State v. Santiago ( 2015 )

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STATE v. SANTIAGO—FIRST CONCURRENCE
NORCOTT and McDONALD, Js., concurring.
Although we fully agree with and join the majority opin-
ion, we write separately to express our profound con-
cerns regarding an issue of substantial public
importance that will never be resolved by this court in
light of the majority’s determination that the imposition
of the death penalty is an unconstitutionally excessive
and disproportionate punishment. Specifically, we can-
not end our state’s nearly 400 year struggle with the
macabre muck of capital punishment litigation without
speaking to the persistent allegations of racial and eth-
nic discrimination that have permeated the breadth of
this state’s experience with capital charging and sen-
tencing decisions. We recognize that this particular
challenge to our state’s capital punishment regime has
not been raised or briefed in the present case and,
therefore, cannot serve as the basis for the majority’s
holding today. Nor do we purport to resolve conclu-
sively these allegations.1 Because they have been a pow-
erful undercurrent running through virtually all of our
death penalty jurisprudence, however, we feel com-
pelled to analyze them.
I
ALLEGED RACIAL DISPARITIES IN CAPITAL
CHARGING AND SENTENCING
The possibility that the death penalty is sought or
imposed in a racially discriminatory manner emerged
as a matter of scholarly interest beginning in the 1930s,
and the first related legal challenges were brought dur-
ing the civil rights movement of the 1960s. See D. Baldus
et al., ‘‘Racial Discrimination and the Death Penalty in
the Post-Furman Era: An Empirical and Legal Over-
view, with Recent Findings from Philadelphia,’’ 83 Cor-
nell L. Rev. 1638, 1643 (1998). In Connecticut, the issue
came to the attention of this court twenty years ago in
State v. Cobb, 234 Conn. 735, 663 A.2d 948 (1995). As
the majority today explains, both supporters and oppo-
nents of the death penalty have recognized that: (1)
there is an inherent tension in the United States
Supreme Court’s death penalty jurisprudence; and (2)
that court’s determination that the eighth amendment
precludes the states from restricting the discretion of
capital juries necessarily means that juries can—and
will—choose whether to impose the ultimate sentence
or exercise their mercy in seemingly arbitrary ways. In
Cobb, the defendant, Sedrick Cobb, sought to present
for this court’s review data purporting to demonstrate
that a capital punishment system that leaves so much
to the unlimited discretion of jurors and prosecutors
inevitably results in charging and sentencing decisions
that are not merely arbitrary and capricious, but also
impermissibly discriminatory. Id., 737–40.
A divided three to three panel of this court concluded
that Cobb’s claims should be decided in the context of
a habeas corpus proceeding; id., 762–63; although the
dissenting justices concluded that, by statute, Cobb’s
claim that systemic racial disparities rendered his death
sentence disproportionate fell within this court’s origi-
nal jurisdiction and could have been resolved by this
court in the first instance with the assistance of a special
master. Id., 777–78 (Berdon, J., with whom Norcott and
Katz, Js., join). With respect to the inevitable delays
that would result from submitting the question to a
habeas trial, the dissenting justices argued that, ‘‘if our
capital sentencing system is infected with racism, we
must expose that ugly truth as soon as possible. The
public and other branches of state government, as well
as other defendants who face the death penalty, must
know the answer now.’’ Id., 776. ‘‘When a capital defen-
dant marshals a compelling argument that the death
penalty as it is administered in our state is incurably
racist,’’ Justice Berdon later cautioned, ‘‘we should stop
dead in our tracks until we have given the argument
our most serious attention.’’ (Internal quotation marks
omitted.) State v. Cobb, 251 Conn. 285, 537, 743 A.2d 1
(1999) (Berdon, J., dissenting), cert. denied, 531 U.S.
841, 121 S. Ct. 106, 148 L. Ed. 2d 64 (2000).
History has confirmed that the concerns expressed
by the dissenting justices in State v. Cobb, supra, 234
Conn. 776, were well founded. Eight years later, when
Richard Reynolds presented similar evidence of sys-
temic racial disparities in the imposition of the death
penalty as a challenge to the constitutionality of his
sentence, the parties to Cobb’s habeas case still had
not finished analyzing the data. See State v. Reynolds,
264 Conn. 1, 232–33, 836 A.2d 224 (2003), cert. denied,
541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004).
At that time, this court consolidated Reynolds’ racial
disparity claims, along with those of other death row
inmates, with Cobb’s habeas action. See id., 233. Ten
more years passed, during which the state spent mil-
lions of dollars on legal fees and expert statistical
reports; see J. Lender, ‘‘A Big Bill in Death Row Case,’’
Hartford Courant, September 14, 2014, p. B1; before
the habeas court finally issued its decision in 2013. See
In re Death Penalty Disparity Claims, Superior Court,
judicial district of Tolland, Docket No. TSR-CV-05-
4000632-S (October 11, 2013) (unpublished opinion).
During that time, a number of members of this court
voiced their concern that our state’s capital punishment
system appeared to be incurably tainted by racial and
ethnic bias. See, e.g., State v. Santiago, 305 Conn. 101,
324–25, 49 A.3d 566 (2012) (Harper, J., concurring and
dissenting); State v. Peeler, 271 Conn. 338, 466, 857 A.2d
808 (2004) (Katz, J., dissenting), cert. denied, 546 U.S.
845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005); State v.
Breton, 264 Conn. 327, 447, 824 A.2d 778 (2003) (Norcott,
J., dissenting), cert. denied, 540 U.S. 1055, 124 S. Ct.
819, 157 L. Ed. 2d 708 (2003); State v. Webb, 238 Conn.
389, 557, 680 A.2d 147 (1996) (Berdon, J., dissenting),
aff’d after remand, 252 Conn. 128, 750 A.2d 448, cert.
denied, 531 U.S. 835, 121 S. Ct. 93, 148 L. Ed. 2d 53
(2000). This court reserved judgment on the question,
however, pending the resolution of the habeas case.
Ultimately, though, the habeas court denied the peti-
tioners’ claims on purely legal grounds, without ever
clearly stating whether it had credited the petitioners’
evidence of systemic racial disparities. In re Death Pen-
alty Disparity Claims, supra, Superior Court, Docket
No. TSR-CV-05-4000632-S. That decision is currently on
appeal to this court. See In re Death Penalty Disparity
Claims, Connecticut Supreme Court, Docket No. SC
19252 (filed November 6, 2013). Today, a majority of
this court has concluded that our state constitution no
longer permits the execution of capital felons. As a
result, we anticipate that those individuals who have
been sentenced to death in Connecticut will withdraw
any pending penalty phase appeals and habeas claims,
and move for a correction of their sentences. See Prac-
tice Book § 43-22. In any event, today’s majority deci-
sion seemingly renders the habeas action moot.
Accordingly, although that case would have been the
more probable opportunity to address the long-standing
racial disparity claims, that avenue is no longer avail-
able. If the impressive efforts and substantial expenses
invested by the state in that case are not to be all for
naught, then the issue should be examined now.
We have been reluctant to accept the conclusion that
our capital punishment system is incurably infected
with racial and ethnic bias, believing—as we still do—
that the vast majority of Connecticut’s law enforcement
officers, prosecutors, judges, and jurors are decent, fair-
minded, and dedicated individuals who strive to see
that justice is carried out impartially. Abundant histori-
cal and statistical evidence, however, now strongly sug-
gests that racial disparities in the capital punishment
system exist in Connecticut—as elsewhere—that can-
not be accounted for by benign, nonracial factors. Spe-
cifically, there is a substantial and growing body of
evidence suggesting that decisions as to: (1) which
defendants will be charged with capital crimes, (2)
whether to seek the death penalty for those defendants,
and (3) whether to impose that ultimate punishment,
are heavily influenced by the constitutionally impermis-
sible factors of racial and ethnic bias.
