Lead Opinion
A jury found the defendant, Russell Peeler, guilty of, among other things, one count of capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (8) and one count of capital felony in violation
of General Statutes (Rev. to 1999) § 53a-54b (9) in connection with the 1999 shooting deaths of a woman and her young son, and, following a capital sentencing hearing, the trial court,
Devlin, J.,
rendered judgment imposing two death sentences.
The judgment is reversed with respect to the imposition of two sentences of death and the case is remanded with direction to impose a sentence of life imprisonment without the possibility of release on each capital felony count; the judgment is affirmed in all other respects.
In this opinion ROGERS, C.J., and PALMER, EVELEIGH, McDONALD and ROBINSON, Js., concurred.
The facts and procedural history of the case are presented more fully in
State v. Peeler,
Concurrence Opinion
Just as my personal beliefs cannot drive my decision-making, I feel bound by the doctrine of stare decisis in this case for one simple reason-my respect for the rule of law. To reverse an important constitutional issue within a period of less than one year solely because of a change injustices on the panel that is charged with deciding the issue, in my opinion, would raise legitimate concerns by the people we serve about the court's integrity and the rule of law in the state of Connecticut.
Having carefully considered the arguments presented by the parties, I am not persuaded by the state's contention that principles of stare decisis should not control the outcome of this case. Although I agree that "stare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision,
Boys Markets, Inc. v.
[
Retail Clerks Union, Local 770
],
"While stare decisis is not an inexorable command ... particularly when we are interpreting the [c]onstitution ... even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification." (Citations omitted; internal quotation marks omitted.)
Dickerson v. United States,
When neither the factual underpinnings of the prior decision nor the law has changed, "the [c]ourt could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from [the prior decision]. To overrule prior law for no other reason than that would run counter to the view repeated in our cases, that a decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided."
Planned Parenthood of Southeastern Pennsylvania v. Casey,
I cannot identify any change or development in the law since the decision in
State v. Santiago,
Regardless of any reliance on the majority decision in
Santiago,
or lack thereof, stability in the law and respect for the decisions of the court
as an institution,
rather than a collection of individuals, in and of themselves, are of critically important value, especially on an issue of such great public significance as the constitutionality of the death penalty.
Accordingly, I concur with the majority opinion.
PALMER, J., with whom EVELEIGH and McDONALD, Js., join, concurring.
In
State v. Santiago,
The present appeal is brought by another defendant, Russell Peeler, who, like Santiago, committed a capital felony and was sentenced to death prior to the enactment of P.A. 12-5. Ordinarily, our determination in
Santiago
that the death penalty is no longer constitutional would control the outcome of the present case as well, and the defendant and others similarly situated would be entitled to resentencing consistent with our decision in
Santiago.
The state, however, has argued that
Santiago
was decided without the benefit of adequate briefing by the parties and that, as a result, the majority in
Santiago
made a series of legal and historical errors that led to an incorrect decision. Indeed, the state goes so far as to contend that our decision in
Santiago
was
so unjust, and so completely devoid of legitimacy, that it should be afforded no precedential value and now may be overturned, only nine months later, merely because the composition of this court has changed.
I agree with and join the per curiam opinion in this case, in which the majority concludes that
Santiago
remains binding and valid authority, and that other convicted capital felons who have been sentenced to death are, therefore, entitled to be resentenced forthwith consistent with that decision. I write separately because I categorically reject any suggestion that the parties did not have the opportunity to brief these issues in
Santiago,
or that the court in that case overlooked key authorities, arguments, or historical developments that, if properly considered, would have resulted in a different outcome. We already have explained at some length why the parties, and particularly the state, had a full and fair opportunity to address the issues on which our decision in
Santiago
was based. See
I
HISTORICAL ANALYSIS
The state first argues that, in Santiago, we "relied on flawed historical analysis to justify [our] departure from well established principles of law...." Specifically, the state contends that we incorrectly concluded that, prior to the adoption of the 1818 constitution, Connecticut courts were authorized to review the constitutionality of allegedly cruel and unusual punishments. In reality, the state contends, the authority to review and determine the propriety of a punishment always has rested solely with the legislature. In so arguing, the state fundamentally misunderstands the relevant Connecticut history, this court's precedents, and the basis of our decision in Santiago. Although a full review of the relevant history and the scope of the state's confusion in this regard lies beyond the ambit of this opinion, I briefly address three of the most significant flaws in the state's analysis.
First, the state misperceives the purpose of the discussion in part I of our decision in
State v. Santiago,
supra,
The second fundamental flaw in the state's historical analysis is its suggestion that, prior to 1818, Connecticut
courts played no role in securing our common-law and statutory freedoms from cruel and unusual punishment. In
Santiago,
we reviewed numerous instances and contexts in which
each
of the three branches of government at times sought to temper what were perceived as cruel or unusual punishments. With respect to the judiciary, for example, we noted agreement among scholars of early Connecticut history that (1) magistrates enforced the criminal law during the colonial period so as to avoid needless cruelty, especially with regard to capital crimes;
State v. Santiago,
supra,
Of course, any discussion of the relationship between the judicial and legislative authorities during the pre-constitutional era, and especially prior to the creation of this court in 1784, must be qualified by the recognition that the General Court, which, at the end of the seventeenth century, was renamed the General Assembly, blended and simultaneously exercised both judicial and lawmaking functions during that period. See, e.g., H. Cohn & W. Horton, Connecticut's Four Constitutions
1988) p. 21; E. Goodwin, supra, at pp. 33-35, 52-54. In some sense, then, any discussion of whether the legislature or the judiciary was responsible for securing the people's freedom from cruel and unusual punishment is academic. In any event, it is clear that the adoption of the state's first formal constitution in 1818 was motivated in no small part by a desire to create an independent judiciary tasked with securing those basic constitutional liberties, and that these changes embodied a rejection of the belief "that republican government with legislative supremacy was the best safeguard of personal liberties." (Internal quotation marks omitted.)
State v. Lamme,
supra,
The third fundamental flaw in the state's historical analysis is the state's failure to adequately and accurately document its theory that the freedoms from cruel and unusual punishment enshrined in the state constitution arose from and were limited to legislative efforts to circumscribe the harsh and arbitrary punishments imposed by colonial magistrates. Although the state weaves a lengthy and intriguing narrative in support of this theory, the state's account is sparse on citation, and, it must be said, one searches the cited authorities in vain for the propositions that the state attributes to them. Nowhere in the cited text, for example, does Professor Lawrence B. Goodheart state that the Ludlow Code of 1650-from which article first, § 9, of the state constitution derives its origins-was drafted to address public concerns that magistrates were wielding excessive power or imposing arbitrary penal sanctions. See L. Goodheart, The Solemn Sentence of Death: Capital Punishment in Connecticut (2011) pp. 11-12. Quite the contrary. In the section of his book on which the state relies, Goodheart explains that the colonists generally deferred to magistrates' interpretation of Biblical authority; see id., at p. 9; and he discusses at some length the key role that the magistrates played in securing fundamental liberties and tempering the colonies' draconian capital statutes: "The statutes are deceptive as to what occurred in practice. The laws represented a religious ideal, a public declaration, as the 1672 [colonial] code put it, of what was 'suitable for the people of Israel.' The judicial system was much more lenient. The courts aspired to be scrupulous and fair. There was concern to balance individual protection with the greater good. Drawing on centuries of English tradition, the Puritans upheld civil rights, including ... no torture [and] no cruel or barbarous punishments.... Attorneys did not usually function in either colony; the wise and impartial rule of the magistrates was deemed sufficient." (Footnotes omitted.) Id., at p. 14.
The state's reliance on Everett Goodwin's book, The Magistracy Rediscovered: Connecticut, 1636-1818, is similarly misplaced. The state cites page 103 of Goodwin's book for the proposition that, in the state's words, "Connecticut's history is unique in selecting the legislature as the body 'safeguarding' citizens from abusive, unlegislated, court-imposed punishments, and not the other way around." The cited passage, however, contains no mention whatsoever of abusive, court-imposed punishments. Rather, Goodwin merely discusses the fact that, as a general matter, Connecticut's early legal system relied less on English common law than did the other American colonies. E. Goodwin, supra, at p. 103. He also references the evolution in Chief Justice Zephaniah Swift's thinking with respect to the separation of powers; although Swift initially believed in the primacy of the legislature; see id., at pp. 99-100, 103; he ultimately
came to conclude that, because the legislature is vulnerable to " 'undue and improper influence' "; id., at p. 114; the courts must play an important role with respect to the constitutional review of statutes. See id., at pp. 99, 101, 103, 109-10, 114, 160 n. 34. In other parts of his book, Goodwin explains that the colonists codified an extreme version of the criminal law but "[left] the mitigation to the discretion of the [m]agistrate"; (internal quotation marks omitted) id., at p. 27; and that the discretion invested in the magistrates reflected the Puritans' confidence in their wisdom and godliness. Id., at p. 30. Like Goodheart, then, Goodwin provides little support for the state's account.
The other sources on which the state relies likewise fail to support-and in some cases flatly belie-the state's theory that Connecticut's traditional freedoms from cruel and unusual punishment originated from and were limited to a commitment to statutory law as a bulwark against abusive judicial sentencing practices. William Holdsworth, for example, explains that magistrates in both the Connecticut and New Haven colonies "repeatedly avoided imposing the full penalties prescribed by ... [law]"; W. Holdsworth, Law and Society in Colonial Connecticut, 1636-1672 (1974) p. 124 (unpublished doctoral dissertation, Claremont Graduate School); and that, although Connecticut's first criminal statutes were more severe than those of Massachusetts, Connecticut's colonial code actually "placed fewer restrictions on the discretionary powers of the magistrates, and increased the penalties they could impose for certain crimes...." Id., at p. 132. Holdsworth explains that "these differences reflect a greater consensus in Connecticut between rulers and ruled and a greater degree of trust of the one for the other, but they also reflect the
growth
in magisterial power...." (Emphasis added.) Id.
Even more troubling is the state's representation that this court's decision in
Pratt v. Allen,
A thorough review of the cited historical sources and our related cases thus leaves one with the discomforting impression that the state, in its apparent zeal to retain the death penalty, has mischaracterized not only this court's precedents but history itself. For all of these reasons, I reject the state's contention that this court, in Santiago, relied on a flawed historical analysis or exercised its powers of judicial review in a manner precluded by either tradition or precedent.
II
DELAYS AND INFREQUENCY OF IMPLEMENTATION
The state's next argument is that, in
Santiago,
we improperly considered the infrequency with which the death penalty is imposed in Connecticut, as well as the lengthy delays in carrying out capital sentences, in determining that capital punishment no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. Specifically, the state contends that (1) this court rejected these arguments in
State v. Rizzo,
Nothing in our decision in
Rizzo
precluded the result we reached in
Santiago.
In
Rizzo,
we looked at the growing infrequency of capital sentencing and executions throughout the country. See
State v. Rizzo,
supra,
Much has changed since
Rizzo.
Two additional states-Maryland and Nebraska-have abolished capital punishment.
Since our decision in
Rizzo,
a number of respected jurists also have concluded that the infrequent imposition and delayed execution of the death penalty call its constitutionality into question. See, e.g.,
Glossip v. Gross,
--- U.S. ----,
Most significant, however, is the fact that, in 2012, the year after we decided
Rizzo,
the legislature enacted P.A. 12-5, which prospectively abolished the death penalty in Connecticut. Legislative abolition fundamentally altered the constitutional calculation we conducted in
Rizzo.
It cast in a new light all of the various factors pointing to reduced societal acceptance of capital punishment. It swept away the most compelling arguments that capital punishment serves legitimate penological functions. And it reflected the awareness of the legislature that the infrequency with which the death penalty is imposed and the slowness with which it is carried out dramatically undermine its ability to serve a valid retributive function and to secure justice and peace for the families of murder victims. See
State v. Santiago,
supra,
Lastly, I am not persuaded by the state's assertion that State v. Smith, supra, at 5 Day (Conn.) 175, a case decided two decades before the invention of the typewriter, somehow precludes the result this court reached in Santiago. Smith was the first published case in which this court considered whether two sentences of imprisonment may be imposed to run consecutively without offending the state's common-law prohibition against cruel and unusual punishment. See id., at 178. Because "such ha[d] been the usage of our courts, for many years past," we concluded that postponing the commencement of the second term of imprisonment until the first had been completed was neither unprecedented nor cruel. Id., at 179. Nowhere in the court's brief discussion of that issue, however, did it consider or decide any of the novel questions raised in Santiago and in the present appeal: (1) whether a method of punishment that is only imposed a few times per decade and only carried out a few times per century may be deemed to violate contemporary standards of decency; (2) whether the retributive value of a punishment-both to the offender and to the victims-dissipates when decades pass before it is carried out; and (3) whether the various procedural safeguards established by the federal and state legislatures and courts, which permit individuals on death row to pursue nearly endless appellate and postconviction remedies, reflect society's reluctance to impose the ultimate punishment and unwillingness to see it imposed erroneously. For these reasons, there is no doubt that, in Santiago, we properly considered the actual practices of this state with respect to the imposition and carrying out of capital sentences in concluding that capital punishment constitutes what has come to be seen as cruel and unusual.
III
RACIAL DISPARITIES AND PROSECUTORIAL DISCRETION
The state next contends that, in
Santiago,
when we observed that "the selection of which offenders live and which offenders die appears to be inescapably tainted by caprice and bias";
State v. Santiago,
supra,
The short answer to the state's arguments is simply to reiterate what we stated in
Santiago:
the question whether there are presently statistically significant
racial disparities in the imposition of the death penalty in Connecticut was not before us in that case, as it is not before us in the present case, and we did not reach or rely on any such conclusion in holding the death penalty unconstitutional. See
State v. Santiago,
supra,
The state's argument to the contrary-that Connecticut law does not afford jurors unlimited discretion to find mitigating factors-is unavailing. "It is well established that federal constitutional ... law establishes a minimum national standard for the exercise of individual rights...." (Internal quotation marks omitted.)
