in the arena of criminal law as in other areas, that alone does not insulate a penal statute from constitutional scrutiny. As we explained in Santiago, if the mere fact that a punishment arose out of the democratic process established that it served a legitimate penological purpose, then the eighth amendment and its state constitutional counterparts would be largely superfluous. See id., 134–35. Rather, as the United States Supreme Court explained in United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965), ‘‘in a representative republic . . . [in which] the legislative power is exercised by an assembly . . . [that] is sufficiently numerous to feel all the passions [that] actuate a multitude . . . yet not so numerous as to be incapable of pursuing the objects of its passions . . . barriers [must] be erected to ensure that the legislature [does] not overstep the bounds of its authority . . . .’’ (Emphasis omitted; internal quotation marks omitted.) Id., 443–44. ‘‘Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government principles and precedents [that afterward] prove fatal to themselves.’’ (Internal quotation marks omitted.) Id., 444. The court further emphasized that, in a government of divided powers in which each checks the others, the judiciary must play a central role in tempering the legislature’s ‘‘[peculiar] susceptib[ility] to popular clamor, ’’ especially with respect to the levying of punishments against particular infamous persons. (Internal quotation marks omitted.) Id., 445. It is that task that we undertook in Santiago.

         With respect to promises made to families and friends of the victims, we all have deep compassion for those who have been made to suffer the curse of crime. See, e.g., Luurtsema v. Commissioner of Correction, 299 Conn. 740, 772, 12 A.3d 817 (2011). As we explained in Santiago, however, whatever vows the state has made that it will seek and impose the ultimate penalty have proved to be unkeepable. Of the thousands of heinous murders that have been committed in Connecticut in the last six decades, only two have resulted in executions, and those only after the offenders renounced their appellate and habeas remedies and, in essence, volunteered to die. For the countless other families and secondary victims, the promise that they will find ‘‘restoration and closure’’[17] in the hangman’s noose, or an infusion of sodium thiopental, has proved to be a false hope. The vast majority of even the worst of the worst offenders are never sentenced to die, and, for the minuscule number who are, the delays are endless. Accordingly, although I am sensitive to the state’s plea, I remain convinced that the death penalty, as it has been implemented in Connecticut over the past one-half century, serves no useful retributive purpose.[18]

         VII

         CONSTITUTIONAL TEXT

         The state next argues that the death penalty can never be held unconstitutional because ‘‘it is expressly permitted by the Connecticut constitution.’’ The state further argues that our reliance in Santiago on People v. Anderson, 6 Cal.3d 628, 493 P.2d 880, 100 Cal.Rptr. 152, cert denied, 406 U.S. 958, 92 S.Ct. 2060, 32 L.Ed.2d 344 (1972);19see State v Santiago, supra, 318 Conn. 131; was misplaced because that decision has been the subject of some judicial and scholarly criticism Instead, the state recommends for our consideration a concurring opinion authored by Justice Antonin Scalia, who opines that ‘‘[i]t is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates’’ (Emphasis omitted) Glossip v. Gross, supra, 135 S.Ct. 2747 (Scalia, J, concurring).

         The dissenting justices in Santiago raised similar objections. See, e.g., State v. Santiago, supra, 318 Conn. 246–47 (Rogers, C. J., dissenting); id., 353–54 (Zarella, J., dissenting). The majority responded to them at some length in that decision; see id., 129–32; and no useful purpose would be served by rehashing those arguments here. I would, however, make a few additional points.

         Regardless of whether one considers Anderson itself to be persuasive authority, recent scholarship both vindicates the reasoning of that case and sheds light on the defects in Justice Scalia’s position. As Professor Joseph Blocher explains, ‘‘some supporters of the death penalty continue to argue . . . that the death penalty must be constitutional because the [f]ifth [a]mendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the [constitution] may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional.’’ J. Blocher, ‘‘The Death Penalty and the Fifth Amendment’’ (December 16, 2015) p.1 (unpublished manuscript), available at http://scholarship.law. duke.edu/cgi/viewcontent.cgi?article=6227&context= faculty_scholarship; see also B. Ledewitz, ‘‘Judicial Conscience and Natural Rights: A Reply to Professor Jaffa, ’’ 10 U. Puget Sound L. Rev. 449, 459 (1987) (‘‘The fifth amendment represents a limitation on capital punishment, that it was not to be carried out in the future as it had been in the past. One could hardly call the due process clause an endorsement of capital punishment.’’).

         The state’s argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people as against the government. See State v. Conlon, 65 Conn. 478, 488–89, 33 A. 519 (1895); see also J. Blocher, supra, pp. 3, 8–9. For the state to suggest that one right (to be free from cruel and unusual punishment) bars the exercise of another right (presumably, to execute capital felons) is to fundamentally misunderstand the nature of the freedoms enshrined in article first. States have powers, and the people have rights vis-a`-vis the exercise of those powers; there is no governmental right to kill.