We begin our review with the historical evidence.
See Kerrigan v. Commissioner of Public Health, 289
Conn. 135, 172 n.22, 957 A.2d 407 (2008) (‘‘the lessons
of history and experience are surely the best guide as
to when, and with respect to what interests, society is
likely to stigmatize individuals as members of an infe-
rior caste’’ [internal quotation marks omitted]). As the
majority notes, a central theme running through Profes-
sor Lawrence B. Goodheart’s recently published book
is that the long history of the death penalty in Connecti-
cut has exhibited ‘‘an unmistakable racial dimension.’’
L. Goodheart, The Solemn Sentence of Death: Capital
Punishment in Connecticut (2011) p. 50. Capital punish-
ment, Goodheart suggests, invariably has been imposed
disproportionately on marginalized and unpopular
groups, and in particular on members of ethnic and
racial minorities. See id., p. 39. During the colonial
period, this meant African-Americans and Native Ameri-
cans. See id. From the founding of the colonies in the
1630s through the early 1770s, two thirds of those
hanged for homicide, infanticide, and rape were people
of color, notwithstanding that nonwhites accounted for
only 5 percent of the state population. See id., pp. 17,
50, 57, 61. Native Americans in particular were singled
out, not only in the frequency with which they were
executed, but also in the barbarity of the procedures
deployed. Although hanging was the standard practice,
for example, New Haven authorities opted instead for
decapitation so as to ‘‘racially set apart Nepaupuck and
Busheage,’’ two Native American participants in the
early tribal skirmishes with European settlers. Id., pp.
17–18. A contemporary account of Busheage’s execu-
tion describes how the ‘‘executioner would strike off
his head with a falchion [a sword with a curved blade],
but he had eight blows at it before he could effect it
. . . .’’ (Internal quotation marks omitted.) Id., p. 18.
Other historians who have studied this time period
have reached the same conclusion as Goodheart. Con-
necticut’s former state historian, for instance, has
described how ‘‘[w]ell established practice saw . . .
white men escaping punishment for rape while black
men hanged . . . .’’ C. Collier, ‘‘The Common Law and
Individual Rights in Connecticut before the Federal Bill
of Rights,’’ 76 Conn. B.J. 1, 18 n.40 (2002). Such ‘‘discrim-
inations were so deep and pervasive in the culture,’’
Collier explains, ‘‘that the variable nature of justice was
seldom called into question.’’ Id. William Holdsworth
likewise opines that ‘‘white prejudice [was likely among
the reasons that] Indians bore a disproportionate share
of the severest civil and criminal penalties meted out at
this time.’’ W. Holdsworth, Law and Society in Colonial
Connecticut, 1636–1672 (1974) p. 315 (unpublished doc-
toral dissertation, Claremont Graduate School).
This ‘‘apartheid in the larger society’’ continued to
infect the capital sentencing system in the nineteenth
century. L. Goodheart, supra, p. 92. More than one half
of those hanged for rape or murder between 1773 and
1827, for example, were Native American, African-
American, or of mixed race. See id., pp. 81, 91. Although
the complexion of capital punishment shifted during
the mid-nineteenth century, the pattern remained the
same. Goodheart identifies this period as the ‘‘height
of ethnocentricism,’’ an era in which a heavy influx of
Irish immigrants resulted in widespread ‘‘antipapist and
xenophobic sentiment’’ directed toward the new ethnic
underclass. Id., p. 110. Of the men executed in Connecti-
cut between 1828 and 1879, only one half were members
of what Goodheart characterizes as the ‘‘white, Protes-
tant majority . . . .’’ Id. The remainder were recent
Irish immigrants and, in a few cases, people of color.
See id., p. 111.
Recent arrivals to America continued to figure promi-
nently among those executed during the decades brack-
eting the turn of the twentieth century. See id., p. 133.
Remarkably, of the sixty men who were hanged in Con-
necticut between 1880 and 1929, only fifteen were of
domestic nativity, and one quarter of those were of
African or Asian descent. See id., pp. 136–38. Following
a new wave of immigration from Southern Europe, fully
one third of those executed during this period had been
born in Italy. See id.
Although the racial and ethnic disparities that Good-
heart records were not quite as pronounced in the twen-
tieth century, he indicates that those ‘‘executed were,
like those before them, on the margins of society.’’ Id.,
p. 169. For the first time in centuries, the majority of
those executed in Connecticut since 1940 have been
native born whites. See id., pp. 174, 187. Still, over one
half of the men on death row as of 2005, including
the present defendant, Eduardo Santiago, were African-
American or Hispanic. See id., p. 219.
In total, of the nearly 160 documented executions in
Connecticut history, more than one half of those put
to death have been either members of racial minorities
or low status first generation Americans. See id., pp. 4,
17, 22, 33, 50, 57, 61, 66, 81, 91, 111, 136–38, 170, 174,
187. Since 1693, only black men have been executed
for rape in Connecticut, and each for the rape of a white
woman. See id., p. 65. Perhaps more telling is that, in
almost 400 years, no white person has ever been exe-
cuted in Connecticut for the murder of a black person.
See id., p. 55. Goodheart quotes one abolitionist as
commenting that ‘‘[a]ny white person of financial means
and with friends . . . has little need to fear the imposi-
tion of the death penalty.’’ (Internal quotation marks
omitted.) Id., p. 183.
Although Goodheart notes that ‘‘low-income black
men convicted of murdering whites are particularly vul-
nerable to capital punishment’’; id., pp. 4–5; the endur-
ing lesson from his scholarly chronicle is that looking
solely at racial disparities actually significantly under-
states the extent to which prejudice may have tainted
Connecticut’s capital punishment regime. Many, if not
most, of the whites executed in this state have been
‘‘untouchables’’ of another sort, whether unpopular
recent immigrants or the marginalized, low status, older
women who filled the ranks of those executed for witch-
craft. See id., pp. 32–33; W. Holdsworth, supra, pp. 393–
97. Only one person executed in Connecticut, Michael
Ross, ever graduated from college; L. Goodheart, supra,
p. 221; and his execution would not have occurred had
Ross not insisted that it proceed by forgoing additional
appeal options. On the basis of this undisputed history,
Goodheart ultimately concludes that ‘‘documentation
of bias in the criminal justice system is clear . . . .’’
Id., p. 4.
We should not, perhaps, be surprised by the results
of this new research. As Justice Brennan recounted in
his dissent in McCleskey v. Kemp, 481 U.S. 279, 330,
107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), Gunnar Myrdal’s
‘‘epochal study of American race relations,’’ conducted
before the end of the second World War, had already
revealed the deep taint of race on our nation’s criminal
justice system. ‘‘As long as only Negroes are concerned
and no whites are disturbed,’’ Myrdal wrote, ‘‘great
leniency will be shown in most cases . . . . The sen-
tences for even major crimes are ordinarily reduced
when the victim is another Negro. . . . For offenses
which involve any actual or potential danger to whites,
however, Negroes are punished more severely than
whites. . . . On the other hand, it is quite common for
a white criminal to be set free if his crime was against
a Negro.’’ (Internal quotation marks omitted.) Id., quot-
ing G. Myrdal, An American Dilemma: The Negro Prob-
lem and Modern Democracy (Harper & Brothers 1944)
pp. 551–53. More than two decades later, a presidential
commission likewise concluded that the ‘‘death sen-
tence is disproportionately imposed and carried out on
the poor, the Negro, and the members of unpopular
groups.’’ The Challenge of Crime in a Free Society, A
Report by the President’s Commission on Law Enforce-
ment and Administration of Justice (1967) p. 143.
