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                STATE v. MCCLEESE—DISSENT

   ECKER, J., dissenting. Only four years ago, this court
decided—as a matter of state law—that the constitu-
tional requirement of an individualized sentencing pro-
ceeding for juvenile offenders facing life sentences
established a ‘‘watershed’’ rule of criminal procedure.
Casiano v. Commissioner of Correction, 317 Conn.
52, 69–70, 115 A.3d 1031 (2015), cert. denied sub nom.
Semple v. Casiano,         U.S.      , 136 S. Ct. 1364, 194
L. Ed. 2d 376 (2016). Our holding in Casiano was
expressed in these emphatic terms: ‘‘If failing to con-
sider youth and its attendant characteristics creates a
risk of disproportionate punishment in violation of the
eighth amendment, then the rule in Miller [v. Alabama,
567 U.S. 460, 479, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012)], assuredly implicates the fundamental fairness
of a juvenile sentencing proceeding because it is a ‘basic
precept of justice’ that punishment must be proportion-
ate ‘to both the offender and the offense.’ (Internal
quotation marks omitted.) Id., 469. The court in Miller
also ‘alter[ed] our understanding of the bedrock proce-
dural elements essential to the fairness of a [juvenile
sentencing] proceeding’; (emphasis omitted; internal
quotation marks omitted) Sawyer v. Smith, [497 U.S.
227, 242, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990)];
because the court required that certain factors be con-
sidered in an individualized sentencing proceeding
before a certain class of offenders may receive a par-
ticular punishment. In other words, our understand-
ing of the bedrock procedural element of individual-
ized sentencing was altered when the court intertwined
two strands of its eighth amendment jurisprudence
to require consideration of new factors for a class of
offenders to create a presumption against a particular
punishment. As one court aptly noted, albeit in dicta:
‘[I]f ever there was a legal rule that should—as a matter
of law and morality—be given retroactive effect, it is
the rule announced in Miller. To hold otherwise would
allow the state to impose unconstitutional punishment
on some persons but not others, an intolerable miscar-
riage of justice.’ (Emphasis omitted.) Hill v. Snyder,
Docket No. 10-14568, 2013 WL 364198, *2 (E.D. Mich.
January 30, 2013).’’ Casiano v. Commissioner of Cor-
rection, supra, 70–71.
   These are very strong words, and I have quoted them
accurately. In Casiano, we determined, ‘‘as a matter of
law and morality,’’ as a ‘‘basic precept of justice,’’ and
as a ‘‘bedrock procedural [element] essential to the
fairness of a [juvenile sentencing] proceeding,’’ that
before a trial court exercises its discretion to sentence
a juvenile offender to a lifetime in prison, the court
must consider the mitigating effects of youth and its
attendant circumstances. (Internal quotation marks
omitted.) Id., 71. Indeed, we deemed this legal and moral
principle so fundamental to our jurisprudence in Con-
necticut—so deeply ‘‘ ‘implicit in the concept of ordered
liberty’ ’’; id., 69, quoting Teague v. Lane, 489 U.S. 288,
311, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)—that we
chose to characterize it as a ‘‘watershed’’ rule, a des-
ignation of such singular status that the United States
Supreme Court itself has yet to affix to any of its own
decisions.1 When Casiano was issued, moreover, we
were acutely aware that such a designation would
require retroactive application of the underlying proce-
dural rule, i.e., the Miller requirement of an individual-
ized sentencing hearing at which the sentencing judge
would consider the hallmarks of youth before passing
judgment on a juvenile offender facing the possibility
of receiving the harshest of sentences. ‘‘To hold other-
wise,’’ this court stated, ‘‘would allow the state to
impose unconstitutional punishment on some persons
but not others, an intolerable miscarriage of justice.’’
(Internal quotation marks omitted.) Casiano v. Com-
missioner of Correction, supra, 317 Conn. 71.
   Today, four short years later, we accept just such a
miscarriage of justice visited on the defendant, William
McCleese, and the majority justifies the result as if
Casiano, and another case decided a few months ear-
lier, State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015),
cert. denied,       U.S.     , 136 S. Ct. 1361, 194 L. Ed.
2d 376 (2016), did not mean what they said. I am unable
to understand how this court can overlook Casiano
and Riley without any apparent sign of cognitive disso-
nance, or why it would choose to do so. I respect-
fully dissent.
   For the reasons set forth in this dissenting opinion,
I disagree that the parole eligibility conferred by No.
15-84 of the 2015 Public Acts (P.A. 15-84)2 provides an
adequate remedy for the constitutional violation that
occurred at the time of the defendant’s sentencing. The
trial court failed to conduct an individualized sentenc-
ing hearing at which it properly considered the hall-
marks of youth—and, in particular, the diminished
moral culpability of the juvenile defendant, which must
be taken into account before imposing an eighty-five
year sentence pursuant to Miller. The defendant contin-
ues to serve the eighty-five year sentence unconstitu-
tionally imposed on him by that judicial authority. This
means not only that the judiciary previously failed to
meet our constitutional obligation in connection with
the performance of our core function, which is to pro-
vide individualized justice, but that we persist in
doing so.
                             I
                            A
   It is today undeniable that ‘‘children are constitution-
ally different from adults for purposes of sentencing.’’
Miller v. Alabama, supra, 567 U.S. 471; see id. (stating
that this principle was ‘‘establish[ed]’’ by Roper v. Sim-
mons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1
[2005], and Graham v. Florida, 560 U.S. 48, 130 S. Ct.
2011, 176 L. Ed. 2d 825 [2010]). The driving force behind
this extraordinary3 pronouncement, and the reason for
the broad consensus around it, is the ever growing body
of scientific evidence demonstrating that children have
biological and psychological differences that make
them substantially less able than adults to control their
impulses, exercise self-control, resist peer pressure,
consider alternative courses of conduct, and appreciate
the long-term consequences of their actions. See Miller
v. Alabama, supra, 472 n.5.4 These findings are under-
stood to have inescapable and meaningful moral signifi-
cance, because they mean that children are less morally
blameworthy—less culpable, we say—for their actions,
‘‘even when they commit terrible crimes.’’ Id., 472. For
this reason, the findings hold powerful implications for
the law of juvenile sentencing.
   The time is fast approaching, in my opinion, when
we must acknowledge that the constitutional implica-
tions of this idea—that children are constitutionally
different for the purposes of criminal sentencing—
extend beyond the minimalist holding settled on by the
majority, which appears to derive from it nothing more
than a formalistic rule prohibiting the imposition of a
sentence of death or life without parole on juvenile
defendants. I believe that the rationale expressed in the
relevant cases, and especially this court’s own decisions
in Riley and Casiano, obligates us to find significantly
greater meaning in the underlying principles than that
found by the majority.
                            B
   It is important to provide the relevant backdrop to
this appeal because these facts illustrate in living color
the nature and extent of the constitutional violation
that occurred when the defendant was sentenced to an
eighty-five year term of imprisonment in June, 2003.
The particular details of the sentencing proceedings
explain why I refuse to accept the view that the defen-
dant’s sentence does not remain stained by the constitu-
tional violation under review.
