State v. Santiago

Decision Date25 August 2015
Docket NumberSC17413
CourtConnecticut Supreme Court

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

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


The majority first conducts an abbreviated Geisler analysis that focuses on the meaning of cruel and unusual punishment. It then adopts a new legal standard derived from federal law to determine whether the death penalty is cruel and unusual punishment. In the discussion that follows, I explain why I strongly disagree with each step in the majority's analysis.

AThe Majority's Application of Geisler

The majority's application of the test set forth in Geisler is problematic for two reasons. First, this court has applied the Geisler test in other capital cases only when a defendant has challenged the facial validity of the death penalty; see, e.g., State v. Rizzo, supra, 303 Conn. 185; State v. Ross, supra, 230 Conn. 249; which the defendant in the present case has not done, or when the defendant has challenged our capital sentencing statutes and it has been necessary to assess whether the state constitution affords broader protection under those statutes than the federal constitution; see, e.g., State v. Rizzo, supra, 136-45; State v. Webb, 252 Conn.128, 146-47, 750 A.2d 448, cert. denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53 (2000); State v. Ross, supra, 230 Conn. 253-54; which the defendant also has not done. The defendant instead challenges the constitutionality of P.A. 12-5. This is clear not only from the defendant's briefs, but from the parties' oral arguments, in which the defendant's appellate counsel repeatedly described his claim as a statutory claim, and various members of the panel, including Justice Palmer, asked numerous questions regarding the issue of severability if this court should deem the retention provision of P.A. 12-5 unconstitutional.5 Thus, the majority's decision to review the defendant's challenge to P.A. 12-5 by applying the type of analysis usually reserved for a claim that capital punishment is unconstitutional on per se grounds, even though no such claim has been raised, creates a disturbing anomaly in Connecticut's capital punishment jurisprudence that cannot be lightly dismissed.

Having chosen to apply the incorrect legal standard to review the defendant's claim, the majority then compounds this error by focusing its Geisler analysis on the "scope, nature, and history of the protections from cruel and unusual punishment" instead of on capital punishment. As with the majority's initial decision to apply Geisler, this is a clear departure from our precedent in capital cases. See State v. Ross, supra, 230 Conn. 245-48; see also State v. Rizzo, supra, 303 Conn. 186. The majority acknowledges this deviation, observing that, although this court "used the Geisler framework to perform the actual substantive legal analysis" in Ross and Rizzo, it prefers to follow a different approach in the present case because "the constitutionality of a criminal sanction . . . is governed by its own distinct legal rules and standards," apparently unaware that the "rules and standards" developed for this purpose are embodied in Geisler. Footnote 14 of the majority opinion. The problem is not simply that the majority rejects well established Connecticut precedent but that the majority's misapplication of Geisler fails to achieve the objective for which the test was intended when the court adopted it in Ross to review challenges to the validity of capital punishment under the state constitution.

Cruel and unusual punishment is a legal concept intended to describe punishment deemed morally unacceptable by society. See, e.g., State v. Rizzo, supra, 303 Conn. 188 ("[t]he standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment" [internal quotation marks omitted]); State v. Ross, supra, 230 Conn. 251 (whether death penalty constitutes cruel and unusual punishment requires court to determine whether it is "so inherently cruel and so lacking in moral and sociological justification that it is . . . fundamentally offensive to evolving standards of human decency"). Thus, when a court is pre-sented with the issue of whether a particular punishment is cruel and unusual, it must develop a set of principles to guide its analysis. Ross was the first case in which this court was asked to decide whether a punishment was cruel and unusual under the state constitution. Consequently, the court in Ross was required to develop a principled approach to resolving this question, an approach it rightly expected would be followed in subsequent cases. In so doing, the court first observed that, although the Connecticut constitution contains no cruel and unusual punishment clause, the due process clauses of article first, §§ 8 and 9, of the Connecticut constitution "impliedly prohibit punishment that is cruel and unusual." State v. Ross, supra, 230 Conn. 246. It then adopted the six factor test articulated in Geisler as the most principled means of determining whether capital punishment is cruel and unusual. Id., 249; see also State v. Rizzo, supra, 184-86. Applying this test, the court examined (1) the text of the constitutional provisions, (2) related Connecticut precedents, (3) persuasive federal precedents, (4) persuasive precedents of other state courts, (5) historical insights into the intent of our constitutional forbearers, and (6) contemporary understandings of applicable economic and sociological norms6 in order to obtain a proper understanding of...

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