Date: 11-30-2015

Case Style: State Of Connecticut v. Santiago

Case Number: SC17413

Judge: Michael R. Sheldon

Court: Supreme Court of Connecticut

Plaintiff's Attorney: Timothy J. Sugrue, Terence D. Mariani, Jr., Maureen Platt

Defendant's Attorney: Katherine C. Essington

Description: Defendant was found guilty of capital felony and sentenced to death. While Defendant’s appeal was pending, the legislature passed Public Act 12-5, which repealed the death penalty for all crimes committed on or after April 25, 2012. On June 12, 2012, the Supreme Court affirmed Defendant’s judgment of conviction but reversed his death sentence and remanded for a new penalty phase hearing, concluding that the trial court improperly had failed to disclose to Defendant certain confidential records that were mitigating in nature. Defendant filed a motion for reconsideration, claiming that the adoption of P.A. 12-5 leads to the conclusion that capital punishment has ceased to comport with state constitutional requirements. The Supreme Court agreed and reversed Defendant’s sentence of death on the capital felony count, holding that the enactment of P.A. 12-5, when considered in light of the history of the death penalty in the state and other recent legal developments, compels the conclusion that capital punishment, as currently applied, constitutes cruel and unusual punishment in violation of the constitution of Connecticut. Remanded with direction to sentence Defendant to life imprisonment without the possibility of release.

The majority concludes that the death penalty is unconstitutional under the state constitution. Every step of its analysis, however, is fundamentally flawed. First, the majority engages in an extensive discussion of the ancient history of the death penalty in this state pursuant to State v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), and concludes that these "constitutional facts" are "unique and expansive." The majority identifies absolutely nothing in our state's distant past, however, that would remotely support the conclusion that there has ever been a societal consensus in this state that the death penalty is an inappropriate punishment for the most heinous murders. Thus, this history is entirely irrelevant to the question before the court. Indeed, in apparent acknowledgment of the complete absence of any historical support for the conclusion that the state constitution provides materially different protections from cruel and unusual punishments than does the eighth amendment to the federal constitution in this context, the majority ultimately concludes that the proper framework for evaluating the defendant's claim is the same as "the framework that the federal courts have used to evaluate eighth amendment challenges." See part I F of the majority opinion. Under that framework, the court is required to determine whether the death penalty is consistent with contemporary standards of decency. Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 49 L. Ed. 2d 859 (1976) ("an assessment of contemporary values concerning the infliction of a challenged sanction is relevant to the application of the [e]ighth [a]mendment"); see also Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958) (eighth amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society"). Even assuming that the federal contemporary standards of decency rubric is the proper standard for evaluating a claim that the death penalty is categorically unconstitutional under the state constitution, however, this court rejected a claim that the death penalty is inconsistent with the contemporary societal mores of this state a mere four years ago, concluding that, as of 2011, "there remains powerful evidence of strong public support for the death penalty" in this state. State v. Rizzo, 303 Conn. 71, 198, 31 A.3d 1094 (2011), cert. denied, U.S. , 133 S. Ct. 133, 184 L. Ed. 2d 64 (2012). Nevertheless, the majority concludes that, as the result of the enactment of No. 12-5 of the 2012 Public Acts (P.A. 12-5), in which the legislature abolished the death penalty for crimes committed after the effective date of the act, April 25, 2012, the death penalty is somehow now unconstitutional. In making this determination, the majority disregards the obvious: the legislature, whichPage 2represents the people of the state and is the best indicator of contemporary societal mores, expressly retained the death penalty for crimes committed before the effective date of P.A. 12-5. The majority's reasoning also contains a glaring contradiction that cannot be reconciled: at the same time that the majority concludes that the prospective repeal of the death penalty demonstrates that the people of this state have rejected the death penalty as an appropriate punishment for the most egregious murders, it concludes that the retention of the death penalty for capital offenses committed before April 25, 2012, evinces a constitutionally impermissible societal desire to wreak vengeance against the perpetrators of such crimes.1 Moreover, in making its determination that the death penalty violates contemporary standards of decency in this state, the majority: (1) addresses societal factors affecting the constitutionality of the death penalty that the defendant, Eduardo Santiago, has not raised and that neither party has had an opportunity to address; (2) relies on contested and slanted extra-record materials that neither party has had an opportunity to review or respond to; and (3) improperly applies the governing legal standard. Thus, the majority's determination that the death penalty is unconstitutional under our state constitution is based on a house of cards, falling under the slightest breath of scrutiny.I Before addressing the merits of the majority's decision, it is important to clarify the procedural context in which these issues arose, in order to demonstrate the extent to which the majority has exceeded its authority as a court whose function it is to act as a "neutral arbiter of matters the parties present." (Internal quotation marks omitted.) Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 146, 84 A.3d 840 (2014). While the defendant's appeal in the present case was pending, the defendant filed a motion for permission to file a supplemental brief and for oral argument to address the impact of the passage of P.A. 12-5 on his appeal. Specifically, the defendant claimed that the passage of P.A. 12-5 raised serious questions about the continued constitutional validity of the death penalty.2 On June 12, 2012, we issued our decision in the defendant's appeal. See State v. Santiago, 305 Conn. 101, 49 A.3d 566 (2012). In that decision, we "denied the defendant's motion [to file a supplemental brief and for oral argument] because . . . these constitutional issues would be more appropriately addressed in the context of post-judgment motions." Id., 308 n.167. We also rejected in Santiago the defendant's claim that the "the death penalty is per se unconstitutional under the Connecticut constitution, and that we should overrule our decisions holding to the contrary." Id., 306. The defendant then filed a motion for reconsideration and a renewedPage 3motion to file a supplemental brief on the same issues that he had identified in his original motion, "as well as any others relating to the impact of [P.A.] 12-5 on the validity of [the defendant's] continued prosecution seeking a death sentence that are revealed by additional research." (Emphasis added.) This court granted both motions. Thereafter, the defendant filed a supplemental brief in which he raised the following six claims for the court's consideration: (1) P.A. 12-5 renders the defendant's death sentence arbitrary under General Statutes § 53a-46b (b); (2) executing the defendant when P.A. 12-5 had abolished the death penalty for future offenses would be cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution because, among other reasons, the act evinces a societal consensus against the death penalty; (3) carrying out an execution after the passage of P.A. 12-5 would violate the equal protection and substantive due process guarantees of the fourteenth amendment to the United States constitution and article first, §§ 1, 8, 9 and 20, of the state constitution; (4) the effective date provision of P.A. 12-5 violates the prohibition on bills of attainder and ex post facto laws contained in article one, § 10, of the federal constitution; (5) executing the defendant after the enactment of P.A. 12-5 would violate article first, § 9, of the state constitution because the death sentence is not " 'clearly warranted by law' "; and (6) the unconstitutional portion of P.A. 12-5 is severable under state law. Thus, it is perfectly clear that the sole issue that is before this court is the effect of the passage of P.A. 12-5 on the continued constitutional validity of the state's death penalty statute, specifically, the defendant's claim that the death penalty became unconstitutional after the passage of P.A. 12-5, because the act reflects a legislative determination that the death penalty no longer comports with contemporary societal mores and it rendered the death penalty arbitrary. The defendant has not contested, for purposes of this appeal, the correctness of this court's previous decisions holding that the death penalty is not prohibited by the due process clauses of our state constitution, including our decision in State v. Rizzo, supra, 303 Conn. 201, and has asked us only to determine whether P.A. 12-5 reflects a recently emerged societal consensus that the death penalty is cruel and unusual. Thus, the defendant has made no claim that the death penalty is unconstitutional on the basis of the historical development of the death penalty in this state, the rarity of its imposition in this state in recent decades, the sentencing practices of other states in recent decades (other than the sentencing practices of states that have prospectively repealed the death penalty), the opinions and recommendations of professional associations, delays in executions in recentPage 4decades, racial disparities in the imposition of the death penalty, the possibility of erroneous death sentences, or the "inherent conflict" between the requirement that the discretion of the jury to impose the death penalty must be cabined and the requirement that its discretion to accord mercy may not be constrained in any way. Because all of these factors relate to societal conditions and practices that existed before the passage of P.A. 12-5, the defendant has effectively conceded that they carry no weight here.3II With this procedural history in mind, I turn to the merits of the majority's opinion. I begin with the majority's Geisler analysis.4 After reviewing the Geisler factors, the majority concludes that: (1) the United States Supreme Court's repeated holdings that the death penalty "comports with contemporary American standards of decency, satisfies legitimate penological objectives, and is not imposed in an impermissibly arbitrary or discriminatory manner" carry no weight because that court has never considered whether the death penalty may be constitutionally imposed after a prospective repeal; (2) the silence of our state constitution on the question of cruel and unusual punishment reveals nothing about the intent of the constitutional framers; (3) the preconstitutional roots of the freedom from cruel and unusual punishment establish that "Connecticut citizens enjoyed a quasi-constitutional freedom from cruel punishment, one that reflected our unique social and political traditions and that far exceeded the protections recognized in England at the time" because, during the 1600s, 1700s and early 1800s, this state's (or the predecessor colony's) courts and public leaders were more "progressive" and less tolerant of harsh punishment than their English contemporaries and forebearers; and (4) this court's previous holdings that the due process provisions of the state constitution do not bar the imposition of the death penalty for the most heinous murders are now questionable because they have been overtaken by "new insights into the history of capital punishment in Connecticut, in tandem with the legislature's 2012 decision to abolish the death penalty prospectively";5 and (5) precedents from other states support the conclusion that, in determining whether the death penalty comports with contemporary societal mores, the relevant societal mores are those of this state. With respect to the first, fourth and fifth Geisler factors, relating to federal precedents, the precedents of this court and the precedents of other states, the majority appears to concede that these factors do not support the conclusion that the death penalty is now unconstitutional under the state constitution, and I would agree with that conclusion. I also agree with the majority that these precedents support the conclusion that a newPage 5look at the constitutionality of the death penalty in this state under the state constitution is warranted in light of the legislature's enactment of P.A. 12-5 and I am willing to assume for purposes of this opinion that, in determining whether the death penalty is still constitutional under the state constitution, we must consider the current societal mores of this state. As I discuss in part III of this dissenting opinion, however, I believe that the majority misapplies the evolving standards of decency rubric and, under a proper application of that standard, the death penalty does not violate the state constitution. For the reasons that I have discussed in part I of this dissenting opinion, I also believe that the validity of this court's previous holdings that the death penalty is constitutional under the state constitution is not properly before the court here because the sole claim that the defendant has raised is that P.A. 12-5 evinces a new societal consensus that the death penalty is unconstitutional. With respect to the second Geisler factor, the text of the respective constitutional provisions, the majority concludes that despite the fact that, unlike the eighth amendment to the federal constitution, article first, §§ 8 and 9, of our state constitution are silent with respect to the imposition of cruel and unusual punishments, this factor does not weigh in favor of the constitutionality of the death penalty under the state constitution. Surely, however, the fact that the framers of the state constitution, both in 1818 and in 1965, declined to adopt the "cruel and unusual" language of the eighth amendment as part of our state constitution suggests that they were less, or, at a minimum, that they were not more, concerned with this problem than the framers of the eighth amendment.6 I fail to understand how the lesser or coextensive concern of the framers of the state constitution could possibly imply the existence of a broader right.7 Moreover, there are, as Justice Zarella points out in his dissenting opinion, repeated textual references to capital offenses in the state constitution.8 See Conn. Const., art. I, §§ 8 and 19, as amended by article four of the amendments. The 1818 constitution also expressly referred to the death penalty and capital offenses; see Conn. Const. (1818), art. I, §§ 9 and 14; and the death penalty was authorized by statute for numerous offenses, including nonhomicide offenses, when that constitution was adopted.9 See General Statutes (1796 Rev.) p. 182; General Statutes (1808 Rev.) tit. LXVI, c. I. Thus, there can be no doubt that the framers of both the 1818 and 1965 constitutions believed that the death penalty for the most heinous crimes was entirely compatible with this state's fundamental law. See State v. Rizzo, supra, 303 Conn. 188 ("[W]e remain cognizant that our constitution contains explicit references to capital punishment . . . and, therefore, expressly sustains the constitutional validity of such a penalty in appropriate circumstances. . . . The defendant'sPage 6claim must be evaluated against this clear textual backdrop." [Citations omitted; internal quotation marks omitted.]). Indeed, the majority concedes as much. With respect to the third prong of Geisler, historical insights into the intent of our constitutional forebearers, the majority undertakes an extensive review of the attitudes of this state's citizenry and public leaders toward criminal punishments before the adoption of the 1818 and 1965 state constitutions. It contends that, during the 1600s and 1700s, this state was increasingly intolerant of certain brutal forms of corporal punishment and "came to believe that the death penalty should be reserved for only the most heinous and universally condemned offenses." See part I B 1 of the majority opinion. I fail to perceive, however, why the fact that this state rejected brutal forms of corporal punishment and believed that the death penalty should be reserved for only the most heinous crimes supports the conclusion that imposing the death penalty for the most heinous crimes may now be inconsistent with the state constitutional prohibition on cruel and unusual punishments. Indeed, the majority's analysis is riddled with non sequiturs. Although to enumerate all of them would greatly and unnecessarily increase the length of this dissenting opinion, I offer the following glaring examples. First, the majority appears to suggest that the execution of Peter Lung in 1816 shows that this state had developed a broader conception of cruel and unusual punishment than that of the federal framers because the execution was not met with public celebration.10 