These historical accounts of persistent racial dispari-
ties in capital sentencing have been borne out, repeat-
edly, by contemporary statistical evidence both in Con-
necticut and throughout the United States. In
Connecticut, as we have discussed, the issue first
reached this court when Cobb proffered government
data, derived from both the Criminal Justice Informa-
tion Services Division of the Federal Bureau of Investi-
gation and the Uniform Crime Reporting Program of
the state of Connecticut, evidencing substantial facial
disparities in our state’s capital sentencing system. See
State v. Cobb, supra, 234 Conn. 766 n.6 (Berdon, J.,
dissenting). The data indicated that: ‘‘(1) since 1973,
prosecutors have charged a capital felony pursuant to
General Statutes § 53a-54b in seventy-four cases, of
which only eleven, or 15 percent, have involved the
murder of a victim who was black, even though 40
percent of all murder victims in the state during that
same time period were black; (2) since 1973, although
there have been eighteen capital prosecutions for mur-
der committed during the course of kidnapping, none
was prosecuted where the victim was black; (3) during
the same period, there have been twelve capital prose-
cutions for murder committed in the course of a sexual
assault, and only one involved the murder of a black
victim; (4) since 1973, twenty-eight cases have resulted
in a conviction of capital felony, by verdict or plea, and
eighteen of those twenty-eight have proceeded to a
hearing on the imposition of the death penalty. Of the
twenty-eight capital felony convictions, only four, or 14
percent, have involved the murder of a victim who was
black, and of the eighteen that have gone to a penalty
phase hearing, only one, or 5.5 percent, has involved
the murder of a black victim; (5) of the sixty-six capital
convictions in which the guilt phase has been con-
cluded, twenty-one involved black defendants and
forty-five involved nonblack defendants. Of the black
defendants, thirteen of twenty-one, or 62 percent, were
convicted of capital felonies and fifteen of forty-five,
or 33 percent, [nonblack] defendants were so con-
victed.’’ Id., 738–39 n.4. In that case, however, both
parties, the three prevailing justices, and the three dis-
senting justices all agreed that Cobb’s data were prelimi-
nary and that further research and analysis were
required before this court could rule on the constitu-
tional import of any systemic racial or ethnic disparities.
See id., 739–40 n.4; id., 768 (Berdon, J., dissenting);
State v. Breton, 235 Conn. 206, 264, 663 A.2d 1026 (1995)
(Berdon, J., dissenting).
Since that time, substantial new information has
become available that provides further support for
Cobb’s allegations of systemic racial bias. In 2001, the
Connecticut legislature created a Commission on the
Death Penalty (commission) ‘‘to study the imposition
of the death penalty in this state.’’ Public Acts 2001, No.
01-151, § 4 (a) (P.A. 01-151). Public Act 01-151 mandated
that the new commission examine and report on four-
teen aspects of Connecticut’s capital punishment
scheme. See P.A. 01-151, § 4 (c) and (d). One require-
ment was that the commission study whether ‘‘there is
any disparity in the decision to charge, prosecute and
sentence a person for a capital felony based on the
race, ethnicity, gender, religion, sexual orientation, age
or socioeconomic status of the defendant or the victim
. . . .’’ P.A. 01-151, § 4 (c) (3).
The commission issued its final report in January,
2003, in which it indicated that it had performed a com-
prehensive review of all 166 capital felony prosecutions
in Connecticut since 1973. See State of Connecticut,
Commission on the Death Penalty, Study Pursuant to
Public Act No. 01-151 of the Imposition of the Death
Penalty in Connecticut (January 8, 2003) pp. 17, 21
(Commission Report).2 The Commission Report found,
among other things, that murders involving non-His-
panic white victims represented just over one half of
the capital prosecutions in the state, but accounted for
86 percent of the death sentences imposed. See id., pp.
21, 25. By contrast, the thirty-eight offenders accused
of murdering African-American victims accounted for
nearly one fourth of all capital felony prosecutions, but
not one of the offenders was sentenced to death. See
id., pp. 22, 24. Taken together, crimes involving African-
American or Hispanic victims accounted for 40 percent
of all convictions, but just 14 percent of death senten-
ces. See id., p. 25. Because of these disparities, the
commission recommended that ‘‘Connecticut should
adopt legislation explicitly providing that no person
shall be put to death in accordance with any death
sentence sought or imposed based on the race . . .
of the defendant. To enforce such a law, Connecticut
should permit defendants to establish prima facie cases
of discrimination based upon proof that their sentence
is part of an established discriminatory pattern.’’ Id., p.
28. The commission further recognized that numerous
studies conducted in other jurisdictions, after sub-
jecting similar findings to multivariate statistical analy-
sis, have concluded that ‘‘race is a factor that influences
the outcome of capital cases.’’ Id., p. 18.
Accordingly, data from three authoritative govern-
mental sources—the Criminal Justice Information Ser-
vices Division of the Federal Bureau of Investigation,
the Uniform Crime Reporting Program of the state of
Connecticut, and the Commission Report—all suggest
that the death penalty in Connecticut continues to be
imposed disproportionately based on the race and eth-
nicity of the offender and the victim. The alleged dispari-
ties are significant, and hold across hundreds of cases.
We are not aware of any study or report to have reached
a contrary conclusion. In fact, the chief state’s attorney,
who represents the state in this matter, now concedes
that there are ‘‘obvious’’ facial disparities in Connecti-
cut’s capital punishment system. Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp.
2650–51, remarks of Chief State’s Attorney Kevin Kane
(When Kane was asked about raw data indicating that
minority defendants who commit capital eligible mur-
ders of white victims are far more likely to receive
the death sentence than those who murder minority
victims, he responded: ‘‘We’ve seen disparity. It’s
obvious.’’).3
We are not aware of any innocuous, nonracial factors
that would plausibly account for these undisputed dis-
parities in capital charging and sentencing rates. Rather,
the available evidence supports the conclusion that,
when members of minority groups who offend against
whites are charged with capital crimes and subjected
to execution at far greater rates than other defendants
who commit comparable crimes, those disparities are
a result of racial biases and cannot be explained away
by other, innocuous factors.
Goodheart has reviewed, from a historical stand-
point, four centuries of commentaries, death day ser-
mons, press reports, and public records regarding the
imposition of the death penalty in Connecticut. On the
basis of that review, he concludes that persistent racial
disparities in our state’s capital punishment system are
the product of ‘‘ethnocentricism,’’ ‘‘xenophobic senti-
ment’’; L. Goodheart, supra, p. 110; and racial ‘‘apartheid
. . . .’’ Id., p. 92. To put it most plainly, Goodheart
reports, ‘‘Yankee observers regularly characterized exe-
cuted immigrants as subhuman.’’ Id., p. 162.
Significantly, this court has long taken judicial notice
of the fact that disparate sentencing outcomes can be
the result of subtle racial biases: ‘‘We cannot be blind
to the fact that there may still be some who are biased
against the Negro race and would be more easily con-
vinced of a Negro’s guilt of the crime of rape than they
would of a white man’s guilt. Especially would they be
unlikely to approach in a detached and objective man-
ner the decision of the guilt or innocence of a Negro
charged with raping a white woman.’’ State v. Higgs,
143 Conn. 138, 143, 120 A.2d 152 (1956).
During the legislative hearings on No. 12-5 of the 2012
Public Acts (P.A. 12-5), multiple witnesses testified that,
one-half century later, Connecticut’s capital punish-
ment system remains far from color-blind.4 Their testi-
mony finds support in abundant sociological research
from other jurisdictions, much of it published subse-
quent to our decision in State v. Cobb, supra, 234 Conn.