State v. Miller,
Because we did not rely on any factual finding of recent racial disparities in Santiago, and we do not do so now, it is not necessary to address fully the state's first and second arguments. I would, however, briefly note my disagreement with each.
With respect to
In re Death Penalty Disparity Claims,
I do not understand the court in that case to
have rejected the petitioners' claim that there is statistically significant evidence that people of color who kill white victims are capitally charged, and thus placed at risk of death, at a much higher rate than are other offenders, and that those disparities cannot reasonably be accounted for by innocuous, nonracial factors. Rather, I understand the court to have acknowledged that there are significant racial disparities in capital charging (but not sentencing) in Connecticut; see
In re Death Penalty Disparity Claims,
Turning to the state's second argument, I am troubled by its repeated contention that the abundant evidence of racial disparities in other jurisdictions is irrelevant to the Connecticut experience because, "[i]n response to
Furman
[
v. Georgia,
IV
EXECUTION OF THE INNOCENT
The state next contends that, in
Santiago,
we improperly considered the possibility that an innocent person may be erroneously executed as one reason why the death penalty fails to serve a legitimate retributive purpose. Although the state does not dispute the growing body of research that recently persuaded two justices of the United States Supreme Court that capital punishment is likely unconstitutional for this reason; see
Glossip v. Gross,
Even if this were true, and even if it were properly subject to judicial notice, the state simply ignores the fact that, under P.A. 12-5, new prosecutions can still be brought at any time for capital felonies committed prior to April, 2012. Of the thousands of murders committed in Connecticut over the past several decades, some of which would be death eligible, many remain unsolved.
V
STATUTORY INTERPRETATION
The state next contends that, in
Santiago,
we improperly departed from our ordinary approach to questions of statutory interpretation. The basis of the state's
objection is not entirely clear. For example, the state contends that, in
Santiago,
we failed to make what it considers to be "the required predicate finding that the language of [P.A. 12-5] itself is ambiguous," but, in the very next paragraph of its brief, the state quotes our conclusion in
Santiago
that "the policy judgments embodied in the relevant legislation are ambiguous."
State v. Santiago,
supra,
In any event, to the extent that it was not transparent from our decision in
Santiago,
I take this opportunity to clarify that a claim that a penal sanction impermissibly offends contemporary standards of decency is not a question of statutory interpretation subject to § 1-2z and the attendant rules of construction.
VI
RETRIBUTION AND VENGEANCE
The state next argues that, in Santiago, we incorrectly concluded that the death penalty now lacks any legitimate penological purpose because, among other things, the legislature's decision to retain it on a retroactive only basis was intended primarily to satisfy a public thirst for vengeance toward two especially notorious inmates, rather than to accomplish permissible retributive purposes. The state counters that (1) the legislature regularly and properly crafts penal statutes in response to public reactions to specific notorious and vicious crimes, and (2) P.A. 12-5 was crafted to make good on a promise to the families of murder victims that death would be repaid with death, and making good on such a promise is a legitimate manifestation of retributive justice.
Although it is undoubtedly true that the legislature is naturally responsive to powerful public sentiments, in the arena of criminal law as in other areas, that alone does not insulate a penal statute from constitutional scrutiny. As we explained in
Santiago,
if the mere fact that a punishment arose out of the democratic process established that it served a legitimate penological purpose,
then the eighth amendment and its state constitutional counterparts would be largely superfluous. See
With respect to promises made to families and friends of the victims, we all have deep compassion for those who have been made to suffer the curse of crime. See, e.g.,
Luurtsema v. Commissioner of Correction,
VII
CONSTITUTIONAL TEXT
The state next argues that the death penalty can never be held unconstitutional because "it is expressly permitted by the Connecticut constitution." The state further argues that our reliance in
Santiago
on
People v. Anderson,
The dissenting justices in
Santiago
raised similar objections. See, e.g.,
State v. Santiago,
supra,
Regardless of whether one considers
Anderson
itself to be persuasive authority, recent scholarship both vindicates the reasoning of that case and sheds light on the defects in Justice Scalia's position. As Professor Joseph Blocher explains, "some supporters of the death penalty continue to argue ... that the death penalty must be constitutional because the [f]ifth [a]mendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to the claims being made against the constitutionality of capital punishment. At most, the references to the death penalty in the [constitution] may reflect a founding era assumption that it was constitutionally permissible at that time. But they do not amount to a constitutional authorization; if capital punishment violates another constitutional provision, it is unconstitutional." J. Blocher, "The Death Penalty and the Fifth Amendment" (December 16, 2015) p. 1 (unpublished manuscript), available at http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6227&context=faculty_scholarship; see also B. Ledewitz, "Judicial Conscience and Natural Rights: A Reply to Professor Jaffa,"
The state's argument appears to be that, with respect to the Connecticut constitution in particular, the due process clause of article first, § 8, cannot form the basis for holding capital punishment unconstitutional when that same clause authorizes the state to impose the death penalty, as long as it affords adequate due process of law. As the aforementioned authorities explain, however, this argument rests on two conceptual errors. First, a declaration of rights such as that contained in article first of the Connecticut constitution, or the federal Bill of Rights, is not a grant of governmental authority; rather, it delineates the rights and freedoms of the people
as against the government.
See
State v. Conlon,
A second, related conceptual error is the state's apparent failure to distinguish necessary from sufficient conditions. See J. Blocher, supra, at p. 9. Article first, § 8, of the Connecticut constitution, as amended by article seventeen and twenty-nine of the
amendments, which provides in relevant part that "[n]o person shall be ... deprived of life ... without due process of law ... [or] held to answer for any crime, punishable by death ... unless upon probable cause," indicates that, to the extent that the death penalty is otherwise permissible and authorized by law, it may be imposed only after the defendant is afforded adequate due process. In other words, due process is a
necessary
condition for the
imposition of the death penalty, and article first, § 8, as amended, thereby restricts the circumstances under which that penalty may be imposed. There is no textual support, however, for the state's apparent belief that article first, § 8, as amended, makes the provision of due process a
sufficient
condition for the imposition of capital punishment, so that the state is authorized to carry out executions as long as it has complied with the requirements of due process. Of course, as we explained in
State v. Ross,
supra,
VIII
STARE DECISIS
Lastly, the state argues that, to the extent that Santiago was wrongly decided and resulted in an unjust outcome, the principle of stare decisis, that is, the duty of a court to adhere to established precedent, does not require that we uphold the conclusion that capital punishment offends the state constitution. The state itself concedes, however, that "a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it...." (Citation omitted;
internal quotation marks omitted.)
State v. Alvarez,
First, having fully reviewed the state's arguments and the authorities on which it relies, I find no reason to conclude that Santiago was wrongly decided, let alone unjust. The state has not pointed to any controlling cases that we overlooked, persuasive arguments that we failed to consider, or fatal defects in our reasoning. Most of the state's arguments are ones that we expressly considered and rejected in Santiago, and the others fail to hold up under scrutiny or simply miss the point. In a disturbing number of instances, the authorities on which the state relies do not even support the proposition for which the state cites them.
Second, the state has failed to identify any case, and I am not aware of any, in which a court of last resort has reversed its own landmark constitutional ruling after a matter of just months. For this court to entomb the death penalty in
Santiago,
and then to exhume and revivify it nine months later, would be unprecedented and would make a mockery of the freedoms enshrined in article first of the state constitution. If the people of Connecticut believe that we have misperceived the
scope of that constitution, it now falls on them to amend it.
Finally, I question whether a decision in this case to overrule
Santiago,
and to revive the death penalty for the defendant in the present case, could survive federal constitutional scrutiny. The defendant in
Santiago
has received the benefit of our decision therein, namely, that capital punishment is an excessive and disproportionate punishment, and that he no longer may be executed. The state now proposes that we reauthorize the death penalty
I agree with much of Justice Zarella's analysis in his dissent in the present case, which, distilled to its essence, argues that, if a past decision was manifestly incorrect and there has been no reliance on it, principles of stare decisis may not require the court to stand by that decision. In
Santiago,
however, Justice Zarella, Justice Espinosa and I explained at great length why we believed that the majority decision was incorrect; see
State v. Santiago,
supra,
I emphasize that I express no view on the question of whether the legislature could constitutionally reinstitute the death penalty by repealing No. 12-5 of the 2012 Public Acts and its prospective abolition of the death penalty and reenacting a death penalty statute that applied to all defendants, regardless of the date of their offense. The majority in
Santiago
also recognized that this is an open question. See
State v. Santiago,
supra,
The portions of Holdsworth's dissertation suggesting that early criminal statutes were enacted in response to concerns over the abuse of magisterial discretion primarily refer to the prevalence of such concerns in Massachusetts. See W. Holdsworth, supra, at pp. 104, 109, 167-71. The state fails to acknowledge that Holdsworth repeatedly emphasizes that such concerns were less pronounced in the Connecticut and New Haven colonies and that, in fact, those colonies continued to increase the authority and discretion of the magistrates after the adoption of Ludlow's Code. See id., at pp. 104, 132, 137, 152-53, 171-72. As Holdsworth concludes, "[Ludlow] omitted most of the Bay Colony's liberties and permitted the magistrates greater discretion in dealing with many crimes. At one time, Connecticut's leaders were distrustful of magisterial discretion, but they became less anxious about it once they assumed the mantle of authority themselves, trusting themselves to deal sternly but justly with the multitude of problems that beset their commonwealth." Id., at pp. 171-72; but see J. Trumbull, Historical Notes on the Constitutions of Connecticut, 1639-1818 (1901) pp. 9, 42 (noting that prominent founders of Connecticut, such as Thomas Hooker, founded colony to escape magisterial tyranny that they perceived in Massachusetts).
Death Penalty Information Center, "States With and Without the Death Penalty," available at http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited May 12, 2016) (Maryland abolished death penalty in 2013, and Nebraska abolished death penalty in 2015).
See Death Penalty Information Center, "Executions by Year," available at http://www.deathpenaltyinfo.org/executions-year (last visited May 12, 2016) (detailing number of executions in United States since 1976).
Furman v. Georgia,
See Death Penalty Information Center, "Death Sentences by Year: 1976-2014," available at http://www.deathpenaltyinfo.org/death-sentences-year-1977-2009 (last visited May 12, 2016); Death Penalty Information Center, "2015 Sentencing," available at http://www.deathpenaltyinfo.org/2015-sentencing (last visited May 12, 2016).
See generally Death Penalty Information Center, "The Death Penalty in 2015: Year End Report," available at http://www.deathpenaltyinfo.org/documents/2015YrEnd.pdf (last visited May 12, 2016).
See J. Donohue, Capital Punishment in Connecticut, 1973-2007: A Comprehensive Evaluation from 4686 Murders to One Execution (2011) pp. 131-46, available at http://www.death penaltyinfo.org/documents/DonohueCTStudy.pdf (last visited May 12, 2016) (finding little relationship between egregiousness and rate at which cases are charged as capital felonies, and noting that, of seventeen offenders potentially chargeable with capital felony murder for hire, only thirteen were charged capitally and only one-Santiago-was sentenced to death).
Nor did we conclude in Santiago that Connecticut's prosecutors have exercised their discretion with anything less than complete professionalism. In Santiago, we opined only that, in light of the constraints imposed by federal law, it is virtually impossible to exercise such discretion so as to ensure that the imposition of the death penalty, writ large, will not be arbitrary and capricious.
See, e.g.,
Johnson v. Texas,
See, e.g., Division of Criminal Justice, State of Connecticut, "Cold Cases-Open," available at http://www.ct.gov/csao/cwp/view.asp?a=1798&q=291462 (last visited May 12, 2016).
See State v. Roszkowski, Superior Court, judicial district of Fairfield, Docket No. FBT-CR-06-0218479-T.
See State v. Howell, Superior Court, judicial district of New Britain, Docket No. HHB-CR-15-0279874-T.
For the same reasons, the state's argument that our decision in Santiago was precluded by Connecticut's savings statutes, General Statutes §§ 1-1(t) and 54-194, also misses the mark.
The state notes in its brief that maintaining the death penalty could serve a retributive purpose by "providing a sense of restoration and closure to victims and their families...."
The state, which quotes from the Book of Ecclesiastes in its brief, would do well to consider the following passage therefrom: "Better not vow at all than vow and fail to pay." Ecclesiastes 5:5, in The New English Bible: Old Testament (Oxford University Press & Cambridge University Press 1970) p. 931.
We relied on
Anderson
for the proposition that "incidental references to the death penalty in a state constitution merely acknowledge that the penalty was in use at the time of drafting; they do not forever enshrine the death penalty's constitutional status as standards of decency continue to evolve...."
State v. Santiago,
supra,
Justice Espinosa, in her dissenting opinion in the present case, repeatedly suggests that
Santiago
is not binding precedent because it was decided on the basis of the subjective moral beliefs of the majority, contrary to precedent and in violation of our sworn duty to follow the law. We already have said everything that needs to be said with respect to these baseless assertions. See
State v. Santiago,
supra,
Whether capital punishment might be reinstated in Connecticut by means other than a constitutional amendment is not before us in this case. See
State v. Santiago,
supra,
I take no position on the question of whether, following our decision in
Santiago,
this court has the power to reauthorize the death penalty without new enabling legislation. Compare
Jawish v. Morlet,
Concurrence Opinion
I join the majority's decision not to disturb
State v. Santiago,
The background legal principles governing the doctrine of stare decisis are well established. "The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." (Internal quotation marks omitted.)