   The defendant was sentenced to an eighty-five year
term of imprisonment for crimes he committed at the
age of seventeen.5 The state has conceded that the sen-
tencing proceeding was not compliant with Miller,6 and
the trial court presiding over the defendant’s motion to
correct an illegal sentence found that the sentencing
court ‘‘clearly did not consider the [defendant’s] age,
youthful attributes and capacity for reform and rehabili-
tation as delineated in Miller . . . .’’ Indeed, without
the benefit of the Roper, Graham, and Miller trilogy,
the sentencing court considered the defendant’s age,
not as a mitigating factor lessening his culpability, but
as an aggravating factor confirming the court’s view
of the defendant’s incorrigibility.7 After mentioning the
defendant’s use of marijuana since the age of fourteen,
his daily use of the drug ‘‘illy’’ for one year, his negligible
employment history, and that he dropped out of high
school in the ninth grade, the court stated that it did
not ‘‘view these factors . . . as acceptable excuses or
mitigation for [his] serious criminal conduct.’’ To the
contrary, the court stated: ‘‘If anything, these fac-
tors heighten the court’s concern for you and your
future.’’ (Emphasis added.) Consistent with this theme,
the court continued: ‘‘Furthermore, this court is not
unmindful that, arguably, you do not possess an exten-
sive criminal record. However, this fact gives the court
little comfort in view of the nature and extent of your
criminal activities and felony conviction, especially
when those factors are considered in light of your
young age.’’ (Emphasis added.)
   The trial court sentenced the defendant to a lifetime
behind bars in language that depicts the defendant as
the fully mature, fully culpable author of his own fate,
whose deadly actions were the product of his own unim-
paired free choice: ‘‘You know, Mr. McCleese, a major
part of life is the making of choices. You had the oppor-
tunity to freely choose the road you wished to travel.
You had the opportunity to plan your life’s journey and
you made your choice. You chose to travel a path that
resulted in the wounding of one man, the death of
another, and the destruction of your own life. Conse-
quently, your journey as a free man, as a free, young
man living in a free society, has come to an end. You
have forfeited your societal rights to go and come as
you [choose] by making terrible choices. You have writ-
ten your final chapter as a free man.’’ The defendant
must be resentenced if we are to remove the constitu-
tional cloud hanging over this case.
                              C
   For present purposes, the most important feature
of the Roper, Graham, and Miller trilogy, and their
enhanced state counterparts, Riley and Casiano, is that
these cases identify and elaborate on two different
implications of the ‘‘children are different’’ doctrine for
the constitutional law of juvenile sentencing. One of
those implications—the only one that the majority con-
siders meaningful for eighth amendment purposes—is
the forward-looking rehabilitative component, which
requires the state to provide juvenile offenders ‘‘some
meaningful opportunity to obtain release [i.e., parole]
based on demonstrated maturity and rehabilitation.’’8
Graham v. Florida, supra, 560 U.S. 75. This doctrinal
strand emanates from the insight that the very hall-
marks of youth that make children different also make
them capable of change, because the ‘‘transitory’’ nature
of those characteristics; Miller v. Alabama, supra, 567
U.S. 473; ‘‘enhance[s] the prospect that, as the years go
by and neurological development occurs, [the juvenile
offender’s] deficiencies will be reformed.’’ (Internal
quotation marks omitted.) Id., 472, quoting Graham v.
Florida, supra, 68, and Roper v. Simmons, supra, 543
U.S. 570. In the context of a case in which a juvenile
offender faces a life sentence, the rehabilitative strand
requires parole eligibility.
   But there is a second and equally important compo-
nent to the Roper, Graham, and Miller trilogy, which
the majority ignores. This second doctrinal strand
focuses on the concept of culpability or moral blame-
worthiness—a foundational principle in the law of
crime and punishment.9 The culpability strand, central
to Riley and Casiano,10 is based on the fundamental
recognition that the age of the juvenile offender and
the associated hallmarks of youth necessarily impact
the assessment of moral blameworthiness at the heart
of the sentencing process.11 See Miller v. Alabama,
supra, 567 U.S. 472 (explaining that ‘‘[w]e reasoned [in
Graham] that those [scientific] findings . . . of tran-
sient rashness, proclivity for risk, and inability to assess
consequences . . . lessened a child’s ‘moral culpabil-
ity’ ’’); Graham v. Florida, supra, 560 U.S. 71 (noting
that ‘‘[t]he heart of the retribution rationale is that a
criminal sentence must be directly related to the per-
sonal culpability of the criminal offender’’ [internal quo-
tation marks omitted]); Roper v. Simmons, supra, 543
U.S. 571 (recognizing ‘‘the diminished culpability of
juveniles’’).
   In the same way that the rehabilitative strand relates
directly to parole eligibility, the culpability strand bears
directly on the length of the sentence imposed on a
juvenile offender. Under the sentencing scheme that
applied to the defendant in the present case, as in Riley
and Casiano, the exact length of the sentence is deter-
mined by the judicial authority exercising its discre-
tion, within the broad range fixed by the legislature, in
the context of an adjudicatory sentencing proceeding.
Many judges believe that this particular task is the single
most difficult and important job that they perform in
a line of work that requires them to make decisions of
great consequence every day. See, e.g., United States
v. Brown, 843 F.3d 74, 84 (2d Cir. 2016) (Sack, J., concur-
ring) (‘‘[s]entencing is perhaps the most important
responsibility of a trial judge, and surely the most diffi-
cult’’ [internal quotation marks omitted]), cert. denied,
     U.S.     , 138 S. Ct. 708, 199 L. Ed. 2d 579 (2018).
At the core of the sentencing function is the exercise
of judicial discretion to determine the appropriate sen-
tence proportionate to the offense and the offender—
a decision based in significant part on an individualized
assessment of the particular defendant’s culpability.
  The culpability strand, for this reason, contains a
crucial procedural component, which recognizes that
the required assessment of blameworthiness only can
be conducted by the sentencing court in the context of
an individualized hearing. This is the procedure that
was the central focus of our decision in Casiano. In
Casiano, we noted that we were not bound by the
federal courts’ characterization of the Miller rule; Casi-
ano v. Commissioner of Correction, supra, 317 Conn.
63–64; and held, as a matter of state law, that Miller
announced ‘‘a watershed rule of criminal procedure’’
that was retroactively applicable to cases on collateral
review. Id., 62; see id., 63–64 (noting that ‘‘although this
court . . . will apply the Teague framework, we d[o]
so with the caveat that, while federal decisions apply-
ing Teague may be instructive, this court will not be
bound by those decisions in any particular case, but
will conduct an independent analysis and application
of Teague’’ [internal quotation marks omitted]); see also
Danforth v. Minnesota, 552 U.S. 264, 280–81, 128 S. Ct.
1029, 169 L. Ed. 2d 859 (2008) (noting that Teague ‘‘was
intended to limit the authority of federal courts to over-
turn state convictions—not to limit a state court’s
authority to grant relief for violations of new rules of
constitutional law when reviewing its own [s]tate’s con-
victions’’). As I noted previously, we explained that this
procedural component could not be ignored, because
‘‘the individualized sentencing prescribed by Miller is
central to an accurate determination . . . that the sen-
tence imposed is a proportionate one’’ and ‘‘implicates
. . . fundamental fairness.’’ (Citation omitted; internal
quotation marks omitted.) Casiano v. Commissioner
of Correction, supra, 70.