         A second, related conceptual error is the state’s apparent failure to distinguish necessary from sufficient conditions. See J. Blocher, supra, p. 9. Article first, § 8, of the Connecticut constitution, as amended by article seventeen and twenty-nine of the amendments, which provides in relevant part that ‘‘[n]o person shall be . . . deprived of life . . . without due process of law . . . [or] held to answer for any crime, punishable by death . . . unless upon probable cause, ’’ indicates that, to the extent that the death penalty is otherwise permissible and authorized by law, it may be imposed only after the defendant is afforded adequate due process. In other words, due process is a necessary condition for the imposition of the death penalty, and article first, § 8, as amended, thereby restricts the circumstances under which that penalty may be imposed. There is no textual support, however, for the state’s apparent belief that article first, § 8, as amended, makes the provision of due process a sufficient condition for the imposition of capital punishment, so that the state is authorized to carry out executions as long as it has complied with the requirements of due process. Of course, as we explained in State v. Ross, supra, 230 Conn. 249–50, the fact that the founders expressly referenced capital punishment in the state constitution, and the fact that such references were retained when article first, § 8, was amended at the most recent constitutional convention in 1965, provides strong evidence that, at those times, capital punishment was seen to be a legal and permissible penalty that comported with standards of decency of the day. But that implies at most that the death penalty is not unconstitutional per se, at all times and under all circumstances. As Blocher explains, ‘‘one could grant Justice Scalia’s argument that the death penalty is not ‘categorically impermissible’ while maintaining that the conditions for its constitutional use are not currently satisfied and perhaps never will be.’’ J. Blocher, supra, p. 5.

         VIII

         STARE DECISIS

         Lastly, the state argues that, to the extent that Santiago was wrongly decided and resulted in an unjust outcome, the principle of stare decisis, that is, the duty of a court to adhere to established precedent, does not require that we uphold the conclusion that capital punishment offends the state constitution. The state itself concedes, however, that ‘‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it . . . .’’ (Citation omitted; internal quotation marks omitted.) State v. Alvarez, 257 Conn. 782, 793–94, 778 A.2d 938 (2001). The state has provided neither reasons nor logic to justify overruling our recent decision in Santiago.[20]

         First, having fully reviewed the state’s arguments and the authorities on which it relies, I find no reason to conclude that Santiago was wrongly decided, let alone unjust. The state has not pointed to any controlling cases that we overlooked, persuasive arguments that we failed to consider, or fatal defects in our reasoning. Most of the state’s arguments are ones that we expressly considered and rejected in Santiago, and the others fail to hold up under scrutiny or simply miss the point. In a disturbing number of instances, the authorities on which the state relies do not even support the proposition for which the state cites them.

         Second, the state has failed to identify any case, and I am not aware of any, in which a court of last resort has reversed its own landmark constitutional ruling after a matter of just months. For this court to entomb the death penalty in Santiago, and then to exhume and revivify it nine months later, would be unprecedented and would make a mockery of the freedoms enshrined in article first of the state constitution. If the people of Connecticut believe that we have misperceived the scope of that constitution, it now falls on them to amend it.[21]

         Finally, I question whether a decision in this case to overrule Santiago, and to revive the death penalty for the defendant in the present case, could survive federal constitutional scrutiny. The defendant in Santiago has received the benefit of our decision therein, namely, that capital punishment is an excessive and disproportionate punishment, and that he no longer may be executed. The state now proposes that we reauthorize the death penalty[22] and proceed to execute the defendant, Peeler, solely on the basis of the fact that a different panel of this court, having considered essentially the same arguments only months later, might reach a different result. Nothing could be more arbitrary than to execute one convicted capital felon who committed his offense prior to the enactment of P.A. 12-5 but to spare another, solely on the basis of the timing of their appeals. For this reason as well, I reject the state’s request that we overrule Santiago and revive the death penalty in Connecticut.

          ROBINSON, J., concurring.

         I join the majority’s decision not to disturb State v. Santiago, 318 Conn. 1, 9, 122 A.3d 1 (2015), [1] which held that, ‘‘in light of the governing constitutional principles and Connecticut’s unique historical and legal landscape . . . following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and nolonger serves any legitimate penological purpose. For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.’’ My decision to join the majority’s decision to reverse the death sentence of the defendant, Russell Peeler, is significantly informed by the unique position that I hold as the only active member of this court who did not sit to decide Santiago, which was a four to three decision. In my view, stare decisis considerations of this court’s institutional legitimacy and stability are at their zenith in this particular case, given that the only thing that has changed since this court decided Santiago is the composition of this court.[2] Having considered Santiago in light of the arguments raised by the parties in this appeal, I conclude that it is not so clearly wrong that we should risk damaging this court’s institutional stability by overruling it. Put differently, because it would imperil our state’s commitment to the rule of law for it to appear that a change in the composition of the court resulted in the immediate retraction of a landmark state constitutional pronouncement, I join in the court’s decision to uphold Santiago.