State v. Salamon,
"As this court has stated many times, [t]he true doctrine of stare decisis is compatible with the function of the courts.... [T]here is no question but that [a] decision of this court is a controlling precedent until overruled or qualified.... [S]tare decisis ... serve[s] the cause of stability and certainty in the law-a condition indispensable to any well-ordered system of jurisprudence....
"Whether stare decisis serves the interests of judicial efficiency, protection of expectations, maintenance of the rule of law, or preservation of judicial legitimacy, however, is not dispositive. The value of adhering to precedent is not an end in and of itself, however, if the precedent reflects substantive injustice. Consistency must also serve a justice related end.... When a prior decision is seen so clearly as error that its enforcement [is] for that very reason doomed ... the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision. Stare decisis is not an inexorable command.... The court must weigh [the] benefits [of stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust. The rule of stare decisis may entail the sacrifice of justice to the parties in individual cases, but, far from being immune from considerations of justice, it must always be tested against the ends of justice more generally....
"Indeed, this court has long believed that although [s]tare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, [it] is not an absolute impediment to change.... [S]tability should not be confused with perpetuity.
If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires.... [I]t is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination and the test of experience.... The United States Supreme Court has said that when it has become convinced of former error, it has never felt constrained to follow precedent....
"[One] well recognized exception to stare decisis under which a court will examine and overrule a prior decision ... [is when that prior decision] is
clearly wrong
.... The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned.... Because stare decisis is not a rule of law but a matter of judicial policy ... it does not have the same kind of force in each kind of case so that adherence to or deviation from that general policy
may depend upon the kind of case involved, especially the nature of the decision to be rendered that may follow from the overruling of a precedent.
" (Citations omitted; emphasis altered; footnote omitted; internal quotation marks omitted.)
Conway v. Wilton,
Guided by these general principles, I first observe that the timing of our consideration of the present case renders stare decisis considerations particularly strong with respect to the public's perception of this court's legitimacy in its exercise of its core function of constitutional interpretation. See
State v. Ferguson,
The New York Court of Appeals has described the benefits of decisional stability in the face of the changing composition of the court, aptly stating that it "would
have been scandalous for a court to shift within less than two years because of the replacement of one of the majority in the old court by one who now intellectually would have preferred to have voted with the old minority and the new one. The ultimate principle is that a court is an institution and not merely a collection of individuals; just as a higher court commands superiority over a lower not because it is wiser or better but because it is institutionally higher. This is what is meant, in part, as the rule of law and not of men."
People v. Hobson,
Put differently, for me to join this court and near immediately disturb this court's so recently decided landmark decision in
Santiago
would require me, in the words of Justice Thurgood Marshall, to embrace the principle that "[p]ower, not reason, is the new currency of this [c]ourt's decisionmaking."
Payne v. Tennessee,
Guided by these authorities, I am not convinced that any analytical shortcomings in
Santiago
surpass the significant stare decisis concerns that would accompany overruling that landmark decision. See, e.g.,
Dickerson v. United States,
Accordingly, I join in the judgment of the court.
Dissenting Opinion
"I would think it a violation of my oath to adhere to what I consider a plainly unjustified intrusion [on] the democratic process in order that the [c]ourt might save face. With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible ... I agree with [United States Supreme Court] Justice [William O.] Douglas: 'A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the [c]onstitution [that] he swore to support and defend, not the gloss [that] his predecessors may have put on it.' ... Or as the [United States Supreme] Court itself has said: '[W]hen convinced of former error, [the] [c]ourt has
never felt constrained to follow precedent. In constitutional questions, where correction depends [on] amendment and not [on] legislative action [the] [c]ourt throughout its history has freely exercised its power to reexamine the
basis of its constitutional decisions.' " (Citation omitted.)
South Carolina v. Gathers,
I think my colleagues and I are well advised to carefully consider the words of Justice Antonin Scalia, particularly Chief Justice Rogers and Justice Robinson, who choose to uphold this court's decision in
State v. Santiago,
I need not further swell the Connecticut Reports with a lengthy exposition on why
Santiago
is wrong. It suffices to say that the majority in that case employed an improper legal standard and wrongfully usurped the legislature's power to define crime and fix punishment, and the six factors set forth in
State v. Geisler,
I
STARE DECISIS
The concurring justices in the present case contend that the dictates of stare decisis require that we stand by our decision in
Santiago.
There is little doubt that Chief Justice Rogers overlooks the clearly wrong exception in our and the United States Supreme Court's stare decisis jurisprudence because it would lead her to no other conclusion than that
Santiago
must be overruled. A cursory reading of Chief Justice Rogers' dissent in
Santiago
reveals beyond any doubt that she strongly feels that the majority's decision in
Santiago
is obviously wrong. In fact, her belief that
Santiago
was completely wrong was central to her dissent in that case and not merely an observation made in passing. She describes the majority's analysis in
Santiago
as "fundamentally flawed";
State v. Santiago,
supra,
The inconsistent application of stare decisis leaves this court open to criticism that it is employing that doctrine to reach ideologically driven or politically expedient results, a real threat to this court's integrity and institutional legitimacy.
Before I delve into the stare decisis framework and application, it is important that I address two preliminary matters. First, stare decisis has both a vertical and horizontal component. See, e.g., W. Consovoy, "The Rehnquist Court and the End of Constitutional Stare Decisis:
Casey,
Dickerson
and the Consequences of Pragmatic Adjudication,"
Second, in my view, stare decisis has two modes of operation. As a general matter, stare decisis, Latin for "to stand by things decided"; (internal quotation marks omitted) Black's Law Dictionary, supra, at p. 1626; is a doctrine that directs a court to adhere to its earlier decisions or to the decisions of courts that are higher in a jurisdiction's judicial hierarchy. More specifically, however, the doctrine operates in two distinct manners. First, the doctrine functions automatically in most cases. I will call this mode of operation the rule of precedent. Under this aspect of stare decisis, the court assumes that its prior decisions are correct and relies on such decisions in deciding the case before the court. Under the rule of precedent, our previous decisions are the bricks of the foundation on which the pending case will be decided. Moreover, we rely on such decisions, in large part, simply because they were decided prior in time, that is, because they are precedent. Each time this court cites a previous case to support a proposition, the rule of precedent mode of operation of stare decisis is implicitly at work. Second, stare decisis operates more explicitly and directly when we reconsider a previous decision or line of decisions. In this context, the doctrine provides a framework for determining whether the court should continue to abide by a past decision, even though it may be wrong. It is this distinct mode of operation-more particularly, the framework it provides-that I will address in this opinion. With these preliminary ideas in mind, I now turn to articulating a principled doctrine of stare decisis.
A
A Principled Doctrine of Stare Decisis
As I just explained, stare decisis guides this court's determination of whether it should adhere to a previous erroneous decision. Implicit in this framing of stare decisis is that the court must decide
whether the decision being reconsidered is wrong before it applies the doctrine of stare decisis.
I do not mean to suggest, however, that the wrongness of the previous decision is part of the stare decisis calculus. It is
not.
Indeed, it is fundamental that we avoid conflating the merits and stare decisis considerations. The reasons should be obvious. If a case could be overruled simply because a majority of justices believes it had reached the wrong conclusion, precedent would have no independent value, and stare decisis would be a hollow doctrine. See F. Schauer, "Precedent,"
Under this construction of stare decisis, the fact that Chief Justice Rogers and Justice Robinson rely on the doctrine of stare decisis to uphold
Santiago
suggests
that they both believe that decision is wrong. Of course, there can be no question that Chief Justice Rogers believes the decision in
Santiago
is wrong. I am unsure whether Justice Robinson believes
Santiago
is wrong because he does not tell us, but, because he did not join Justice Palmer's concurrence and instead relies on stare decisis rather than the merits to uphold
Santiago,
I am left to conclude that he likely does believe that
Santiago
was incorrectly decided.
What should be obvious, however, is that application of stare decisis can come into tension with the rule of law as well. For example, if this court, upon later consideration, concludes that our earlier reading of a constitutional provision was incorrect but nonetheless decides, due to stare decisis, to follow that erroneous reading, we have entrenched the
rule of individuals
-those individuals who comprised this court at the time of the earlier decision-rather than the rule of law. See J. Waldron, supra, at
Perhaps because of this inherent and unavoidable tension, we have long held that stare decisis is not an absolute impediment to change in our case law. See, e.g.,
White v. Burns,
State v. Salamon,
supra,
The remainder of this part of the opinion articulates a principled balancing test this court should employ when determining whether to afford stare decisis effect to a previous decision that it is convinced is wrong or about which it has serious doubts. The balancing test I advocate includes four factors, one benefit and three costs. On the benefit side of the scale is the protection of reliance interests. The countervailing weights, that is, the costs of adhering to an erroneous judicial decision, are the (a) cost of error correction, (b) cost to the constitutional order, and (c) cost of unworkability or uncertainty. Each of these four factors will be discussed in this opinion. The analysis of each factor and the weighing of the benefit factor against the cost factors occur only after the court has concluded that the precedent in question is wrong.
1
Benefit of Stare Decisis-Protection of Reliance Interests
At first glance, it would appear that the benefits of stare decisis are stability and constancy in the law. See, e.g.,
Conway v. Wilton,
supra,
Upon reviewing our cases and the academic literature on stare decisis, I conclude that the benefit served by stare decisis is the protection of reliance interests.
We have also directly recognized the importance of reliance interests when deciding whether to apply the doctrine of stare decisis. For example, in cases involving tort or criminal law, we often remark that "[t]he arguments for adherence to precedent are least compelling ... when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants...." (Internal quotation marks omitted.)
State v. Salamon,
supra,
This court similarly cited reliance, or the lack thereof, in overruling prior precedent in
Conway v. Wilton,
supra,
Specific reliance arises when an individual or group conforms its behavior to rules announced by the court. For example, the United States Supreme Court has long held that stare decisis has special force in cases involving contract or property law. See, e.g.,
Payne v. Tennessee,
The Executive and Legislative Branches, along with local governments, also rely on this court's decisions. In
Craig v. Driscoll,
See id., at 348-50,
Prior to our holding in
Craig,
however, the general rule provided by the common law was that no such action shall lie against a purveyor of alcohol. See id., at 322,
The judiciary, including this court, also relies on our precedent. Under this form of reliance, our cases, as well as those of the Appellate Court and the trial courts, build on one another, resulting in the development of a doctrinal structure. Cf. R. Kozel, supra, at
The final form of reliance is societal reliance. Unlike the three previous forms of reliance, societal reliance is concerned with perception, not behavior. A court's precedents, particularly its constitutional precedents, have the ability to shape a society's "perceptions about our country, our government, and our rights." R. Kozel, supra, at
After the court has assessed and articulated the reliance interests of each category just described, it should turn to an examination of the disruption that would be caused if the precedent relied on is overruled. An assessment of the disruptive effect of overruling precedent considers the adjustment costs that would arise from the need to modify behavior tailored to conform with the precedent the court is contemplating overruling. See R. Kozel, "Precedent and Reliance,"
2
Costs of Stare Decisis
Once the benefit of applying stare decisis and adhering to precedent has been uncovered and quantified, the court must consider the burdens of applying stare decisis. Generally speaking, the burdens of applying stare decisis are the costs that result from perpetuating judicial error. As I noted previously in this opinion, there are three costs for the court to consider, and I will consider each in turn.
The first cost is the cost of error correction. In evaluating this cost, I consider whether the judicial error was constitutional or statutory in nature, because the cost of error will vary depending on its nature. Second, I evaluate the cost to the constitutional order. In assessing this cost, I ask if and how the error disrupts the constitutional order. Third, and finally, I consider the cost of the unworkability or uncertainty of the erroneous decision. Under this prong, I consider the difficulty of implementing or the uncertainty created by the erroneous decision.
a
Cost of Error Correction
The United States Supreme Court has long recognized that stare decisis has diminished force when the
precedent in question interprets or applies the constitution, as opposed to a statute. See, e.g.,
Burnet v. Coronado Oil & Gas Co.,
supra,
Cost to the Constitutional Order
The preservation of judicial constitutional error may result in costs beyond those arising from the difficulty of correcting such an error. Such costs result when a judicial decision alters or disturbs the state polity. A brief digression into our constitutional history and theory is needed to better understand this harm.
A fundamental principle of American government and constitutions, including the constitutions of the many states, is popular sovereignty. See A. Amar, "The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,"
The colonial citizens of Connecticut were no strangers to the ideals embodied in popular sovereignty. In fact, evidence dating back to the 1630s demonstrates that the populace of the Connecticut colony adopted the popular sovereignty principles. See, e.g., W. Horton, "Law and Society in Far-Away Connecticut," 8 Conn. J. Intl. L. 547, 549-50 (1993). In a 1638 sermon, Puritan Reverend Thomas Hooker expounded on these principles. See H. Cohn, "Connecticut Constitutional History: 1636-1776," 64 Conn. B.J. 330, 332-33 (1990). Specifically, Reverend Hooker stressed that the civil power resided with the people, the people had the authority
to elect their political leaders, and the people established the limits within which their political leaders could act. See
With this historical and theoretical background in mind, I return to discussing the costs inherent in following
erroneous constitutional decisions. In constitutional adjudication, we must take special care to ensure that we are enforcing the will of the people as expressed in their constitution. Because the ultimate power rests in the people and has been allocated to the separate branches of government, it is our duty to ensure that each branch, including the judiciary, does not usurp the power of its coequal branches. It is especially important that we take pains to restrain
this branch,
because a usurpation of legislative or executive power is, in effect, a usurpation of the people's power. It is true that the constitution entrenches certain fundamental principles, such as the freedom of the press, to immunize them from majoritarian control; however, most political and policy questions have been left to democratic rule, that is, majority control through the elected branches of government. In such cases, the people exercise their power and carry out or vindicate their will at the ballot box. Thus, it is essential that we not immunize from majoritarian control those questions that the people have left to the political process. To do so would be to misappropriate the power of the people.