                              II
   Against this background, the majority concludes that
there is no Miller violation to remedy in the present
case at all, because the defendant now is eligible for
parole under P.A. 15-84. It does so despite three elemen-
tal points that cannot be disputed: (1) the defendant’s
constitutional rights were violated in 2003 when he was
sentenced to eighty-five years of imprisonment without
the individualized hearing required under Miller, as
extended by Riley; (2) the defendant never has been
resentenced since that time, which is to say that he
never has been afforded a sentencing proceeding that
complies with the ‘‘watershed’’ rule deemed by this
court in Casiano v. Commissioner of Correction, supra,
317 Conn. 71, to be a ‘‘ ‘bedrock procedural [element]
essential to the fairness of a [juvenile sentencing] pro-
ceeding’ ’’ for all defendants, past and present, who
remain imprisoned pursuant to a sentence imposed in
violation of Miller; and (3) pursuant to the sentence
imposed in 2003, which remains in effect, the defendant
will remain in the custody of the Commissioner of Cor-
rection for a period of eighty-five years—for the remain-
der of his life, unless he lives past the age of 105. See P.A.
15-84, § 1, codified at General Statutes § 54-125a (g).
  The majority’s reasoning is flawed. Its logic begins
with the false premise that the Miller violation evapo-
rated as of October 1, 2015, the effective date of § 1 of
P.A. 15-84, which made the defendant parole eligible.
This idea is critical to the majority opinion because it
serves to dispense with the need for a Miller-compliant
resentencing; if the constitutional violation at issue is
‘‘negated’’ by retroactive parole eligibility, then no con-
stitutional violation remains and there is nothing to
remedy. The majority claims that its logic follows from
the holding of the United States Supreme Court in Mont-
gomery v. Louisiana,         U.S.     , 136 S. Ct. 718, 193
L. Ed. 2d 599 (2016), as adopted by this court in State
v. Delgado, 323 Conn. 801, 151 A.3d 345 (2016). I find
this reasoning fundamentally flawed.
   To begin with, neither Montgomery nor any other
precedent of the United States Supreme Court holds
or suggests that the retroactive availability of parole
eligibility in any way ‘‘negates’’ a constitutional viola-
tion, as the majority holds today. To the contrary, Mont-
gomery unequivocally held that ‘‘[a] conviction or
sentence imposed in violation of a substantive rule is
not just erroneous but contrary to law and, as a result,
void. . . . [A] court has no authority to leave in place
a conviction or sentence that violates a substantive
rule, regardless of whether the conviction or sentence
became final before the rule was announced.’’ (Citation
omitted; emphasis added.) Montgomery v. Louisiana,
supra, 136 S. Ct. 731. The Montgomery court then pro-
claimed: ‘‘The [c]ourt now holds that Miller announced
a substantive rule of constitutional law.’’ Id., 736.
Accordingly, the sentence imposed on the defendant in
the present case became void under Montgomery. This
is the very opposite of the constitutional violation being
‘‘negated,’’ as the majority would have it.
   After concluding that Miller decided a substantive
rule of constitutional law, Montgomery took up the
remedial question necessarily triggered by the require-
ment of retroactive application.12 When it opines that
‘‘[a] [s]tate may remedy a Miller violation by permitting
juvenile homicide offenders to be considered for parole,
rather than by resentencing them’’; id., 736; the state-
ment must be read in the context of the mandatory
sentencing scheme governing that case. Montgomery
does not hold that the retroactive availability of parole
eligibility in all cases and all circumstances will remedy
a Miller violation; nor could it sensibly say so without
eviscerating the ‘‘substantive rule of constitutional law’’
it just took pains to recognize. Id. Any suggestion to
the contrary seriously misconstrues the precedent in
two respects.
  First, the remedial holding of Montgomery must be
determined by reference to the facts of that case. The
petitioner, Henry Montgomery, was seventeen years old
at the time he committed the homicide for which he
was sentenced by a state court in Louisiana to a manda-
tory sentence of life imprisonment without the possibil-
ity of parole. Id., 725–26. Under Louisiana law, ‘‘[t]he
sentence was automatic upon the jury’s verdict, so [the
petitioner] had no opportunity to present mitigation
evidence to justify a less severe sentence.’’ Id., 726.
Ordering resentencing in Montgomery, in other words,
would have been an exercise in futility because the only
available sentencing option under Louisiana law was
life with parole. See La. Code Crim. P. Ann. art. 878.1
(Supp. 2019). Given the lack of discretion in a manda-
tory sentencing scheme, as well as concerns of federal-
ism and comity, the court held that, ‘‘where a juvenile
offender receive[s] mandatory life without parole,’’
states need not ‘‘relitigate sentences, let alone convic-
tions, in every case . . . .’’ (Emphasis added.) Mont-
gomery v. Louisiana, supra, 136 S. Ct. 736. Montgomery
is silent on the appropriate remedy for an eighth amend-
ment violation when the juvenile offender was sen-
tenced under a discretionary sentencing scheme, such
as Connecticut’s, in which the defendant could receive
a sentence of as little as twenty-five years of imprison-
ment upon resentencing. See General Statutes § 53a-
35a (2) (authorizing ‘‘a term not less than twenty-five
years nor more than life’’).
   The second reason that Montgomery exerts no con-
trolling force here is more fundamental. It is a well
established principle of federal law that ‘‘the remedy a
state court chooses to provide its citizens for violations
of the [f]ederal [c]onstitution is primarily a question of
state law.’’ (Emphasis added.) Danforth v. Minnesota,
supra, 552 U.S. 288. This is so because federal law is
‘‘fashioned to achieve the goals of federal habeas while
minimizing federal intrusion into state criminal pro-
ceedings. It was intended to limit the authority of fed-
eral courts to overturn state convictions—not to limit
a state court’s authority to grant relief for violations of
new rules of constitutional law when reviewing its own
[s]tate’s convictions.’’ Id., 280–81. For this reason, states
are free—as this court did in Casiano—to develop
‘‘state law to govern retroactivity in state postconviction
proceedings’’; (emphasis in original) id., 289; and those
remedies may be more expansive than the remedy pro-
vided under federal law. See id., 287 (‘‘[s]tate law may
provide relief beyond the demands of federal due pro-
cess, but under no circumstances may it confine peti-
tioners to a lesser remedy’’ [internal quotation marks
omitted]); see also Thiersaint v. Commissioner of Cor-
rection, 316 Conn. 89, 107, 113, 111 A.3d 829 (2015)
(recognizing that, ‘‘under Danforth, state courts may
give broader effect to new constitutional rules of crimi-
nal procedure than Teague allows in federal habeas
review’’ and, therefore, ‘‘while federal decisions apply-
ing Teague may be instructive, this court will not be
bound by those decisions in any particular case, but
will conduct an independent analysis’’). Danforth also
makes it clear that a state law granting its citizens
broader remedies for federal constitutional violations
need not be premised on ‘‘legislation or . . . judicial
interpretation of [the state] [c]onstitution’’; Danforth v.
Minnesota, supra, 288; rather, it may be grounded
instead on the unique development of the state’s law.
Id., 289.
   We return to the majority’s determination that parole
eligibility ‘‘negates a Miller violation,’’13 such that ‘‘there
is no Miller violation’’ at all. (Emphasis in original.) It
is undisputed that a Miller violation occurred at the
time the defendant’s sentence was imposed in 2003
because the trial court failed to consider the mitigating
factors of youth before sentencing the defendant to the
harshest penalty permitted for a juvenile offender. See
Montgomery v. Louisiana, supra, 136 S. Ct. 736 (hold-
ing that Miller ‘‘announced a substantive rule of con-
stitutional law’’ because ‘‘the sentence of life without
parole is disproportionate for the vast majority of juve-
nile offenders’’); Casiano v. Commissioner of Correc-
tion, supra, 317 Conn. 79 (requiring resentencing of
juvenile offender because ‘‘the procedures set forth in
Miller must be followed when considering whether to
sentence a juvenile offender to fifty years imprison-
ment without parole’’). Although the defendant now is
eligible for parole after serving thirty years of his eighty-
five year sentence pursuant to § 1 of P.A. 15-84, the
Miller violation does not magically cease to exist. The
majority’s contrary conclusion—that parole eligibility
‘‘negates’’ the constitutional violation—confuses the
analysis of a constitutional violation with the very dif-
ferent exercise of fashioning a remedy to a constitu-
tional violation.