Second, the majority concludes in footnote 31 of its opinion that the fact that the state opened a new prison in 1964 that was " 'primarily devoted to preparing inmates for adjusting to community living and responsibility when they are released' " shows that "our state's understanding of the permissible nature and purposes of punishment had undergone a thorough transformation" from 1818 to 1965. The question that the majority is addressing, however, is not whether the underlying theory of punishment for noncapital crimes has changed in this state over the years, but whether our state constitution now bars capital punishment for the most heinous murders. Neither the opening of the Somers prison in 1964 nor anything else in the majority's review of the history of this state remotely supports the conclusion that it does. Indeed, in yet another glaring inconsistency, the majority itself concedes that the ancient history of this state and the historical attitudes of its citizens toward criminal punishment say "little about [the] legal status [of the death penalty] two centuries later." Finally, although the majority refers to our "unique and expansive constitutional and preconstitutional history"; see part I F of the majority opinion; it makes no attempt to compare the history of this state with the history of the other states that were in existence whenPage 7the eighth amendment was proposed in 1789 and ratified in 1791. Accordingly, any suggestion that the "rapid evolution in penology" that had occurred in this country and its predecessor colonies from the early colonial days to the late 1700s was "especially pronounced in Connecticut" is pure speculation. For the same reason, the majority's reference to "our state's unique and expansive constitutional and preconstitutional history" is devoid of any substantive content. Finally, even if it were true that this state has a history that supports a unique and expansive interpretation of the protections afforded by the due process provisions of the state constitution, I must reiterate that there is absolutely nothing in the history of this state that supports the conclusion that its citizens have ever rejected capital punishment as an inappropriate punishment for the most heinous murders. After reviewing these Geisler factors, the majority states that its review has led it to conclude that it should "broadly adopt the framework that the federal courts have used to evaluate eighth amendment challenges." See part I F of the majority opinion. At the same time, the majority makes it clear that it may "conclude that practices and punishments that the United States Supreme Court has expressly approved are nevertheless unconstitutionally cruel and unusual in Connecticut . . . either because our state's contemporary standards of decency differ from those of the nation as a whole, or because this court simply reaches a different conclusion when applying to the relevant constitutional facts, as a matter of state constitutional law, standards similar or even identical to those that the United States Supreme Court has articulated." (Citation omitted; emphasis added.) See footnote 17 of the majority opinion. Thus, the majority again tries to have its cake and eat it too. First, the majority declines to conclude that the due process provisions of the state constitution provide broader protection from the death penalty for the most heinous murders than the eighth amendment does, presumably because it knows that any such conclusion would be simply unsupportable; then the majority declines to be bound by the Supreme Court's understanding of eighth amendment jurisprudence, presumably because it wants to ensure that its decision is insulated from any further review.11 In light of the majority's failure to reach any definitive conclusions as to the relative scopes of the right to be free from cruel and unusual punishments under the state and federal constitutions, I can only conclude that the majority has undertaken this extended analysis of the state's ancient history in the misguided belief that, if it can somehow imply that the attitude of this state's citizens toward any form of criminal punishment was ever ahead of the curve of broader societal attitudes, it must follow as the night follows the day that societal attitudes have been, are now and always will be "pro-Page 8gressive" for all forms of punishment, including the death penalty for the most heinous murders.12 The reality, however, is that neither the text of the state constitution nor our state's history in any way supports the view that Connecticut citizens were ever against the penalty of death for the most heinous crimes. Moreover, the majority's belief is entirely inconsistent with its ultimate conclusion that the constitutional standard for determining whether the death penalty is cruel and unusual under the state constitution is whether it comports with the contemporary societal mores of this state—not whether the death penalty comports with societal mores that existed hundreds of years ago, not whether the existing societal mores of this state continue to be ahead of the curve, and not whether the death penalty comports with the contemporary mores of certain members of this court.13 Because they shed no light on the broad issue that the majority has taken upon itself to address, the second and third Geisler factors are irrelevant to its analysis. Indeed, the majority concedes as much when it concludes that it should apply the evolving standards of decency rubric that applies to eighth amendment claims, which requires the courts to consider contemporary standards of decency. Although those factors may be relevant to the extent that they shed light on the question of whether the death penalty was considered cruel and unusual punishment when the 1818 and 1965 constitutions were adopted, there is no dispute that it was not considered as such.III I next address the majority's conclusion that the death penalty is incompatible with the current societal mores of this state. In making its determination that the death penalty violates the state constitution, the majority applies the "evolving standards of decency" rubric that is applied under the federal constitution. See Trop v. Dulles, supra, 356 U.S. 101 (eighth amendment "draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society"). I would note that, although the United States Supreme Court has applied this rubric to determine the constitutionality of the death penalty for certain crimes and for certain classes of defendants, it is unclear whether that court would ever find that societal rejection of the death penalty rendered the death penalty categorically unconstitutional, despite the language of federal constitution expressly contemplating the death penalty and this country's historical acceptance of the death penalty as the appropriate punishment for the most heinous crimes. See Glossip v. Gross, U.S. , 135 S. Ct. 2726 2747, 192 L. Ed. 2d 761 (2015) (Scalia, J., concurring) ("[N]ot once in the history of the American Republic has this [c]ourt ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the [c]onstitution explicitly contemplates. The [f]ifthPage 9[a]mendment provides that '[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a [g]rand [j]ury,' and that no person shall be 'deprived of life . . . without due process of law.' " [Emphasis in original.]). Even assuming, however, that evolving standards of decency could render the death penalty unconstitutional in this state under the Trop standard, despite the language of our constitution expressly contemplating the death penalty; see part II of this dissenting opinion; the majority has failed to establish that the death penalty for the most heinous murders is inconsistent with contemporary standards of decency in this state.14 In analyzing this issue, it is important to distinguish between the applicable standard for determining whether there has been a violation of the constitution and the scope of the right at issue. Specifically, it is clear to me that the standard applied under the state constitution is the same as under the eighth amendment: a punishment is unconstitutionally cruel and unusual under the state constitution if it violates contemporary standards of decency in this state. Obviously, however, the societal mores of this state may be less (or more) tolerant of particular types of punishment than the societal mores of the nation as a whole and, accordingly, a punishment that is cruel and unusual under our state constitution will not necessarily violate the eighth amendment. Thus, to the extent that the societal mores of this state are less tolerant of harsh punishment than national mores, the scope of the right may be considered "broader" in this state, although the fundamental nature of the right is the same. Cf. State v. Rizzo, supra, 303 Conn. 188 ("[T]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change." [Emphasis added; internal quotation marks omitted.]).15 The majority identifies "five objective indicia of society's evolving standards of decency: (1) the historical development of the punishment at issue; (2) legislative enactments; (3) the current practice of prosecutors and sentencing juries; (4) the laws and practices of other jurisdictions; and (5) the opinions and recommendations of professional associations. See, e.g., Graham v. Florida, [560 U.S. 48, 61-67, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010)]; Atkins v. Virginia, [536 U.S. 304, 311-16, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)]; Thompson v. Oklahoma, [487 U.S. 815, 830, 108 S. Ct. 2687, 101 L. Ed. 2d 702 (1988)]; Enmund v. Florida, [458 U.S. 782, 788-89, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)]; State v. Rizzo, supra, 303 Conn. 187-96." (Footnote omitted.) In my view, this methodology misstates both the eighth amendment jurisprudence of the United State Supreme Court and the state constitutional jurisprudence of this court. In the four United States Supreme Court casesPage 10that the majority cites, the court relied primarily on two objective factors to guide its determination as to whether a particular punishment violated contemporary standards of decency: (1) "legislation enacted by the country's legislatures," which provides the "clearest and most reliable objective evidence of contemporary values"; (internal quotation marks omitted) Atkins v. Virginia, supra, 312; Graham v. Florida, supra, 62; see also Thompson v. Oklahoma, supra, 822; and (2) "[a]ctual sentencing practices" in this country. Graham v. Florida, supra, 62; see also Thompson v. Oklahoma, supra, 822. The Supreme Court has also on occasion considered whether its determination "is consistent with the views that have been expressed by respected professional organizations, by other nations that share our Anglo-American heritage, and by the leading members of the Western European community." Thompson v. Oklahoma, supra, 830. The court, however, does not consider views of other nations and, by extension, professional organizations, to determine the contemporary societal consensus in this nation regarding a particular punishment. See Graham v. Florida, supra, 80 ("[t]he [c]ourt has looked beyond our [n]ation's borders for support for its independent conclusion that a particular punishment is cruel and unusual," but practices in other nations do "not control our decision"); Stanford v. Kentucky, 492 U.S. 361, 369 n.1, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989) ("We emphasize that it is American conceptions of decency that are dispositive, rejecting the contention of [the] petitioners and their various amici . . . that the sentencing practices of other countries are relevant. While [t]he practices of other nations, particularly other democracies, can be relevant to determining whether a practice uniform among our people is not merely a historical accident, but rather so implicit in the concept of ordered liberty that it occupies a place not merely in our mores, but, text permitting, in our [c]onstitution as well . . . they cannot serve to establish the first [e]ighth [a]mendment prerequisite, that the practice is accepted among our people." [Citations omitted; emphasis in original; internal quotation marks omitted.]), overruled on other grounds by Roper v. Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005); State v. Rizzo, supra, 303 Conn. 195 ("the United States Supreme Court at times has referenced international norms as support for its own determinations, while at the same time making clear that the opinions prevalent in other nations could never control over a domestic legislative climate running decidedly counter to such opinions"). After determining the contemporary societal consensus, the United States Supreme Court has then exercised its independent judgment to consider "the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment . . . . In this inquiry the [c]ourt also considers whether the challenged sentencing practice serves legitimate penologi-Page 11cal goals." (Citations omitted.) Graham v. Florida, supra, 67; see also Atkins v. Virginia, supra, 312-13; Thompson v. Oklahoma, supra, 833. I would conclude that, in determining whether the death penalty comports with contemporary societal mores in this state, this court, as a general matter, should follow the United States Supreme Court's methodology for determining national societal mores, but on a state level. Thus, the primary factors that this court should consider are the actions of our state legislature, which provide the "clearest and most reliable objective evidence of contemporary values"; (internal quotation marks omitted) Atkins v. Virginia, supra, 536 U.S. 312; and the actual sentencing practices of Connecticut juries.16 Graham v. Florida, supra, 560 U.S. 62; see also Atkins v. Virginia, supra, 312 (judgments regarding evolving standards of decency "should be informed by objective factors to the maximum possible extent" [internal quotation marks omitted]); Stanford v. Kentucky, supra, 492 U.S. 369 (same). After making a determination on the basis of these objective factors, the court may test its conclusions by looking at the views expressed by respected professional associations and the practices in other jurisdictions, but it may not use those views and practices as evidence of this state's societal mores. Stanford v. Kentucky, supra, 369 n.1. Finally, the court may exercise its independent judgment to consider whether "the challenged sentencing practice serves legitimate penological goals." Graham v. Florida, supra, 67. With respect to the enactments of our legislature, which provide the clearest evidence of contemporary societal mores, the majority contends that the enactment of P.A. 12-5 reveals that "[o]ur elected representatives have determined that the machinery of death is irreparable or, at the least, unbecoming to a civilized modern state. . . . The prospective abolition of the death penalty thus provides strong support for the conclusion that capital punishment no longer comports with contemporary standards of decency and, therefore, constitutes cruel and unusual punishment."17 (Citation omitted; footnotes omitted.) To the contrary, however, the legislature's enactment of P.A. 12-5 supports neither the conclusion that the legislature believes that support for the death penalty is uncivilized nor the conclusion that the death penalty does not actually enjoy public support. I start with the obvious. The legislature enacted legislation that still allows for the death penalty to be imposed, because the minority of legislators who opposed the death penalty in all cases were unable to convince a majority that it should be repealed retroactively.18 Moreover, the legislative history of P.A. 12-5 strongly supports the conclusion that the reason for the prospective repeal was not that a majority of legislators found the death penalty morally repugnant even for the worst crimes, or that they found life impris-Page 12onment an adequate substitute for the death penalty, but that they had determined that the death penalty simply had become impracticable.19 Cf. State v. Rizzo, supra, 303 Conn. 190 n.88 (prospective repeal of death penalty does not establish that "legislature was convinced that the death penalty is intolerable under any and all circumstances"); id., 199 n.101 (legislative history of prospective repeal by legislature that governor later vetoed showed that repeal "was motivated by practical rather than moral concerns"). I further note that the vote in the Senate was twenty in favor of passing the proposed legislation and sixteen against passage; 55 S. Proc., Pt. 3, 2012 Sess., p. 814; and the vote in the House of Representatives was eighty-six in favor of passage, sixty-two against passage and three not voting. 