When we erroneously interpret or apply the constitution in ways that upset the governmental structure or intrude on the democratic process by frustrating the majoritarian government, we levy a cost on the constitutional order. See, e.g., K. Lash, "Originalism, Popular Sovereignty, and
Reverse
Stare Decisis,"
I will begin with errors of allocation that, generally speaking, impose the smallest amount of harm on our constitutional order. See
Cases of immunity involve the question of whether a particular issue is subject to political resolution; see id.; that is, whether the constitution has entrenched a principle, such as the freedom of the press, or left a question to the democratic process, such as general economic legislation. Immunity errors come in two forms, nonintervention and intervention. See id., at 1459. A nonintervention error imposes fewer costs on the constitutional order than does an intervention error. See id. Erroneous nonintervention occurs when the court fails to intervene, thereby overlooking a principle entrenched in the constitution and leaving it to the political process. See id., at 1454, 1459. Such error does undermine the legitimacy of our constitutional system by allowing a simple majority in the General Assembly to trump the entrenched will of the people; nonetheless, the costs generated by erroneous nonintervention are limited because the issue remains subject to majority control. See id., at 1459. Thus, if the court fails to protect a right entrenched in the constitution, the people can mobilize and, through the General Assembly, act to protect such right through legislation. See id.
On the other hand, intervention error occurs when the court entrenches a principle in the constitution that, under a proper reading of the document, has no constitutional status. See id., at 1455. Such error inflicts the greatest costs on popular sovereignty and the constitutional order because it often removes from the political process an issue that the constitution left to that process. See id., at 1460-61. Worse yet, the people have only one avenue to correct such error, namely, constitutional amendment, which requires either supermajoritarian
action by the General Assembly or awaiting the electorate's next opportunity to call a constitutional convention.
c
Cost of Unworkability or Uncertainty
Perpetuating unworkable rules or uncertain judicial decisions also imposes costs. This principle naturally
flows from the justifications for stare decisis. That is, if stare decisis is a defensible doctrine because it creates predictability and stability in the law; see, e.g.,
Conway v. Wilton,
supra,
In summary, under this framework, the court weighs the benefit and costs of adhering to prior cases. The court would employ a four step test in assessing whether to adhere to stare decisis. In step one, the court will consider the merits of the case under reconsideration. If it concludes that the previous case is correct, it will reaffirm that decision on the merits, and the inquiry will end. On the other hand, if the court should conclude that the previous decision is wrong, it should continue on to steps two through four. In step two, the court will analyze the benefit of adhering to the precedent case. This analysis involves the evaluation of one factor, namely, the reliance interests. In assessing whether the case being reconsidered has engendered any reliance, the court must methodically work through each category of reliance interests-specific, governmental, court, and societal-and catalog how each group has ordered its behavior on the basis of the erroneous decision. It must further assess what disruption would result if the case is overruled. Next, in step three, the court would evaluate the costs of adhering to the erroneous decision, which requires the evaluation of three factors. Those factors include the (a) costs of correcting the judicial error, (b) costs the error imposes on the constitutional order, and (c) costs of unworkability or uncertainty. After the costs have been identified and evaluated, the court will move to the fourth and final step: the court would compare the benefit to the costs of adhering to the decision. If the reliance interests and the disruption costs that would arise from overruling the decision outweigh the costs of perpetuating judicial error, the previous decision will be afforded stare decisis effect, and the court will be bound to follow it. If, however, the costs of preserving judicial error outweigh any reliance interests, the decision under reconsideration will be afforded no stare decisis effect, and it should be overruled.
B
Application of Principled Doctrine of Stare Decisis to Santiago
The court's adoption of the four step test outlined in part I A of this opinion would result in a more consistent and principled application of the doctrine of stare decisis. In fact, applying this approach would shield this court from the appearance that the doctrine of stare decisis is used as a tool to reach a preferred result. I will now apply this framework in the present case to consider whether stare decisis should be applied to our decision in Santiago.
1
Step One: The Merits of Santiago
As I previously observed, it would serve no purpose to lengthen this dissent with further explanation as to why Santiago was wrongly decided. Instead, it suffices to say that, for the reasons Chief Justice Rogers, Justice Espinosa, and I provided in our dissenting opinions in Santiago, that decision was wrong then and continues to be wrong now.
2
Step Two: The Lack of Reliance Santiago Has Engendered
In part I A of this opinion, I explained that reliance interests can generally be placed into four categories: specific reliance; governmental reliance; court reliance;
and societal reliance. I will consider each category in turn.
It cannot genuinely be argued that
Santiago
has garnered any specific reliance. The individuals currently on death row have not acted in reliance on our holding in
Santiago.
Indeed, the conduct that resulted in their convictions and death sentences occurred long before we issued our decision in
Santiago.
Moreover, we have often
stated that stare decisis has less force in criminal cases precisely because those cases do not beget reliance interests. E.g.,
State v. Salamon,
supra,
There similarly has been no governmental or court reliance. Neither the Legislative Branch nor the Executive Branch has taken action in the wake of and in reliance on
Santiago.
The legislature has not enacted a new punishment scheme for capital crimes, and the governor has not taken steps to implement a new punishment scheme. Cf.
Craig v. Driscoll,
supra,
Finally,
Santiago
has not amassed any societal reliance. As I discussed previously, societal reliance refers to the people's perception of our constitutional system and the relationship between themselves and government. The people of Connecticut have hardly had time to absorb our decision in
Santiago,
and, thus, there has been little time for that decision to become part of Connecticut's consciousness.
Santiago
simply has not garnered, at least presently, the same level of social and historical significance as the United States Supreme Court's decisions in, for example,
Brown v. Board of Education,
Clearly, there is not a scintilla of reliance on
Santiago.
Neither society nor the government has changed its behavior to comport with that decision. Moreover,
Santiago
is far from being part of our state consciousness. Even if it could be argued that there has been some reliance on
Santiago,
such reliance would surely be
unreasonable. This court's decision in
Santiago
was released August 25, 2015, at a time when the present appeal was pending. On September 4, 2015, the state filed a motion for argument and reconsideration of our decision in
Santiago,
a motion we denied on October 7, 2015. See
State v.
Santiago,
supra, 319 Conn. at 912,
In light of the complete lack of reliance on Santiago, there is no need to consider the disruptive effect that overruling Santiago would have. Obviously, if there has been no reliance, there are no reliance interests to disrupt.
3
Step Three: Assessing the Costs of Perpetuating Santiago's Error
Because there has not been even the slightest bit of reliance on Santiago, only the most trivial of costs will be necessary to tip the scale in favor of not affording stare decisis effect to Santiago. The costs of preserving Santiago, however, are stifling, not trivial. I will address each of the three costs outlined previously in this opinion. Those costs are the costs of error correction, costs to the constitutional order, and costs of unworkability or uncertainty.
a
The Uncertainty of Santiago
For the sake of brevity and clarity, I will first consider the creation of uncertainty. There is a great irony in arguing that the dictates of stare decisis would have this court stand by a previous case that creates uncertainty. Santiago is such a case. I do not suggest-nor could I-that Santiago announced an unclear rule of law or a test that will be unworkable in future cases. Nonetheless, the majority opinion in that case created an immense ambiguity, an ambiguity that has left a dark cloud of uncertainty over the powers of government.
The uncertainty arises from the majority's mode of analysis. In order to determine that the death penalty is now offensive to our state constitution, the majority employed a hybrid analysis of its own creation. As I noted in my dissent in
Santiago,
the majority's approach in that case fell somewhere between a per se analysis and a statutory analysis;
State v. Santiago,
supra,
I admit that parsing the 140 page majority opinion in
Santiago
can be a difficult and, at times, perplexing task. After giving that decision careful, thorough, and thoughtful consideration, however, I concluded that the majority had not determined that the death penalty is per se unconstitutional, and the majority in
Santiago
had not disputed that conclusion. See id., at 341-42,
It is now obvious that
Santiago
has created a great degree of uncertainty, and continuing that uncertainty will impose costs. It is true that this court's decisions will often generate some amount of uncertainty. That uncertainty, however, concerns whether the law announced in a case will apply under different factual circumstances. For example, in
Campos v. Coleman,
b
Santiago's Tax on Our Constitutional Order
Closely related to the cost of this uncertainty are the costs Santiago places on our constitutional order. When a judicial decision erroneously immunizes an issue from majoritarian control and mistakenly allocates power to the judiciary, when such allocation cannot be corrected by majoritarian action, it taxes our constitutional order greatly. See K. Lash, supra, 93 Va. L.Rev. at 1458, 1460-61.
I will first address Santiago's specious immunization of capital punishment from majoritarian control. I will explain how the court has created a constitutional right when none existed. It will then be necessary, due to the contorted reasoning of the majority in Santiago, to consider whether the issue of capital punishment has been removed from majoritarian control.
In concluding that the death penalty is unconstitutionally cruel and unusual, the majority in
Santiago
created a right that is not grounded in Connecticut's constitution. As I explained in my dissent in
Santiago,
a cursory textual analysis of the constitution reveals numerous references to capital punishment and capital offenses.
State v.
Santiago
, supra, at 131,
Although it is clear that
Santiago
created a right not provided by the constitution, it is less clear whether it immunizes capital punishment from majoritarian control. As I discussed previously in this part of my opinion, the precise holding of
Santiago
is uncertain. In that case, the majority seemed to suggest that whether the death penalty could be imposed remained subject to majoritarian decision. See, e.g.,
State v. Santiago,
supra,
Regardless of whether
Santiago
immunizes capital punishment from majoritarian control, it does impose allocation costs on the constitutional order. Moreover, the allocation error cannot be corrected through majoritarian action and, therefore, levies substantial costs on the constitutional order. As I just explained, the people have enshrined capital punishment with constitutional status. Furthermore, defining crime and fixing punishment are part of the legislative, not judicial, power. See, e.g.,
State v. Darden,
supra,
To compound our affront to the legislature's power, this court's power grab cannot be corrected through majoritarian action. Even if it is assumed that the legislature could reinstate the death penalty by, for example, repealing P.A. 12-5, it appears that the ultimate decision regarding whether the constitution permits the imposition of capital punishment rests with this court. The majority in
Santiago
stated: "We express no opinion as to the circumstances under which
a reviewing court
might conclude ... that capital punishment again comports with Connecticut's standards of decency and, therefore, passes constitutional muster." (Emphasis added.)
State v. Santiago,
supra,
c
The Costs of Correcting Santiago Are Likely Significant
Finally, I turn to the difficulty of error correction and the costs it imposes. Erroneous constitutional decisions create greater costs than erroneous statutory or common-law
decisions because of the difficulty in correcting such error. See, e.g.,
Agostini v. Felton,
4
Step Four: Weighing the Benefit and Costs of Affording Santiago Stare Decisis Effect
The imbalance between the reliance interests that would be protected and the costs that would result from adhering to
Santiago
is so clear that I almost need not express it. The weighing in the present case is akin to using an elephant (costs of giving stare decisis effect to
Santiago
) as a counterweight for a mouse (reliance interests). In all actuality, using a mouse to represent the reliance interests at stake is far too generous. Not a single individual or institution, including this state's government, has acted in reliance of our decision in
Santiago.
In fact, that decision's legitimacy was placed on shaky ground from the beginning because we questioned its precedential effect before the judgment in that case was final; see
State v. Santiago,
supra, 319 Conn. at 935,
THE COURT'S INSTITUTIONAL LEGITIMACY
In their concurring opinions, Chief Justice Rogers and Justice Robinson focus primarily on concerns over this court's legitimacy. Chief Justice Rogers argues that overruling Santiago within one year of deciding that case simply because there has been a change in court membership would call into question the integrity of this court and our commitment to the rule of law. Similarly, Justice Robinson concludes that the present case turns on the "stare decisis considerations of this court's institutional legitimacy and stability...." Text accompanying footnote 2 of Justice Robinson's concurring opinion. He continues by stating that, if this court were to now overrule Santiago, it would appear that an important constitutional case was retracted simply due to a change in court personnel. I am not unsympathetic to my colleagues' concerns over the legitimacy of the court. Indeed, I agree that it would be a travesty if we were to overrule our previous cases simply because they no longer comport with the personal and ideological beliefs of a majority of the justices of this court. That, however, is not this case. Moreover, the idea that we may subordinate our oath to uphold the constitution to concerns about this court's public appearance is incomprehensible. See Conn. Const. art. XI, § 1.
The arguments in the concurring opinions of Chief Justice Rogers and Justice Robinson rest on faulty premises. First, they both seem to suggest that overturning court precedent is inconsistent with the rule of law. For example, Chief Justice Rogers apparently feels bound by Santiago because of her "respect for the rule of law," and Justice Robinson concludes that we should follow Santiago because to do otherwise "would imperil our state's commitment to the rule of law...." Second, and far more bizarre, Chief Justice Rogers and Justice Robinson contend that the change in court membership is an insufficient reason to overturn Santiago in the present case. Of course, I agree that a change in court personnel cannot justify overruling an earlier decision; that fact, however, would not serve as the basis for overruling Santiago. Instead, we would overrule Santiago because, one, the reasoning of the majority opinion in that case was inherently flawed and led to an erroneous conclusion, and, two, a weighing of the benefit and costs of applying the doctrine of stare decisis dictates that it should not be applied to our decision in Santiago.
I will further expound on the flaws in both of these premises, but, before I do, I will briefly explain from what source the court derives its legitimacy. This court's legitimacy arises from the willingness of the people of Connecticut to accept and obey the court's decisions and is "a product
of substance and perception...."