   To support its conclusion that the Miller violation
has been negated in this case, the majority relies on
State v. Delgado, supra, 323 Conn. 811, in which this
court held that a juvenile defendant who was sentenced
to life imprisonment without the possibility of parole
or its functional equivalent ‘‘no longer falls within the
purview of Miller, Riley, and Casiano’’ after the passage
of P.A. 15-84. The fundamental logic driving Delgado is
straightforward: ‘‘Miller simply does not apply when a
juvenile’s sentence provides an opportunity for parole
. . . .’’ Id. Three errors result from the majority’s reli-
ance on Delgado. First, in relying on Delgado, the major-
ity incorporates and repeats that decision’s failure to
distinguish between the constitutional violation that
unquestionably occurred at sentencing and the constitu-
tional remedy for that violation. Delgado, like the major-
ity here, mistakes the question for the answer when it
concludes that the constitutional violation disappeared
at the moment parole eligibility became available. The
question in Delgado, as in Montgomery, was whether
the Miller violation, which had been determined to exist
as a matter of substantive constitutional law, was reme-
died by the availability of parole. That question cannot
be answered by wordplay—‘‘What Miller violation?’’
Defining the violation out of existence begs the ques-
tion, which remains this: Does the retroactive avail-
ability of parole eligibility remedy the constitutional
violation that occurred when the trial court failed to
take into account the hallmarks of youth at a compul-
sory individualized sentencing hearing14 held before
imposing sentence? This question can be answered yes
or no, but it cannot be answered, as Delgado and the
majority do, by declaring that there is no longer a consti-
tutional violation to remedy.
  Second, Delgado relies substantially on the remedial
holding of Montgomery v. Louisiana, supra, 136 S. Ct.
736; see State v. Delgado, 323 Conn. 807–808, 812; and,
to that extent, it offers no assistance in answering the
specific issue confronted here, because Delgado neither
considered nor decided the more precise state law
remedial question that emerges under Danforth. The
defendant in Delgado never even cited to Danforth, and
never invoked its precedential force to argue that ‘‘the
remedy a state court chooses to provide its citizens for
violations of the [f]ederal [c]onstitution is primarily a
question of state law.’’ Danforth v. Minnesota, supra,
552 U.S. 288. The closest the defendant came to making
that argument in Delgado was the off-point contention
that resentencing was contemplated by the Connecticut
legislature based on its decision ‘‘to require both a
Miller compliant sentencing hearing and an opportunity
for parole [in P.A. 15-84] . . . .’’ (Emphasis in original;
internal quotation marks omitted.) State v. Delgado,
supra, 815. Delgado therefore neither addresses nor
answers the different question raised by the defendant
here, which is whether the availability of parole under
P.A. 15-84 cures a constitutional violation that this court
has deemed to be a ‘‘watershed’’ rule—that is, a rule
essential to the fundamental fairness of the judicial pro-
ceeding, central to an accurate determination of a pro-
portionate sentence, and implicit in the very idea of
ordered liberty—as a matter of state postconviction,
remedial law. Consideration of this question is essential
to resolving the defendant’s claim on appeal and, there-
fore, I address it in part II of this dissenting opinion.
   Third, and relatedly, Delgado completely fails to
acknowledge that this court went significantly further in
Riley and Casiano than did the United States Supreme
Court in the respective federal counterpart cases, Miller
and Montgomery. Delgado for the most part lumps its
treatment of the federal and state cases together; see
State v. Delgado, supra, 323 Conn. 811–12; and it stead-
fastly ignores the fact that not only the holdings, but
also the reasoning, of the Connecticut cases extends
more broadly than that found in the federal cases in
important ways. After all, Riley did not merely follow
Miller, but it expressly rejected a ‘‘narrow’’ reading of
the case; State v. Riley, supra, 315 Conn. 653; and
expanded upon the Miller principles by applying them
to ‘‘(1) discretionary sentencing schemes and (2) sen-
tences that are the functional equivalent of life in addi-
tion to sentences of life without parole.’’ State v.
Belcher, Docket No. CR-94-100508, 2016 WL 2935462, *2
(Conn. Super. April 29, 2016) (Devlin, J.).15 And Casiano
took the Miller rule one step further, deeming it to be
a watershed rule of criminal procedure.16 Casiano v.
Commissioner of Correction, supra, 317 Conn. 69–70.
   The cursory treatment Delgado gives this court’s own
cases, decided only one year earlier, is especially nota-
ble when we look more closely at the distinguishing
features of Riley and Casiano. Riley extended the appli-
cation of Miller beyond mandatory sentences in signifi-
cant part because the court acknowledged the critical
importance of Miller’s demand for a hearing at which
the sentencing judge is ‘‘require[d] . . . to take into
account how children are different’’ in a discretionary
sentencing scheme. (Emphasis added; internal quota-
tion marks omitted.) State v. Riley, supra, 315 Conn.
654; see id., 658 (‘‘Miller does not stand solely for the
proposition that the eighth amendment demands that
the sentencer have discretion to impose a lesser punish-
ment than life without parole on a juvenile homicide
offender. Rather, Miller logically indicates that, if a
sentencing scheme permits the imposition of that pun-
ishment on a juvenile homicide offender, the trial court
must consider the offender’s ‘chronological age and its
hallmark features’ as mitigating against such a severe
sentence.’’ [Emphasis in original.]), quoting Miller v.
Alabama, supra, 567 U.S. 477. Simply put, Riley recog-
nizes what Delgado and the majority opinion here
ignore: a court cannot exercise sentencing discretion
without first considering those factors deemed essential
to the proper exercise of that discretion.
   Perhaps even more troubling is that Delgado does not
so much as mention the predominant fact that Casiano
declares Miller to have established a ‘‘watershed’’ rule,
which itself is a ruling of enormous significance. The
defendant in Delgado once again facilitated this over-
sight because he offered nothing more than a conclu-
sory argument ‘‘that ‘Montgomery does not . . .
supersede the final and controlling precedent [of this
court] in Riley and Casiano, which provide a new sen-
tencing hearing as the remedy for sentences that are
illegal or were imposed in an illegal manner . . . .’ ’’
State v. Delgado, supra, 323 Conn. 815. I find myself
unable to stand by silently and allow Riley and Casiano
to be forgotten.