55 H.R. Proc., Pt. 4, 2012 Sess., p. 1390. Thus, there was significant opposition to any form of repeal. Accordingly, it is simply untenable to conclude that the passage of P.A. 12-5 evinces a legislative determination or societal consensus that the death penalty is immoral in all cases. Rather, the evidence strongly supports the conclusion that, despite the legislature's belief that the death penalty is the appropriate punishment for certain crimes, after considering all of the societal costs of imposing the death penalty for future crimes of this type, the legislature's acceptance of a less severe form of punishment for those future crimes was a necessary and tolerable legislative compromise. This belief that the death penalty is appropriate for certain crimes is evinced by the fact that the legislature left the death penalty in place for all capital crimes committed before the effective date of P.A. 12-5, which provides the clearest evidence of contemporary societal mores in this state. The majority states that, to the contrary, "[d]uring the legislative debates, of the three dozen senators and representatives who rose to speak in favor of P.A. 125, nearly every one stated that they had come to oppose capital punishment as a matter of conscience or principle."20 Of course, there is no dispute that some legislators who were considering P.A. 12-5 believed that the death penalty is immoral under any circumstances and would have repealed it retroactively if they had been able to muster the votes to do so. The majority simply ignores the fact, however, that these legislators constituted a small minority. Even assuming that all of the "three dozen" legislators cited by the majority opposed the death penalty on moral grounds, that would mean that seventy legislators voted in favor of P.A. 12-5 without expressing any moral objections to the death penalty. In addition, seventy-eight legislators voted against P.A. 12-5, thereby indicating that they had no objections to the death penalty, moral or otherwise. See 55 S. Proc., supra, p. 814; 55 H.R. Proc., supra, p. 1390. Thus, for a large majority of legislators—148 out of 184, or 80 percent—there is no evidence that they had anyPage 13moral qualms about the appropriateness of the death penalty for the most heinous murders.21 Indeed, it is the majority's improper and illogical assumption that those who opposed retroactive repeal but voted for prospective repeal had moral objections to the death penalty that creates the troubling specter of moral incoherence.22 In my view, this court should not lightly assume that our legislators voted to retain what they believed to be an immoral punishment for improper reasons. Rather, the constitutional principle that this court must presume that the legislature has acted for legitimate reasons23 compels the following conclusions: (1) The legislature voted to retain the death penalty for crimes occurring before the effective date of P.A. 12-5 for the simple reason that a majority of legislators had no moral objection to imposing the death penalty on defendants who committed heinous murders when such crimes were punishable by death; and (2) the legislature voted to repeal the death penalty prospectively for the simple reason that many of the legislators who found the death penalty morally unobjectionable had come to believe that it is simply unworkable in this state.24 Unlike the reasons proposed by the majority, these reasons are mutually consistent and they find ample support in the legislative history of P.A. 12-5.25 See footnote 19 of this opinion. Moreover, contrary to the majority's suggestion, these reasons are consistent with the statements by various legislators that P.A. 12-5 involved a matter of conscience.26 No moral principle would compel a legislator who believed that the death penalty is moral but unworkable to retain the death penalty going forward. Indeed, the state's commitment to the families of the victims who already had endured the agony of the lengthy litigation and appeal procedures required in death penalty cases would provide a perfectly legitimate reason to differentiate between defendants who already had been sentenced to death and those who will commit such crimes in the future for legislators who believed that the death penalty is the appropriate punishment for the worst crimes, but who wanted to avoid the societal costs of capital punishment in future cases.27 Finally, I would point out that the majority has chosen to remain deliberately vague on the question of whether a majority of this state's citizens oppose the death penalty on moral grounds. Although the majority attempts to point at purported evidence that the death penalty is inconsistent with the contemporary societal mores of this state's citizenry,28 it ultimately states that "[s]ome legislators . . . may have seen a prospective repeal as an opportunity to retain the support of constituents committed to the execution of particular residents of death row, while leaving to this court the task of abolishing capital punishment retroactively." Thus, the majority appears to acknowledge that the death penalty continues to enjoy strong public support. If thatPage 14were the case, however—and I see no evidence to the contrary—then, even if the majority were correct that the legislature retained the death penalty for crimes committed before the effective date of P.A. 12-5 in the hope that this court would invalidate it, the legislature would have been attempting to delegate to this court a difficult legislative decision.29 Any such attempt should be firmly rejected as a blatant violation of the constitutional principle of separation of powers. With respect to the current sentencing practices of this state, the majority suggests that the death penalty is now so rarely imposed that it no longer comports with our state's evolving standards of decency. This is a fact bound issue, however, that the defendant did not raise, that the parties have not had an opportunity to brief and on which the trial court made no factual findings. Thus, the record is clearly inadequate for review.30 Accordingly, as I have explained in part I of this dissenting opinion, it is entirely inappropriate for the majority to consider that issue in this case. Moreover, even if the majority were correct that juries in this state are reluctant to impose the death penalty, its conclusion that that reluctance is the result of a societal consensus that the death penalty is immoral is nothing more than an unsupported assumption. As this court recognized in State v. Rizzo, supra, 303 Conn. 194 n.94, "declining imposition of capital punishment may indicate that the death penalty is being employed precisely as was intended, to punish only the very worst of society's criminals, and only after a vigorous legal process has ensured that the defendant has been found guilty after a fair trial with demanding procedural safeguards. As the United States Supreme Court has observed, the relative infrequency of jury verdicts imposing the death sentence does not indicate rejection of capital punishment per se. Rather, [it] . . . may well reflect the humane feeling that this most irrevocable of sanctions should be reserved for a small number of extreme cases. Gregg v. Georgia, supra, 428 U.S. 182." (Internal quotation marks omitted.) In addition, although this court has recognized "the weaknesses inherent in public opinion polls as objective measures of the popular psyche"; State v. Rizzo, supra, 195; public opinion polls certainly lend no support to the majority's conclusion that the infrequent imposition of the death penalty in this state reveals a moral repugnance against the death penalty in all cases. According to a Quinnipiac University poll released in March, 2013, 59 percent of Connecticut registered voters supported the death penalty for persons convicted of murder, while only 35 percent were opposed to it.31 Thus, there is no factual or legal support for a conclusion that the citizens of this state find the death penalty to be morally repugnant, even for the most horrific crimes. The majority has cited no case in which the UnitedPage 15States Supreme Court, or any other court, has concluded that there is no societal consensus against a particular punishment in a particular jurisdiction and then has gone on to determine that the punishment is unconstitutional on the basis of the views of other jurisdictions or professional organizations. Indeed, the majority itself has started with the premise that "the pertinent standards by which we judge the fairness, decency, and efficacy of a punishment are those of Connecticut." (Emphasis added.) See part I E of the majority opinion. Accordingly, having concluded on the basis of these objective factors that there is no consensus against the death penalty in this state, I would conclude that the views of other states and professional organizations have little if any relevance to the constitutional question. Even if those factors were relevant, however, the majority's analysis is still flawed. Again, the defendant has made no claims and presented no evidence regarding the general sentencing trends or societal mores of other jurisdictions.32 Accordingly, this issue is not properly before us. Moreover, in making its determination, the majority again relies on slanted and untested sources that neither party has had the opportunity to review or to respond to. See footnote 30 of this dissenting opinion. For similar reasons, the majority's reliance on the opinions and recommendations of professional associations is improper. Once again, the majority has addressed an issue that the defendant did not raise and, once again, neither party has had an opportunity to review or respond to the extra-record sources relied on by the majority or to test them in the trial court. Finally, exercising its independent judgment to determine whether the death penalty serves any legitimate penological goals; see Graham v. Florida, supra, 560 U.S. 67; the majority concludes that it no longer has any deterrent or retributive value.33 As the majority recognizes, however, it is well established that "the value of [capital punishment], and its contribution to acceptable penological goals, typically is a complex factual issue the resolution of which properly rests with the legislatures . . . . Kennedy v. Louisiana, [554 U.S. 407, 441, 128 S. Ct. 2641, 171 L. Ed. 2d 525 (2008)]; see also Roper v. Simmons, supra, 543 U.S. 571 ([i]n general we leave to the legislatures the assessment of the efficacy of various criminal penalty schemes); Gregg v. Georgia, supra, 428 U.S. 175 ([i]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people . . .) . . . ." (Citation omitted; internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. 197-98. Thus, courts "cannot invalidate a category of penalties because [they] deem less severe penalties adequate to serve the ends of penology, although "the sanction imposed cannot be so "totally without penological justification that it results in the gratuitous infliction ofPage 16suffering." (Internal quotation marks omitted.) Gregg v. Georgia, supra, 182-83. The United States Supreme Court has held that "punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution." Kennedy v. Louisiana, supra, 554 U.S. 420. With respect to deterrence, the majority in the present case relies on Justice Harper's conclusory statement in his concurring and dissenting opinion in State v. Santiago, supra, 305 Conn. 321, that, "[f]ollowing the abolition of the death penalty for all future offenses committed in Connecticut . . . it is possible to determine the exact number of potential crimes that will be deterred by executing the defendant in this case. That number is zero." (Emphasis in original.) No one, however, has revealed the source of this oracle. I believe that, to the contrary, the legislature reasonably could have concluded that its refusal to enforce the laws in effect when the crime was committed would send the message to potential offenders that the laws are unstable and that the state ultimately may be unwilling to enforce them, thereby weakening their force. People v. Floyd, 31 Cal. 4th 179, 191, 72 P.3d 820, 1 Cal. Rptr. 3d 885 (2003) ("penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written" [internal quotation marks omitted]). Indeed, that very argument was made during the legislative debate on P.A. 12-5. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p. 2781, remarks of Kevin Barry ("It is perfectly proper for the [l]egislature to create a new sentencing procedure which operates prospectively only despite the disparity created by rendering different sentences after an admittedly arbitrarily chosen date . . . because of the legitimate public purpose of assuring that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written. You would be sending a message . . . that you will carry out what you said you would do [and] there is deterrence in that . . . ."). Thus, although I acknowledge that the prospective repeal of the death penalty has certainly diminished its deterrent value, imposing the punishment that was authorized at the time that the crime was committed still "serves an important purpose in promoting the stability of a society governed by law." (Internal quotation marks omitted.) Gregg v. Georgia, supra, 428 U.S. 183. Even if the majority were correct that the enactment of P.A. 12-5 has eliminated the deterrent value of the death penalty, however, a penalty need not have both a deterrent and a retributive purpose to be penologically justified. "The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrong-doer deserves it, irrespective of whether it is a deterrent or not." Id., 184 n.30. The majority concludes that the death penalty no longer serves a legitimate retributive purpose because, byPage 17enacting P.A. 12-5, "the legislature necessarily has made a determination . . . that life imprisonment without the possibility of release is an adequate and sufficient penalty even for the most horrific of crimes; that we can express our moral outrage, mete out justice, bring some measure of solace to the victims, and purge the blemish of murder on our community whilst the offender yet lives. If this is true, then, although the death penalty still might serve some minimal retributive function in Connecticut, it lacks any retributive justification."34 (Emphasis in original.) Clearly, however, the premise that the legislature has determined that life imprisonment is an adequate punishment for the most horrific crimes is not true. Rather, as I have explained, the prospective repeal most reasonably is understood as representing a legislative compromise based on a determination that, although the death penalty is the appropriate punishment for the most egregious murders, it has become impracticable. The majority also contends that the legislature left the death penalty in place for crimes committed before the effective date of P.A. 12-5 "primarily to maintain the possibility of executing two particular offenders—the much reviled perpetrators of the widely publicized 2007 home invasion and murder of three members of Cheshire's Petit family" and, therefore, the legislature did not have a proper retributive purpose, but was improperly motivated by vengeance. I agree with the majority that a majority of legislators, as well as a majority of the citizens of this state, believe that the death penalty is the appropriate penalty for the defendants who committed the Cheshire crimes. The majority has failed to establish, however, that these legislators and citizens do not believe that the death penalty is also the appropriate punishment for the crimes committed by the other defendants who are on death row, which involved the beating to death of a thirteen year old boy in order to experience what it was like to kill someone; State v. Rizzo, supra, 303 Conn. 147-49; the heinous and cruel beating and stabbing to death of a teenaged son and former wife; State v. Breton, 264 Conn. 327, 345-48, 824 A.2d 778, cert. denied, 540 U.S. 1055, 124 S. Ct. 819, 159 L. Ed. 2d 708 (2003); the shooting of a policeman by a convicted felon; State v. Reynolds, 264 Conn. 1, 18-21, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 159 L. Ed. 2d 254 (2004); the kidnapping, robbery, rape, binding and heinous and cruel murder of the victim by drowning or strangling; State v. Cobb, 251 Conn. 285, 302-304, 743 A.2d 1 (1999), cert. denied, 531 U.S. 841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000); and the kidnapping, rape, and heinous and cruel murder of the victim by repeatedly shooting her as she tried to escape and screamed for help; State v. Webb, 238 Conn. 389, 397-99, 680 A.2d 147 (1996), aff'd on remand, 252 Conn. 128, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); andPage 18for all particularly horrendous murders.35 Indeed, it is reasonable to conclude that the Cheshire case weighed particularly heavily on the minds of the public and of the legislators during the debates on P.A. 12-5, merely because it provided the most recent—and, admittedly, a most tragic and pointed—example of the type of crime for which the public and the legislature believed the death penalty to be an appropriate punishment. The conclusion that a majority of legislators believed that all heinous murders deserve the death penalty finds ample support in the legislative history of P.A. 12-5. See 55 H.R. Proc., supra, pp. 1103-10, remarks of Representative Jeffrey J. Berger (discussing details of crimes committed by defendants in Breton, Cobb, Rizzo and Reynolds, and arguing that people of state "scream out for justice" in form of death penalty); id., p. 1151, remarks of Representative Al Adinolfi (arguing that defendants who committed Cheshire murders deserve death penalty, "and so do many of the others"); id., pp. 1178-80, remarks of Representative Christopher Davis (discussing details of crime committed by defendant in Reynolds and arguing that defendant deserves death penalty); id., pp. 1183-86, remarks of Representative Anthony J. D'Amelio (same); id., pp. 1190-92, remarks of Representative Selim G. Noujaim (same); id., p. 1209, remarks of Representative Themis Klarides ("I feel terrible for the . . . family [of the victims of the Cheshire murders] . . . but there are nine other people on death