Planned Parenthood of Southeastern Pennsylvania v. Casey,
It appears that Chief Justice Rogers and Justice Robinson understand that this institution's legitimacy comes from a fidelity to the rule of law. They take the argument one step further, however, and conflate stare decisis with the rule of law. To be sure, at times, adherence to precedent serves the ideals of the rule of law,
but, as I discussed in part I A of this opinion, blindly following precedent can also result in a great cost on the rule of law. I can think of no case in which this reality has been more readily apparent than in the present case. In her dissenting opinion in
Santiago,
Chief Justice Rogers stated: "[B]ecause 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.
" (Emphasis added.)
State v. Santiago,
supra,
In addition, if this court's legitimacy is truly a matter of "
substance and
perception"; (emphasis added)
Planned Parenthood of Southeastern Pennsylvania v. Casey,
I now turn to the second premise of Chief Justice Rogers' and Justice Robinson's contentions, namely, that the change in this court's membership between
Santiago
and the present case
is the reason
we would
overturn
Santiago.
Even more troubling than the fallaciousness of this argument is its suggestion that this court is bound, now and forever, to follow any decision, right or wrong,
unless the panel that decided the previous case is identical to the panel that wishes to overrule that case. Such a rule would completely ignore the past practice of this court. In fact, I have yet to uncover, despite considerable research, a case in which a panel overruling a previous decision of this court was identical to the panel that decided the case being overruled. This has held true even when we have overruled a decision only shortly after it was released. For example, in
State v. DeJesus,
In response, I imagine that Chief Justice Rogers and Justice Robinson would echo the arguments made by
one of our colleagues at oral argument in the present case. At oral argument, it was suggested that some change in circumstances or law, other than a change in court personnel, is necessary to justify overruling a prior decision. Perhaps they would justify this court's previous departures from precedent, despite the changes in court composition, by explaining that "[e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better." (Internal quotation marks omitted.)
George v. Ericson,
Normally, I accept what my colleagues have written and do not attempt to uncover a delitescent meaning
or ulterior motive, and I will not do so in the present case. I have trouble accepting, however, that it is the institutional integrity of this court that truly concerns Chief Justice Rogers. First, she largely agrees with the stare decisis analysis I have presented in this opinion. See footnote 2 of Chief Justice Rogers' concurring opinion. Second, she does not refute my argument that this court's legitimacy comes from a fidelity to the rule of law; overruling prior cases is, in many instances, consistent with the rule of law, and any appearance that we are driven by the rule of individuals can be placated by the application of an objective stare decisis test. Third, in the recent past, neither this court nor Chief Justice Rogers has expressed concern about overruling a prior decision after a change in court membership.
In sum, the argument that the integrity and legitimacy of this court would be undermined by overruling Santiago is faulty. First, the rule of law does not bind us to erroneous precedent. Instead, it requires us to neutrally apply an objective stare decisis framework and to decide whether the benefit of affording Santiago stare decisis effect is outweighed by the costs. Second, if the entire court were to reexamine our holding in Santiago, and, after such examination, a majority of the justices were to conclude that Santiago is wrong, it would not be because there has been a change in the court's membership. III
CONCLUSION
In closing, I want to note an astute observation once made by Chief Justice Charles Evan Hughes, when he was an Associate Justice of the United States Supreme Court. In response to the argument that dissent weakens the court's institutional prestige, Justice Hughes wrote: "When unanimity can be obtained without sacrifice of conviction, it strongly commends the decision to public confidence. But unanimity [that] is merely formal, [that] is recorded at the expense of strong, conflicting views, is not desirable in a court of last resort, whatever may be the effect [on] public opinion at the time. This is so because what must ultimately sustain the court in public confidence is the character and independence of the judges. They are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognized than that unanimity should be secured through its sacrifice." C. Hughes, The Supreme Court of the United States: Its Foundation, Methods and Achievements-An Interpretation (1928) pp. 67-68. The observation of Justice Hughes is equally applicable in the present case. What will ultimately sustain this court's legitimacy is a prudent and independent exercise of the judgment of each individual justice, guided, of course, by our constitution and our laws. Just as it may be regrettable when the justices do not all agree, it may also be regrettable that our public appearance may temporarily be tarnished when we overrule a previous decision in short order. Far greater, and more important, than such regret, however, is our oath to uphold the constitution and our duty to objectively interpret that law. I am troubled by the suggestion that we must adhere to a decision, despite our belief that such a decision is unconstitutional, for no reason other than the appearance that we have changed our mind due to a change in court personnel. I cannot, in good conscience, join the court in such action. I believe the oath we take requires more of us.
Given that my dissenting opinion does not address his concurring opinion, it is puzzling that Justice Palmer feels the need to respond to my dissent.
I observe that unlike Chief Justice Rogers, Justice Robinson does not embrace the notion that there are any circumstances when stare decisis requires the court to adhere to a clearly wrong decision.
See Black's Law Dictionary (9th Ed. 2009) (noting Latin phrase post hoc, ergo propter hoc is translated as " 'after this, therefore because of this,' " and defining phrase as "relating to the fallacy of assuming causality from temporal sequence; confusing sequence with consequence").
The similarity in case names between
State v. DeJesus,
supra, 270 Conn. at 826,
I also note the irony that Santiago itself involved multiple panel changes. Justices opted in and out of the panel while it was being considered by this court, yet no one seemed to be concerned that those panel changes would give rise to the public perception that the result of an appeal before this court depended on the composition of the panel. A summary of the panel changes in that case reveals that they were quite numerous.
I begin with the panel that decided
State v. Santiago,
On May 9, 2012, more than one year after oral argument in
State v. Santiago,
supra,
On September 12, 2012, the original panel in
State v. Santiago,
supra,
In November, 2012, Justice Harper reached the age of seventy. Although his continued participation in the case was authorized by this court's decision in
Honulik v. Greenwich,
Oral argument was heard on the defendant's motion for reconsideration on April 23, 2013. Justice Robinson joined the court in December, 2013. Justice Norcott, at that time a judge trial referee, did not withdraw from the panel, and Justice Robinson was not added to it.
In the meantime, the present case was marked ready on May 13, 2014. At that time, the decision on the defendant's motion for reconsideration was more than one year away from being published. See
State v. Santiago,
supra,
The Chief Justice observes in her concurring opinion that in
State v. Santiago,
supra,
In the process of articulating an objective stare decisis framework, it will be necessary to overrule, at least in part, our current stare decisis jurisprudence. That irony is not lost on me. This overruling, however, is justified under the analysis I set forth subsequently in this opinion. Briefly, there is no doubt that our stare decisis doctrine has been relied on by individuals and the branches of government. See part I A 1 of this opinion (addressing reliance interests in stare decisis). In fact, each time an individual or government agency, including a court, relies on a decision of this court, it is implicitly relying on stare decisis and the belief that we will not overrule such a decision. Those interests, however, are outweighed by the costs of adhering to our current jurisprudence on this point. First, and most important, our current doctrine is unworkable and unpredictable. See footnotes 3 and 30 of this opinion; see also part I A 2 c of this opinion (explaining cost of unworkability and uncertainty). Second, it is likely that only this court can bring order to the chaos in our stare decisis jurisprudence. See part I A 2 a of this opinion (discussing cost of error correction). Because the doctrine is, in essence, a principle of judicial decision-making, it seems unlikely that the General Assembly could legislate on the matter.
I acknowledge that this court's past practice may not have required that we first decide whether the previous decision was correct. As I will explain in this part of my opinion, however, deciding the merits question as a threshold matter, and keeping such determination independent of the stare decisis analysis, provides a more objective, and therefore principled, approach to stare decisis.
I recognize that, previously in this opinion, I criticized Chief Justice Rogers for overlooking the clearly wrong exception to our stare decisis jurisprudence. I did so, however, to point out this court's inconsistent application of stare decisis, not to suggest that a previous decision's wrongness should continue to be part of this court's stare decisis calculus.
I acknowledge that Justice Robinson does not agree that the merits and stare decisis analyses are distinct and separate. Instead, he considers the degree of a precedent's wrongness to be a component in deciding whether a prior decision should be given stare decisis effect. He gives two reasons why he cannot agree with a stare decisis framework, such as the one presented in this opinion, that does not consider a precedent's relative degrees of wrongness. I will address each of these concerns in turn but first note that this court's decisions are either right or wrong. To what degree a decision is wrong does not, in the end, change the fact that it is wrong. This point is particularly important in constitutional adjudication, such as in the present case. Our constitution is the supreme law of this state, and all judges have sworn an oath to uphold it. If a case purporting to expound on the constitution is wrong as to its meaning or application, that case is in conflict with the constitution, and the mere fact that the case might be only slightly wrong, whatever that might mean, does not save it. This is why the degree to which a precedent is wrong is irrelevant to the stare decisis calculus.
With respect to Justice Robinson's concerns, he first states that the stare decisis analysis set forth in this opinion "appears to be receptive to overruling precedent in a way that undercuts the salutary features with respect to promoting stability in the law." Footnote 5 of Justice Robinson's concurring opinion. This point highlights a theoretical difference in our views. Justice Robinson, it appears, believes that stability in the law, in and of itself, has some normative value worthy of protection. Thus, if a prior decision of this court is only slightly wrong, he might sustain it for the sake of preserving stability. In my view, however, stability has no normative value independent of the protection of actual reliance interests, as I explain in part I A 1 of this opinion, and, therefore, it is the degree of reliance, not wrongness, that I consider to be important in a stare decisis analysis. See, e.g.,
State v. Salamon,
supra, 287 Conn. at 520,
Second, Justice Robinson argues that my approach "overrule[s] certain well established principles of stare decisis, namely, that: (1) the prior decision must be shown to be ' clearly wrong ' with a 'clear showing that an established rule is incorrect and harmful' ... and (2) 'a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it.' " (Citation omitted; emphasis in original.) Footnote 5 of Justice Robinson's concurring opinion. I have acknowledged this irony and have explained why our stare decisis jurisprudence should be overruled. See footnote 6 of this opinion.
This natural tension is less apparent and problematic when this court considers stare decisis in the context of the common law, because the source of the common law is precedent, and not a written constitution or code. Moreover, the common law has developed incrementally and overtime.
Chief Justice Rogers and Justice Robinson both claim that maintenance of the court's legitimacy is also a benefit of stare decisis. Perhaps at a superficial level they are correct, but, upon deeper reflection, it becomes clear that the court's legitimacy comes from fidelity to the rule of law. See part II of this opinion. At times, the rule of law will counsel us to follow precedent, and, in such cases, adherence to the dictates of stare decisis does contribute to the court's institutional legitimacy. Other times, however, fidelity to the rule of law will require us to depart from erroneous judicial decisions. In such cases, after fair and careful consideration and impartial application of the applicable law, this court's legitimacy is not harmed simply because it has decided to depart from a previous erroneous ruling. Thus, for these reasons, I do not believe that this court's legitimacy is an appropriate factor to be considered in the stare decisis calculus. Moreover, if Chief Justice Rogers and Justice Robinson were right, we could rarely, if ever, overrule precedent. See part II of this opinion.
In the past, we have also cited the conservation of resources and judicial efficiency as justifications for stare decisis. See, e.g.,
Conway v. Wilton,
supra,
Salamon
and
Conway
are but two examples in which this court has decided to revisit and overrule its prior decisions because the discarded cases had not conjured any meaningful reliance. Other examples abound. See, e.g.,
Mueller v. Tepler,
Commercial actors provide an informative example. Such actors routinely rely on judicial decisions when forming contracts or structuring corporate organizations. See, e.g.,
Citizens United v. Federal Election Commission,
Chief Justice Sullivan's legislative reliance argument was vindicated approximately four months after our decision in Craig when the legislature passed No. 03-91 of the 2003 Public Acts (P.A. 03-91), abrogating our holding in Craig, at least with respect to intoxicated patrons who are twenty-one years of age or older. See P.A. 03-91, § 1, codified at General Statutes (Rev. to 2005) § 30-102.
The Connecticut constitution may be amended in one of two ways. First, any legislator may propose an amendment. See Conn. Const. amend. VI. The proposed amendment must be approved either by three fourths of the members of each house of the General Assembly or by at least a majority of the members of each house in two successive sessions of the General Assembly. Conn. Const. amend. VI. Once so adopted, the amendment is presented to the people for their approval at the next general election. Conn. Const. amend. VI. To become effective, it must receive the support of a majority of the electors voting on the amendment. Conn. Const. amend. VI.
Second, the constitution may be amended at a convention called for such purpose. See Conn. Const. art. XIII, § 1. A constitutional convention can be called by either the General Assembly or the people. See Conn. Const. art. XIII, §§ 1 and 2. The General Assembly may convene a constitutional convention by a two-thirds vote of the members of each house. Conn. Const. art. XIII, § 1. A convention can be convened in this way at any time not earlier than ten years since the convening of a prior convention. Conn. Const. art. XIII, § 1. Alternatively, every twenty years, the people are presented, at a general election, with the question of whether a constitutional convention shall be convened. See Conn. Const. art. XIII, § 2. If a majority of the electors voting on such question call for a convention, a convention will be convened. See Conn. Const. art. XIII, § 2. Any proposals from a constitutional convention to amend the constitution will become effective when approved by a majority of the people voting thereon. See Conn. Const. art. XIII, § 4.
As is evident from the foregoing discussion, amending the Connecticut constitution is no easy task. It requires supermajoritarian or successive majoritarian action by the General Assembly, accompanied by approval of a majority of the state's citizens. If the General Assembly does not propose constitutional amendments or call a constitutional convention for that purpose, the citizens have the opportunity to call such a convention and to propose amendments only once every twenty years.