                            II
  Having determined that there was a Miller violation
in this case, I next address whether the retroactive
parole eligibility conferred by P.A. 15-84 is sufficient to
cure the violation as a matter of state law.17 In Riley
and Casiano, this court adopted and expanded on the
principle that ‘‘children are different’’ for the purposes
of criminal sentencing. (Internal quotation marks omit-
ted.) Casiano v. Commissioner, supra, 317 Conn. 60;
State v. Riley, supra, 315 Conn. 654. The assessment
of culpability conducted as part of a criminal sentencing
is a central aspect of the ‘‘children are different’’ juris-
prudence elucidated in Riley and Casiano. These cases
understand that young people who commit crimes, even
horrible crimes, cannot reflexively be written off as
bad and immoral people of defective character. Their
conduct may be despicable, and even unforgiveable,
and the harm they cause may be irrevocable, but, in
the context of juvenile offenders, our case law requires
the sentencing authority to resist the reflexive assign-
ment of unmitigated moral blameworthiness that may
be directed at adults who commit the same crimes. Our
growing knowledge about adolescent development no
longer permits us to say that the juvenile offender is
exercising his free will to the same extent as an adult
offender.18 See generally S. Erickson, ‘‘Blaming the
Brain,’’ 11 Minn. J.L. Sci. & Tech. 27, 28–29 (2010)
(‘‘Much of the recent legal scholarship concerned with
criminal responsibility as of late has invested heavily
in the notion that the findings of biological sciences
promise a fundamental shift away from orthodox
notions of criminal liability. . . . All share the belief
that the impact of neuroscience on the law in the coming
years will be inevitable, dramatic, and will fundamen-
tally alter the way the law does business. And nowhere
is this promise endorsed with more gusto than in discus-
sions of responsibility and criminal liability.’’ [Foot-
notes omitted.]).
   Riley, applying the logic of Miller and the science
underlying its holding, identifies with precision the hall-
mark features of youth that must be considered by
a judge in mitigation at any sentencing proceeding at
which the judge may sentence a juvenile offender to
life without parole. Those features include ‘‘immaturity,
impetuosity, and failure to appreciate risks and conse-
quences; the offender’s family and home environment
and the offender’s inability to extricate himself from
that environment; the circumstances of the homicide
offense, including the extent of [the offender’s] partici-
pation in the conduct and the way familial and peer
pressures may have affected him; the offender’s inabil-
ity to deal with police officers or prosecutors (including
on a plea agreement) or his incapacity to assist his own
attorneys; and the possibility of rehabilitation . . . .’’
(Internal quotation marks omitted.) State v. Riley,
supra, 315 Conn. 658. Casiano, decided very shortly
thereafter, instructs that the adjudicative process by
which the judicial authority gives individualized consid-
eration to these factors as part of the discretionary act
of sentencing is fundamental to our system of justice.
Casiano v. Commissioner of Correction, supra, 317
Conn. at 69–71.
   As acknowledged in Miller and repeated in Casiano,
‘‘upon proper consideration of ‘children’s diminished
culpability’ . . . it would be ‘uncommon’ for a sentenc-
ing authority to impose the harsh penalty of a life sen-
tence without parole.’’ Id., 70, quoting Miller v. Ala-
bama, supra, 567 U.S. 479. These cases, ‘‘in effect, set
forth a presumption that a juvenile offender would not
receive a life sentence without parole upon due consid-
eration of the mitigating factors of youth . . . .’’ Casi-
ano v. Commissioner of Correction, supra, 317 Conn.
70. Thus, ‘‘the individualized sentencing prescribed by
Miller’’ necessarily ‘‘impact[s] the sentence imposed in
most cases.’’ Id.
   In the present case, the defendant’s eighty-five year
sentence of imprisonment is presumptively dispropor-
tionate to his moral culpability because, if the trial court
had considered the mitigating factors of the defendant’s
youth at the time of his commission of the offenses, as
Miller requires, a lesser sentence likely would have
been imposed. We do not know what that sentence
would have been, of course, because the constitutional
violation that occurred at the time deprives us of that
knowledge. The majority opinion necessarily assumes
that, if the constitutional requirements had been fol-
lowed, the sentence would have been eighty-five years
with the possibility of parole. Or, at least, it finds the
use of such an assumption sufficient for remedial pur-
poses, so that the retroactive availability of parole elimi-
nates the need for a resentencing that complies with
the requirements set forth in Miller, Riley, and Casiano.
My disagreement with this approach exists on many
levels, but it will be useful to express my disagreement
in two parts. The first, addressed in part II A of this
dissenting opinion, focuses on the particular ways that
the parole eligibility conferred by § 1 of P.A. 15-84 is
insufficient to remedy the disproportionate length of
the defendant’s sentence, and the second, addressed in
part II B of this dissenting opinion, focuses on what I
consider to be the fundamental conceptual flaws in the
majority’s position.
                              A
   Providing parole eligibility is insufficient to remedy
the disproportionate length of the defendant’s sentence
for four reasons. First, parole eligibility is dependent
on the length of the sentence imposed, and, here, the
defendant’s lengthy sentence means that he is not eligi-
ble for parole until after he has served a minimum of
thirty years of imprisonment. See P.A. 15-84, § 1, codi-
fied at General Statutes § 54-125a (f) (1) (B) (providing
that ‘‘person . . . serving a sentence of more than fifty
years’’ is not eligible for parole until ‘‘after serving thirty
years’’). If the defendant had been sentenced to a term
of anything less than fifty years, he would be eligible
for parole sooner—‘‘after serving sixty per cent of the
sentence or twelve years, whichever is greater.’’ P.A.
15-84, § 1, codified at General Statutes § 54-125a (f) (1)
(A). Second, once a defendant becomes eligible for
parole, release is by no means guaranteed, because ‘‘the
decision to grant parole is entirely within the discretion
of the [Board of Pardons and Paroles].’’ (Internal quota-
tion marks omitted.) Perez v. Commissioner of Correc-
tion, 326 Conn. 357, 371, 163 A.3d 597 (2017). This
leads to my third point, which is that the length of a
defendant’s sentence affects the likelihood that parole
will be granted.19 As the defendant points out, ‘‘an
inmate serving an eighty-five year sentence will fare
significantly worse [at a parole hearing] than other
inmates who, for example, are serving fifty year senten-
ces for committing similar, serious (homicide) offenses.
Common sense would tell us that the greater the reduc-
tion requested, the less likely it would be that an inmate
would receive relief at a parole hearing.’’ Finally, once
a person is released on parole, he or she nonetheless
‘‘remain[s] in the custody of the Commissioner of Cor-
rection and [is] subject to supervision by personnel
of the Department of Correction during such person’s
period of parole.’’ P.A. 15-84, § 1, codified at General
Statutes § 54-125a (g). Thus, neither parole eligibility
nor release on parole cures the violation of the defen-
dant’s eighth amendment right to be free from cruel
and unusual punishment.
    Although other states have enacted statutes or regula-
tions to remedy Miller violations by providing for retro-
active parole eligibility, many of these states expressly
require the decision-making authority to consider a
juvenile offender’s diminished culpability at the time
of the commission of the offense in deciding whether
to grant parole. See Ark. Code Ann. § 16-93-621 (b)
(2) (Supp. 2017) (requiring parole board to take into
consideration, inter alia, ‘‘[t]he diminished culpability
of minors as compared to that of adults,’’ ‘‘[t]he hallmark
features of youth,’’ ‘‘[a]ge of the person at the time of
the offense,’’ and ‘‘[i]mmaturity of the person at the
time of the offense’’); Cal. Penal Code § 3051 (f) (1)
(Deering Supp. 2018) (requiring parole board to ‘‘take
into consideration the diminished culpability of youth
as compared to that of adults’’ and ‘‘the hallmark fea-
tures of youth’’); W. Va. Code Ann. § 62-12-13b (b) (Lex-
isNexis Supp. 2018) (requiring parole board to consider
‘‘[a]ge at the time of the offense,’’ ‘‘[i]mmaturity at the
time of the offense,’’ and ‘‘[h]ome and community envi-
ronment at the time of the offense’’); Md. Code Regs.