row. And their families, the victims in those cases, I feel just as badly for."); id., pp. 1236-37, remarks of Representative Larry B. Butler (discussing details of crimes committed by defendants in State v. Peeler, 271 Conn. 338, 857 A.2d 808 [2004], Rizzo and Reynolds, and arguing that defendants deserve death penalty); 55 H.R. Proc., supra, p. 1300, remarks of Representative Jason D. Perillo (discussing details of crime committed by defendant in Webb and arguing that defendant deserved death penalty); 55 H.R. Proc., supra, p. 1304, remarks of Representative Ernest Hewett (discussing details of crime committed by defendant in Peeler and arguing that defendant deserved death penalty); 55 S. Proc., supra, pp. 726-28, remarks of Senator Robert J. Kane (discussing details of crimes committed by defendants in Rizzo, State v. Colon, 272 Conn. 106, 864 A.2d 666 [2004], Peeler and Breton, and arguing that defendants deserved death penalty); Conn. Joint Standing Committee Hearings, supra, pp. 2807-2809, remarks of Sergeant Richard Holton of the Hartford Police Department (referring to crime committed by defendant in Reynolds and arguing in favor of death penalty); Conn. Joint Standing Committee Hearings, supra, p. 2823 (referring to crimes committed by defendants in Cheshire case, Webb and Rizzo).36 Accordingly, I would conclude that a majority of legislators have determined that the death penalty has a legitimate retributive purpose in this state, and I would defer to that legislative determination.Page 19 In summary, the majority has not based its determination that the death penalty violates the state constitutional ban on cruel and unusual punishment on an objective determination that the death penalty is inconsistent with contemporary societal mores in this state or a properly deferential determination that it lacks any penological justification. Rather, because there is no legitimate legal basis for finding the death penalty unconstitutional under either the federal or the state constitution, I can only conclude that the majority has improperly decided that the death penalty must be struck down because it offends the majority's subjective sense of morality. See Stanford v. Kentucky, supra, 492 U.S. 369 ("In determining what standards have evolved . . . we have looked not to our own conceptions of decency, but to those of modern American society as a whole. As we have said, [e]ighth [a]mendment judgments should not be, or appear to be, merely the subjective views of individual [j]ustices; judgment should be informed by objective factors to the maximum possible extent." [Footnote omitted; internal quotation marks omitted.]).37 This court repeatedly has recognized that the constitutional authority to define crimes and to fix the degree and method of punishment belongs to the legislature, not to this court, and "we leave to [the legislature] the assessment of the efficacy of various criminal penalty schemes" that it has enacted in achieving its chosen penological goals. (Internal quotation marks omitted.) State v. Rizzo, supra, 303 Conn. 197-98, quoting Roper v. Simmons, supra, 543 U.S. 571. Indeed, the primary right that our state constitution guarantees is the right to self-government. See Conn. Const., preamble; Conn. Const., art. I, § 2.38 The majority's decision to strike down the death penalty in its entirety is a judicial invalidation, without constitutional basis, of the political will of the people. It is this usurpation of the legislative power—not the death penalty—that violates the societal mores of this state as expressed in its fundamental law. Finally, I emphasize that, in reaching this conclusion, I do not in any way disparage the majority's personal views about the death penalty. Indeed, the lack of consistency in the way that it is sought and imposed in various jurisdictions around the state, the infrequency with which it is imposed, the interminable delays in its execution, legal standards that are designed simultaneously to limit and to remove limits on the jury' discretion in determining whether a particular defendant deserves death,39 and, perhaps most troubling, the growing concern that race and class have been and continue to be significant factors in charging and sentencing decisions, all point to the conclusion that the death penalty may very well have no place in a society that demands decency, fairness, consistency and efficiency from its system of criminal justice. These issues have not been raised, adjudicated or briefed, however, in the presentPage 20case. Rather, the sole claims made by the defendant are that P.A. 12-5 evinces a rejection by the citizens of this state of the death penalty as the appropriate sentence for the most egregious murders and that the effective date provision of this legislation is arbitrary. Because I strongly disagree with both of these claims, I can reach no conclusion except that the death penalty is constitutional.IV I next address the concurring opinion authored by Justice Norcott and Justice McDonald concluding that the death penalty is arbitrary and discriminatory in violation of article first, §§ 8 and 9, of the Connecticut constitution because it is imposed in a racially disparate manner. As those justices acknowledge, this is an issue that the majority cannot properly address because the defendant has not raised it and the parties have not briefed it. They further acknowledge that this issue has been litigated for more than ten years in a different case involving different parties that is currently pending on appeal to this court. See In re Death Penalty Disparity Claims, Connecticut Supreme Court, Docket No. SC 19252 (filed November 6, 2013). I recognize that this issue has been raised and discussed by various justices in dissenting and concurring opinions in the past. In my view, this was appropriate because it flagged the issue for future cases. As Justices Norcott and McDonald themselves point out, however, this "issue of substantial public importance . . . will never be resolved by this court in light of the majority's determination that the imposition of the death penalty is an unconstitutionally excessive and disproportionate punishment." I believe that it undermines the institutional integrity of this court for Justices Norcott and McDonald to express their views on such an important issue when the court as a whole, which might well have agreed with those concurring justices' analysis if the court had been able to address the issue in the case in which it was actually litigated, is now barred from considering it.40 This is especially so when the dicta in the concurring opinion by Justices Norcott and McDonald is based almost entirely on legislative fact-finding that, in turn, is premised on extra-record scientific studies and scholarly articles that the parties did not cite and have had no opportunity to review. As one commentator has aptly stated, the "lack of party participation [in the identification and evaluation of scientific studies supporting legislative facts] is flatly inconsistent with the goals of the adversarial process." A. Larsen, "Confronting Supreme Court Fact Finding," 98 Va. L. Rev. 1255, 1302 (2012). Larsen further observed that "[o]ur system is designed so that the litigants have meaningfully participated in the adjudication of their disputes for another reason: this participation also infuses democratic legitimacy into court decisions."41 Id., 1303; see also BlumbergPage 21Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., supra, 311 Conn. 147 ("[t]he litigants' control of case presentation is thought to promote dignitary and participation values by affirm[ing] human individuality and showing respect for the opinions of each party, producing an outcome more satisfying to winners and losers alike" [internal quotation marks omitted]). In the case of legislative fact-finding, these legitimacy concerns are heightened because the court's factual findings affect not only the parties to the case, but also the public at large. See A. Larsen, supra, 1304 ("It is important to remember, of course, that the [United States] Supreme Court is more than just a court. Its explanatory obligations extend further than just to the litigants who bring the case and want their dispute resolved. When the Supreme Court relies on facts to issue a ruling—particularly a ruling with significant social implications for the entire country—it is speaking to the public at large and in particular to those people who care about the issue of fact under review."); see also id., 1292 ("[t]he safety net of the adversary system . . . is useless when the parties do not see the factual sources before the [j]ustices rely upon them as authorities and enshrine them in the [official reports]"). In addition to undermining democratic legitimacy of judicial opinions, independent fact-finding by a reviewing court can lead to bias, mistakes and the permanent entrenchment of the current best understanding of an issue as a "fact," when that understanding may well be subject to change.42 In the present case, any suggestion that the truth content of the studies on which Justices Norcott and McDonald rely is so noncontroversial that it is a proper subject of judicial notice is easily refuted by a single example. The petitioners' expert in the consolidated habeas proceeding, John J. Donohue III, has now published the findings that he submitted to the habeas court in a legal journal. See J. Donohue, "An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities?," 11 J. Empirical Legal Stud. 637 (2014).43 Justices Norcott and McDonald have relied on this study to support their determination that the death penalty is fatally infected with racial bias. The state has already indicated in this very case, however, that it disagrees with Donohue's study. After this court released its initial decision in the present case; see State v. Santiago, supra, 305 Conn. 101; the state filed a motion to correct arguing that, in his concurring and dissenting opinion, Justice Harper had improperly relied on Donohue's statistical findings in the habeas proceeding to support Justice Harper's conclusion that the death penalty is imposed in a racially discriminatory manner. The state pointed out that the Commissioner of Correction's expert in the habeas proceeding, Stephan Michelson, "strongly disagrees with everything aboutPage 22the Donohue study, from its conception, to its execution, to its data, to its statistical analysis, and to its conclusions. Moreover, Michelson has concluded that Donohue's data, when investigated and analyzed thoroughly and correctly, provides no evidence that the system is biased or arbitrary." (Footnote omitted.) In response to this motion, Justice Harper appropriately revised his concurring and dissenting opinion to make it clear that he was not assuming the validity of Donohue's study, but was pointing to it only "as a provocation to critical inquiry." State v. Santiago, supra, 325 n.11 (Harper, J., concurring and dissenting). Justice Harper also recognized that it should be left "to the course of judicial process to pass definitive judgment on the soundness of the study's data and its ultimate conclusions regarding the impact of race on the death penalty in Connecticut." Id. He obviously was referring to the ordinary judicial process of adversarial proceedings in the habeas court, with the assistance of qualified experts, and appellate review of the habeas court's conclusions. I strongly agree. Justices Norcott and McDonald disregard this procedural history, and contend that Chief State's Attorney Kevin Kane conceded during the legislative debate on P.A. 12-5 "that there are 'obvious' facial disparities in Connecticut's capital punishment system." See Conn. Joint Standing Committee, Judiciary, Pt. 8, 2012 Sess., p. 2651. This characterization of the legislative history of P.A. 12-5 is extremely misleading. Kane stated: "We've seen [racial] disparity. It's obvious. There's disparity in . . . the percentages of people in prison." Id. Thus, Kane said nothing about facial racial disparities in the imposition of the death penalty. Moreover, Kane denied that "the justice system consciously [is] discriminating or treating people differently because of their race or ethnicity or religion or any other reasons." Id. In addition, Kane testified that the state had "hired another expert to do a study [that] . . . eviscerates Donohue's study" purporting to show racial disparities in the imposition of the death penalty in this state, and pointed out that the validity of both studies "are going to be litigated" in court. Id., p. 2612; see also id., p. 2625 ("As a matter of who's going to determine the validity of [Donohue's report] . . . that is a decision that really ought to be made in court, in an adversary system where a court can focus on that report and the detail and the manner in which this legislature or the public could never focus on it. . . . [T]hat's why we have courts to decide that kind of issue and that's why we have lawyers on both sides of cases."). Kane did not "believe that . . . the petitioners . . . can prove that . . . there's disparity in the manner in which the death penalty process is carried out." Id., p. 2651. Rather, he was "confident that when the court looks at that [issue] it'll decide . . . that the death penalty is not sought or . . . obtained because of any inappropriate—and by inap-Page 23propriate I mean going beyond . . . the law—but for any inappropriate reasons." Id. Kane further urged the legislators not to "draw conclusions from the Donohue report. . . . There's opposing evidence, strongly opposing evidence that I think if you were a judge my feeling is you'd agree with the evidence opposing the Donohue report if you really looked at it and heard the arguments on both sides. But that's for a court to decide . . . ." Id., p. 2655. Finally, any suggestion that Justices Norcott and McDonald may rely on the truth content of these extra-record materials without any fact-finding by the trial court or assistance from the parties and their experts because they are self-evidently true is belied by Donohue himself. In the very study on which those justices rely, Donohue states that "a nonexpert's understanding of econometrics and capacity to differentiate between valid and flawed statistical findings is necessarily limited. These concerns regarding the effective use of empirical evidence by courts are not unique to the administration of the death penalty, but are broadly relevant to all domains of litigation involving complex quantitative issues."44 J. Donohue, supra, 11 J. Empirical Legal Stud. 640; see also id., 689 ("judges involved in trials with statistical expert testimony should either have a special master to consult with them throughout or at least to review their opinions prior to publication"); id. (noting "the difficulty that nonexperts have in assessing statistical results"); see also A. Larsen, supra, 98 Va. L. Rev. 1299 ("even though anyone can sort through [science] studies now with just a click of a mouse, we should not be confident that judges—or anyone without the relevant expertise—can sort through the data on their own without making a mistake"). Unlike Justices Norcott and McDonald, Donohue also acknowledged that other scholars disagreed with his findings. J. Donohue, supra, 639 ("[t]he state's expert contested my finding that cases in which minority defendants killed white victims were capitally charged and sentenced at substantially higher rates"); id., 656 (noting that Kent Scheidegger submitted report to legislature in which he contended that there is "no reason to doubt that the situation in Connecticut is consistent with the overall national picture, i.e, that claimed racial disparities would shrink to insignificance if legitimate factors, including jurisdiction, could properly be taken into account" [emphasis omitted]);45 see also K. Scheidegger, "Rebutting the Myths About Race and the Death Penalty," 10 Ohio St. J. Crim. L. 147, 154 (2012-2013) (noting that trial court in McCleskey v. Kemp, 481 U.S. 279, 107 S. Ct. 1756, 95 L. Ed. 2d 262 [1987], had found that study by David Baldus and others, which United States Supreme Court assumed to have established facial racial disparities for purposes of resolving issue on appeal, had produced "no statistically signifi-Page 24cant evidence that race plays a part in either [the prosecutor's or the jury's death penalty] decisions in the [s]tate of Georgia" [emphasis omitted; internal quotation marks omitted]); K. Scheidegger, supra, 147 (findings of racial disparities in death penalty are publicly "trumpeted" while "contrary indications from other studies, or sometimes even within the same study, are buried and never brought to the public's attention"); K. Scheidegger, supra, 147 (although "[t]he subject of what these studies show and do not show is a complex one . . . the truth, to the extent we can know it, is quite different from the common perception" that such disparities exist).46 Again, contrary to the suggestion by Justices Norcott and McDonald that I am somehow relying on or vouching for the validity of these studies, I must emphasize that I cite these studies not because I believe they are accurate, but only to point out that the opinion of Justices Norcott and McDonald on this question is based on unfounded assumptions and cherry picked opinions rather than facts found by the trial court after the two sides had a fair opportunity to present their cases. Although they point to evidence of racial disparities in this