         The background legal principles governing the doctrine of stare decisis are well established. ‘‘The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.’’ (Internal quotation marks omitted.) State v. Salamon, 287 Conn. 509, 519, 949 A.2d 1092 (2008). ‘‘This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law. . . . Stare decisis is a formidable obstacle to any court seeking to change its own law. . . . It is the most important application of a theory of [decision-making] consistency in our legal culture and it is an obvious manifestation of the notion that [decision-making] consistency itself has normative value. . . . Stare decisis does more than merely push courts in hard cases, where they are not convinced about what justice requires, toward decisions that conform with decisions made by previous courts. . . . The doctrine is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. . . .

         ‘‘As this court has stated many times, [t]he true doctrine of stare decisis is compatible with the function of the courts. . . . [T]here is no question but that [a] decision of this court is a controlling precedent until overruled or qualified. . . . [S]tare decisis . . . serve[s] the cause of stability and certainty in the law-a condition indispensable to any well-ordered system of jurisprudence . . . .

         ‘‘Whether stare decisis serves the interests of judicial efficiency, protection of expectations, maintenance of the rule of law, or preservation of judicial legitimacy, however, is not dispositive. The value of adhering to precedent is not an end in and of itself, however, if the precedent reflects substantive injustice. Consistency must also serve a justice related end. . . . When a prior decision is seen so clearly as error that its enforcement [is] for that very reason doomed . . . the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision. Stare decisis is not an inexorable command. . . . The court must weigh [the] benefits [of stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust. The rule of stare decisis may entail the sacrifice of justice to the parties in individual cases, but, far from being immune from considerations of justice, it must always be tested against the ends of justice more generally. . . .

         ‘‘Indeed, this court has long believed that although [s]tare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, [it] is not an absolute impediment to change. . . . [S]tability should not be confused with perpetuity. If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. . . . [I]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience. . . . The United States Supreme Court has said that when it has become convinced of former error, it has never felt constrained to follow precedent. . . .

         ‘‘[One] well recognized exception to stare decisis under which a court will examine and overrule a prior decision . . . [is when that prior decision] is clearly wrong. . . . The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned. . . . Because stare decisis is not a rule of law but a matter of judicial policy . . . it does not have the same kind of force in each kind of case so that adherence to or deviation from that general policy may depend upon the kind of case involved, especially the nature of the decision to be rendered that may follow from the overruling of a precedent.’’ (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.) Con-way v. Wilton, 238 Conn. 653, 658–61, 680 A.2d 242 (1996). ‘‘In short, consistency must not be the only reason for deciding a case in a particular way, if to do so would be unjust. Consistency obtains its value best when it promotes a just decision.’’ Id., 662.

         Guided by these general principles, I first observe that the timing of our consideration of the present case renders stare decisis considerations particularly strong with respect to the public’s perception of this court’s legitimacy in its exercise of its core function of constitutional interpretation. See State v. Ferguson, 260 Conn. 339, 367, 796 A.2d 1118 (2002) (‘‘[w]e will not revisit the same issues we so recently have decided’’). In contrast to other cases, wherein the passage of time has yielded factual or legal developments that serve as a basis for a challenge to the decision under attack; see, e.g., Campos v. Coleman, 319 Conn. 36, 37–38, 123 A.3d 854 (2015) (overruling Mendillo v. Board of Education, 246 Conn. 456, 495–96, 717 A.2d 1177 [1998], and recognizing derivative cause of action for loss of parental consortium by minor child); State v. Salamon, supra, 287 Conn. 522–28 (interpretation of kidnapping statutes); all that has changed since Santiago was decided ‘‘is the composition of this [c]ourt, which is not a valid reason for ignoring stare decisis principles.’’ Haynes v. State, 273 S.W.3d 183, 187 (Tex.Crim.App. 2008), overruled on other grounds by Bowen v. State, 374 S.W.3d 427 (Tex.Crim.App. 2012); see also Wheatfall v. State, 882 S.W.2d 829, 843 (Tex.Crim.App. 1994) (The court rejected the argument that it ‘‘should consider the changing membership of the [United States] Supreme Court in our review of their precedent’’ because ‘‘this [c]ourt would be forced to reconsider every decision of the [United States] Supreme Court or our [c]ourt upon changes in membership. Such an endeavor would defeat one of the essential purposes of stare decisis.’’), cert. denied, 513 U.S. 1086, 115 S.Ct. 742, 130 L.Ed.2d 644 (1995). Indeed, as this court observed more than seventy years ago, ‘‘a change in the personnel of the court affords no ground for reopening a question which has been authoritatively settled.’’ Tileston v. Ullman, 129 Conn. 84, 86, 26 A.2d 582 (1942), appeal dismissed, 318 U.S. 44, 63 S.Ct. 493, 87 L.Ed. 603 (1943); accord Herald Publishing Co. v. Bill, 142 Conn. 53, 62, 111 A.2d 4 (1955) (‘‘[a] change in the personnel of the court never furnishes reason to reopen a question of statutory interpretation’’).