735, linking current racial disparities in the administra-
tion of the death penalty to our country’s history of
racism. ‘‘[N]umerous studies conducted in the United
States since the [United States] Supreme Court decided
Furman v. Georgia [408 U.S. 238, 92 S. Ct. 2726, 33 L.
Ed. 2d 346 (1972)] . . . suggest that, when significant
non-racial factors are accounted for, race is a factor that
influences the outcome of capital cases.’’ Commission
Report, supra, pp. 17–18. In 1990, for example, the
United States General Accounting Office ‘‘reported to
the Senate and House Committees on the Judiciary that
its synthesis of [twenty-eight] studies on the subject
disclosed a pattern of evidence indicating racial dispari-
ties in the charging, sentencing and imposition of the
death penalty after the Furman decision. . . . In 82
percent of the studies, [the] race of [the] victim was
found to influence the likelihood of being charged with
capital murder or receiving the death penalty, i.e., those
who murdered whites were found to be more likely to be
sentenced to death than those who murdered blacks.’’
(Footnote omitted; internal quotation marks omitted.)
Id., p. 18, citing United States General Accounting
Office, Death Penalty Sentencing: Research Indicates
Pattern of Racial Disparities (February 1990) p. 5. ‘‘This
finding was remarkably consistent across data sets,
states, data collection methods, and analytic tech-
niques.’’ United States General Accounting Office,
supra, p. 5.
The conclusion of the United States General Account-
ing Office, which was based on various types of statisti-
cal analysis, has since been confirmed in fifteen
additional studies conducted during the 1990s, and
many more published since 2000. Evans v. State, 396
Md. 256, 314, 914 A.2d 25 (2006), cert. denied, 552 U.S.
835, 128 S. Ct. 65, 169 L. Ed. 2d 53 (2007); see, e.g., C.
Steiker & J. Steiker, Report to the American Law Insti-
tute Concerning Capital Punishment, in A.L.I., Report
of the Council to the Membership of The American Law
Institute On the Matter of the Death Penalty (April 15,
2009) annex B, p. 14 (reporting that many researchers
in many different jurisdictions continue to find ‘‘strong
racial effects’’); D. Baldus et al., supra, 83 Cornell L.
Rev. 1661 (finding evidence of race of victim disparities
in 90 percent of states studied and of race of defendant
disparities in 55 percent); K. Barnes et al., ‘‘Place Mat-
ters (Most): An Empirical Study of Prosecutorial Deci-
sion-Making in Death-Eligible Cases,’’ 51 Ariz. L. Rev.
305, 338 (2009) (finding large racial disparity in convic-
tion rate in Missouri); K. Beckett & H. Evans, The Role
of Race in Washington State Capital Sentencing, 1981–
2012 (January 27, 2014) p. 2 (‘‘regression analyses indi-
cate that juries were three times more likely to impose
a sentence of death when the defendant was black than
in cases involving similarly situated white defendants’’
[emphasis omitted]), available at http://www.death
penaltyinfo.org/documents/WashRaceStudy2014.pd-
f(last visited July 8, 2015); J. Blume et al., ‘‘Explaining
Death Row’s Population and Racial Composition,’’ 1 J.
Empirical Legal Stud. 165, 167, 169 (2004) (comprehen-
sive regression analysis of death row populations in
thirty-one states over two decades revealed that prose-
cutorial decision to seek death sentence more aggres-
sively for black defendants who murder white victims
results in clear ‘‘racial hierarchy’’); S. Johnson et al.,
‘‘The Delaware Death Penalty: An Empirical Study,’’ 97
Iowa L. Rev. 1925, 1939 (2012) (finding ‘‘dramatic’’ racial
disparities); J. Levinson et al., ‘‘Devaluing Death: An
Empirical Study of Implicit Racial Bias on Jury-Eligible
Citizens in Six Death Penalty States,’’ 89 N.Y.U. L. Rev.
513, 521 (2014) (finding that death qualified jurors har-
bor stronger implicit racial biases than excluded
jurors); Maryland Commission on Capital Punishment,
Final Report to the General Assembly (December 12,
2008) pp. 9–10 (recommending abolition of capital pun-
ishment based in part on nearly unanimous finding by
commissioners that ‘‘the troublesome factor of race
plays a dominant role in the administration of the death
penalty in Maryland’’), available at http://www.goccp.
maryland.gov/capital-punishment/documents/death-
penalty-commission-final-report.pdf (last visited July 8,
2015); G. Pierce & M. Radelet, ‘‘The Impact of Legally
Inappropriate Factors on Death Sentencing for Califor-
nia Homicides, 1990–1999,’’ 46 Santa Clara L. Rev. 1,
19 (2005) (finding ‘‘glaring differences in the rate of
death sentences across categories of victim race/eth-
nicity’’); C. Slobogin, ‘‘The Death Penalty in Florida,’’ 1
Elon L. Rev. 17, 54 (2009) (‘‘[n]umerous studies of the
Florida capital punishment process, spanning the past
thirty-five years, have confirmed a correlation between
the imposition of a death sentence and the race of the
murder victim’’); M. Wilson, ‘‘The Application of the
Death Penalty in New Mexico, July 1979 through
December 2007: An Empirical Analysis,’’ 38 N.M. L. Rev.
255, 260 (2008) (‘‘data strongly suggest that the race
and ethnicity of the victims and the defendants affected
the determination of who would live and who would
die’’); see generally D. Baldus & G. Woodworth, ‘‘Race
Discrimination in the Administration of the Death Pen-
alty: An Overview of the Empirical Evidence with Spe-
cial Emphasis on the Post-1990 Research,’’ 39 Crim. L.
Bull. 194, 196, 207–208 (2003) (finding consistent pat-
tern of race of victim disparities, even after adjusting
for culpability of offenders and aggravation level of
crimes); J. Sorensen et al., ‘‘Empirical Studies on Race
and Death Penalty Sentencing: A Decade After the GAO
Report,’’ 37 Crim. L. Bull. 395, 403–404 (2001) (in meta-
analysis of ‘‘high quality’’ statistical studies, race of vic-
tim disparities in capital charging decision found in 90
percent of studies after adjusting for control variables).
All of the meta-analyses5 cited herein, and all of the
major, multijurisdictional primary studies, have con-
cluded, after subjecting evidence of racial disparities
to advanced multivariate statistical analysis, that
offenders who murder non-Hispanic white victims are
more likely to be charged with a capital offense and/
or sentenced to death than those who victimize mem-
bers of racial minorities. See D. Baldus et al., supra, 83
Cornell L. Rev. 1659; D. Baldus & G. Woodworth, supra,
39 Crim. L. Bull. 214; J. Blume et al., supra, 1 J. Empirical
Legal Stud. 167; J. Sorensen et al., supra, 37 Crim. L. Bull.
403; United States General Accounting Office, supra, p.
5. Some of the studies also have identified a race of
offender bias. The report by the United States General
Accounting Office was the result of a significant and
nonpartisan research effort on the part of the federal
government. The other cited studies are authored by
respected and, in some cases, nationally renowned
experts in the field. We are not aware of any high quality
meta-analysis or multijurisdictional study to have
reached a contrary conclusion. We have no reason to
gainsay such overwhelming evidence of racial bias.