state—evidence that clearly would be sufficient to provide fodder for a legislative discussion about the continuing value of the death penalty in this state—such evidence, even if strong, simply does not amount to the type of factual findings by a trial court, where evidence is disputed, that this court has demanded for the last twenty years.47 I would also note that most of the materials on which Justices Norcott and McDonald rely do not speak to the question of whether racial disparities in the imposition of the death penalty exist in this state and at this time, which is the question that they purport to answer. Thus, not only has the truth content of the materials not been subject to the crucible of the adversarial process, many of the materials have nothing to do with the specific issue that they address. Accordingly, even if I believed that Justices Norcott and McDonald properly could address this issue in their concurring opinion—which I do not—because they have made factual findings on the basis of extra-record and irrelevant evidence, their opinion unfortunately carries no weight.V Because I disagree with the majority's conclusion that the death penalty is unconstitutional under our state constitution on the ground that it is inconsistent with contemporary societal norms and the conclusion of Justices Norcott and McDonald that it is imposed in a racially disparate manner, and because Justice Eveleigh has addressed them in his separate concurrence, I must address the other claims that the defendant raised on appeal. As the majority states, the defendant was charged with, inter alia, the capital felony of "murder committedPage 25by a defendant who is hired to commit the same for pecuniary gain" in violation of General Statutes (Rev. to 1999) § 53a-54b48 after he shot and killed the victim, Joseph Niwinski, in exchange for a snowmobile. State v. Santiago, supra, 305 Conn. 114. The defendant committed the murder on December 13, 2000. Id., 121-22. In his original appeal to this court, the defendant raised numerous claims challenging his conviction on the murder for hire charge and other charges, as well as his death sentence. Id., 142-46. This court affirmed the defendant's convictions; id., 118; but concluded that the trial court, Solomon, J., improperly had failed to disclose to the defendant certain confidential records in the possession of the Department of Children and Families that were mitigating in nature. Id., 118-19. Accordingly, we reversed the sentence of death and remanded the case to the trial court for a new penalty phase hearing. Id., 241. While the defendant's appeal was pending in this court, the legislature passed P.A. 12-5, which, as I have discussed, repealed the death penalty effective from the date of passage, April 25, 2012. See generally P.A. 12-5. The act specified that the repeal was applicable only to crimes committed on or after its effective date. P.A. 12-5, § 1. In addition, the act expressly incorporated the savings provisions set forth in General Statutes §§ 1-1 (t)49 and 54-194.50 P.A. 12-5, § 38.51 The defendant concedes in his supplemental brief to this court that the legislature clearly intended that P.A. 12-5 would abolish the death penalty prospectively. In addition, he does not dispute that the repeal of the death penalty was not intended to apply to him because he committed his crime before the effective date of P.A. 12-5. See In re Daniel H., 237 Conn. 364, 378, 678 A.2d 462 (1996) (to determine whether change in law is retroactive as applied to specific crime, court looks to date of crime). The defendant also does not dispute that the statutory savings provisions would operate to preserve eligibility for the death sentence for all persons who committed a capital felony before the enactment of P.A. 12-5 if the operation of the savings provisions were not otherwise barred. See State v. Carbone, 172 Conn. 242, 256, 374 A.2d 215 ("[§] 1-1 [t] preserves punishments incurred and prosecutions pending" at time that criminal statute is repealed), cert. denied, 431 U.S. 967, 97 S. Ct. 2925, 53 L. Ed. 2d 1063 (1977); id. (when criminal statute was repealed after defendants committed offense but before they were charged, "defendants were liable to prosecution at the date of the repeal [and ] § 54-194 preserves that liability"). The defendant claims for a variety of reasons, however, that, as the result of the enactment of P.A. 12-5, the state is barred from imposing the death penalty on any person, regardless of the date of the crime. Specifically, as I noted in part I of this dissenting opinion, he claims that, in light of the prospective repeal, imposing the death penalty onPage 26a person who committed a capital felony before April 25, 2012, would: (1) be arbitrary in violation of § 53a-46b (b); (2) constitute cruel and unusual punishment in violation of the eighth amendment to the federal constitution and of article first, §§ 8 and 9, of the constitution of Connecticut; (3) violate the equal protection guarantees of the federal and state constitutions; (4) violate the substantive due process guarantees of the federal and state constitutions; (5) violate the federal constitutional prohibition against bills of attainder; (6) violate the federal constitutional prohibition against ex post facto laws; and (7) violate the provision of article first, § 9, of the constitution of Connecticut barring punishments unless "clearly warranted by law." I would reject each of these claims.VI I first consider the defendant's claim that the imposition of the death penalty on him is barred by § 53a-46b (b).52 That statute provides for mandatory review by this court of every death sentence; see In re Application for Petition for Writ of Habeas Corpus by Dan Ross, 272 Conn. 676, 685, 866 A.2d 554 (2005); and directs the court to affirm the sentence of death unless it determines that the sentence was "the product of passion, prejudice or any other arbitrary factor . . . ." General Statutes § 53a-46b (b) (1). The defendant contends that it is inherently arbitrary, as that word is used in § 53a-46b (b) (1), to impose the death penalty on the basis of the date on which the defendant committed the crime, as provided by P.A. 12-5. I disagree. The meaning of the word "arbitrary" as used in § 53a-46b and the applicability of that word to the sentence of death authorized by P.A. 12-5 are questions of statutory interpretation subject to plenary review. See State ex rel. Gregan v. Koczur, 287 Conn. 145, 152, 947 A.2d 282 (2008). "In making such determinations, we are guided by fundamental principles of statutory construction. See General Statutes § 1-2z;53 Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) ([o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . .)." (Footnote altered; internal quotation marks omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d 248 (2010). This court previously has recognized that "§ 53a-46b can be properly understood only in light of its jurisprudential background." State v. Webb, supra, 238 Conn. 494. "In 1972, the [United States] Supreme Court invalidated all of the death penalty statutes of the states and the federal government because it determined that those statutes violated the eighth amendment's proscription against cruel and unusual punishment.54 Justice Stewart stated 'that the [e]ighth and [f]ourteenth [a]mendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishlyPage 27imposed.' . . . Furman v. Georgia, [408 U.S. 238, 310, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972)] (Stewart, J., concurring)." (Footnote added; emphasis in original.) State v. Webb, supra, 494. The United States Supreme Court's constitutional concerns about arbitrariness in the imposition of the death sentence stemmed largely from the existence of "statutes that left juries with untrammeled discretion to impose or withhold the death penalty . . . ." Gregg v. Georgia, supra, 428 U.S. 196 n.47; see also State v. Webb, supra, 238 Conn. 494-96. In State v. Ross, 230 Conn. 183, 231-32, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), this court recognized that the state could overcome these constitutional concerns by "defin[ing] the crimes for which death may be the sentence in a way that obviates standardless sentencing discretion." (Internal quotation marks omitted.) In addition, "[a] statutory requirement that, before death may be imposed, the sentencer must find at least one statutorily mandated aggravating circumstance is a constitutionally permissible response to the need to avoid standardless sentencing discretion and to narrow the class of persons eligible for the death penalty. Blystone v. Pennsylvania, 494 U.S. 299, 302, 110 S. Ct. 1078, 108 L. Ed. 2d 255 (1990); Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Jurek v. Texas, [428 U.S. 262, 270-71, 96 S. Ct. 2950, 49 L. Ed. 2d 929 (1976)]; Proffitt v. Florida, [428 U.S. 242, 251-53, 96 S. Ct. 2960, 49 L. Ed. 2d913 (1976)]; Gregg v. Georgia, supra, [198]." State v. Ross, supra, 232. This court concluded in Ross that the provisions of this state's capital sentencing scheme defining specific capital crimes and requiring proof of an aggravating factor satisfied these constitutional requirements. Id., 238-39. Once the constitutional requirement for a capital sentencing scheme that channels the sentencing authority's discretion has been satisfied, mandatory appellate review of death sentences provides an additional method of implementing the constitutional requirement that "each defendant [has received] an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime." Clemons v. Mississippi, 494 U.S. 738, 749, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990); see also Parker v. Dugger, 498 U.S. 308, 321, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991) ("meaningful appellate review [of a death sentence] requires that the appellate court consider the defendant's actual record"); Jurek v. Texas, supra, 428 U.S. 276 ("prompt judicial review of the jury's decision in a court with statewide jurisdiction . . . provide[s] a means to promote the evenhanded, rational, and consistent imposition of death sentences under law"). This court previously has recognized that § 53a-46b was intended to implement this eighth amendment requirement. In re Application for Petition for Writ of HabeasPage 28Corpus by Dan Boss, supra, 272 Conn. 689 n.8; see also State v. Webb, supra, 238 Conn. 497. Indeed, "the appellate review language of § 53a-46b [requiring the reviewing court to determine whether the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor] tracks almost precisely the . . . language . . . that the United States Supreme Court had declared constitutional in Gregg."55 State v. Webb, supra, 503, citing Gregg v. Georgia, supra, 428 U.S. 198; Gregg v. Georgia, supra, 198 ("As an important additional safeguard against arbitrariness and caprice, the Georgia statutory scheme provides for automatic appeal of all death sentences to the [s]tate's Supreme Court. That court is required by statute to review each sentence of death and determine whether it was imposed under the influence of passion or prejudice, [and] whether the evidence supports the jury's finding of a statutory aggravating circumstance . . . ."). This court has held that, after it has conducted an "independent and scrupulous examination of the entire record"; (internal quotation marks omitted) State v. Santiago, supra, 305 Conn. 243; a determination that the evidence supports the imposition of the death penalty under our facially valid capital sentencing scheme ordinarily will be sufficient to support a conclusion that the sentence of death was not arbitrary in violation of the eighth amendment and § 53a-46b (b). See id., 247-48 n.124 (declining to engage in further review of defendant's claim that death sentence was arbitrary after determining that evidence supported jury's weighing of aggravating and mitigating factors); State v. Courchesne, 296 Conn. 622, 786 n.105, 998 A.2d 1 (2010) (rejecting claim that death sentence was arbitrary for "the same essential reasons that we conclude that the evidence was sufficient to support the imposition of the death penalty under our capital sentencing scheme"); see also McCleskey v. Kemp, supra, 481 U.S. 308 (when death sentence was imposed under capital sentencing scheme that focuses "on the particularized nature of the crime and the particularized characteristics of the individual defendant . . . [the reviewing court] lawfully may presume that [the defendant's] death sentence was not wantonly and freakishly imposed" [citation omitted; internal quotation marks omitted]). This court also has recognized, however, that, if a defendant could show that a sentencing authority's decision to impose the death sentence was influenced by an improper consideration, such as the race of the defendant or the victim, the sentence might be vacated as arbitrary, in violation of § 53a-46b (b) (1) and the eighth amendment, notwithstanding the fact that the sentence was imposed pursuant to a facially constitutional capital sentencing scheme and was supported by the evidence.56 See State v. Cobb, supra, 234 Conn. 761-62, 762 n.20; see also McCleskey v. Kemp,Page 29supra, 308-309 (indicating that proof that race was factor in specific sentencing decision would invalidate sentence imposed pursuant to facially valid capital sentencing scheme); cf. McCleskey v. Kemp, supra, 312-13 (unexplained statistical discrepancy in imposition of death penalty that correlates with race does not render death penalty facially invalid). As the foregoing analysis shows, § 53a-46b was intended to implement the United States Supreme Court's eighth amendment jurisprudence, under which the word "arbitrary" refers to unprincipled and irrational decisions made by sentencing authorities, either because the state's capital sentencing scheme had given the sentencing authority "untrammeled discretion to impose or withhold the death penalty"; Gregg v. Georgia, supra, 428 U.S. 196 n.47; or because, despite the existence of a statutory scheme that properly channeled the sentencing authority's discretion, the sentencing authority misapplied the law or based its decision on improper factors. In the present case, the legislature's enactment of P.A. 12-5 implicates neither of these eighth amendment concerns. Public Act 12-5 had no effect on the provisions of our capital sentencing scheme that are designed to ensure that the sentencing authority has given "each defendant an individualized and reliable sentencing determination based on the defendant's circumstances, his background, and the crime"; Clemons v. Mississippi, supra, 494 U.S. 749; and there is no claim that, as a result of the legislation, the sentencing authority will consider any factor other than those that it is statutorily and constitutionally authorized to consider. Indeed, the only effect of P.A. 12-5 is to reduce the class of defendants who may be subjected to a sentencing authority's discretion to impose the death penalty in the first instance. As I have explained, that effect cannot render the statutory scheme unconstitutional because the eighth amendment is concerned only with ensuring that the sentence that the defendant actually received is nonarbitrary, not with whether or in what manner other defendants will be spared the death penalty. In short, under this state's capital sentencing scheme as amended by P.A. 12-5, death sentences are simply not "cruel and unusual in the same way that being struck by lightning is cruel and unusual"; Furman v. Georgia, supra, 408 U.S. 309 (Stewart, J., concurring); because the scheme does not permit the sentencing authority to impose the death penalty on a class of "capriciously selected" defendants.57 Id., 309-10 (Stewart, J., concurring). Instead, the defendant claims that the legislature, as opposed to the sentencing authority, has acted arbitrarily by "exposing a defendant who commits his crime on April 24, 2012, to a death sentence, while not exposing a defendant who commits the same crime on April 25, 2012, to a death sentence." Claims involving arbitrary legislative classifications implicate constitu-Page 30tional equal protection principles, however, not the eighth amendment principles that § 53a-46b was intended to implement. See, e.g., State v. Higgins, 265 Conn. 35, 65, 826 A.2d 1126 (2003) (addressing claim that General Statutes [Rev. to 2003] § 53a-54b (8), providing that murder of person under age of sixteen years is capital felony, "violates constitutional equal protection principles because it treats the class of defendants who have murdered children under the age of sixteen differently than the class of defendants who have murdered adults"). Thus, the defendant is effectively invoking § 53a-46b, which was intended to implement eighth amendment principles, in an attempt to raise an equal protection claim. I would reject this attempt because, first, even if P.A. 12-5 violated equal protection principles, the United States Supreme Court has never "held it to be cruel and unusual punishment to impose a sentence in violation of some other constitutional imperative." (Emphasis in original.) Atkins v. Virginia, supra, 536 U.S. 352 (Scalia, J., dissenting). In other words, a statutory death penalty provision that violated equal protection principles would not, for that reason alone, violate the eighth amendment prohibition on arbitrary sentencing. Second, I conclude in part VIII of this dissenting opinion that P.A. 12-5 does not violate the equal protection provisions of the state or federal constitution, and the