         The New York Court of Appeals has described the benefits of decisional stability in the face of the changing composition of the court, aptly stating that it ‘‘would have been scandalous for a court to shift within less than two years because of the replacement of one of the majority in the old court by one who now intellectually would have preferred to have voted with the old minority and the new one. The ultimate principle is that a court is an institution and not merely a collection of individuals; just as a higher court commands superiority over a lower not because it is wiser or better but because it is institutionally higher. This is what is meant, in part, as the rule of law and not of men.’’ People v. Hobson, 39 N.Y.2d 479, 491, 348 N.E.2d 894, 384 N.Y.S.2d 419 (1976); see also People v. Taylor, 9 N.Y.3d 129, 148, 878 N.E.2d 969, 848 N.Y.S.2d 554 (2007) (‘‘Stare decisis is deeply rooted in the precept that we are bound by a rule of law-not the personalities that interpret the law. Thus, the closeness of a vote bears no weight as to a holding’s precedential value as a controversy settled by a decision in which a majority concur should not be renewed without sound reasons . . . .’’ [Citation omitted; internal quotation marks omitted.]); S. Wachtler, ‘‘Stare Decisis and a Changing New York Court of Appeals, ’’ 59 St. John’s L. Rev. 445, 455–56 (1985) (describing ‘‘necessary balance between stability and innovation, ’’ and stating that ‘‘[j]udiciously applied in a proper case, the doctrine of stare decisis will allay the fears of those who look with apprehension upon the ongoing personnel changes in the [New York] Court of Appeals’’).

         Put differently, for me to join this court and near immediately disturb this court’s so recently decided landmark decision in Santiago would require me, in the words of Justice Thurgood Marshall, to embrace the principle that ‘‘[p]ower, not reason, is the new currency of this [c]ourt’s decision making.’’ Payne v. Tennessee, 501 U.S. 808, 844, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (Marshall, J., dissenting); see id. (Justice Marshall dissented from the court’s decision to overrule Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 [1987], and South Carolina v. Gathers, 490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876 [1989], and to permit the admission of victim impact evidence during the penalty phases of capital trials because ‘‘[n]either the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this [c]ourt did.’’). I agree with Justice Marshall that ‘‘stare decisis is important not merely because individuals rely on precedent to structure their commercial activity but because fidelity to precedent is part and parcel of a conception of the judiciary as a source of impersonal and reasoned judgments. . . . Indeed, this function of stare decisis is in many respects even more critical in adjudication involving constitutional liberties than in adjudication involving commercial entitlements. Because enforcement of the [federal] [b]ill of [r]ights and the [f]ourteenth [a]mendment [to the United States constitution] frequently requires this [c]ourt to rein in the forces of democratic politics, this [c]ourt can legitimately lay claim to compliance with its directives only if the public understands the [c]ourt to be implementing principles . . . founded in the law rather than in the proclivities of individuals.’’ (Citation omitted; emphasis omitted internal quotation marks omitted.) Payne v. Tennessee, supra, 852–53 (Marshall, J., dissenting).[3]

         My sensitivity to stare decisis in this case is heightened by the fact that we are called on to reconsider the court’s conclusion in Santiago that the death penalty is now unconstitutional under our state’s constitution. ‘‘[I]f the doctrine of stare decisis has any efficacy under our case law, death penalty jurisprudence cries out for its application. Destabilizing the law in these cases has overwhelming consequences . . . .’’ Zakrzewski v. State, 717 So.2d 488, 496 n.5 (Fla. 1998) (Anstead, J., concurring), cert. denied, 525 U.S. 1126, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999); accord State v. Waine, 444 Md. 692, 702, 122 A.3d 294 (2015) (observing that ‘‘[w]here the [c]ourt has previously recognized a new [s]tate constitutional standard as fundamental to due process, deference to that precedent ensures the constancy upon which due process endures’’). Indeed, in People v. Taylor, supra, 9 N.Y.3d 129, Judge Robert S. Smith of the New York Court of Appeals explained in his concurring opinion his decision to join the majority in overturning a death sentence obtained under an unconstitutional death penalty procedure statute- despite dissenting three years before in People v. LaValle, 3 N.Y.3d 88, 99, 817 N.E.2d 341, 783 N.Y.S.2d 485 (2004), in which the court had invalidated that stat-ute.[4] Judge Smith explained that the ‘‘policies underlying the doctrine of stare decisis, which include stability, predictability, respect for our predecessors and the preservation of public confidence in the courts, are at their strongest where, as here, a court is asked to change its mind although nothing else of significance has changed. No one suggests that any development in the last three years, either in the law or the law’s effect on the community, has changed the context in which LaValle was decided. Indeed, we are asked to revive the very same statute held invalid in LaValle-not a theoretically impossible step, but a radical one. So far as I can tell, we have never done such a thing, and the occasions on which other courts have done it are rare . . . .’’ (Citation omitted; emphasis added.) People v. Taylor, supra, 156.