I acknowledge that not all scholars and historians believe that Reverend Hooker's sermon was political in nature or that it inspired the Fundamental Orders of 1639. See M. Besso, "Thomas Hooker and His May 1638 Sermon," 10 Early Am. Stud. 194, 197, 207 (2012). There have been many interpretations of Reverend Hooker's sermon. Some historians have suggested it pronounced and advocated new principles for government, which later appeared in the Fundamental Orders. See id., at 202-206. Others have argued that Reverend Hooker's ideas were not original but representative of local practices, and that the sermon's ultimate goal was to advocate for a form of civil government. See id., at 206-207. Still other historians suggest that Reverend Hooker's sermon was not politically motivated at all but espoused a religious message. See id., at 207. Whether Reverend Hooker's sermon was the catalyst for the Fundamental Orders, simply reflected popular understanding of government at the time, or was a religious message is unimportant for present purposes. What is important is that it embodied the spirit and beliefs of the time, and those beliefs embraced the principles of popular sovereignty.
In 1662, the Fundamental Orders were supplanted by the Charter of 1662 granted by King Charles II, although the structure of government was left largely unchanged. See H. Cohn, supra, 64 Conn. B.J. at 337-39. The Charter of 1662 remained in effect at least until the signing of the Declaration of Independence in 1776, except for a short, eighteen month period in the 1680s when Connecticut was annexed as part of the Dominion of New England. See id., at 340-42; see also W. Horton, "Connecticut Constitutional History: 1776-1988," 64 Conn. B.J. 355, 357 (1990).
In 1776, Connecticut, along with the other colonies, declared its independence from England. W. Horton, "Connecticut Constitutional History: 1776-1988," 64 Conn. B.J. 355, 357 (1990). Rather than abandoning the Charter of 1662 for a new constitution, however, the General Assembly simply removed any reference to the English monarch and declared that the government established by the Charter would remain the "civil constitution of this state...." (Internal quotation marks omitted.) Id.
In the years after declaring independence from England and leading up to the constitutional convention of 1818, whether Connecticut had a constitution became a contentious issue. See R. Purcell, Connecticut in Transition: 1775-1818 (1918) pp. 177-80, 243-46, 249-50, 259-61. The arguments that the state had no constitution sounded in theories of popular sovereignty. See id., at pp. 177-80, 243-46. For example, if the people were the fountain of power, which was the belief in Connecticut, the Charter of 1662, it was argued, could not be the state's constitution because it was adopted by the General Assembly, not the people. See id., at 177-80. John Leland stated in 1802: "The people of Connecticut have never been asked, by those in authority, what form of government they would choose; nor in fact, whether they would have any form at all. For want of a specific constitution, the rulers run without bridle or bit, or anything to draw them up to the ring-bolt." (Internal quotation marks omitted.) Id., at p. 245. Moreover, the General Assembly could amend or revoke any law it wanted, including those set forth in the Charter. Id., at pp. 255-56.
Likewise, those who argued that there was a constitution in Connecticut also relied on popular sovereignty. Judge Zephaniah Swift wrote: "Indeed no form of government could have been valid, unless approved, and adopted by the people in convention, or in some other way." 1 Z. Swift, A System of the Laws of the State of Connecticut (1795) p. 57. In fact, Judge Swift acknowledged that once Connecticut ratified the Declaration of Independence, thereby severing its ties with England, the people had the right to establish a new form of government, if they had seen fit. Id. Nonetheless, Judge Swift believed that the Charter of 1662 continued as the constitution of Connecticut. See id., at pp. 56-57. He theorized that the real legitimacy of state government arose, not so much from the Charter, but from the people's assent to be governed as described by the Charter. See id., at pp. 57-58. Even if the Charter was the sole basis of the government's power, Judge Swift argued, it still remained valid. See id., at p. 58. Although the Charter, and the government it established, would have become invalid after Connecticut declared its independence from England, "the subsequent conduct of the people, in assenting to, approving of, and acquiescing in the acts of the legislature," established the validity of the Charter's continuation. Id.
Whether a constitution existed in Connecticut between 1776 and 1818 is unimportant for present purposes. What is important is that the debate on that issue illustrated the prominence of popular sovereignty in Connecticut in the years leading up to the 1818 constitutional convention. Moreover, this debate was the impetus, at least in part, for that convention.
Examples of what I view as this court's overreach abound. See, e.g.,
Connecticut Coalition for Justice in Education Funding, Inc. v. Rell,
Lochner v. New York,
In fact, Professor Lash argues that such cases should receive reverse stare decisis treatment, that is, the presumption should be for overruling, not sustaining, such cases. See K. Lash, supra, 93 Va. L.Rev. at 1442, 1458, 1461. We need not go so far as to declare that such cases are presumptively invalid; it is sufficient to say that, in order to sustain such cases under the doctrine of stare decisis, the reliance interests to be protected must be extremely significant.
See, e.g.,
Montejo v. Louisiana,
See Conn. Const. art. I, § 8 ("[n]o person shall be ... deprived of life, liberty or property without due process of law" [emphasis added] ); Conn. Const. amend. IV ("no person shall, for a capital offense, be tried by a jury of less than twelve jurors without his consent" [emphasis added] ); Conn. Const. amend. XVII ("[i]n all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great" [emphasis added] ); Conn. Const. amend. XVII ("[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law" [emphasis added] ).
I note my belief that the textual references alone are sufficient to secure capital punishment's constitutional status. The events of the 1965 constitutional convention simply make me more resolute in my conclusion.
Chief Justice Rogers misstates my stare decisis analysis when she asserts: "[D]istilled to its essence, [Justice Zarella's analysis asserts] that, if a past decision was manifestly incorrect and there has been no reliance on it, principles of stare decisis may not require the court to stand by that decision." Footnote 2 of Chief Justice Rogers' concurring opinion. As I have clearly stated, stare decisis does not require us to stand by a decision if "the costs of preserving judicial error outweigh any reliance interests...." Part I A 2 c of this opinion. Although Chief Justice Rogers is partially correct insofar as stare decisis does not require a court to adhere to a manifestly incorrect decision that has engendered no reliance, her recitation of my test requires too much. Under my approach, stare decisis does not apply if the costs of adhering to an erroneous decision outweigh the reliance interests that would be upset by overruling that decision. Thus, if a case has not garnered any reliance, it could be overruled if adherence to such decision would impose the slightest of costs, regardless of whether it is manifestly wrong.
It would be remiss of me not to note that the quandary regarding the change in court membership is entirely a problem of the court's creation. This court had the opportunity and idea to decide the present appeal before the appeal in
Santiago,
thereby allowing the full and current panel of the court to decide whether the prospective repeal of the death penalty set forth in P.A. 12-5 made it unconstitutional to carry out the death sentences then in place. In fact, the present appeal was originally argued on July 10, 2014, more than one year before
Santiago
was decided on August 25, 2015. Nevertheless, the court decided, despite our policy to have important constitutional issues decided by the full and current panel of this court, to answer the novel question raised by the passage of P.A. 12-5 in
Santiago,
with a panel that included a justice who had long since reached the mandatory retirement age. Moreover, and as Justice Espinosa correctly notes in her dissenting opinion in the present case, the panel that decided an earlier appeal in
Santiago;
see
State v. Santiago,
Justice Robinson suggests that I am overly optimistic about the public's ability to look past the panel change and to understand that the overruling of this court's recent decision in
Santiago
would not be because of the panel change but because, as I have just explained, a majority of the justices in the present case have concluded that (1)
Santiago
is wrong, and (2) the costs of adhering to
Santiago
greatly outweigh the benefit. See footnote 8 of Justice Robinson's concurring opinion. As a "cautionary tale," he refers to a recent decision of the Kansas Supreme Court, namely,
State v. Petersen-Beard,
Finally, in response to a concern that Justice Palmer raises in his concurring opinion, I would like to note that Petersen-Beard provides an example of a court of last resort quickly reversing its own constitutional ruling.
Professor Thomas R. Lee, in discussing factors that might explain the United States Supreme Court's tendency to overrule prior decisions, stated: "One statistical study has suggested, for example, that the [c]ourts that have disproportionately altered precedent have been characterized by significant changes in membership.... A familiar example is the Hughes Court, which overturned [fifteen] precedents during its last nine years after the [c]ourt's entire membership was transformed between 1937 and 1941.... Similarly, most of the Warren Court's decisions overruling precedent were handed down after Justice [Felix] Frankfurter's retirement in 1962, while most of the Burger Court's overruling decisions came after [Justice] Douglas' retirement in 1975." (Citations omitted.) T. Lee, supra, 52 Vand. L.Rev. at 650 n. 14.
There is a great irony in Chief Justice Rogers' reasoning that gives me pause. While she is occupied with explaining that she, Justice Espinosa, and I have already espoused, "at great length," why we think Santiago is incorrect; footnote 2 of Chief Justice Rogers' concurring opinion; noting that Justices Palmer, Eveleigh, and McDonald continue to believe that Santiago was correctly decided, and speculating about how Justice Norcott would rule, she overlooks the elephant in the room: What does Justice Robinson, a current member of this court sitting on this case, think?
Of course, this is not the only problem that stems from Chief Justice Rogers' reasoning, although it is the most important. She correctly notes the obvious, namely, that stare decisis does not require this court to stand by a manifestly incorrect decision that has not been relied on. See id. She then states: "In Santiago, however, [she], Justice Espinosa and I explained at great length why we believed that the majority decision was incorrect ... and we were unable to persuade the majority." (Citations omitted.) Id. Isn't this a curious notion? Apparently, when determining whether a previous decision of this court was manifestly incorrect, we consider whether the dissenting justices in the prior case successfully persuaded the majority justices that they, the majority, had reached a manifestly incorrect decision. If the dissenting justices had prevailed in the prior decision, would the outcome not have been different? Obviously, it would have been, so Chief Justice Rogers must mean something else. Perhaps, what she is trying to suggest is that she, Justice Espinosa, and I must now come up with a new reason that Santiago is incorrect. Why, if Santiago was incorrect when decided for the reasons that we then stated, would it not still be incorrect for the same reasons today? After all, as Chief Justice Rogers has observed, it has been less than one year since we decided Santiago. Moreover, I am again back to that vexing question, what does Justice Robinson think? That seems like a particularly important question under the current circumstances when three of the current members of the court think Santiago is correct and three others have explained why it is demonstrably wrong. If Justice Robinson could offer a different explanation for why Santiago is erroneous, would that get us past Chief Justice Rogers' unique test?
Finally, Chief Justice Rogers notes that those justices who were in the majority in Santiago, and join in the per curiam opinion in the present case, continue to believe that Santiago is correct, almost as to suggest that, if only one of them had changed his mind, perhaps we would then be permitted to overrule Santiago. Again, she leaves the reader to create his or her own explanation. Unfortunately, I can be of no help. I cannot think of any constitutional, statutory, or common-law rule that bestows greater authority on a justice who was in the majority of a prior decision when that decision is being reconsidered.
During Chief Justice Rogers' tenure on this court, we have overruled prior precedent in twenty-five cases. See
State v. Wright,
At oral arguments in the present appeal, counsel was asked whether our ruling in
Kerrigan v. Commissioner of Public Health,
In his concurring opinion, Justice Robinson suggests that the reliance in the present case is different only in kind and not in degree from the reliance interests that would be at stake if Kerrigan were reconsidered. See footnote 6 of Justice Robinson's concurring opinion. In light of my analysis in part I B of this opinion, I cannot fathom the logic behind such a claim.
Dissenting Opinion
"'Twill be recorded for a precedent, And many an error by the same example Will rush into the state." W. Shakespeare, The Merchant of Venice, act IV, sc. i.
I write this dissenting opinion not to address the concurring opinion of Justice Palmer, who continues to believe that
State v. Santiago,
I also need not address the barely two paragraph disdainful majority opinion in the present case. I do note, however, that it is hardly surprising that the majority has decided to issue its opinion as a terse and dismissive per curiam, suggesting that the state's arguments in favor of overruling Santiago do not merit serious consideration. This is particularly troubling considering the importance of the issue presented in this appeal. It is this court's duty to give full consideration to the claims of the parties who come before it. In many cases less significant than the present one, the court as a matter of courtesy and respect answers all the claims raised by the parties, even when the court may believe that such claims lack merit. Dismissing the state's arguments in the present case in a per curiam opinion creates the appearance that the outcome was predisposed, and that oral argument was allowed merely to avoid the perception that the state was being treated unfairly. Indeed, Mark Rademacher, the assistant public defender who argued this appeal, stated that the purpose of granting the state's motion for oral argument was " '[to make] the state feel good about losing.' " J. Charlton, "Connecticut High Court Revisits Death Penalty," Fox 61, January 7, 2016, available at http://fox61.com/2016/01/07/Connecticut-high-court-to-revisit-death-penalty/ (last visited May 16, 2016).
I write to address the concurring opinion of the Chief Justice who frames the issue presented in this appeal in this manner: May the court overrule a recently established precedent solely because there has been a panel change since the now challenged decision? Taking that as her starting point, the Chief Justice voices the concern that overruling
Santiago
would call into question the integrity of this court because doing so: (1) would create the appearance that the court is governed by the whims of individual justices rather than the rule of law; (2) would create the public perception that the result
of a case depends on the composition of the panel; and (3) would undermine the stability and predictability of the law, on which litigants rely. The short answer to those concerns is that they are unjustified and irrelevant when the prior precedent at issue is clearly wrong. As I explain in this dissenting opinion, this is particularly true when the clearly wrong, recently decided case has violated the doctrine of stare decisis-under those circumstances, that doctrine
requires
that the prior precedent be overruled.