§ 12.08.01.18 (3) (2016) (requiring parole commission
to consider ‘‘[a]ge at the time the crime was committed,’’
‘‘[t]he individual’s level of maturity and sense of respon-
sibility at the time . . . the crime was committed,’’
‘‘[w]hether influence or pressure from other individuals
contributed to the commission of the crime,’’ ‘‘[t]he
home environment and family relationships at the time
the crime was committed,’’ ‘‘[t]he individual’s educa-
tional background and achievement at the time the
crime was committed,’’ and ‘‘[o]ther factors or circum-
stances unique to prisoners who committed crimes at
the time the individual was a juvenile that the Commis-
sioner determines to be relevant’’). For example, in
People v. Franklin, 63 Cal. 4th 261, 370 P.3d 1053, 202
Cal. Rptr. 3d 496 (2016), the Supreme Court of California
found parole eligibility under Cal. Penal Code § 3051
(f) (1) to be an adequate remedy for a Miller violation
because, amongst other things, the statute directed ‘‘the
[b]oard to give great weight to the diminished culpabil-
ity of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and
increased maturity of the prisoner . . . [and] contem-
plate[d] that information regarding the juvenile offend-
er’s characteristics and circumstances at the time of
the offense will be available at a youth offender parole
hearing to facilitate the [b]oard’s consideration.’’ (Cita-
tion omitted; internal quotation marks omitted.) Id., 283.
   In contrast, P.A. 15-84 neither requires the Board of
Pardons and Paroles (board) to give any special weight
to the Miller factors and the diminished culpability of
juvenile offenders, nor contemplates that such informa-
tion will be available at a youth offender parole hearing
to facilitate the board’s decision.20 Although the board
may grant a juvenile offender parole if it finds that
‘‘such person has demonstrated substantial rehabilita-
tion since the date such crimes or crimes were commit-
ted considering such person’s character, background
and history, as demonstrated by . . . the age and cir-
cumstances of such person as of the date of the commis-
sion of the crime or crimes, whether such person has
demonstrated remorse and increased maturity since the
date of the commission of the crime . . . [and] such
person’s efforts to overcome . . . obstacles that such
person may have faced as a child’’; P.A. 15-84, § 1, codi-
fied at General Statutes § 54-125a (f) (4) (C); this provi-
sion plainly is focused on a juvenile offender’s
rehabilitation, rather than a juvenile offender’s dimin-
ished culpability. Parole eligibility under P.A. 15-84, in
other words, is ‘‘future focused’’ and does not consider
whether a juvenile offender ‘‘was less blameworthy due
to their youth at the time of the offense.’’ State v. Link,
297 Or. App. 126, 151, 441 P.3d 664 (2019); see id.,
149–52 (holding that murder review hearing under Or.
Rev. Stat. § 163.105 [2015] after thirty years of imprison-
ment did not ‘‘[provide] an opportunity for the consider-
ation of the qualities of youth sufficient to comply with
Miller’’ because [1] ‘‘Graham and Miller are replete
with language holding that the proper actor to consider
the qualities of youth is the sentencer,’’ [2] ‘‘any con-
sideration of the qualities of youth would come—at a
minimum—[thirty] years after the imposition of the sen-
tence’’ and ‘‘delay would undercut the essence of
Miller,’’ and [3] parole board is required to consider
neither ‘‘immaturity at the time of the offense, nor how
such immaturity lessened the culpability or blamewor-
thiness of the defendant’’ [emphasis in original]).
Because nothing in P.A. 15-84 requires the board to
consider the Miller factors when deciding whether a
juvenile offender will spend the rest of his natural life
in prison, I believe that parole eligibility under the stat-
ute is inadequate to remedy the violation of a juvenile
offender’s eighth amendment rights. See Casiano v.
Commissioner of Correction, supra, 317 Conn. 70 (‘‘the
individualized sentencing prescribed by Miller is central
to an accurate determination . . . that the sentence
imposed is a proportionate one’’ [citation omitted; inter-
nal quotation marks omitted]); State v. Riley, supra,
315 Conn. 653 (holding that, under Miller, ‘‘the sen-
tencer must consider age related evidence as mitigation
when deciding whether to irrevocably sentence juvenile
offenders to a lifetime in prison’’).
   The inadequacy and unfairness of the retroactive
aspect of P.A. 15-84, as applied to the defendant and
any similarly situated juvenile offenders, is exacerbated
by the disparate impact that Miller violations have on
minority juvenile offenders. In written testimony sub-
mitted to the Joint Standing Committee on the Judi-
ciary, the Center for Children’s Advocacy explained
that, ‘‘[e]ven though [b]lack and Latino youth comprise
only 16% of Connecticut’s total population, they repre-
sent 88% [of] all juvenile offenders serving sentences
of more than [ten] years and 92% of youth sentenced to
more than [fifty] years. Additionally, [b]lack and Latino
youth serve longer sentences than when convicted of
the same crime as their white counterparts.’’ Conn. Joint
Standing Committee Hearings, Judiciary, Pt. 2, 2015
Sess., p. 1048. Moreover, prior to the enactment of P.A.
15-84, ‘‘100% of juveniles serving a life sentence without
parole [were] African Americans . . . .’’ Id., p. 1097,
remarks of Subira Gordon, legislative analyst for the
African American Affairs Commission. Thus, in Con-
necticut, it is minority youth who primarily are affected
by the disproportionately long sentences meted out in
violation of the requirements of Miller, and it is minority
youth who continue to suffer the unconstitutional
effects of these disproportionately long sentences.
   The defendant in the present case was seventeen
years old at the time of the commission of his crimes,
and, under federal and Connecticut precedent, he has an
eighth amendment right to have the mitigating factors
of his youth, and his consequent diminished moral cul-
pability, considered in determining whether he should
spend the rest of his natural life imprisoned. Despite
this constitutional right, the defendant has not had—
and, under P.A. 15-84, never will have—an adjudicatory
proceeding in which his diminished moral culpability
is considered in relation to the length of his sentence.
Because the parole eligibility conferred by P.A. 15-84
does not ensure ‘‘an accurate determination that the
sentence imposed is a proportionate one’’; Casiano v.
Commissioner of Correction, supra, 317 Conn. 69; it
fails to remedy the violation of the defendant’s funda-
mental constitutional rights.21
                             B
   I have five broader points to make in response to
the suggestion that the constitutional violation that
occurred at the defendant’s sentencing in June, 2003,
is erased or cured by the legislature’s provision of parole
eligibility in 2015.
   First, to repeat in the most basic terms what already
has been said, it seems patently obvious that curing the
Graham violation that occurred here does not address
or cure the Miller violation that also occurred, because
Graham and Miller concern two different aspects of
the defendant’s punishment. As I previously discussed,
parole eligibility addresses the offender’s potential for
change and rehabilitation based on the scientific fact
that the hallmarks of youth usually are transitory and
will disappear over time. The individualized sentencing
hearing mandated by Miller is necessary to take into
account the hallmarks of youth as they relate to the
offender’s culpability, not his prospects for future reha-
bilitation, for purposes of deciding whether the defen-
dant should be sentenced to thirty years, fifty years, or
some other term of imprisonment. To suggest that
parole eligibility erases or cures the Miller violation in
a discretionary sentencing scheme strikes me as irratio-
nal when there is a distinct violation—one of watershed
dimensions—that has independent consequences on
the length of the sentence.