         Guided by these authorities, I am not convinced that any analytical shortcomings in Santiago surpass the significant stare decisis concerns that would accompany overruling that landmark decision. See, e.g., Dick-erson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (‘‘[w]hether or not we would agree with [the] reasoning [of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now’’). Specifically, I have reviewed the opinions and briefs filed in Santiago, and determined that the majority in that case did not unreasonably read the record and the authorities when it concluded that: (1) the issues decided therein were raised by the parties, thus affording the state notice and an opportunity to brief them, had it elected to do so; and (2) the death penalty now is cruel and unusual punishment under our state’s constitution in the wake of the death penalty’s prospective repeal in No. 12-5 of the 2012 Public Acts. Although reasonable jurists certainly could-and most emphatically did- disagree about the merits of Santiago, I do not view the majority’s decision in that case as so fundamentally flawed that it warrants overruling so soon after it was decided.[5]

         Thus, I emphasize my disagreement with the state’s argument, in its supplemental brief and at oral argument before this court, that the recency of the court’s decision in Santiago renders it an appropriate candidate for overruling, insofar as there has been minimal reliance on it to this point, and that the doctrine ‘‘carries less force when the court is asked to reconsider constitutional rulings because, unlike in statutory interpretation cases, the legislature lacks the ability to correct a judicial mistake.’’ See, e.g., State v. Salamon, supra, 287 Conn. 523 (‘‘[p]ersons who engage in criminal misconduct, like persons who engage in tortious conduct, rarely if at all will . . . give thought to the question of what law would be applied to govern their conduct if they were to be apprehended for their violations’’ [internal quotation marks omitted]); Conway v. Wilton, supra, 238 Conn. 661 (force of stare decisis is ‘‘least compelling [when the ruling revisited] may not be reasonably supposed to have determined conduct of the litigants’’ [internal quotation marks omitted]). I agree with Justice Palmer’s observation in his opinion in the present case that the watershed nature of this court’s decision in Santiago creates, in essence, a different kind of reliance concern beyond the arithmetically measurable reliance considered at oral argument before this court and emphasized by Justice Zarella in his dissenting opinion.[6] See L. Powe, ‘‘Intragenerational Constitutional Overruling, ’’ 89 Notre Dame L. Rev. 2093, 2104 (2014) (concluding that ‘‘reliance is rarely a factor in any decision about stare decisis in a case that does not involve economics’’ but observing that ‘‘[p]erhaps reliance in the noneconomic sphere internalizes . . . the [c]ourt’s view of the likely public reaction to a formal overruling’’). That reliance concern is particularly heightened in the death penalty context, insofar as I can imagine nothing that would appear more shockingly arbitrary than for this court to invalidate the death penalty in Santiago and render a final judgment sparing the defendant in that case, [7] and then-with the substitution of a newly appointed justice-immediately overrule Santiago and hold that the defendant and his counterparts on death row could potentially face execution.[8] Putting aside the obvious equal protection consequences highlighted by Justice Palmer, this result, as demonstrated by very recent experience in one of our sister states, would at the very least strongly appear to stem solely from when the filing and scheduling of the defendants’ appeals and the composition of the panels that heard their cases.[9] See State v. Petersen-Beard, Docket No. 108061, 2016 WL 1612851, *1 (Kan. April 22, 2016) (four to three decision overruling three separate four to three decisions issued by differently constituted panel on same day). This would be the nadir of the rule of law in the state of Connecticut.[10] Put differently, I find no substantive or procedural errors in Santiago whose magnitude justifies incurring the massive risk to our court’s credibility as an institution that the state asks us to undertake.

         Accordingly, I join in the judgment of the court.

          ZARELLA, J., dissenting.