defendant has cited no authority for the proposition that a legislative classification that satisfies equal protection principles can violate the eighth amendment merely because the line drawn by the legislature, "[l]ooked at by itself without regard to the necessity behind it . . . seems arbitrary."58 (Internal quotation marks omitted.) State v. Higgins, supra, 68; see also id., 68-69 (rejecting claim that General Statutes [Rev. to 2003] § 53a-54b [8] is irrational merely because legislature could have drawn line between children and adults in any number of places). Accordingly, I would conclude that imposing the death sentence on the defendant would not be arbitrary in violation of § 53a-46b.59VII I next address the defendant's claim that imposing the death penalty against him when it cannot be imposed on defendants who committed their crimes after the effective date of P.A. 12-5 would be cruel and unusual punishment in violation of the eighth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. I disagree.A I first address the defendant's claims under the eighth amendment. He claims that: (1) executing a person in a state that has prospectively repealed the death penalty is inconsistent with contemporary standards of decency; and (2) P.A. 12-5 eliminates any legitimate penological objective for the death penalty.60Page 311 In support of his claim that executing a death sentence in a state that has prospectively repealed the death penalty is inconsistent with contemporary standards of decency and, therefore, violates the eighth amendment to the federal constitution, the defendant contends both that there is a societal consensus in this state against the imposition of the death penalty and that there is a national consensus against postrepeal executions.61 I have already concluded in part III of this dissenting opinion that there is no consensus in this state against the death penalty.62 See also part VII B of this dissenting opinion. For the following reasons, I would also reject the defendant's contention that imposing the death sentence on him would violate the eighth amendment because there is a national consensus against postrepeal executions. "The [c]ruel and [u]nusual [p]unishments [c]lause prohibits the imposition of inherently barbaric punishments under all circumstances." Graham v. Florida, supra, 560 U.S. 59. "For the most part, however, the [United States Supreme] Court's precedents consider punishments challenged not as inherently barbaric but as disproportionate to the crime." Id. "The [c]ourt's cases addressing the proportionality of sentences fall within two general classifications. The first involves challenges to the length of term-of-years sentences given all the circumstances in a particular case. The second comprises cases in which the [c]ourt implements the proportionality standard by certain categorical restrictions on the death penalty." Id. "The second classification of cases has used categorical rules to define [e]ighth [a]mendment standards. The previous cases in this classification involved the death penalty. The classification in turn consists of two subsets, one considering the nature of the offense, the other considering the characteristics of the offender. With respect to the nature of the offense, the [c]ourt has concluded that capital punishment is impermissible for nonhomicide crimes against individuals. Kennedy [v. Louisiana, supra, 554 U.S. 437-38 (death penalty for rape of child violates eighth amendment)]; see also Enmund v. Florida, [supra, 458 U.S. 782] [death penalty for felony murder violates eighth amendment when defendant did not kill, attempt to kill or intend to kill victim]; Coker v. Georgia, 433 U.S. 584 [97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977) (death penalty for rape of adult woman violates eighth amendment)]. In cases turning on the characteristics of the offender, the [c]ourt has adopted categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of [eighteen], Roper v. Simmons, [supra, 543 U.S. 551], or whose intellectual functioning is in a low range, Atkins v. Virginia, [supra, 536 U.S. 304]. See also Thompson v. Oklahoma, [supra, 487 U.S. 815]." GrahamPage 32v. Florida, supra, 560 U.S. 60-61. Thus, in cases involving the death penalty, the United States Supreme Court has applied the " 'evolving' standards of decency" rubric in two situations: (1) when the defendant claimed that the death penalty was categorically disproportionate for a particular crime; and (2) when the defendant claimed that the death penalty was categorically disproportionate for defendants with a particular characteristic that reduces their moral culpability, such as youth or mental disability. In other words, when society has reached a consensus that the death penalty for a particular crime or a particular class of defendants is cruel and unusual, no person who commits such a crime or falls within the protected class may be executed. In the present case, the defendant makes no claim that the death penalty is disproportionate for a particular crime or for a particular class of defendants whose moral culpability is reduced. Rather, he claims only that it violates contemporary standards of decency to impose the death penalty on him when the death penalty cannot be imposed on a defendant who commits a similar crime after the date of repeal. Thus, his claim under the evolving standards of decency rubric is essentially a reiteration of his claim that imposing the death sentence on him would be the result of an arbitrary legislative classification based on the date of the crime, which, as I have explained, is the type of claim that this court historically has subjected to an equal protection analysis, not to an eighth amendment analysis. See part VI of this dissenting opinion. Moreover, even if I were to assume that the " 'evolving' standards of decency" rubric may be applied to this type of claim, it is unclear to me how a national consensus against imposing the death penalty after it has been prospectively repealed could emerge when only a small minority of states have repealed the death penalty prospectively.63 As of the date of this opinion, of the states that have no death penalty, the twelve states that have prospectively repealed it are: Connecticut, Hawaii,64 Illinois,65 Iowa,66 Maine,67 Maryland,68 Michigan,69 Minnesota,70 New Jersey,71 New Mexico,72 Vermont73 and Wisconsin.74 In states where there has been no prospective repeal, which constitute the great majority, the practices of the state can reveal nothing about their citizens' beliefs on this issue and, indeed, there is little call for those citizens to have an opinion one way or the other. Accordingly, there is no discernible "national" consensus on this question. Finally, even if I were to assume that we may determine a societal consensus based on the practices of the small minority of states that have enacted a prospective repeal of the death penalty, I am not persuaded that the practices of those states reveal any societal trend. I acknowledge that there has not been an execution in a state where the death penalty had been prospectivelyPage 33repealed and not reinstated.75 This fact does not establish convincingly, however, that there is a societal consensus among those states against the postrepeal imposition of the death penalty for crimes committed prior to the repeal. In Illinois and New Jersey, the governor granted clemency to every defendant who had been sentenced to death before the prospective repeal.76 In addition, according to the amicus, group of legal historians and scholars, the governor of Hawaii commuted the death sentences of two death row inmates when the Hawaii legislature prospectively repealed the death penalty in 1957 and, when the death penalty was prospectively repealed in Minnesota in 1911, the Minnesota Board of Pardons commuted the death sentences of the two remaining inmates on death row. While this appeal was pending, the governor of Maryland also commuted the sentences of that state's death row inmates.77 Thus, although a governor's response to legislation may reflect societal standards of decency; State v. Rizzo, supra, 303 Conn. 199-201; in only five out of the twelve states that have prospectively repealed the death penalty did the governor or the board of pardons grant clemency to the inmates who were on death row when the death penalty was prospectively repealed.78 In New Mexico, there were two prisoners on death row at the time of repeal and the governor declined to grant clemency.79 See id., 190 n.88 ("the New Mexico ban is prospective only and no clemency has been granted to convicted capital offenders"). While those defendants have not yet been executed, they remain on death row.80 Similarly, there are eleven prisoners on death row in this state, and, while there have been no executions since the death penalty's prospective repeal, the prisoners also have not had their sentences commuted.81 Thus, in these states, societal approval of postrepeal executions can be inferred from the legislature's choice of prospective repeal and the failure of the authorized governmental entity to commute the death sentences of those on death row.82 See id., 191 ("the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country's legislatures" [internal quotation marks omitted]). For four of the twelve states that have prospectively repealed the death penalty—Maine, Michigan, Vermont and Wisconsin—neither the defendant nor the amicus group of legal historians and scholars has provided any explanation for the fact that no prisoners were executed after the effective date of the repeal.83 Thus, I can only speculate whether there were no prisoners on death row in those states at the time of the repeal, or whether some or all of the prisoners pursued successful appeals of their death sentences. Accordingly, I am unable to derive any particular societal consensus from the practices of those states beyond the approval implicit in the prospective repeal itself.84 The amicus group of legal historians and scholarsPage 34also points out that a number of states have repealed the death penalty and then reinstated it, and claims that no death row inmate convicted under a statute that was repealed was executed after the repeal.85 With respect to these states, although it appears from the information provided by the amicus that no prisoner was executed in any of these states during the period after repeal and before reinstatement, I am unable to discern from the information provided whether any prisoner was executed pursuant to a repealed statute after reinstatement. Nevertheless, even if the amicus group of legal historians and scholars is correct that no defendant who had been sentenced to death at the time of a temporary repeal was ever executed, I am not persuaded that that fact would establish that there is a societal consensus against the postrepeal imposition of the death penalty for crimes committed prior to the repeal. I can perceive no reason why the citizenry of a state would be in favor of the death penalty for an offense that was committed after reinstatement but, at the same time, would believe that executing a prisoner who committed a similarly egregious offense before a prospective repeal would be beyond the pale of decency, unless there were procedural flaws in the repealed statute that cast doubt on the fairness of the prisoner's conviction.86 In that case, however, societal reluctance to impose the death penalty pursuant to the repealed statute would not be the result of any qualms about the morality of doing so. Moreover, the fact that the death penalty was reinstated in these states suggests that repeal does not necessarily reveal an emergent societal consensus that the death penalty is immoral or disproportionate. Accordingly, I would conclude that the fact that no state has executed a prisoner after repealing the death penalty prospectively does not establish that there is a national societal consensus that it would be immoral or disproportionate to do so.2 The defendant also claims that imposing the death penalty on him would violate the eighth amendment because the enactment of P.A. 12-5 eliminated any penological objective for the death penalty. Specifically, he claims that the death penalty no longer has any deterrent effect because the punishment can no longer be imposed and retribution justifies a punishment only if the punishment is imposed uniformly on all defendants who commit a specific type of crime. I would reject this claim for the reasons that I have already discussed in part III of this dissenting opinion.B I next address the defendant's claim that imposing the death penalty on him after the enactment of P.A. 12-5 violates article first, §§ 8 (a) and 9, of the Connecticut constitution. As I have indicated, the majority has addressed this question, but on broader grounds thanPage 35the sole ground raised by the defendant. Specifically, the defendant contends that "the basic mores of society in Connecticut today, as evidenced by passage of [P.A. 12-5], should be this court's primary consideration when determining whether an execution in the state today" would violate the state constitution. (Emphasis added; internal quotation marks omitted.) For all of the reasons that I disagree with the majority's broader conclusion that the death penalty violates these provisions of the state constitution, however; see part III of this dissenting opinion; I would also reject this narrower claim. I note, however, that, in addition to the arguments that I have previously addressed, the defendant also points out that the legislative history of P.A. 12-5 reveals that, when the legislators "had the opportunity to vote for an amendment that would 'send a message' that carrying out existing death sentences took priority over abolishing capital punishment, a majority of them chose instead to send the message that abolition was their paramount goal." Specifically, he points out that legislators in both the House of Representatives and in the Senate introduced unsuccessful amendments to the proposed legislation that would have rescinded the repeal if the death sentence of any of the eleven prisoners then on death row were invalidated by the courts as the result of the passage of the proposed legislation. See Substitute Senate Bill No. 280, House Amendment, Schedule A, LCO No. 3120, 2012 Sess., offered by Representatives Lawrence F. Cafero, Jr., and John W. Hetherington; id., Senate Schedule D, LCO No. 3058, offered by Senators John McKinney and Leonard A. Fasano. The amendment was voted down in both chambers. See 55 H.R. Proc., supra, p. 1066; 55 S. Proc., supra, pp. 669-70. The defendant contends that the failure to adopt this amendment shows that the legislature's primary purpose in enacting P.A. 12-5 was to eliminate a penalty that it no longer believes comports with contemporary standards of decency. The defendant, however, has cherry picked the portions of the legislative history that support his position and simply ignores the portion of the legislative history that shows that a number of legislators believed that, if a death sentence were found to be unconstitutional as the result of the passage of P.A. 12-5, the death penalty would be reinstated for all defendants. In the House of Representatives, one legislator argued that the amendment would not affect the substance of the bill, but simply would make the legislature's intent abundantly clear to the courts and prevent them from "making law." 55 H.R. Proc., supra, p. 1064, remarks of Representative Pamela Z. Sawyer; id. ("When we look at the courts and the expectations that we have of them, it is to evaluate a question of law. We . . . particularly get rankled if we think that they are making law. . . . That's why this amendment is very important becausePage 36it's very clear to the courts when they make their determination what will happen."). Thus, Representative Sawyer contended that the amendment should be adopted under a "belt and suspenders" rationale, and that, even without it, the intent of the legislature was that the death penalty would be reinstated if the proposed legislation were invalidated. Similarly, in the Senate, a legislator who opposed the death penalty argued against adopting the amendment on the ground that it was unnecessary because, if the courts found any portion of the proposed legislation to be unconstitutional, the entire act would be voided, resulting in the reinstatement of the death penalty. See 55 S. Proc., supra, p. 667, remarks of Senator Eric D. Coleman ("[E]ven assuming that [the proposed legislation would be found unconstitutional], I don't know what else would happen except that the people that are on death row would remain on death row and the bill as amended, if it were to become law, would be voided. And consequently . . . I just don't think that it's something that's necessary to adopt."); see also id., p. 668, remarks of Senator Fasano ("I guess I look at [the amendment] as a spare tire in your trunk. You may not need it. But if it is unconstitutional, you have it. And you've protected the intent of the [l]egislature, which is not, clearly not to let the [eleven prisoners] currently on death row to get a different sentence."). In any event, as the defendant concedes, the legislature clearly intended that the repeal of the death penalty would be prospective only and that the statutory savings clauses would operate to preserve the death penalty for defendants who committed their crimes before the repeal. Accordingly, even if I were to assume