   Second, unless it is willing to heighten the irrational-
ity still more, the majority cannot brush aside the Miller
violation inflicted on the defendant in 2003 on the theory
that the violation disappears as a definitional matter
because Miller, Riley, and Casiano apply only to sen-
tences of life without parole, and the defendant is now
serving a sentence of life with parole. To begin with,
as a legal matter, the defendant is serving the very same
sentence of eighty-five years of imprisonment that was
imposed in 2003. Parole eligibility is not part of a defen-
dant’s sentence and, therefore, cannot cure a constitu-
tional infirmity in the sentence. Parole eligibility, like
other terms and conditions affecting how an inmate’s
sentence is implemented by the Department of Correc-
tion, is not within the jurisdiction of the sentencing
judge or the Judicial Branch. See, e.g., State v. McCoy,
331 Conn. 561, 586–87, 206 A.3d 725 (2019) (clarifying
and reiterating that ‘‘a trial court loses jurisdiction once
the defendant’s sentence is executed, unless there is a
constitutional or legislative grant of authority’’); Perez
v. Commissioner of Correction, supra, 326 Conn. 371
(noting that ‘‘the decision to grant parole is entirely
within the discretion of the board’’ and, therefore,
‘‘parole eligibility under [General Statutes] § 54-125a
does not constitute a cognizable liberty interest suffi-
cient to invoke habeas jurisdiction’’ [internal quotation
marks omitted]). If the sentence itself was illegal, it
remains illegal, because it has not changed. That point
is technical, although we often rely on technical points
to reach our holdings in the field of criminal sentencing.
   More fundamentally, it is remarkable to me that the
majority is willing, with no apparent hesitation, to con-
clude that the entire corpus of juvenile sentencing law
developed over the past fifteen years based on the revo-
lutionary, paradigm-shifting insight that ‘‘ ‘children are
different’ ’’ for sentencing purposes; Casiano v. Com-
missioner, supra, 317 Conn. 60; State v. Riley, supra,
315 Conn. 654; can be reduced to nothing more than
the anemic requirement of parole eligibility.22 It is not
impossible to read the cases so narrowly, I suppose,
but to arrive at that conclusion fights fiercely against
the logic of those cases and the spirit animating them,
especially as seen in Riley and Casiano. In my view,
it is impossible to read our precedent to suggest that
the foundational, animating, and essential principle of
those cases is inapplicable to any sentence other than
death or life without the possibility of parole. The pro-
foundly significant principle that ‘‘ ‘children are consti-
tutionally different from adults for sentencing pur-
poses,’ ’’ embraced enthusiastically by this court in
2015; Casiano v. Commissioner of Correction, supra,
56; has been reduced to this disheartening reformula-
tion: ‘‘Children are constitutionally the same as adults
for sentencing purposes, even for the most severe sen-
tences, short of death and its functional equivalent.’’ The
result is unfortunate and unnecessary. It also signals a
major retreat from where our court positioned itself on
the issue only four years ago, which brings us back
to Casiano.
   Third, the majority, in my view, vastly overstates the
significance of the unremarkable fact that the legisla-
ture made the sentencing provisions contained in § 2
of P.A. 15-84 prospective, while giving the parole provi-
sions in § 1 of P.A. 15-84 retroactive application. It
is wholly unnecessary to read a preemptive remedial
intention into that arrangement, and the fact that the
legislature did not make § 2 retroactive across the board
does not mean that it intended to strip judges of the
authority to order resentencing on a case-by-case basis
in the event that the juvenile offender was sentenced
in violation of Miller. It would have made no sense to
require resentencing in every case for the simple reason
that some significant number of juvenile offenders
within the retroactive scope of P.A. 15-84 would have
been sentenced by trial judges who had taken into
account the hallmarks of youth prior to 2015. The scien-
tific basis for mandating—indeed, constitutionalizing—
that procedure may not yet have been widely known
before Miller, but many judges with sentencing respon-
sibility undoubtedly were aware that children often lack
adult-like judgment and impulse control, and these con-
siderations were treated as a mitigating factor by some
judges long prior to 2015. See Roper v. Simmons, supra,
543 U.S. 569 (noting that lack of maturity and underde-
veloped sense of responsibility found in youth is some-
thing ‘‘any parent knows’’). Requiring resentencing in
every case would not have been sensible, and it is hardly
surprising that the legislature did not include a generic
retroactivity provision in § 2 of P.A. 15-84.23
   Fourth, the majority’s claim that the passage of time
makes resentencing not ‘‘practical’’ only serves to rein-
force the impression that we have lost the courage of
the convictions that we expressed in Casiano, in which
we deemed the constitutional violation that occurred
at the defendant’s sentencing in 2003 a transgression
of the most fundamental principles of individualized
justice. Casiano v. Commissioner of Correction, supra,
317 Conn. 69–70. It strikes me as very odd that we so
easily can shrug our shoulders now and say that ‘‘no
remedy will put the defendant in the same position he
would have been in if his youth had been considered
when he was sentenced,’’ and so we need not even
try. Given the passage of time since the defendant’s
commission of the crimes in 2001, it is possible that
some practical difficulties may arise during the resen-
tencing process, but I cannot agree that this possibility
relieves us of our obligation to provide a meaningful
remedy for the constitutional violation that occurred
at sentencing. ‘‘Constitutional violations implicating the
courts must be susceptible of a judicial remedy.’’
Pamela B. v. Ment, 244 Conn. 296, 313, 709 A.2d 1089
(1998). ‘‘Once a constitutional violation is found,’’ a
court is required to fashion a ‘‘remedy to fit the nature
and extent of the constitutional violation.’’ (Internal
quotation marks omitted.) Dayton Board of Education
v. Brinkman, 433 U.S. 406, 420, 97 S. Ct. 2766, 53 L.
Ed. 2d 851 (1977).
   The reality is that the resentencing of convicted
offenders is neither a rare nor impractical remedy in
numerous judicial contexts. At the federal level, tens
of thousands of resentencing proceedings have been
required over the past few years in the wake of various
retroactive judicial rulings and sentencing reforms.24
This remedial practice is by no means new; there have
been watershed-like events in criminal procedure over
the years requiring resentencing of offenders on a far
more extensive scale than implicated here. See, e.g.,
W. Kelly, ‘‘Sentencing, Due Process, and Invalid Prior
Convictions: The Aftermath of United States v. Tucker,’’
77 Colum. L. Rev. 1099 (1977) (discussing federal resen-
tencings required in wake of United States v. Tucker,
404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 [1972], which
held that sentences cannot be enhanced by convictions
obtained in violation of right to counsel under Gideon
v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d
799 [1963]). In Connecticut, resentencing is necessary
in various contexts as well, including in habeas cases
involving a successful claim of ineffective assistance
of counsel, in which resentencing is required to ‘‘place
the habeas petitioner, as nearly as possible, in the posi-
tion that he would have been in if there had been no
violation of his right to counsel.’’ (Internal quotation
marks omitted.) H. P. T. v. Commissioner of Correc-
tion, 310 Conn. 606, 615, 79 A.3d 54 (2013). It makes
no sense to me that we find ourselves working so hard
to make this remedy unavailable in the present context
involving the constitutional rights of children.
   Fashioning remedies for constitutional violations
sometimes presents courts with a ‘‘difficult task,’’ but
a meaningful remedy ‘‘is what the [c]onstitution and
our cases call for, and that is what must be done in
this case.’’ Dayton Board of Education v. Brinkman,
supra, 433 U.S. 420; see also State v. Lyle, 854 N.W.2d
378, 403 (Iowa 2014) (recognizing that resentencing
juvenile offenders ‘‘will likely impose administrative
and other burdens,’’ but holding that those are ‘‘burdens
our legal system is required to assume [because] [i]ndi-
vidual rights are not just recognized when convenient’’).