Finally, since this court last considered the constitu-
tionality of the death penalty, new empirical evidence
has emerged that not only supports the allegation of
substantial and statistically significant racial disparities
in the imposition of the death penalty in Connecticut,
but also suggests that such disparities are unlikely to
be the product of innocuous, nonracial factors. During
the hearings on P.A. 12-5, legislators heard extensive
testimony from Stanford (and former Yale) Law School
Professor John J. Donohue III, a nationally recognized
expert in criminal law and econometrics. See Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 9,
2012 Sess., pp. 2786–96, remarks of Professor Donohue.
In 2006, the petitioners in the habeas case, In re Death
Penalty Disparity Claims, supra, Superior Court,
Docket No. TSR-CV-05-4000632-S, hired Donohue to
evaluate data that the Office of the Chief Public
Defender had collected relating to every potential capi-
tal murder conviction in the state between 1973 and
2007. Employing sophisticated multivariate regression
techniques to control for an array of legitimate factors
relevant to the capital charging and sentencing deci-
sions, Donohue found substantial racial disparities,
especially in prosecutors’ decisions to charge particular
offenders as capital felons. See J. Donohue, ‘‘An Empiri-
cal Evaluation of the Connecticut Death Penalty System
Since 1973: Are There Unlawful Racial, Gender, and
Geographic Disparities?,’’ 11 J. Empirical Legal Stud.
637 (2014).
At the legislative hearings, Donohue supplied legisla-
tors with a lengthy executive summary of his research,
which concluded that ‘‘arbitrariness and discrimination
are defining features of the state’s capital punishment
regime.’’ Conn. Joint Standing Committee Hearings,
supra, p. 3001. Specifically, the data revealed that Con-
necticut’s prosecutors have not pursued capital charges
solely based on the egregiousness of the crime, but,
instead, that racial minorities who kill white victims
are charged at a rate sharply higher than for other
racial configurations. See id., pp. 3003, 3005–3006. ‘‘An
essential message from the regression analysis across
an array of murder categories [was] that the likelihood
that a death-eligible murder will result in a death sen-
tence is at least an order of magnitude higher for minor-
ity on white murders . . . .’’ (Citation omitted.) Id., p.
3006. During the ensuing legislative debates, a number
of supporters of P.A. 12-5 expressed that Donohue’s
research was an important factor in their decision to
vote to abolish the death penalty.6
Since the time of those legislative hearings,
Donohue’s research has been published in a well
respected peer reviewed academic journal. See J.
Donohue, supra, 11 J. Empirical Legal Stud. 637. The
article describes how the ‘‘overwhelming’’ racial dispar-
ities in capital charging in Connecticut became even
more pronounced after controlling for numerous legally
relevant variables; id.; including the egregiousness of
the crime, ‘‘geographic and time indicators, various
measures reflecting the aggravating and mitigating
aspects of the crime, the nature of the crime that estab-
lished it as a capital felony, measures of the culpability
of the defendant, the suffering of the victim, the number
of victims and aspects of the victim’s circumstances,
indic[a]tors of whether the defendant had killed a
stranger or had prior prison sentences, and various
measures of the strength of the evidence . . . .’’ Id.,
682 n.80. Perhaps the most striking finding was that
minority defendants who committed capital eligible fel-
onies against white victims in Connecticut were
charged with capital crimes in 85 percent of cases,
whereas prosecutors only sought a capital conviction
approximately 60 percent of the time for crimes with
minority victims.7 See id., 648. Donohue also concluded
that there is compelling, statistically significant evi-
dence that minority defendants who kill whites are sub-
stantially more likely to receive a sentence of death
than white defendants who commit equally egregious
crimes. See id., 640, 672–73. A thorough and fair-minded
review of the available historical and sociological data
thus strongly suggests that systemic racial bias contin-
ues to infect the capital punishment system in Connecti-
cut in the post-Furman era.
We strongly emphasize that the fact that a charging
or sentencing decision may be based in part on imper-
missible racial factors does not imply that the prosecu-
tor, judge, or juror making that decision is ‘‘racist,’’ as
that term is typically used. Statistical studies from other
jurisdictions have demonstrated that the most likely
explanation for such disparities is the tendency of mem-
bers of the majority race to be more empathetic to
majority victims, who resemble themselves, and less
sympathetic to minority perpetrators, with whom they
are less able to identify. See, e.g., M. Lynch & C. Haney,
‘‘Looking across the Empathic Divide: Racialized Deci-
sion Making on the Capital Jury,’’ 2011 Mich. St. L. Rev.
573 (2011) (and sources cited therein); see generally
The Sentencing Project, ‘‘Race and Punishment: Racial
Perceptions of Crime and Support for Punitive Policies’’
(2014) pp. 3, 18 (whites’ implicit association of people
of color with criminality linked to more punitive atti-
tudes). This conclusion is bolstered by recent scientific
studies that now document what has long been recog-
nized: most, if not all, of us exhibit unconscious or
implicit bias. See, e.g., J. Kang & K. Lane, ‘‘Seeing
Through Colorblindness: Implicit Bias and the Law,’’
58 UCLA L. Rev. 465, 473 (2010) (‘‘Implicit biases—by
which we mean implicit attitudes and stereotypes—
are both pervasive [most individuals show evidence
of some biases], and large in magnitude, statistically
speaking. In other words, we are not, on average or
generally, cognitively colorblind.’’).
It likely is the case that many, if not most, of the
documented disparities in capital charging and sentenc-
ing arise not from purposeful, hateful racism or racial
animus, but rather from these sorts of subtle, impercep-
tible biases on the part of generally well-meaning deci-
sion makers. Historically, though, it is difficult to refute
what Goodheart and others have noted: that, at varying
times throughout our history, the lives of Native Ameri-
cans, African-Americans, Asians, Irish, Italians, Jews,
Roman Catholics, and Hispanics simply have not been
considered to be as innately valuable as those of the
cultural majority. See L. Goodheart, supra, p. 162; see
also Furman v. Georgia, supra, 408 U.S. 245 (Douglas,
J., concurring) (it is cruel and unusual to apply death
penalty ‘‘selectively to minorities whose numbers are
few, who are outcasts of society, and who are unpopu-
lar, but whom society is willing to see suffer though it
would not countenance general application of the same
penalty across the board’’); State v. Cobb, supra, 234
Conn. 768 (Berdon, J., dissenting) (‘‘the inevitable con-
clusion is that the state places a higher value on the
life of a white person than on the life of an African-
American’’); District Attorney v. Watson, 381 Mass. 648,
669, 411 N.E.2d 1274 (1980) (‘‘[t]he conclusion is ines-
capable that the death penalty is reserved for those
who kill whites, because the criminal justice system in
these states simply does not put the same value on the
life of a black person as it does on the life of a white’’
[internal quotation marks omitted]).
In light of this historical and statistical record, we
would be hard-pressed to dismiss or explain away the
abundant evidence that suggests the death penalty in
Connecticut, as elsewhere, has been and continues to
be imposed disproportionately on racial and ethnic
minorities, and particularly on those whose victims are
members of the white majority. It also appears that
such disparities are not primarily the result of benign,
nonracial factors. We recognize that, in McCleskey v.
Kemp, supra, 481 U.S. 296–97, the United States
Supreme Court concluded that this sort of evidence of
systemic racial disparities, taken alone, is insufficient
to render the death penalty unconstitutionally arbitrary
and discriminatory under the eighth amendment of the
federal constitution. We have serious, indeed, grave
doubts, however, whether a capital punishment system
so tainted by racial and ethnic bias could ever pass
muster under our state constitution.