that the legislature preferred that, if the different treatment of defendants who committed their crimes before the repeal were found to be unconstitutional, the death penalty would be struck down in its entirety—a preference for which there is no evidence in the legislative history—that would not reflect a belief that the death penalty is immoral. Rather, in light of the fact that there were not enough votes in the legislature to repeal the death penalty retroactively, it would be just as reasonable to conclude that the legislature believed only that, if prospective repeal were not an option, the practical costs of imposing the death penalty on future defendants would outweigh the penologically legitimate benefits of imposing the death penalty on those already on death row. Accordingly, I would reject the defendant's claim that the enactment of P.A. 12-5 and the legislative history of the act reflect a societal consensus against the death penalty. In support of his conclusion that P.A. 12-5 violates the constitutional prohibition on cruel and unusual punishment, Justice Eveleigh, in his concurring opinion, relies on Fleming v. Zant, 259 Ga. 687, 690, 386 S.E.2d 339 (1989), Cooper v. State, 540 N.E.2d 1216, 1220 (Ind.Page 371989), State v. Bey, 112 N.J. 45, 98, 548 A.2d 846 (1998), and Van Tran v. State, 66 S.W.3d 790, 811 (Tenn. 2001). Justice Eveleigh states conclusorily that, contrary to my conclusion, these cases "were not all solely grounded on the fact that the legislative enactments addressed offenders who, in general, are less culpable than the average adult offender . . . . Rather, these decisions aptly highlighted the fundamental unfairness inherent in executing a defendant when, due to a legislative enactment either prospectively repealing the death penalty or substantially altering the way in which the death penalty may be imposed in the future, that defendant would not have been eligible for the death penalty if he or she had been sentenced after the enactment took effect." Justice Eveleigh has not cited a single case, however, in which a court has concluded that a legislative classification that is based on the date of the offense alone, and that does not implicate the culpability of a class of offenders or the seriousness of a class of offenses, violates any constitutional provision. Moreover, even if the cases relied on by Justice Eveleigh supported the proposition that a classification based on the date of the offense in and of itself violates the eighth amendment, I would disagree with them. It would necessarily follow from such a conclusion that: (1) although the death penalty was constitutional when imposed on the defendants who are on death row in this state, it became unconstitutional upon the enactment of P.A. 12-5; and (2) if the legislature decided to repeal P.A. 12-5 and to reinstate the death penalty, the death sentences for those defendants would no longer be cruel and unusual punishment. I fail to see how a death sentence that was constitutional when imposed on a class of offenders could become cruel and unusual punishment merely because the legislature has determined for legitimate reasons that it will not seek the death penalty for another class of defendants who also may constitutionally be subject to the death penalty. None of the concerns underlying traditional eighth amendment jurisprudence are implicated under these circumstances.87 Moreover, it would be absurd to conclude that it is unconstitutional to impose the death penalty on offenders who committed their offenses before the effective date of P.A. 12-5, but that imposing the death penalty on those offenders could be rendered constitutional by repealing the act and imposing the death penalty on another class of offenders, namely, those who commit crimes after April 25, 2012. Implicitly recognizing the weakness of the defendant's argument that the legislative classification created by P.A. 12-5, in and of itself, renders the act unconstitutional, Justice Eveleigh ultimately is required to rely on the proposition that the legislature has declared "that the death penalty is no longer an acceptable punishment for any crime committed today." (Emphasis in original.) Accordingly, he concludes thatPage 38"the question is not whether Connecticut may create an exception to an otherwise acceptable punishment, but whether Connecticut may inflict an otherwise unacceptable punishment on the defendant." (Emphasis added.) It is clear, therefore, that Justice Eveleigh does not believe that the different treatment of defendants who commit similar crimes renders P.A. 12-5 unconstitutional; rather, his entire analysis is driven by his newfound belief that the death penalty is unconstitutional in this state because it no longer comports with contemporary standards of decency—a view that is hard to reconcile with the view that Justice Eveleigh previously has taken in this very case. See State v. Santiago, supra, 305 Conn. 307 (rejecting defendant's claim that death penalty is unconstitutional under state constitution). As I have indicated repeatedly, however, the legislative history of P.A. 12-5 supports the conclusion that the legislature has not determined that the death penalty is an unacceptable punishment. Rather, the legislature has determined only that, even though defendants who commit murder with special circumstances after the effective date of the act are equally as culpable as those who committed capital offenses before the effective date, and are equally deserving of the death penalty, the costs of seeking the death penalty are no longer tolerable.88 Accordingly, contrary to Justice Eveleigh's opinion, the question that this court must answer is precisely whether our legislature "may create an exception to an otherwise acceptable punishment" for defendants who committed their crimes after the effective date of the act on the ground that the death penalty is no longer workable, and not "whether [it] may inflict an otherwise unacceptable punishment on the defendant." As long as the exception satisfies equal protection principles—which I conclude in part VIII of this dissenting opinion that it does—I would conclude that the answer to that question is "yes."VIII I next address the defendant's claim that imposing the death penalty on him would violate the equal protection clauses of the state and federal constitutions. I disagree.A I first address the defendant's claim under the federal constitution.89 "To prevail on an equal protection claim, a plaintiff first must establish that the state is affording different treatment to similarly situated groups of individuals. . . . [I]t is only after this threshold requirement is met that the court will consider whether the statute survives scrutiny under the equal protection clause." (Citation omitted; internal quotation marks omitted.) Keane v. Fischetti, 300 Conn. 395, 403, 13 A.3d 1089 (2011); see also State v. Higgins, supra, 265 Conn. 65 n.27 ("[t]he analytical predicate [for consideration of an equal protection claim] is a determination of whether the allegedly disparately treated groups arePage 39similarly situated" [internal quotation marks omitted]). In Dortch v. State, 142 Conn. 18, 27-28, 110 A.2d 471 (1954), the defendant, who had been convicted of first degree murder and sentenced to death, claimed that an amendment to the state's capital sentencing scheme that was enacted after he committed his crime and that, for the first time, allowed the jury to recommend "imprisonment for life without pardon" as a punishment for first degree murder, must apply to him under constitutional equal protection principles.90 This court concluded that, as a matter of statutory interpretation, the statute was not retroactive because of the operation of the statutory savings provisions set forth in General Statutes (1949 Rev.) §§ 8872 and 8890, now codified as, respectively, General Statutes §§ 54-194 and 1-1 (t). Id., 29. The court then concluded that, "[a]s the law now stands, the penalty for all first degree murders committed prior to October 1, 1951, is death; for all first degree murders committed thereafter, the penalty is either death or life imprisonment. It follows that the plaintiff is being treated in exactly the same manner as all others who committed murder in the first degree prior to October 1, 1951." Id., 30. Thus, this court implicitly held that the defendant was not similarly situated to defendants who committed first degree murder after October 1, 1951.91 See also Comerford v. Commonwealth, 233 F.2d 294, 295 (1st Cir.) (Disparate treatment of prisoners "might arise when a legislature prospectively reduced the maximum penalty for a crime, for then a prisoner sentenced to the maximum penalty before the effective date of the act would serve a longer [term of] imprisonment than one sentenced to the maximum term thereafter. Yet we are not aware of any violation of the constitutional rights of either group of prisoners in that situation . . . provided . . . that all prisoners in each group are treated alike . . . ."), cert. denied, 352 U.S. 899, 77 S. Ct. 141, 1 L. Ed. 2d 90 (1956); People v. Brown, 54 Cal. 4th 314, 329, 278 P.3d 1182, 142 Cal. Rptr. 3d 824 (2012) ("inmates [are] only similarly situated with respect to the purpose of [the new law] on [its effective date], when they were all aware that it was in effect and could choose to modify their behavior accordingly" [internal quotation marks omitted]); People v. Floyd, supra, 31 Cal. 4th 189-90 (citing cases); People v. Grant, 71 Ill. 2d 551, 561, 377 N.E.2d 4 (1978) ("[T]he ability to elect to be sentenced under a law enacted after the date of the commission of a crime is not a constitutional right but a benefit conferred solely by statute. It is not unconstitutional for the legislature to confer such benefit only prospectively, neither is it unconstitutional for the legislature to specify a classification between groups differently situated, so long as a reasonable basis for the distinction exists." [Internal quotation marks omitted.]); Rondon v. State, 711 N.E.2d 506, 513 (Ind. 1999) ("Criminal statutes apply exclusively to one class of people, those who violate the law, and they relatePage 40to the specific point in time that a violation occurs. Upon alteration of the criminal law, individuals subsequently convicted are not similarly situated and cannot be equated to those previously convicted." [Internal quotation marks omitted.]); State v. Roseborough, 263 Kan. 378, 386, 951 P.2d 532 (1997) ("[a]s long as [the defendant] is treated the same as other offenders who were sentenced under the applicable law in effect at the time they committed their crimes, there is no constitutional violation"); Sonnier v. State, 913 S.W.2d 511, 520-21 (Tex. Crim. App. 1995) ("appellant was treated in the same manner as all those who committed a capital murder after September 1, 1991; that is, he is treated the same as all those 'similarly situated' "); cf. Meeks v. Jago, 548 F.2d 134, 138 (6th Cir. 1976) (defendant "was not denied [e]qual [p]rotection of the [l]aws or [d]ue [p]rocess of [l]aw as long as sentence was imposed according to the statute applicable at the time of sentence"), cert. denied, 434 U.S. 844, 98 S. Ct. 145, 54 L. Ed. 2d 109 (1977); State v. Ferrell, 126 Ariz. 1, 2, 612 P.2d 42 (1980) (applying more severe law in force at time defendant committed offense does not deny equal protection of law); cf. Dobbert v. Florida, 432 U.S. 282, 301, 97 S. Ct. 2290, 53 L. Ed. 2d 344 (1977) (defendant who was sentenced to death under statute enacted after he committed crime was not similarly situated to defendants who were sentenced to death before effective date of new statute and had sentences commuted).92 It is clear, therefore, that, under Dortch and the great weight of authority from other jurisdictions, the defendant in the present case is not similarly situated to defendants who commit similarly egregious crimes after the effective date of P.A. 12-5. Moreover, even if I were to assume that the defendant is similarly situated to defendants who committed their crimes after the effective date of P.A. 12-5, he has not established beyond a reasonable doubt that imposing the death penalty on him would constitute a denial of the equal protection of the laws under the federal constitution. First, when a person is on notice that a specific crime is punishable by a specific penalty, and the person chooses to commit that crime, there simply is nothing unfair about imposing the penalty in effect at the time of the offense; State v. Kane, 101 Wn. App. 607, 618, 5 P.3d 741 (2000) ("there is nothing fundamentally unfair in sentencing offenders in accordance with the law they presumably were aware of at the time they committed their offenses"); at least when the law imposes the penalty in effect at the time of the offense on all persons who commit similar offenses during the same period, which P.A. 12-5 does; see part V of this dissenting opinion; and the law in effect at the time of the offense is not otherwise unconstitutional. In other words, even if I were to assume that defendants who violate a statutory scheme that is later amended or repealed are similarly situated to defendants whoPage 41engage in the same conduct after amendment or repeal, when all defendants are subject to the law in effect at the time of their crimes, all are being treated the same. See United States v. Santana, 761 F. Supp. 2d 131, 162 (S.D.N.Y. 2011) ("[T]he result of prospective application of the [Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010)] is . . . that similarly situated defendants will be treated similarly. . . . All those who committed their offenses before the enactment of [that act] will be sentenced according to the statutory scheme in place at the time the offenses were committed, while all those who commit crack-related offenses after [the effective date] will be subject to the [Fair Sentencing Act of 2010]." [Citation omitted.]). Second, even if I were to assume that P.A. 12-5 does not treat all defendants the same because it imposes a different penalty depending on the date of the crime, it is well established that "a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.93 . . . The test . . . is whether this court can conceive of a rational basis for sustaining the legislation; we need not have evidence that the legislature actually acted upon that basis. . . . Further, the [e]qual [p]rotection [c]lause does not demand for purposes of rational-basis review that a legislature or governing decisionmaker actually articulate at any time the purpose or rationale supporting its classification." (Footnote added; internal quotation marks omitted.) Harris v. Commissioner of Correction, 271 Conn. 808, 834, 860 A.2d 715 (2004); see also State v. Higgins, supra, 265 Conn. 68 ("When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself without regard to the necessity behind it the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark. . . . [I]n every instance where a line must be drawn or a cutoff established there are those who fall directly on either side. . . . [W]e cannot, for this reason, find the [legislation] unreasonable in its purpose and overall effect. . . . If a conceivable rational basis exists for the distinction, then the classification passes constitutional muster." [Citation omitted; internal quotation marks omitted.]). I would conclude that there is a legitimate rational basis for the classification created by P.A. 12-5. As IPage 42have indicated, with respect to defendants who committed their crimes before the effective date of P.A. 12-5, the legislature reasonably could have concluded that its refusal to enforce the laws in place when the crime was committed would send the message to potential offenders that the laws are unstable and that the state ultimately may be unwilling to enforce them, thereby weakening their force. See People v. Floyd, supra, 31 Cal. 4th 191. In addition, the legislature reasonably could have concluded that, because the defendants on death row already have been subject to many of the expensive, time-consuming and emotionally wrenching procedures that the prospective repeal was intended to avoid, those societal costs do not outweigh the deterrent and retributive benefits of imposing the death penalty on these defendants.94 Cf. id., 189-90 (citing cases for proposition that "[a] reduction of sentences only prospectively from the date a new sentencing statute takes effect is not a denial of equal protection" [internal quotation marks omitted]); People v. Grant, supra, 71 Ill. 2d 561-62 ("[T]he legislature distinguished between those defendants, on the one hand, who had not yet been accorded any sentencing hearings prior to the cut-off date, and those, on the other hand, whose sentences, already imposed, would require remandments for additional sentencing hearings. We find this to be a reasonable basis for distinction and, therefore, no constitutional denial of equal protection."); see also State v. Higgins, supra, 265 Conn. 69 (rejecting defendant's claim that statute authorizing death penalty for murder of child under age of sixteen years violated equal protection principles because legislature could have defined protected class in any number of ways). Finally, as I previously have explained in part III of this dissenting opinion, the legislature rationally could have believed that its decision not to repeal the death penalty retroactively was justified by the legitimate expectations of the families of the victims of the capital felonies that were committed