         ‘‘I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion [on] the democratic process in order that the [c]ourt might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible . . . I agree with [United States Supreme Court] Justice [William O.] Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the [c]onstitution [that] he swore to support and defend, not the gloss [that] his predecessors may have put on it.’ . . . Or. as the [United States Supreme] Court itself has said: ‘[W]hen convinced of former error, [the] [c]ourt has never felt constrained to follow precedent. In constitutional questions, where correction depends [on] amendment and not [on] legislative action [the] [c]ourt throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.’ ’’ (Citation omitted.) South Carolina v. Gathers, 490 U.S. 805, 825, 109 S.Ct. 2207, 104 L.Ed.2d 876 (1989) (Scalia, J., dissenting), overruled in part on other grounds by Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

         I think my colleagues and I are well advised to carefully consider the words of Justice Antonin Scalia, particularly Chief Justice Rogers and Justice Robinson, who choose to uphold this court’s decision in State v. Santiago, 318 Conn. 1, 122 A.3d 1 (2015), not because they have decided that that decision is right, but because of the dictates of stare decisis and concerns over the legitimacy of this court. I cannot fathom how Chief Justice Rogers and Justice Robinson believe they respect the rule of law by supporting a decision that is completely devoid of any legal basis or believe it is more important to spare this court of the purported embarrassment than to correct demonstrable constitutional error. Of course, it is possible that Justice Robinson believes that Santiago is correct, although he has not told us so. As I shall explain subsequently in this opinion, this approach prevents Justice Robinson from conducting-or at the very least from demonstrating to the public and to this court that he has undertaken- a full, fair, and objective analysis of the benefit and costs of applying stare decisis to Santiago.

         I need not further swell the Connecticut Reports with a lengthy exposition on why Santiago is wrong. It suffices to say that the majority in that case employed an improper legal standard and wrongfully usurped the legislature’s power to define crime and fix punishment, and the six factors set forth in State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992), support the conclusion that capital punishment remains consistent with the social mores of this state and is not cruel and unusual punishment in light of the passage of No. 12-5 of the 2012 Public Acts (P.A. 12-5). See generally State v. Santiago, supra, 318 Conn. 341–88 (Zarella, J., dissenting). Instead, the primary object of this dissent is to bring order to our inconsistent and irreconcilable stare decisis jurisprudence by articulating a defensible and objective stare decisis standard. Then, in applying that standard in the present case, I will show why affording stare decisis effect to Santiago creates more harm than it does good. Finally, I will explain why overruling Santiago will enhance, not diminish, the integrity and legitimacy of this court.

         I

         STARE DECISIS

         The concurring justices in the present case contend that the dictates of stare decisis require that we stand by our decision in Santiago.[1] In her concurring opinion, Chief Justice Rogers, quoting from Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), states: ‘‘[T]he doctrine [of stare decisis] carries such persuasive force that we have always required a departure from precedent to be supported by some special justification.’’ (Internal quotation marks omitted.) Then, quoting Justice Thurgood Marshall’s dissenting opinion in Payne v. Tennessee, supra, 501 U.S. 849 (Marshall, J., dissenting), she provides the following special justifications: ‘‘the advent of subsequent changes or development in the law that undermine[s] a decision’s rationale . . . the need to bring [a decision] into agreement with experience and with facts newly ascertained . . . and a showing that a particular precedent has become a detriment to coherence and consistency in the law . . . .’’ (Internal quotation marks omitted.) The majority in Payne, however, noted that the ‘‘[c]ourt has never felt constrained to follow precedent’’ when the ‘‘governing decisions are unworkable or are badly reasoned . . . .’’ (Emphasis added; internal quotation marks omitted.) Payne v. Tennessee, supra, 827; see also Seminole Tribe v. Florida, 517 U.S. 44, 63, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (‘‘[The court has] always . . . treated stare decisis as a principle of policy . . . and not as an inexorable command . . . . [W]hen governing decisions are unworkable or are badly reasoned, [the] [c]ourt has never felt constrained to follow precedent. . . . [The court’s] willingness to reconsider [its] earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible.’’ [Citations omitted; internal quotation marks omitted.]). In demanding some ‘‘ ‘special justification’ ’’ to overrule Santiago, Chief Justice Rogers overlooks contrary statements by both the United States Supreme Court and this court. The United States Supreme Court has often stated that it is not bound to follow unworkable or badly reasoned precedents. See, e.g., Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S.Ct. 1769, 158 L.Ed.2d546 (2004); see also Smith v. Allwright, 321 U.S. 649, 665, 64 S.Ct. 757, 88 L.Ed. 987 (1944) (‘‘when convinced of former error, [the] [c]ourt has never felt constrained to follow precedent’’ [emphasis added]). In addition, we have often stated that we are free to overrule decisions that are clearly wrong. See, e.g., Conway v. Wilton, 238 Conn. 653, 660, 680 A.2d 242 (1996) (‘‘[one] well recognized exception to stare decisis under which a court will examine and overrule a prior decision . . . [is when that prior decision] is clearly wrong’’ [emphasis added; internal quotation marks omitted]); see also State v. Salamon, 287 Conn. 509, 514, 526–27, 542–44, 949 A.2d 1092 (2008) (ultimately rejecting more than thirty years of this court’s jurisprudence on Connecticut’s kidnapping laws because majority of court was convinced it was wrong).