Adarand Constructors, Inc. v. Pena,
Because of the importance of the issue presented in this appeal, a longer response is necessary. This court's appearance as an impartial decision-making body, governed by the rule of law rather than the proclivities of individual panel members, is vital. No one disputes that, nor does anyone question the integral role that stability and predictability play in our legal system. But the protestations of the Chief Justice are predicated on a straw man that employs post hoc reasoning and finds no support in our stare decisis jurisprudence. In this dissent, I consider these two flaws in the analysis of the Chief Justice, and
thereby illustrate the central flaw in her opinion-it overlooks the overarching stare decisis principle of which even playwrights are aware-a clearly wrong decision is dangerous, because it will be relied on as precedent. As this court frequently has noted, "[i]t is more important that the court should be
right upon later and more elaborate consideration of the cases than consistent with previous declarations." (Internal quotation marks omitted.)
Conway v. Wilton,
I
POST HOC STRAW MEN ARE UNPERSUASIVE
The Chief Justice misstates the issue presented in this appeal, framing it as whether this court should overrule a recently decided case
because
the panel has subsequently changed. By formulating the issue in that manner, she erects a straw man. Obviously, if this court were to overrule a decision merely
because
the panel had changed, the court would do damage to the rule
of law. That causal connection exists, however, only in the opinion of the Chief Justice, who certainly finds herself more than capable of knocking down the proposition she has put forward. But the mere fact that a decision overruling
Santiago
would have occurred after the panel changed does not necessitate the conclusion that the panel change would have
caused
the court to overrule
Santiago,
and is nothing more than a logical fallacy, an example of "post hoc, ergo propter hoc"
On another level, what the Chief Justice appears to suggest is that, because the panel in
Santiago
would have been unwilling to overrule that decision, the current panel is prevented from doing so. She even goes so far as to tally the unchanged votes of the remaining three members of the majority panel from
Santiago
that are on the panel for this appeal, counting that as support for her decision to accord stare decisis effect to
Santiago.
She appears to suggest, therefore, that if one of the members of the majority in
Santiago
had come
to the realization that
Santiago
was clearly wrong, a majority of the panel in the present case would be justified in overruling
Santiago.
First, if that notion does not create the appearance that the personally held beliefs of individual justices govern the outcome of the present appeal, I do not know what would. Second, the Chief Justice does not give her own vote, or the votes of the other two original dissenting justices, sufficient weight. By my tally, those votes also totaled three. Finally, if the notion advanced by the Chief Justice-that an opinion should not be overruled because the original majority continued to believe the case was rightly decided-held any weight,
Plessy v. Ferguson,
II
STARE DECISIS PRINCIPLES APPLIED TO A DECISION THAT FLOUTED STARE DECISIS
This court has stated that "[one] well recognized exception to stare decisis under which a court will examine and overrule a prior decision ... [is when that prior decision] is clearly wrong." (Internal quotation marks omitted.)
Conway v. Wilton,
supra, 238 Conn. at 660,
Contrary to the position of the Chief Justice, the United States Supreme Court has held that when a recently decided case has ignored and contravened existing precedent, the doctrine of stare decisis
requires
that the decision be overruled. As explained by D. Arthur Kelsey, now a justice of the Supreme Court of Virginia, when "a court overrules a more recent case that, itself, violated stare decisis and thus represented a divergence from settled precedent ... the court
does not flout stare decisis by overruling the anomalous case. Rather, it 'restore[s]' the prior 'fabric of [the] law' that the anomalous case departed from.
Adarand Constructors, Inc. v. Pena,
[supra,
I observe that there were significant panel changes in the five years that passed between
Metro Broadcasting, Inc.,
and
Adarand Constructors, Inc.
The majority in
Metro Broadcasting, Inc.,
was comprised of Justices Brennan, White, Marshall, Blackmun and Stevens.
Metro Broadcasting, Inc. v. Federal Communications
Commission,
supra, 497 U.S. at 550,
The United States Supreme Court relied on the very same principle in
United States v. Dixon,
That is precisely the context in the present case. The Chief Justice detailed the manner in which the majority in
Santiago
cast aside a vast body of existing precedent, simply because the majority of the panel in that case held a contrary view, in complete contravention to applicable precedent and with flagrant disrespect for the principle of stare decisis.
State v. Santiago,
supra,
In fact, the Chief Justice's dissenting opinion in
Santiago
makes clear that the majority decision in that case was driven by naked judicial activism, in contravention to the existing law of this state. She explained: "[B]ecause 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." Id., at 276-77,
In the present case, accordingly, the question is not whether the court should overrule Santiago because of a panel change. The question that the Chief Justice should be asking is whether stare decisis principles support the conclusion that a panel change prevents this court from being able to overrule a clearly wrong, recently decided case that constitutes an abrupt departure from well established precedent. And the clear answer to that question is no; stare decisis requires that the fabric of the law be restored by overruling the anomalous decision.
The Chief Justice cannot point to a single case to support the proposition that a panel change prevents
the court from overruling clearly wrong precedent, because none exists. My research has revealed that all of this court's decisions overruling prior precedent have happened
following
a panel change. During her tenure, for instance, my research also has revealed that this court has overruled its prior precedent on at least
twenty-five occasions.
In every single one of those cases, the panel that overruled the prior precedent differed from the panel that had decided the original case. See
State v. Wright,
The Chief Justice presided over many of the appeals in which this court overruled
prior precedent. Accordingly, this court's existing practices in adhering-or not adhering-to the stare decisis principles that the Chief Justice currently invokes are relevant in evaluating the persuasiveness of her claim that the doctrine prevents this court from overruling
Santiago.
I note that many of this court's recent decisions overruling prior precedent include no discussion whatsoever of the doctrine of stare decisis. See, e.g.,
Haynes v. Middletown,
supra, 314 Conn. at 323,
These recent decisions also call into question the assertion of the Chief Justice that stare decisis must be adhered to in the present case because "neither the factual underpinnings of the prior decision nor the law has changed...." She contends that one of these changes is necessary before a court may overrule a decision. Presumably, because she recognizes no exception for clearly wrong decisions despite its well
established roots in our law, and because she obviously believes that
Santiago
was clearly wrong; see
State v. Santiago,
supra,
In a case that was decided mere months ago, however, the Chief Justice joined the majority in overruling prior precedent, despite the absence of either of these two conditions. And in doing so, the court recognized a new cause of action, hardly a small change in the law. In
Campos v. Coleman,
supra, 319 Conn. at 57,
One would expect, considering the Chief Justice's claim that the court is bound by the doctrine of stare decisis in the present case, that she would have expressed similar concerns regarding the risk that the court might appear to be deciding cases on the basis of the personal moral beliefs of individual justices, and that
Campos
would include an extensive and considered discussion of why stare decisis should not apply to
Mendillo.
Not so. Not only did
Campos
restrict its passing reference to the doctrine of stare decisis to a brief footnote, but it also misstated one of the basic principles underlying the doctrine.
Campos v. Coleman,
supra, 319 Conn. at 57 n. 16,
Outside observers reading the Campos decision might be concerned that the sole reason for its conclusion was the composition of the panel. The Chief Justice, however, joined the majority, a position that is inconsistent with her concern in the present case to avoid the appearance of being driven by a mere doctrinal disagreement with the previous panel.
The Chief Justice's decision in
State v. DeJesus,
supra, 288 Conn. at 418,
The Chief Justice, who had joined the majority in
Sanseverino I,
authored
State v. DeJesus,
supra, 288 Conn. at 437,
Writing for the majority in
DeJesus,
the Chief Justice quickly dismissed the dissenting opinion's arguments, voicing no concerns whatsoever that either the
subse
quent
panel
change or the quick nature of the about face presented any impediment to overruling
Sanseverino I.
State v. DeJesus,
supra, 288 Conn. at 437-38 n. 14,
Do not misunderstand me to suggest that
State v. DeJesus,
supra, 288 Conn. at 418,
The position of the Chief Justice, that when there has been a panel change, stare decisis precludes the court from overturning a recent, clearly wrong decision that flouted established precedent, conflicts with a fundamental principle underlying the doctrine of stare decisis, namely, that the doctrine, although grounded in stability and consistency,
cannot
be rigid. Otherwise, consistency and stability would require the court to follow precedent regardless of how wrong it may be. See
Conway v. Wilton,
supra, 238 Conn. at 660,
The two "rules" that the Chief Justice focuses on in her concurring opinion in the present case are: (1) this court cannot overrule a decision following a panel change; and (2) this court cannot overrule a recently decided case. As to the first supposed rule, she points to no instance in which this court overruled prior precedent, where there had not been an intervening panel change. She also fails to cite to a single decision by this court declining to overrule a prior precedent on the basis that it was too recently decided. Assuming, however, for purposes of discussion, that these two rules bar the court from overruling prior precedent, her rigid application of these principles, if carried out in the manner that they suggest is appropriate, would guarantee that a clearly wrong decision would stand uncorrected.
An excellent illustration of this principle is this court's decision in
Tileston v. Ullman,
§§ 6246 and 6562, which together, as construed by the court, made it a criminal offense for a physician to prescribe contraceptives to a married woman, even when "the general health and well-being of the patient require[d] it."
Tileston v. Ullman,
supra, at 85,
The plaintiff in
Tileston
was a licensed physician who sought a declaratory judgment that General Statutes (1930 Rev.) §§ 6246 and 6562 allowed for an exception when a physician had concluded that pregnancy would place a woman's life in danger. Although this was precisely the issue that had been left unresolved by
Nelson;
State v. Nelson,
supra,
In
Tileston,
the court's reliance on the panel change obviated any need to reexamine the problematic public policy principles on which
Nelson
had rested. Specifically, in
Nelson,
the court had explained that the statutes' "plain purpose" was "to protect purity, to preserve chastity, to encourage continence and self-restraint, to defend the sanctity of the home, and thus engender ... a virile and virtuous race of men and women." (Internal quotation marks omitted.)
State v. Nelson,
supra,
Similarly, the panel in
Tileston
had no difficulty balancing that noble public "purpose" against the considerably
greater risk presented to the female patients at issue in that case-death. Indeed, for those women, the court had a perfectly legal, alternative solution: "absolute abstention."
Tileston v. Ullman,
supra,
The decision in
Tileston
illustrates the dangers of the rigid application of stare decisis. The court in
Tileston
was able to rely in part on a panel change to justify its refusal to allow for a statutory exception that had not been dictated by prior precedent, despite the fact that the exception was commonly allowed in the much more extreme case of abortion. Id., at 85, 86,
Of course, the best evidence that the Chief Justice improperly relies on the doctrine of stare decisis to justify her conclusion that
Santiago
should not be overruled is
Santiago
itself. That is, the overwhelming irony is that the Chief Justice relies on the doctrine of stare decisis in declining to overrule a decision that she herself recognized tramped merrily over this court's entire
body of death penalty jurisprudence, in complete disregard of that doctrine.
Overturning
Santiago
would not require justices to decide the present case according to their personal moral beliefs. The Chief Justice explained in her dissenting
opinion in that case that
Santiago
was decided and governed by "the majority's subjective sense of morality";
State v. Santiago,
supra,
I respectfully dissent.
In their dissenting opinions, Justice Zarella and Justice Espinosa cite numerous decisions in which this court has overruled one of its decisions. Anyone who has had an opportunity to read those decisions will discover that there is no inconsistency between the position that I took in the decisions in which I joined and the position that I take in the present case. Of particular significance, I would emphasize that, in many of the cases relied upon by the dissenting justices in which this court has overruled a recent decision, at least one member of the majority on the original decision that was being overruled reconsidered and joined with the majority in the subsequent overruling decision. In contrast, in the present case, it is perfectly clear that all of the members of the majority in Santiago continue to believe in the correctness of their decision, and the only change is the replacement of Justice Norcott by Justice Robinson.
With respect to Justice Espinosa's account of the panel changes that occurred prior to our decision in Santiago, suffice it to say that this court followed its standard procedures in determining which justices would sit on all phases of that case.
The state, while ultimately acknowledging that the court in
Ross
"employed an independent analysis of the facial validity of a [capital] sentence," suggests that we did so principally to review the procedural safeguards that must be followed before the death penalty may be imposed, and not to review the constitutionality of the punishment itself. This argument ignores the fact that, in both
State v. Ross,
supra,
I further note that the state's argument that our reliance on
State v. Smith,
5 Day (Conn.) 175 (1811), was misplaced because that decision failed to address the constitutionality of the sentence at issue proves little and less. I will return to the holdings and implications of
Smith.
For now, suffice it to say that one should not expect that a case decided in 1811, seven years before the adoption of this state's first formal constitution, would speak to the constitutionality of the sentence in question. Rather, to reiterate, in
Santiago,
we cited to pre-1818 authority such as
Smith
and
Lung's Case,
The other cases on which the state relies are readily distinguishable or otherwise fail to support the propositions for which the state cites them. See, e.g.,
State v. Lamme,
supra, 216 Conn. at 183,
Unless otherwise noted, all references to
Santiago
in this opinion refer to
State v. Santiago,
supra,
I wish to explain my position that this court properly considered this constitutional issue, namely, the constitutionality of the death penalty in the wake of No. 12-5 of the 2012 Public Acts, in the first instance in Santiago, notwithstanding the fact that it was published well after I joined the court and its panel ultimately included a recently retired justice. In particular, I emphasize that I do not view the court's actions in Santiago as in any way precluding me from exercising my duty to decide this significant issue as a matter of first impression.
