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State V. Santiago, 305 Conn

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State V. Santiago, 305 Conn ****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. EDUARDO SANTIAGO* (SC 17413) Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and Espinosa, Js.** Argued April 23, 2013Ðofficially released August 25, 2015 Mark Rademacher, assistant public defender, for the appellant (defendant). Harry Weller, senior assistant state's attorney, with whom were Matthew A. Weiner, deputy assistant state's attorney, and, on the brief, Kevin T. Kane, chief state's attorney, Gail P. Hardy, state's attorney, Susan C. Marks, supervisory assistant state's attorney, and Mar- jorie Allen Dauster, Donna Mambrino and John F. Fahey, senior assistant state's attorneys, for the appel- lee (state). Constance de la Vega, pro hac vice, and Hope R. Metcalf filed a brief for experts on international human rights and comparative law as amicus curiae. Alex V. Hernandez and Brian W. Stull filed a brief for legal historians and scholars as amicus curiae. Sandra J. Staub, David J. McGuire and Lauren R. Masotta filed a brief for the American Civil Liberties Union Foundation of Connecticut as amicus curiae. Kent S. Scheidegger, pro hac vice, and Judith Rossi filed a brief for the Criminal Justice Legal Foundation as amicus curiae. Opinion TABLE OF CONTENTS Page I. STATE CONSTITUTIONAL PROHIBITIONS AGAINST CRUEL AND UNUSUAL PUNISH- MENT . A. Federal Constitutional Standards. 1. Inherently Barbaric Punishments . 2. Excessive and Disproportionate Pun- ishments . 3. Arbitrary or Discriminatory Punish- ments . B. Relevant State Constitutional History . 1. Preconstitutional Legal Traditions. 2. 1818 . C. Relevant Constitutional Text . D. Relevant Connecticut Precedents . E. Persuasive Sister State Precedents. F. Conclusion . II. THE DEATH PENALTY FAILS TO COM- PORT WITH CONTEMPORARY STAN- DARDS OF DECENCY. A. Historical Development . B. Legislative Enactments . C. Current Practice . D. Laws and Practices of Other Jurisdic- tions . E. Opinions and Recommendations of Pro- fessional Associations . F. Conclusion . III. THE DEATH PENALTY IS DEVOID OF ANY LEGITIMATE PENOLOGICAL JUSTIFICA- TIONS . A. Deterrence. B. Retribution . 1. Legislative Judgments. 2. Delays . 3. Possibility of Error . 4. Caprice and Bias. C. Vengeance . D. Conclusion . IV. RESPONSE TO THE DISSENTING JUS- TICES . A. Whether the Questions Decided Are Properly before the Court . 1. Arguments Allegedly Not Raised by the Defendant . 2. Opportunity for Briefing . 3. Extra-Record Materials . B. Connecticut's Historical Acceptance of Capital Punishment. C. Whether Deference to the Legislature Requires That We Uphold P.A. 12-5 . V. CONCLUSION . Opinion PALMER, J. Although the death penalty has been a fixture of Connecticut's criminal law since early colo- nial times, public opinion concerning it has long been divided. In 2009, growing opposition to capital punish- ment led the legislature to enact Public Acts 2009, No. 09-107 (P.A. 09-107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date. Then Gov- ernor M. Jodi Rell vetoed P.A. 09-107, however, and it did not become law. Three years later, in 2012, the legislature passed a materially identical act that pro- spectively repealed the death penalty; see Public Acts 2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dan- nel P. Malloy signed it into law. During the public hear- ings on both P.A. 09-107 and P.A. 12-5, supporters argued that the proposed legislation represented a mea- sured and lawful approach to the issue. Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibi- tion against cruel and unusual punishment. Perhaps most notably, Chief State's Attorney Kevin T. Kane, who serves as this state's chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass consti- tutional muster.1 Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a ``fiction'' and that, ``[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a mat- ter of constitutional law . [A]ny death penalty that has been imposed and not carried out would effectively be nullified.''2 In the present appeal, the defendant, Edu- ardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abol- ish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capi- tal crimes before that date. Upon careful consideration of the defendant's claims in light of the governing consti- tutional principles and Connecticut's unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state's death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose. For these reasons, execution of those offend- ers who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment. Following a trial on charges that included capital felony in violation of General Statutes (Rev. to 1999) § 53a-54b (2)3 and General Statutes § 53a-8, a jury found the defendant guilty as charged, and the trial court, Lavine, J., rendered judgment accordingly.4 The court then conducted a penalty phase hearing pursuant to General Statutes (Rev. to 1999) § 53a-46a, at which the jury found the existence of an aggravating factor, one or more jurors found the existence of one or more mitigating factors, and the jury found that the aggravat- ing factor outweighed the mitigating factor or factors. The trial court thereupon imposed a sentence of death,5 and the defendant appealed to this court from both the judgment of conviction and the death sentence. See State v. Santiago, 305 Conn. 101, 117±18, 49 A.3d 566 (2012) (Santiago I). While the appeal was pending, the legislature repealed the death penalty for all crimes committed on or after the effective date of the repeal, April 25, 2012. See P.A. 12-5. On June 12, 2012, this court ultimately affirmed the judgment of conviction but reversed the sentence of death and remanded the case for a new penalty phase hearing on the ground that the defendant had been deprived of the opportunity to review and use certain potentially mitigating evi- dence. See State v. Santiago, supra, 215, 308. There- after, the defendant filed a motion for reconsideration in which he asked this court to consider, among other things, whether the prospective repeal leads inexorably to the conclusion that capital punishment has ceased to comport with state constitutional requirements. The adoption of P.A. 12-5, when considered in light of the history of capital punishment in our state and other recent legal developments, compels us to conclude that the death penalty now constitutes cruel and unusual punishment, in violation of the state constitution. Con- sequently, we reverse the judgment of the trial court with respect to the sentence of death on the capital felony count and remand the case to that court with direction to sentence the defendant to life imprison- ment without the possibility of release on that count.6 The underlying facts of this case, which are set forth in detail in Santiago I, may be summarized briefly as follows. In December, 2000, Mark Pascual agreed to give the defendant a snowmobile from Pascual's repair shop if the defendant would kill the victim, Joseph Niwinski, for whose girlfriend Pascual had developed romantic feelings. Id., 121. That same month, with the assistance of Pascual and another friend, the defendant entered the victim's apartment and shot and killed the victim as he slept. Id., 123. The defendant was charged with, among other things, the capital felony of ``murder committed by a defendant who is hired to commit the same for pecuniary gain,'' in violation of § 53a-54b (2). In his original appeal to this court, the defendant raised numerous challenges to his conviction of capital felony and his conviction on other charges, as well as his death sentence. Id., 142±46. This court affirmed the defendant's conviction on all counts; see id., 118, 143, 308; and declined his invitation to revisit our prior deci- sions holding that the death penalty is not a per se violation of the Connecticut constitution.7 Id., 307.
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