         There is little doubt that Chief Justice Rogers overlooks the clearly wrong exception in our and the United States Supreme Court’s stare decisis jurisprudence because it would lead her to no other conclusion than that Santiago must be overruled. A cursory reading of Chief Justice Rogers’ dissent in Santiago reveals beyond any doubt that she strongly feels that the majority’s decision in Santiago is obviously wrong. In fact, her belief that Santiago was completely wrong was central to her dissent in that case and not merely an observation made in passing. She describes the majority’s analysis in Santiago as ‘‘fundamentally flawed’’; State v. Santiago, supra, 318 Conn. 231 (Rogers, C. J., dissenting); and ‘‘a house of cards, falling under the slightest breath of scrutiny.’’ Id., 233 (Rogers, C. J., dissenting). She further stated that it was ‘‘riddled with non sequiturs . . . [a]lthough to enumerate all of them would greatly and unnecessarily increase the length of [her dissent].’’ Id., 242 (Rogers, C. J., dissenting). In Santiago, Chief Justice Rogers could uncover ‘‘no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution’’; id., 276 (Rogers, C. J., dissenting); leading her to conclude that the majority in Santiago ‘‘improperly decided that the death penalty must be struck down because it offends the majority’s subjective sense of morality.’’ Id., 277 (Rogers, C. J., dissenting).[2] In her dissent to this court’s denial of the state’s motion for argument and reconsideration of Santiago, Chief Justice Rogers further demonstrated how flawed she thought the decision in Santiago is. She stated: ‘‘Indeed, if there was ever any doubt, it is now inescapably clear that the three main pillars of the majority’s analysis have no foundation . . . .’’ State v. Santiago, 319 Conn. 912, 919, 124 A.3d 496 (2015) (Rogers, C. J., dissenting). In addition, she wrote: ‘‘By denying the state’s motion for argument and reconsideration, the majority merely reconfirms my belief that it has not engaged in an objective assessment of the constitutionality of the death penalty under our state constitution. Instead, the majority’s conclusion that the death penalty is unconstitutional constitutes a judicial invalidation, without constitutional basis, of the political will of the people.’’ (Internal quotation marks omitted.) Id., 920 (Rogers, C. J., dissenting). In light of Chief Justice Rogers’ repeated expressions regarding the fallacy of the majority opinion in Santiago, it is no wonder she now overlooks the clearly wrong exception to our stare decisis jurisprudence. She could not reasonably rely on stare decisis if she acknowledged that exception.

         Chief Justice Rogers’ action highlights a deeper problem with our case law on stare decisis. Our jurisprudence on stare decisis is constructed on contradictory principles inconsistently applied.[3] The concurring opinions of Justices Palmer and Robinson in the present case suffer from similar shortcomings.[4] Both fail to recognize the presence of certain characteristics that generally result in our affording of less stare decisis effect to a previous decision. At the very least, Justices Palmer and Robinson should explain why these characteristics are not important for purposes of the present case. For example, Santiago announces a rule that applies in criminal cases. In such context, we have often stated that ‘‘[t]he arguments for adherence to precedent are least compelling . . . when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants . . . .’’ (Internal quotation marks omitted.) State v. Salamon, supra, 287 Conn. 523. This is especially true in the present case because the rule in Santiago was announced after the defendant in the present case, Russell Peeler, engaged in criminal conduct and was tried, convicted, and sentenced to death. In addition, neither Justice Palmer nor Justice Robinson explains why Santiago should not receive less deference in light of the fact that it is a constitutional holding. See, e.g., Seminole Tribe v. Florida, supra, 517 U.S. 63 (‘‘[the court’s] willingness to reconsider [its] earlier decisions has been particularly true in constitutional cases, because in such cases correction through legislative action is practically impossible’’ [internal quotation marks omitted]); see also State v. Lawrence, 282 Conn. 141, 187, 920 A.2d 236 (2007) (Katz, J., dissenting) (‘‘[i]ndeed, it is well recognized that, in a case involv[ing] an interpretation of the [c]onstitution . . . claims of stare decisis are at their weakest . . . [when the court’s] mistakes cannot be corrected by [the legislature]’’ [internal quotation marks omitted]).

         The inconsistent application of stare decisis leaves this court open to criticism that it is employing that doctrine to reach ideologically driven or politically expedient results, a real threat to this court’s integrity and institutional legitimacy.[5] Due to the under development of our stare decisis case law, that doctrine can be easily manipulated to reach a desired result. Thus, I take this opportunity to articulate a principled framework for the application of stare decisis.[6] Then, I will demonstrate why, in the present case, stare decisis should not be applied to this court’s decision in Santiago.