McCleskey was a federal habeas case in which the
petitioner proffered a statistical study performed by
Professors David C. Baldus, Charles Pulaski and George
Woodworth, that purported to show a disparity in the
imposition of the death sentence in Georgia based on
the race of the murder victim and, to a lesser extent,
the race of the defendant. See id., 286. After subjecting
their data to an extensive regression analysis, taking
account of 230 variables that could have explained these
disparities on nonracial grounds, the professors con-
cluded, among other things, that defendants in Georgia
charged with killing white victims were 4.3 times as
likely to receive a death sentence as defendants charged
with killing blacks. See id., 287.
On a five to four vote, a narrow majority of the United
States Supreme Court rejected the petitioner’s claim.
The majority assumed the validity of the petitioner’s
statistical study, but held that such evidence of persis-
tent racial disparities in capital charging and sentencing
is insufficient to invalidate a death sentence under the
federal eighth amendment; id., 308; or equal protection
clause. Id., 297–99. Rather, the majority indicated, to
demonstrate a constitutional violation the petitioner
would have to prove that purposeful, ‘‘invidious’’ dis-
crimination played a role in his particular sentencing
decision. See id., 312–13.
That requirement places upon each individual seek-
ing to demonstrate a constitutional violation a Hercu-
lean task. As Justice Harper explained in his dissent in
State v. Santiago, supra, 305 Conn. 327: ‘‘It is incredibly
difficult—bordering on impossible—to demonstrate
prohibited animus behind the decision to charge an
individual with capital felony, behind the refusal to
accept a plea to a lesser penalty, behind the jury’s deci-
sion to convict or behind the jury’s decision to select
one of its fellow human beings for death. . . . It is not,
however, the rare case, where at least one of these
decisions—even if unconsciously—is influenced by
considerations of the race of the defendant, the victim,
or both.’’ (Footnote omitted.) See also J. Sullivan, ‘‘The
Abyss of Racism,’’ 13 J. App. Prac. & Process 91, 97
(2012) (‘‘proving discrimination in the individual case
is virtually impossible unless the prosecutor is prepared
to admit bias’’).
Perhaps unsurprisingly, the holding in McCleskey has
been roundly criticized. See K. Williams, ‘‘Deregulation
of the Death Penalty,’’ 40 Santa Clara L. Rev. 677, 708
and n.219 (2000) (collecting sources). The court itself
in McCleskey was in strong disagreement, and Justice
Brennan, with whom Justices Blackmun, Marshall, and
Stevens joined, argued in his dissent that the operative
constitutional question ought to be whether ‘‘sentencing
procedures . . . create a substantial risk that the pun-
ishment will be inflicted in an arbitrary and capricious
manner.’’ (Emphasis added.) McCleskey v. Kemp, supra,
481 U.S. 322. ‘‘This emphasis on risk,’’ Justice Brennan
further explained in his dissent, ‘‘acknowledges the dif-
ficulty of divining the jury’s motivation in an individual
case. In addition, it reflects the fact that concern for
arbitrariness focuses on the rationality of the system
as a whole, and that a system that features a significant
probability that sentencing decisions are influenced by
impermissible considerations cannot be regarded as
rational.’’ Id., 323.
Especially noteworthy is the fact that the author of
the majority opinion in McCleskey, Justice Powell, later
confided to his biographer that if he could change his
vote in any one case, it would be McCleskey. See J.
Jeffries, Justice Lewis F. Powell, Jr. (2001 Ed.) p. 451;
see also State v. Ross, 230 Conn. 183, 315–16, 646 A.2d
1318 (1994) (Berdon, J., dissenting in part), cert. denied,
513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).
One legal scholar explained Justice Powell’s renuncia-
tion of his pivotal role in the McCleskey decision this
way: ‘‘If one is known by the company that one keeps,
Justice Powell no doubt wished for far better company
for one of his final decisions, McCleskey v. Kemp [supra,
481 U.S. 279]. After the opinion’s release, legal and lay
commentators quickly compared McCleskey to infa-
mous decisions like Dred Scott,8 Korematsu,9 and
Plessy.10 And a quarter of a century later, McCleskey
has become firmly entrenched as a resident in the exclu-
sive but not so desirable neighborhood of Notorious
Cases . . . . Especially in the criminal law area, a legal
scholar can invoke McCleskey confident that the reader
will understand that the case is being used as shorthand
for ‘cases in which the Supreme Court failed the [c]on-
stitution’s most basic values.’ ’’ (Footnotes altered.) S.
Sundby, ‘‘The Loss of Constitutional Faith: McCleskey
v. Kemp and the Dark Side of Procedure,’’ 10 Ohio St.
J. Crim. L. 5 (2012).
In light of these criticisms, the Massachusetts
Supreme Judicial Court declined to adopt the standard
set forth in McCleskey and instead held that the death
penalty offends that state’s constitution insofar as per-
vasive racial disparities in capital charging or sentenc-
ing can be documented. See District Attorney v.
Watson, supra, 381 Mass. 665. Because ‘‘experience has
shown that the death penalty will fall discriminatorily
upon minorities, particularly blacks,’’ that court con-
cluded that the death penalty is unconstitutionally cruel
under article twenty-six of the Massachusetts Declara-
tion of Rights. Id.
Although the standard set forth in McCleskey may
be appropriate for challenges to noncapital sentencing
determinations, we question whether it provides ade-
quate protection when the ultimate punishment of death
is involved. Cf. Hall v. Florida, U.S. , 134 S. Ct.
1986, 1993, 188 L. Ed. 2d 1007 (2014) (intellectually
disabled defendants are subject to ordinary criminal
responsibility but may not receive ‘‘law’s most severe
sentence’’). The types of subtle biases that influence
members of the majority to make decisions favoring
their own race may well be inevitable, albeit regrettable.
When unconsciously made, they do not inherently
impugn the diligent and good faith work of our prosecu-
tors, police, judges, and jurors. Nor do they mean that
the outcomes of a criminal justice system, writ large,
are manifestly unjust. See District Attorney v. Watson,
supra, 381 Mass. 668. But both this court and the United
States Supreme Court repeatedly have made clear that
‘‘[d]eath is different.’’11 Because a sentence of death is
uniquely irreversible and deprives the condemned of
the ability to exercise any of his inalienable rights; see
Furman v. Georgia, supra, 408 U.S. 290 (Brennan, J.,
concurring); it ought not be imposed unless we are
assured that the selection between a sentence of death
or life imprisonment is based solely on objective, mor-
ally defensible criteria. The fact that a white prosecutor
or a white juror may be more troubled by the death of
a white victim than of a black or Hispanic victim may
be psychologically explicable, but it is not morally
defensible. It should not be the basis on which we
decide who lives and who dies. See District Attorney
v. Watson, supra, 668.
The death penalty is fundamentally different from
other punishments for which we may, reluctantly, have
to tolerate some degree of unintentional systemic dis-
parity or imperfection. Execution represents a com-
plete and utter rejection of the personhood and
humanity of the condemned, an irreversible banishment
from the moral community. ‘‘The death sentence itself
is a declaration that society deems the prisoner a nullity,
less than human and unworthy to live.’’ Id., 683 (Liacos,
J., concurring). Execution cuts off any possibility of
rehabilitation, or redemption, or hope. As Justice Doug-
las observed in his concurrence in Furman, in a nation
‘‘committed to equal protection of the laws there is no
permissible caste aspect of law enforcement. . . . In
ancient Hindu law a Brahman was exempt from capital
punishment, and . . . punishment increased in sever-
ity as social status diminished. We have, I fear, taken in
practice the same position . . . .’’ (Footnotes omitted;
internal quotation marks omitted.) Furman v. Georgia,
supra, 408 U.S. 255. We doubt that our state constitution
would permit us, however inadvertently, to tip the
scales of death toward those whom society values less.