before the enactment of P.A. 12-5 who already have been subjected to the trauma of capital felony litigation. Indeed, the defendant has not cited, and my research has not revealed, a single case in which a court has held that, when the legislature amends a criminal statute to impose a less severe punishment, its failure to make the new punishment retroactive violates equal protection principles under any theory.95 Accordingly, I would reject the defendant's claim that P.A. 12-5 violates the equal protection clause of the federal constitution.B I next consider the defendant's claim that imposing the death penalty on him would violate his right to equal protection of the laws under article first, § 1, of the Connecticut constitution.96 The defendant contends that the fourth, fifth and sixth Geisler factors supportPage 43this claim. See State v. Rizzo, supra, 303 Conn. 136 (under Geisler, courts may consider "[4] related Connecticut precedents; [5] persuasive precedents of other state courts; and [6] . . . relevant public policies" [internal quotation marks omitted]).97 With respect to the fourth Geisler factor, this court's precedents, the defendant relies on this court's decisions in State v. Conlon, 65 Conn. 478, 33 A. 519 (1895), and Tough v. Ives, 162 Conn. 274, 294 A.2d 67 (1972). In Conlon, this court held that a statute that conferred on mayors within this state "[t]he unrestrained power of selecting the favored recipients of a license" to engage in a temporary business for the sale of goods in their respective cities; State v. Conlon, supra, 487; violated article first, § 1, of the Connecticut constitution. Id., 491. This conclusion rested largely on the fact that the purpose of the statute was "to grant exclusive privileges to such persons as [the mayors] please in the transaction of a lawful business essential to the conduct of human affairs, and in which each citizen has an equal right to engage for the support of life," with "absolutely no legal test and no indication of who may be a 'proper person.' " Id., 488; see also id. (purpose of statute was "to authorize the mayor to permit or forbid the transaction of an ordinary lawful business at his pleasure"). No such unrestrained government discretion, however, is at issue in the present case. Accordingly, I would conclude that the defendant's reliance on Conlon is misplaced. The defendant relies on Tough v. Ives, supra, 162 Conn. 293, for the proposition that, under article first, § 1, of the state constitution, legislative "classifications must be based on natural and substantial differences, germane to the subject and purpose of the legislation, between those within the class included and those whom it leaves untouched." The defendant, however, provides no analysis and cites no authority to support the proposition that this standard is stricter than the standard that we apply under the federal constitution. See Daily v. New Britain Machine Co., 200 Conn. 562, 578, 512 A.2d 893 (1986) (under federal constitution, classification "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation" [internal quotation marks omitted]). With respect to the fifth Geisler factor, precedents of other states, the defendant relies on People v. Canister, 100 P.3d 380 (Colo. 2005), and People v. Hagos, 110 P.3d 1290 (Colo. 2005). In People v. Canister, supra, 381, the defendant, Randy Canister, was charged with offenses that made him eligible for the death penalty. During his trial, the United States Supreme Court held that state capital sentencing schemes like the one in effect in Colorado were unconstitutional. Id. Thereafter, Canister was convicted of the offenses. Id., 382. WithinPage 44days of his conviction, the Colorado legislature passed a law providing that all defendants (1) for whom the prosecution, as of the effective date of the law, had announced it was seeking the death penalty, (2) who had been convicted of the offense that made them eligible for the death penalty, and (3) who had not yet had a sentencing hearing, would be subject to a new sentencing procedure that complied with the constitution.98 Id., 381-82. The only defendants in this category were Canister, and the defendant in Hagos, Abraham Hagos. Id., 382. The trial court in Canister concluded that the application of the newly enacted death penalty law to Canister violated the Colorado constitution's prohibition on special legislation.99 Id. On appeal, the Supreme Court of Colorado concluded that, because "it [was] absolutely certain that no one, other than Canister and Hagos, will ever meet the statutory criteria set forth" in the resentencing law; (emphasis in original) id., 385; the classification created by the law was "illusory" and irrational and, therefore, violated the constitutional prohibition against special legislation. Id.; see also People v. Hagos, supra, 1291 (same). Unlike in Canister and Hagos, however, the class of persons subject to the death penalty under P.A. 12-5 is not limited to the defendant or even to those defendants who have already been charged and convicted of capital offenses in this state. Rather, the class includes all persons who committed crimes subjecting them to the death penalty in this state before the effective date of P.A. 12-5, including all of those who have already been sentenced to death and those who may be charged in the future with having committed such a crime before April 25, 2012.100 Accordingly, even if I were to assume that article first, § 1, of our state constitution operates similarly to the "special laws" provision of the Colorado constitution, unlike the law at issue in Canister and Hagos, P.A. 12-5 does not limit the application of the death penalty to a class of identifiable individuals or to a subset of all individuals who committed crimes before the effective date of P.A. 12-5. Accordingly, I would reject this claim. Finally, with respect to the sixth Geisler factor, public policy considerations, the defendant states conclusorily that the lack of appellate cases involving the application of article first, § 1, of the Connecticut constitution "has been ascribed to an admirable history of legislative restraint"; see State v. Conlon, supra, 65 Conn. 491 ("[o]ur legislation affecting any important interest has been so generally confined within the clear lines of legislative power, that there has been no occasion to apply the limitations of the first section of the Bill of Rights"); and that the classification created by P.A. 12-5 is inconsistent with this history. For the reasons previously set forth in this dissenting opinion, I disagree. Accordingly, I would conclude that imposing the death sentence on the defendant would not violate articlePage 45first, § 1, of the Connecticut constitution.IX The defendant next claims that imposing the death sentence on him would violate substantive due process principles. Specifically, he contends that P.A. 12-5 implicates his fundamental life interest, and the substantive due process guarantee of the fourteenth amendment "forbids the government to infringe certain fundamental liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest." (Emphasis in original; internal quotation marks omitted.) Reno v. Flores, 507 U.S. 292, 302, 113 S. Ct. 1439, 123 L. Ed. 2d 1 (1993). For the same reason that I concluded in part VIII A of this dissenting opinion that P.A. 12-5 is not subject to strict scrutiny under equal protection principles, but is subject to rational basis review; see footnote 93 of this dissenting opinion; I would conclude that P.A. 12-5 is not subject to strict scrutiny under substantive due process principles, but is subject to rational basis review. See Ramos v. Vernon, 254 Conn. 799, 840-41, 761 A.2d 705 (2000) (rational basis review applies to substantive due process claims when fundamental right is not at issue). I concluded in part VIII of this dissenting opinion that there is a rational basis for the prospective repeal of the death penalty. Accordingly, I would reject this claim.X I next address the defendant's claim that P.A. 12-5 is an impermissible bill of attainder under article one, § 10, of the United States constitution.101 "Bills of attainder are legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial . . . . The bill of attainder clause was intended to implement the separation of powers, acting as a general safeguard against legislative exercise of the judicial function . . . . A bill of attainder has three requirements, i.e., specification of the affected persons, punishment, and lack of a judicial trial." (Citations omitted; internal quotation marks omitted.) Hogan v. Dept. of Children & Families, 290 Conn. 545, 578-79, 964 A.2d 1213 (2009). I have concluded in part VIII of this dissenting opinion that P.A. 12-5 does not apply to named individuals or to easily ascertainable members of a group because it applies to all persons who committed a capital felony before the effective date of the legislation, and the defendant will not be punished without a trial. Accordingly, I would conclude that P.A. 12-5 is not a bill of attainder.XI I next address the defendant's claim that P.A. 12-5 is an impermissible ex post facto law under the federalPage 46constitution.102 "The ex post facto prohibition forbids . . . the [s]tates [from] enact[ing] any law [that] imposes a punishment for an act [that] was not punishable at the time it was committed . . . or imposes additional punishment to that then prescribed. . . . Through this prohibition, the [f]ramers [of the constitution] sought to assure that legislative [a]cts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. . . . [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Citation omitted; internal quotation marks omitted.) State v. Courchesne, supra, 296 Conn. 727. The defendant contends that "the legislative act of exempting prerepeal cases from its abolition of capital punishment operates as 'additional punishment' and makes a capital felony committed prior to the effective date 'aggravated in enormity or punishment.' " It should go without saying, however, that making a crime punishable under the law that existed at the time it was committed does not violate the ex post facto clause. Accordingly, I would reject this claim.XII Finally, I address the defendant's claim that imposing the death penalty on him would violate the "clearly warranted by law" clause of article first, § 9, of the Connecticut constitution. Specifically, he claims that, because § 53a-46b (b) (1) prohibits the imposition of the death penalty based on an arbitrary factor, and imposing the death penalty on him is arbitrary, it is not warranted by law. My conclusion in part V of this dissenting opinion that imposing the death penalty on the defendant would not be arbitrary under § 53a-46b (b) (1) disposes of this claim.XIII Because I have concluded that P.A. 12-5 is constitutional, I need not resolve the question of whether the act is severable. Nevertheless, because Justice Eveleigh's severability analysis in his concurring opinion is seriously flawed, I briefly address it. Justice Eveleigh starts from the assumption that the unconstitutional portion of P.A. 12-5 is the portion that makes the abolition of the death penalty prospective only, and concludes that that part may be severed. The basis for Justice Eveleigh's conclusion that the enactment of P.A. 12-5 rendered the death penalty unconstitutional, however, is that the legislative classification created by the act violates the prohibition on cruel and unusual punishment under the federal constitution because it results in disparate treatment of similarly culpable defendants. If that were the case, the statute could be rendered constitutional either by severing thePage 47effective date provisions of P.A. 12-5 or by severing the provisions that repeal the death penalty prospectively. The question of which portion of P.A. 12-5 to sever is a question of legislative intent. Contrary to Justice Eveleigh's conclusion, the legislative history does not unambiguously support the proposition that the legislature preferred severance of the effective date provisions. Indeed, much of the legislative history strongly supports the opposite conclusion. As I have indicated, a number of legislators stated during the debates on the legislation and on the proposed amendment that would have provided for the repeal of the act if any death sentence were invalidated as the result of its enactment that the intent of the legislature was that the death penalty would be reinstated prospectively.103 Thus, I would conclude that the legislative history of the act is, at best, ambiguous on this point. It simply cannot be known with any level of certainty how the legislators who were adamantly against retroactive repeal, but who were willing to vote for prospective repeal in order to avoid future costs—whose votes were critical for the passage of the act—would have voted if they had known that prospective repeal was not an option. In addition, it does not logically follow from the fact that Chief State's Attorney Kevin Kane opined during hearings before the Judiciary Committee that the act was unconstitutional to the extent that it provided that the abolition of the death penalty is prospective that the legislators who voted for prospective repeal wanted the effective date provisions of the act to be invalidated. This court previously has recognized that "[s]eparability involves essentially two considerations: the legislature must have intended separability and the statute itself must be capable of separability." Seals v. Hickey, 186 Conn. 337, 353, 441 A.2d 604 (1982). Because we simply cannot know in the present case which portion of the act the legislature would prefer to sever in the event that the classification created by P.A. 12-5 were found unconstitutional, the statute is not capable of separability. Accordingly, if the legislation were unconstitutional, this court would be required to invalidate the act in its entirety. See id., 353-54 ("where a portion of the statute is invalid, the valid part can stand only if it and the invalid part are not so mutually connected and dependent as to indicate a legislative intent that they may be inseparable"). In that case, the law preexisting the enactment of P.A. 12-5 would be revived. Id., 355 (when portion of statute is invalidated as unconstitutional and statute is not severable, law "will revert to that preexisting the enactment of [the unconstitutional statute]"); see also Ruttenberg v. Dine, 137 Conn. 17, 19, 74 A.2d 211 (1950) (stating in dicta that, when statute is invalidated as unconstitutional, preexisting statute "would remain applicable and controlling"); B.H. v. State, 645 So. 2d 987, 995 (Fla. 1994) ("when the legisla-Page 48ture approves unconstitutional statutory language and simultaneously repeals its predecessor, then the judicial act of striking the new statutory language automatically revives the predecessor unless it, too, would be unconstitutional"), cert. denied, 515 U.S. 1132, 115 S. Ct. 2559, 132 L. Ed. 2d 812 (1995); B.H. v. State, supra, 995 ("this rule generally is applicable only where the loss of the invalid statutory language will result in a 'hiatus' in the law that would be intolerable to society"); State v. Sullivan, 90 Ohio St. 3d 502, 508-509, 739 N.E.2d 788 (2001) ("[w]here an act of the [G]eneral [A]ssembly, purporting to provide a substitute for an existing law and in terms repealing the existing law, is declared to be unconstitutional and void, the repealing clause must also be held invalid, unless it clearly appear[s] that the [G]eneral [A]ssembly would have passed the repealing clause regardless of whether it had provided a valid substitute for the act repealed" [internal quotation marks omitted]); Jenkins v. Bellingham Municipal Court, 95 Wn. 2d 574, 581, 627 P.2d 1316 (1981) ("if a statute is repealed by a subsequent enactment and the subsequent enactment is declared unconstitutional, such unconstitutionality renders the repealing act invalid" and preexisting law is revived). Moreover, even if Justice Eveleigh were correct that the legislature preferred to sever the effective date provisions of P.A. 12-5, in light of Governor Dannel Malloy's public statement that he is in favor of abolishing the death penalty only prospectively; see footnote 20 of this opinion; I would still believe that it would be inappropriate for this court to order that remedy. The legislature should not be permitted to use this court as an instrument to deprive the governor of his constitutional veto power.

Outcome: In summary, the legislature has incontrovertibly expressed an intent that the repeal of the death penalty in P.A. 12-5 applies only to crimes "committed on or after [the effective] date [of the act]"; P.A. 12-5, § 2; and that "[a] person shall be subjected to the penalty of death for a capital felony committed prior to the effective date [of the act] under the provisions of section 53a-54b in effect prior to the effective date of [the act] . . . ." P.A. 12-5, § 5 (a). In addition, P.A. 12-5 expressly incorporates the savings provisions set forth in §§ 1-1 (t) and 54-194; see P.A. 12-5, § 38; which operate to preserve "punishments incurred and prosecutions pending" under the law in place before the effective date of the repeal. State v. Carbone, supra, 172 Conn. 256. Accordingly, as a matter of statutory interpretation, it is beyond dispute that the repeal of the death penalty does not apply to the defendant. Indeed, the defendant makes no claim to the contrary.

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