I recognize that some concerns have been expressed about this court's decision to consider the constitutionality of the death penalty in the wake of Public Act 12-5 in the first instance in Santiago, rather than in this case, given this court's policy and practice of deciding important constitutional issues with a full and current panel of this court whenever possible. See W. Horton, "One Thought on State v. Santiago, " Horton, Shields & Knox Appellate Blog (October 28, 2015), available at http://hortonshieldsknox.com/one-thought-on-state-v-santiago (last visited May 16, 2016) ("it looks bad for a court when, notwithstanding a constitutional provision that a justice must stop holding office at age [seventy], a newly appointed justice has to sit on the sidelines for months, and in this one case years, while a justice over age [seventy] decides very important cases with which the new justice may disagree"); see also D. Klau, "Supreme Court to Rehear Arguments in Death Penalty Case," Appealingly Brief (December 1, 2015), available at http://appealinglybrief.com/2015/12/01/supreme-court-to-rehear-arguments-in-death-penalty-case (last visited May 16, 2016) (describing court's position vis-à-vis Santiago and present case as "uncomfortable").
By way of background, I note that Governor Dannel P. Malloy appointed me to this court in December, 2013, to the seat on this court vacated by the mandated retirement of Justice Flemming L. Norcott, Jr. The constitutionality of the death penalty in the wake of Public Act 12-5 was argued in
Santiago
on April 23, 2013, approximately six months prior to Justice Norcott attaining the constitutionally mandated age of retirement. Justice Norcott then continued to participate in deliberations as a member of that panel, including consideration of the state's subsequent motions for reconsideration and to stay, in accordance with General Statutes § 51-198(c). Justice Norcott's vote to join the slender majority in
Santiago
ended a career on this court in which he had been a leading voice against the constitutionality of the death penalty. See, e.g.,
State v. Santiago,
I respectfully disagree with the concerns expressed about Justice Norcott's continued participation in
Santiago,
to my apparent exclusion from the opportunity to decide this issue tabula rasa. In my view, Justice Norcott's continued deliberation in
Santiago
pursuant to § 51-198(c) was wholly proper and appropriate under the letter and purpose of that statute, despite the fact that his participation lasted for nearly two years following my elevation to what had been his seat on this court. To allow prudential concerns about the exclusion of a newly appointed justice to disenfranchise Justice Norcott from his continued participation in
Santiago
nearly eight months into deliberations on that case-particularly given the magnitude of the issues considered therein-would have raised the constitutionally unsavory specter of running out a football game clock on the office of a member of this court in a case argued well before his retirement and the appointment of his successor. See
Honulik v. Greenwich,
Thus, the timing of my participation in deciding this issue reflects nothing more than the following facts: (1) the constitutionality of the death penalty following the enactment of Public Act 12-5 is an issue of law common to numerous cases on this court's docket; (2) accordingly, some case had to be the first to consider the issue, with Santiago being the first ready case in line; (3) the length of the court's deliberations in Santiago were consistent with the gravity of the issue before the court and the length of the numerous opinions published in that case; and (4) once this court decided Santiago, it became necessary to resolve other death penalty cases as they became ready for consideration, with the present case being the first direct appeal in line after the conclusion of proceedings in Santiago.
In dissenting in
Payne,
Justice Marshall described the majority's decision to distinguish the importance of stare decisis in cases "involving property and contract rights, where reliance interests are involved" from those "involving procedural and evidentiary rules," particularly when "decided by the narrowest of margins, over spirited dissents" as creating a "radical new exception to the doctrine of stare decisis," applicable to prior decisions with single vote margins. (Internal quotation marks omitted.)
Payne v. Tennessee,
In
LaValle,
the New York Court of Appeals considered the constitutionality of a statute requiring the trial judge to inform the jury that its deadlock with respect to a sentence of death or life without parole would require the judge to sentence the defendant to a lesser sentence of life imprisonment with parole eligibility after twenty to twenty-five years.
People v. LaValle,
In his well researched and scholarly dissenting opinion, Justice Zarella crafts a test intended to mitigate the seemingly subjective nature of the existing stare decisis inquiry by requiring the court to engage in a multifactor balancing analysis after making a threshold determination that the precedent under attack is, for whatever reason, wrongly decided. Justice Zarella's test does not, however, accommodate for degrees of wrong, insofar as he observes that, "[i]n addition to placing too little value on precedent, the wrongness of a previous decision should not factor into the stare decisis calculus because it is difficult to quantify or measure the degree of a particular decision's wrongness," noting that "the merits determination is independent of, and has no impact on, the stare decisis analysis."
I respectfully disagree with Justice Zarella's refusal to consider the relative degree of "wrong" in engaging in his stare decisis analysis. First, with no qualitative control other than the balancing of costs of maintaining versus eliminating a prior decision, it appears to be receptive to overruling precedent in a way that undercuts the salutary features with respect to promoting stability in the law. Second, this approach ironically appears to overrule certain well established principles of stare decisis, namely that: (1) the prior decision must be shown to be "
clearly wrong
" with a "clear showing that an established rule is incorrect and harmful"; (emphasis added; internal quotation marks omitted)
Conway v. Wilton,
supra, 238 Conn. at 660-61,
In my view, the precedential value of an older decision, unquestionably correct when decided, might well erode over time as the result of relevant changes in law and policy, thus rendering a decision to overrule it less of a shock to the stability of the court and the law. See S. Burton, "The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication,"
At oral argument before this court, the state and members of the court discussed the concept of reliance by considering hypothetical questions about whether this court could ever overrule its constitutional pronouncement in
Kerrigan v. Commissioner of Public Health,
The defendant in
Santiago
has already been resentenced to life imprisonment in accordance with this court's decision in that case. See
State v. Santiago,
Justice Zarella criticizes my position with respect to stare decisis as flawed by the logical fallacy of "post hoc ergo propter hoc, or after this, therefore resulting from it." See Black's Law Dictionary (10th Ed. 2014) (defining "post hoc ergo propter hoc" as "[t]he logical fallacy of assuming that a causal relationship exists when acts or events are merely sequential"). He understands my view to be that, "[b]ecause the present appeal has been decided after a change in the court's membership, the change in the membership caused or was the reason to overturn Santiago. " I believe Justice Zarella misunderstands my position, which simply is one of correlation, not causation. As a theoretical matter, had the Santiago panel remained intact, it is theoretically possible that one member of the majority could have defected and voted in this case to overrule Santiago. Thus, I agree that, as a purely theoretical matter, the change in panel is merely correlative, rather than causational with respect to the potential overruling of Santiago. I, however, do not share Justice Zarella's optimism about the probable collective understanding on the part of those who are asked to accept our court's decisions as a consistent statement of what the law is, with respect to the potential overruling of Santiago. Hence, Justice Zarella and I irreconcilably, but respectfully, disagree about the public perception issues that would attend the overruling of Santiago so soon after it was decided. See also footnote 9 of this concurring opinion.
To this end, I firmly disagree with Justice Zarella's observation that my position with respect to stare decisis in the present case amounts to a "suggestion that this court is bound, now and forever, to follow any decision, right or wrong, unless the panel that decided the previous case is identical to the panel that wishes to overrule that case." I do not believe any such thing, and to take such a position, would, as Justice Zarella observes, stand in contrast to the historical record. Indeed, as a practical matter, such a position would immobilize our case law and render it completely unable to adapt to changes in law and society. My prudential concerns with respect to the panel change and public perception concern the posture of this particular case, which is unique with respect to the juxtaposition of the controversy of the issue and the timing of the argument and decision.
A very recent series of decisions in one of our sister states tells a cautionary tale about the perception of instability created by the rapid overruling of decisions upon the change of a state Supreme Court's membership. In
Doe v. Thompson,
A new justice, Caleb Stegall, was subsequently appointed to the vacancy on the Kansas Supreme Court. After hearing argument in
State v. Petersen-Beard,
Interestingly, neither the majority nor the dissent in Petersen-Beard considered the doctrine of stare decisis, as it affected the Kansas court's obligation to follow its own recent precedents, with respect to that decision. Reaction to the rapid overruling was, however, widely noticed, and primarily attributed to the change in personnel of the Kansas Supreme Court. One scholarly commentator, Professor David Post, described the Kansas Supreme Court's action in Petersen-Beard, which required "all other ... sex offenders in the state with convictions before 2011" to register, while sparing the defendants in Doe, Redmond, and Buser, as "seem [ing] to violate the very fundamental notion, embedded in our idea of 'due process of law,' that like cases are to be treated alike-someone in precisely the same situation ... will have to register ... while [the defendants in Doe, Redmond, and Buser ] will not." D. Post, "In a Single Day, the Kansas Supreme Court Issues Important Constitutional Opinions-and Overrules Them," Washington Post (April 25, 2016), available at https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/04/25/in-a-single-day-the-kansas-supreme-court-issues-important-constitutional-opinions-and-overrules-them (last visited May 16, 2016). Discussing the change in the court's personnel, Professor Post describes as "a bit unseemly" the fact that "[t]his strange circumstance seems to have come about because the Kansas court was short-handed." Id.; see also D. Weiss, "Kansas Supreme Court Issues Three Opinions Then Overrules Them on the Same Day," ABA J. (April 25, 2016) ("[t]he reason for the change in stance was a new justice who joined the court, taking the place of a senior district judge who was filling a vacancy"), available at http://www.abajournal.com/news/article/kansas_supreme_court_issues_ three_opinions_then_overrules_them_on_the_same (last visited May 16, 2016); S. Greenfield, "What a Difference a Day Makes, Kansas Edition," Simple Justice: A Criminal Defense Blog (April 26, 2016), available at http://blog.simplejustice.us/2016/04/26/what-a-difference-a-day-makes-kansas-edition (last visited May 16, 2016) (An article observing that Petersen-Beard was inconsistent with the doctrine of stare decisis, and stating that the "problem arose because one seat at the Kansas Supreme Court was filled by one [judge in Doe , Redmond , and Buser ], and another [judge in Petersen-Beard ]. The [c]ourt was split, three to three, on the issue, so that last [vote] was the tie breaker."); T. Rizzo, "Sex Offenders Win and Lose in 'Peculiar' Rulings by the Kansas Supreme Court," Kansas City Star (April 22, 2016), available at http://www.kansascity.com/news/local/crime/article73328242.html (last visited May 16, 2016) (quoting state attorney general's description of decisions as "peculiar" and stating that "[t]he highly unusual circumstance appear[s] to be the result of a one-justice change in the makeup of the court").
Although public reaction should not sway our decisionmaking, I cannot ignore the likelihood, vividly illustrated by the reaction to the Kansas Supreme Court's recent decision in Petersen-Beard, that such rapid overruling of a major constitutional precedent would be attributed solely to the change in the court's composition. This indicates to me that overruling Santiago would present the risk of shaking our citizens' confidence in our court as an institution, betraying it as a collection of individuals who make seemingly arbitrary decisions. As I stated previously, the majority's analysis in Santiago is not so unreasonable or fundamentally flawed as to justify taking that risk in the public's confidence in this court, and the judiciary as a whole.
Thus, I find wholly unpersuasive the state's arguments that Santiago "is no obstacle to this court issuing a correct legal decision on the question of whether capital punishment violates the state constitution," and that "the only result in [this case] that could undermine the public faith in the integrity of this court ... would be an affirmance of Santiago ... based on the principle of stare decisis. If [this] court believes that Santiago ... properly decided that capital punishment violates the Connecticut constitution, then it should so hold. But if a majority of this court believes that Santiago ... is incorrect, justifying affirmation of that breach through a statement that the court believes it tied its own hands would have a deleterious effect ... on the public's perception of the procedural fairness of the criminal justice system and diminish public confidence in the rule of law." (Citation omitted; internal quotation marks omitted.) In my view, any concerns in the public's confidence about this court's technical fidelity to the adversarial appellate decision-making process in Santiago -a matter on which the majority and dissent in that case disagreed energetically-are drastically outweighed by the public perception of arbitrariness that would result from the defendant in that case, Eduardo Santiago, getting to live, and the defendant in the present case facing the prospect of lethal injection, for no reason beyond the fact that Santiago's case happened to come up first on this court's docket and was heard by a slightly different panel of this court. See footnote 2 of this concurring opinion.
It would be careless of me if I failed to mention that stare decisis has never been prominent in our capital punishment jurisprudence. Indeed, past justices convinced of the death penalty's unconstitutional status were unmoved by the doctrine of stare decisis and continually declined to join the court's decisions upholding capital punishment. For example, dissenting in part from the majority opinion in
State v. Ross,
In my view, it is appropriate for our capital punishment jurisprudence to take little notice of stare decisis. The stakes in capital cases are high-life or death-and it is unlikely that any justice of this court will be unsure of the constitutional status of the ultimate punishment, whether he or she believes that it is constitutional or unconstitutional. It seems that the best decision-making policy in this arena, in which our holdings are of great constitutional, moral, and practical magnitude, is to allow each justice to reach an independent judgment regarding the death penalty's constitutionality, while giving little weight to stare decisis. In the present case, however, the concurring justices heavily weigh stare decisis and thereby prevent each justice from reaching an independent judgment regarding the constitutionality of the death penalty.
See also
State v. Santiago,
supra,
This inconsistent application is best illustrated by a juxtaposition of cases in which this court overruled precedent with cases in which this court has upheld precedent. In many instances in which this court decides to overrule a previous case, it is not due to the clarity of the error in the previous case or because the most cogent reasons and inescapable logic required it. Instead, it is simply because a majority of the members of the panel reaches a different conclusion than the majority of the previous panel. See, e.g.,
Campos v. Coleman,
I note that a plurality of justices, Justices Palmer, Eveleigh, and McDonald, need not resort to stare decisis because they continue to believe that Santiago is correct. Thus, any discussion of stare decisis as a rationale for affirming Santiago is unnecessary. Nonetheless, those justices do address stare decisis.
The United States Supreme Court has suffered such criticism at the hands of numerous academic writers precisely because it has inconsistently applied its stare decisis doctrine. See, e.g., C. Cooper, "Stare Decisis: Precedent and Principle in Constitutional Adjudication,"