For the same reasons, we are not persuaded by the
argument that there is neither a legal nor a moral prob-
lem so long as all those sentenced to death in Connecti-
cut over the past one-half century have been
legitimately charged with and convicted of heinous cap-
ital crimes. If this is the case, the argument goes, then
the fact that the racial statistics appear to be skewed
in favor of whites is immaterial, because each man on
death row has been found guilty by a jury of his peers,
as provided by law. Any such argument entirely misses
the point.
It may be that every black man ever executed for
raping a white woman and every Native American ever
executed for murdering a white man in Connecticut
was guilty as charged, and received his due process
and his proper punishment under the laws then in effect.
But white men in Connecticut have also killed Native
Americans over the past 400 years, and raped black
women. None has ever hanged for it. To the extent that
a criminal justice system operates such that only racial
minorities are subject to execution for their participa-
tion in interracial crimes, the fact that those executed
are guilty as charged is of little succor.12 To the extent
that such biases, however subconscious, invariably con-
tinue to influence who is charged with and sentenced
to the ultimate punishment, the death penalty likely
would be hard put to survive constitutional scrutiny.
The offense committed by the defendant was, like
all murders, a terrible and tragic crime. But some could
rightly question whether it was among the ‘‘worst of
the worst’’ for which the ultimate punishment must be
reserved.13 The defendant shot the victim in his sleep,
for limited pecuniary gain; if he had killed the victim
in precisely the same manner, but merely as a favor to
his friend, he would not be eligible for the death penalty.
The defendant is Hispanic, and his victim was white.
In light of the available data, we simply cannot be
assured that, had their races been reversed, the out-
come would have been the same. Nor do we have much
confidence that, despite significant social progress, we
are close to the day when capital punishment may be
imposed in a color-blind and ethnically neutral manner.
Lacking such assurances, we would find the prospect
of any future executions in this state deeply troubling
and suspect.
II
RESPONSE TO THE DISSENTING OPINION
OF CHIEF JUSTICE ROGERS
A
The Chief Justice’s Concerns with the
Objectivity of This Concurrence
In her dissenting opinion, Chief Justice Rogers con-
tends that we have ‘‘cherry picked’’ the research on
which we rely herein. This is a bold assertion, and
one to which we feel compelled to respond. The Chief
Justice challenges both the general objectivity of our
review and, specifically, our reliance on Professor
Donohue as a source. We consider each volley in turn.
With respect to our review of the social science
research governing racial and ethnic disparities in capi-
tal charging and sentencing, the Chief Justice contends
that we have ignored contrary research by Attorney
Kent S. Scheidegger, who has also submitted a brief in
this appeal on behalf of the amicus Criminal Justice
Legal Foundation, purporting to show that ‘‘ ‘claimed
racial disparities would shrink to insignificance if legiti-
mate factors, including jurisdiction, could properly be
taken into account . . . .’ ’’ Chief Justice Rogers also
contends that the science underlying this type of
research is too complex for a member of this court to
understand or assess. See footnote 44 of Chief Justice
Rogers’ dissenting opinion.
Although much could be said in response, the crux
of the problem, we suspect, is that the Chief Justice
simply fails to understand the nature or purpose of
a meta-analysis. Whether the topic of research is the
environmental impacts of a certain contaminant or the
health benefits of a morning jog, there will, invariably,
be conflicting studies, the results of which may point
in different directions. It is true that a layperson, faced
with two or more conflicting scientific research studies,
may be ill equipped to judge between them. When a
meta-analysis has been completed, the simple fact is
the underlying science and statistical methodologies
has done it for us. In a meta-analysis, an expert in the
field reviews all of the available research on a topic.
He or she assesses that research both quantitatively
(counting up the number of data points and the number
of studies pointing in each direction) and qualitatively
(assessing the methodological soundness of each
study). After assessing the entire field of study, the
author of the meta-analysis then determines whether
any firm conclusions can be drawn from all of the
research. See generally J. Blumenthal, ‘‘Meta-Analysis:
A Primer for Legal Scholars,’’ 80 Temp. L. Rev. 201,
202–14 (2007).
In the present case, Chief Justice Rogers, in high-
lighting a handful of studies that obtained conflicting
results, simply ignores the fact that multiple meta-analy-
ses and multijurisdictional studies conducted by
respected scholars and government agencies all have
concluded, after reviewing both those primary studies
purporting to find a racial effect and those that did
not, that it is more likely than not that there are racial
disparities in capital charging or sentencing. See, e.g.,
J. Sorensen, supra, 37 Crim. L. Bull. 403–404 (in meta-
analysis of ‘‘high quality’’ statistical studies, race of vic-
tim disparities in capital charging decision found in 90
percent of studies after adjusting for control variables);
United States General Accounting Office, supra, p. 5
(finding race of victim effect on capital charging in 82
percent of studies, and across all methodologies). If
there has been any cherry picking, then, it has been on
the part of the Chief Justice. We invite her to reach at
random into the bag of meta-analyses on racial disparity
research and see if she does not draw forth the bounty
of fruit that we have found therein.
We next consider Chief Justice Rogers’ concerns with
our analysis of Donohue’s recent report in the Journal
of Empirical Legal Studies. See J. Donohue, supra, 11
J. Empirical Legal Stud. 637. We emphasize at the outset
that we have not relied herein on the legal analysis that
Donohue presents in part VI of that article, in which
he takes issue with the decision of the habeas court in
In re Death Penalty Disparity Claims, supra, Superior
Court, Docket No. TSR-CV-05-4000632-S. See J.
Donohue, supra, pp. 679–93. Rather, our focus and con-
cern have been exclusively with the first five parts of
the article, in which Donohue documents how, after
accounting for dozens of potential explanatory vari-
ables, there continue to be racial disparities in Connecti-
cut’s capital punishment system that cannot be
attributed to innocuous, nonracial factors. See id.,
pp. 641–79.
The Chief Justice remains unpersuaded, apparently
because the opposing party in the habeas case—the
state, via its expert—has, not surprisingly, contested
Donohue’s findings. Once again, we reject the Chief
Justice’s view that this court must be paralyzed by a
lack of scientific unanimity, and that we can take notice
only of empirical research that is either undisputed or
‘‘self-evidently true . . . .’’ There is no such require-
ment. The legislative facts on which appellate judges
necessarily rely are, in practice, rarely indisputable; see
2 K. Broun, McCormick on Evidence (7th Ed. 2013)
§ 331, p. 614; and ‘‘the fact that we must always act
without the illumination of complete knowledge cannot
induce paralysis when we confront what is literally
an issue of life and death.’’ (Internal quotation marks
omitted.) State v. Cobb, supra, 234 Conn. 780 (Berdon,
J., dissenting).
Lastly, just as the Chief Justice has failed to recognize
the significance of meta-analysis research, there is no
indication that she has accounted for the truth filtering
value of the peer review process. ‘‘[Peer review] is the
process of subjecting an author’s scholarly work to the
examination of academic experts (scholarly or scien-
tific peers) in the same field.’’ Columbia University
Libraries, ‘‘What is Peer Review?,’’ available at http://
library.columbia.edu/help/faq/workshops/
peer review.html (last visited July 22, 2015). Also
known as ‘‘refereeing,’’ peer_review ‘‘is a well-accepted
indicator of quality scholarship.’’ Id. Donohue’s
research, unlike that on which the Chief Justice relies,
has been published in a well respected peer reviewed
journal and, therefore, has withstood the scrutiny of
experts in the field of empirical legal research. Ulti-
mately, then, the Chief Justice is simply incorrect in
assuming that we can place no credence in Donohue’s
conclusions merely because they have been questioned
by opposing litigants and amici. Rather, as this court
recognized in State v. Porter, 241 Conn. 57, 91–92, 698
A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.