         Before I delve into the stare decisis framework and application, it is important that I address two preliminary matters. First, stare decisis has both a vertical and horizontal component. See, e.g., W. Consovoy, ‘‘The Rehnquist Court and the End of Constitutional Stare Decisis: Casey, Dickerson and the Consequences of Pragmatic Adjudication, ’’ 2002 Utah L. Rev. 53, 55. Vertical stare decisis refers to the principle that the decisions of this court are binding on the lower courts of this state. Id.; see also Black’s Law Dictionary (10th Ed. 2014) p. 1626 (defining vertical stare decisis as ‘‘[t]he doctrine that a court must strictly follow the decisions handed down by higher courts within the same jurisdiction’’). On the other hand, horizontal stare decisis addresses when this court should adhere to its own earlier decisions. See W. Consovoy, supra, 55; see also Black’s Law Dictionary, supra, p. 1626 (defining horizontal stare decisis as ‘‘[t]he doctrine that court, esp[ecially] an appellate court, must adhere to its own prior decisions, unless it finds compelling reasons to overrule itself’’). The balance of this opinion concerns only horizontal stare decisis.

         Second, in my view, stare decisis has two modes of operation. As a general matter, stare decisis, Latin for ‘‘to stand by things decided’’; (internal quotation marks omitted) Black’s Law Dictionary, supra, p. 1626; is a doctrine that directs a court to adhere to its earlier decisions or to the decisions of courts that are higher in a jurisdiction’s judicial hierarchy. More specifically, however, the doctrine operates in two distinct manners. First, the doctrine functions automatically in most cases. I will call this mode of operation the rule of precedent. Under this aspect of stare decisis, the court assumes that its prior decisions are correct and relies on such decisions in deciding the case before the court. Under the rule of precedent, our previous decisions are the bricks of the foundation on which the pending case will be decided. Moreover, we rely on such decisions, in large part, simply because they were decided prior in time, that is, because they are precedent. Each time this court cites a previous case to support a proposition, the rule of precedent mode of operation of stare decisis is implicitly at work. Second, stare decisis operates more explicitly and directly when we reconsider a previous decision or line of decisions. In this context, the doctrine provides a framework for determining whether the court should continue to abide by a past decision, even though it may be wrong. It is this distinct mode of operation-more particularly, the framework it provides-that I will address in this opinion. With these preliminary ideas in mind, I now turn to articulating a principled doctrine of stare decisis.

         A

         A Principled Doctrine of Stare Decisis

         As I just explained, stare decisis guides this court’s determination of whether it should adhere to a previous erroneous decision. Implicit in this framing of stare decisis is that the court must decide whether the decision being reconsidered is wrong before it applies the doctrine of stare decisis.[7] In fact, and as I explain later in this part of my opinion, the stare decisis analysis cannot be completely conducted unless the court has determined if, and more importantly, why, the previous decision is incorrect. Moreover, the court need not resort to the doctrine of stare decisis if it concludes that the previous decision is correct. See R. Fallon, ‘‘Stare Decisis and the Constitution: An Essay on Constitutional Methodology, ’’ 76 N.Y.U. L.Rev. 570, 570 (2001). In such circumstances, the court can simply affirm the case on the basis of its merits. Id.

         I do not mean to suggest, however, that the wrongness of the previous decision is part of the stare decisis calculus. It is not Indeed, it is fundamental that we avoid conflating the merits and stare decisis considerations The reasons should be obvious If a case could be overruled simply because a majority of justices believes it had reached the wrong conclusion, precedent would have no independent value, and stare decisis would be a hollow doctrine See F Schauer, ‘‘Precedent, ’’ 39 Stan L Rev 571, 575–76 (1987) (argument based on precedent places value on past decision merely because it was decided in past, despite present belief that past decision was erroneous); see also Hub-bard v United States, 514 U.S. 695, 716, 115 S.Ct. 1754, 131 L.Ed.2d 779 (1995) (Scalia, J, concurring in part and concurring in the judgment) (explaining that court must give reasons for ignoring stare decisis, ‘‘reasons that go beyond mere demonstration that the overruled [decision] was wrong . . . otherwise the doctrine would be no doctrine at all’’). Moreover, the oft-repeated adage that, ‘‘in most matters it is more important that the applicable rule of law be settled than that it be settled right’’; Burnet v.Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting); would be empty of any meaning. In addition to placing too little value on precedent, the wrongness of a previous decision should not factor into the stare decisis calculus because it is difficult to quantify or measure the degree of a particular decision’s wrongness. See J. Fisch, ‘‘The Implications of Transition Theory for Stare Decisis, ’’ 13 J. Contemp. Legal Issues 93, 105 (2003). The ability to distinguish between the degrees of wrongness of previous cases becomes necessary, however, if wrongness is part of the stare decisis calculus. That is, if a lesser degree of error ...


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