1384, 140 L. Ed. 2d 645 (1998), lay judges are routinely
called upon to evaluate the admissibility of complex and
arcane research such as this, with the aid of objective
indicia of reliability. See id. (‘‘nonscientists can under-
stand the fundamental characteristics that separate
valid science from pale imitations’’ [internal quotation
marks omitted]).
Meta-analysis and peer review are precisely the sorts
of objective indicia of scholarship quality and method-
ological validity upon which judges can and should rely
in separating the scientific wheat from the biased chaff.
Although we reach no firm conclusions herein as to the
existence of racial disparities in Connecticut’s capital
punishment system, we remain confident that we have
identified the best available scholarship in that regard.
B
The Chief Justice’s Concerns with the
Propriety of This Concurrence
We find it curious that the Chief Justice, despite our
clear statements to the contrary, persists in proclaiming
that we have concluded that our state’s death penalty
is imposed in an unconstitutionally discriminatory fash-
ion. We have not. Our goals in this concurring opinion,
rather, have been modest and few. First, we would
gather, all in one place, the various charges of death
penalty racial and ethnic disparity that have been made
over the years, and inter with them the most recent
and respectable research as to the history, scope, and
origin of those alleged disparities. Second, we would
express to our sister courts, for whom the issue is not
yet a dead letter, our suggestion that they consider
closely whether the legal standard articulated in
McCleskey v. Kemp, supra, 481 U.S. 296–97, affords
adequate protection to members of minority popula-
tions who may face the ultimate punishment. Third,
and finally, we would make known to those who, for
four centuries, have protested against these alleged dis-
parities that their voices have not gone unheard. We
seek to accomplish no more.
We also find curious the suggestion by the Chief
Justice that, merely by discussing an issue that today’s
majority opinion has rendered moot, we somehow have
‘‘undermine[d] the institutional integrity of this court
. . . .’’ Those are strong words indeed, particularly in
light of the fact that the Chief Justice herself has in the
past authored concurring opinions to address issues
not before the court. See, e.g., State v. Johnson, 312
Conn. 687, 706–707, 94 A.3d 1173 (2014) (Rogers, C. J.,
concurring) (expressing hope that, when appropriate
case presents itself, court will abandon evidentiary rule
adopted in State v. Holliman, 214 Conn. 38, 46, 570
A.2d 680 [1990]). We are aware of no authority, from
this court or any other, supporting the Chief Justice’s
novel rule that the author(s) of a concurring opinion
may freely address issues that are likely to arise in
future cases, but that we are categorically barred from
discussing issues that will not. As we have explained,
one of our goals in authoring this concurring opinion
has been to highlight the racial disparity issue for con-
sideration by other courts and legislative bodies. That
has long been considered a legitimate function of a
concurring opinion. See generally R. Blomquist, ‘‘Con-
currence, Posner-Style: Ten Ways to Look at the Con-
curring Opinions of Judge Richard A. Posner,’’ 71 Alb.
L. Rev. 37, 46, 56–64 (2008). The Chief Justice offers
no reason why it should be otherwise.
1
See part II B of this concurring opinion.
2
It is well established that this court may take notice of statistical reports
compiled pursuant to legislative mandate. See Luurtsema v. Commissioner
of Correction, 299 Conn. 740, 769 n.28, 12 A.3d 817 (2011); Sheff v. O’Neill,
238 Conn. 1, 38 n.42, 678 A.2d 1267 (1996).
3
Given the context of the question to which Kane was responding, Chief
Justice Rogers’ suggestion that Kane was referring not to disparities in
capital punishment, but only in the general prison population, is patently
implausible. If that was all Kane intended to say, his response would have
been a complete non sequitur to the question posed. It is true, however,
that Kane rejected the contention that these disparities are the result of
systemic racial bias on the part of prosecutors or juries. See Conn. Joint
Standing Committee Hearings, supra, p. 2652.
4
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 812–13, remarks of Senator
Donald E. Williams; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
9, 2012 Sess., p. 2687, remarks of Khalilah Brown Dean, associate professor of
political science; Conn. Joint Standing Committee Hearings, Judiciary, Pt.
9, 2012 Sess., p. 2791, remarks of John J. Donohue III, professor of law;
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p.
2691, remarks of Representative Charlie L. Stallworth.
5
A meta-analysis is a study that reviews all of the available primary
research that has been conducted on a subject and evaluates the aggregated
findings. See part II A of this concurring opinion.
6
See, e.g., 55 S. Proc., Pt. 3, 2012 Sess., pp. 750–51, remarks of Senator
Edwin A. Gomes; id., p. 813, remarks of Senator Donald E. Williams; Conn.
Joint Standing Committee Hearings, Judiciary, Pt. 8, 2012 Sess., pp. 2649–55,
remarks of Representative Bruce V. Morris; Conn. Joint Standing Committee
Hearings, Judiciary, Pt. 8, 2012 Sess., p. 2516, remarks of Senator Williams;
Conn. Joint Standing Committee Hearings, Judiciary, Pt. 9, 2012 Sess., p.
2691, remarks of Representative Charlie L. Stallworth.
7
Because the 141 capital felonies charged in Connecticut since 1973 far
exceeds the number of death sentences imposed, the former provides a
more reliable basis for measuring any systemic racial disparities in the
state’s capital punishment system. See J. Donohue, supra, 11 J. Empirical
Legal Stud. 651.
8
Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 (1857).
9
Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194
(1944).
10
Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).
11
State v. Rizzo, 266 Conn. 171, 226, 833 A.2d 363 (2003); see also Califor-
nia v. Ramos, 463 U.S. 992, 998–99, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983)
(‘‘the qualitative difference of death from all other punishments requires a
correspondingly greater degree of scrutiny of the capital sentencing determi-
nation’’); State v. Rizzo, supra, 226 (‘‘[d]eath, in its finality, differs more
from life imprisonment than a 100-year prison term differs from one of only
a year or two’’ [internal quotation marks omitted]); District Attorney v.
Watson, supra, 381 Mass. 670 (‘‘[w]hile other forms of punishment may also
be arbitrary in some measure, the death penalty requires special scrutiny
for constitutionality’’).
12
Numerous courts and commentators have recognized that the improper
exercise of discretion by government officials tasked with investigating,
charging, plea bargaining, and prosecuting crimes is no less offensive to
the constitution than discrimination by judges or juries at the fact-finding
and sentencing stages of the criminal justice process. See, e.g., State v. Cobb,
supra, 234 Conn. 781 (Berdon, J., dissenting); see also District Attorney v.
Watson, supra, 381 Mass. 667–68 (noting that most life or death decisions
in capital punishment process are made prior to trial).
13
We find noteworthy the fact that the coders whom Donohue employed
to objectively assess the egregiousness of the 205 death eligible crimes
committed in Connecticut since 1973 determined that 117, or 60 percent,
of the offenders who were not sentenced to death committed crimes that
were as egregious or more egregious than the crime committed by the
defendant. See J. Donohue, supra, 11 J. Empirical Legal Stud. 679. Coders
ranked the defendant’s crime as the least egregious of those committed by
our state’s death row inmates. See id.