The Supreme Court of Iowa relied on this sound reason-
ing in a similar case and, in my view, its analysis should
apply to a rule that we have deemed to constitute a
‘‘watershed rule’’ under Connecticut law: ‘‘Even if the
resentencing does not alter the sentence for most juve-
niles, or any juvenile, the action taken by our [trial
court] judges in each case will honor the decency and
humanity embedded within [the state constitution] and,
in turn, within every [citizen of the state]. The youth
of this state will be better served when judges have
been permitted to carefully consider all of the circum-
stances of each case to craft an appropriate sentence
and give each juvenile the individual sentencing atten-
tion they deserve . . . . The [s]tate will be better
served as well.’’ State v. Lyle, supra, 403.
   Fifth, and finally, if the majority means what it says
here, then it should acknowledge that we really did not
mean what we said in Casiano when we deemed Miller
to establish a watershed rule of constitutional dimen-
sion. The language we employed in Casiano qualifies
as more than a begrudging acceptance, more than a
mild endorsement, more even than a firm embrace; it
elevates the principle to the most revered constitutional
status available. Indeed, the Casiano watershed desig-
nation confers constitutional status with meaning
beyond the eighth amendment, because it triggers due
process protection. The reason that a procedural rule
of watershed significance requires retroactive applica-
tion is that the right is deemed to be ‘‘implicit in the
concept of ordered liberty,’’ which is the touchstone
used to identify rights entitled to protection as a matter
of constitutional due process. (Internal quotation marks
omitted.) Albright v. Oliver, 510 U.S. 266, 301, 114 S.
Ct. 807, 127 L. Ed. 2d 114 (1994) (Stevens, J., dissenting);
see id. (explaining that court initially held that ‘‘the
right to be free from unreasonable official searches
was ‘implicit in ‘‘the concept of ordered liberty,’’’ and
therefore protected by the [d]ue [p]rocess [c]lause of
the [f]ourteenth [a]mendment,’’ and that court later
‘‘ ‘extend[ed] [those] substantive protections of due
process to all constitutionally unreasonable searches—
state or federal’ ’’ [emphasis in original]); Herrera v.
Collins, 506 U.S. 390, 435–36, 113 S. Ct. 853, 122 L. Ed.
2d 203 (1993) (‘‘This [c]ourt has held that the [d]ue
[p]rocess [c]lause protects individuals against two types
of government action. So-called substantive due pro-
cess prevents the government from engaging in conduct
that shocks the conscience . . . or interferes with
rights implicit in the concept of ordered liberty . . . .
When government action depriving a person of life,
liberty, or property survives substantive due process
scrutiny, it must still be implemented in a fair manner.
. . . This requirement has traditionally been referred to
as procedural due process.’’ [Citations omitted; internal
quotation marks omitted.]); Palko v. Connecticut, 302
U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (equating
rights that are ‘‘the very essence of a scheme of ordered
liberty’’ with ‘‘ ‘principle[s] of justice so rooted in the
traditions and conscience of our people as to be ranked
as fundamental’ ’’).25
   The Casiano watershed designation and its constitu-
tional entailments cannot be ignored; nor can it be sug-
gested with a straight face that the procedural right to
an individualized hearing before the sentencing court
is owed the most robust constitutional protection avail-
able when a juvenile offender is sentenced to life in
prison without parole, but suddenly warrants no consti-
tutional protection at all if the offender receives an
identical sentence with the possibility of parole.
      I therefore dissent.
  1
     The watershed label, which triggers retroactive application of the new
rule, describes an ‘‘extremely narrow’’ class of cases arising so rarely that
the United States Supreme Court itself ‘‘has never held that any rule falls
within the exception.’’ (Internal quotation marks omitted.) Lester v. United
States, 921 F.3d 1306, 1308 (11th Cir. 2019).
   2
     Section 1 of No. 15-84 of the 2015 Public Acts, codified at General Statutes
§ 54-125a, provides in relevant part: ‘‘(f) (1) Notwithstanding the provisions
of subsections (a) to (e), inclusive, of this section, a person convicted of
one or more crimes committed while such person was under eighteen years
of age, who is incarcerated on or after October 1, 2015, and who received
a definite sentence or total effective sentence of more than ten years for
such crime or crimes prior to, on or after October 1, 2015, may be allowed
to go at large on parole in the discretion of the panel of the Board of Pardons
and Paroles for the institution in which such person is confined, provided
(A) if such person is serving a sentence of fifty years or less, such person
shall be eligible for parole after serving sixty per cent of the sentence or
twelve years, whichever is greater, or (B) if such person is serving a sentence
of more than fifty years, such person shall be eligible for parole after serving
thirty years. Nothing in this subsection shall limit a person’s eligibility for
parole release under the provisions of subsections (a) to (e), inclusive, of
this section if such person would be eligible for parole release at an earlier
date under any of such provisions.
   ‘‘(2) The board shall apply the parole eligibility rules of this subsection
only with respect to the sentence for a crime or crimes committed while a
person was under eighteen years of age. . . .
   ‘‘(3) Whenever a person becomes eligible for parole release pursuant to
this subsection, the board shall hold a hearing to determine such person’s
suitability for parole release. . . .
   ‘‘(4) After such hearing, the board may allow such person to go at large
on parole with respect to any portion of a sentence that was based on a
crime or crimes committed while such person was under eighteen years of
age if the board finds that such parole release would be consistent with the
factors set forth in subdivisions (1) to (4), inclusive, of subsection (c) of
section 54-300 and if it appears, from all available information, including,
but not limited to, any reports from the Commissioner of Correction, that
(A) there is a reasonable probability that such person will live and remain
at liberty without violating the law, (B) the benefits to such person and
society that would result from such person’s release to community supervi-
sion substantially outweigh the benefits to such person and society that
would result from such person’s continued incarceration, and (C) such
person has demonstrated substantial rehabilitation since the date such crime
or crimes were committed considering such person’s character, background
and history, as demonstrated by factors, including, but not limited to, such
person’s correctional record, the age and circumstances of such person as
of the date of the commission of the crime or crimes, whether such person
has demonstrated remorse and increased maturity since the date of the
commission of the crime or crimes, such person’s contributions to the
welfare of other persons through service, such person’s efforts to overcome
substance abuse, addiction, trauma, lack of education or obstacles that such
person may have faced as a child or youth in the adult correctional system,
the opportunities for rehabilitation in the adult correctional system and the
overall degree of such person’s rehabilitation considering the nature and
circumstances of the crime or crimes.
   ‘‘(5) After such hearing, the board shall articulate for the record its decision
and the reasons for its decision. If the board determines that continued
confinement is necessary, the board may reassess such person’s suitability
for a new parole hearing at a later date to be determined at the discretion
of the board, but not earlier than two years after the date of its decision.
   ‘‘(6) The decision of the board under this subsection shall not be subject
to appeal. . . .’’
   3
     Extraordinary only in America, I should add. It is no point of pride that
we are one of only one or two countries in the world that permits a juvenile
offender to be sentenced to life without parole. See C. de la Vega & M.
Leighton, ‘‘Sentencing Our Children to Die in Prison: Global Law and Prac-
tice,’’ 42 U.S.F. L. Rev. 983, 985 (2008) (engaging in comparative analysis
of juvenile justice and rehabilitation models). ‘‘These issues have become
so [well understood] at the international level,’’ explain the authors of this
article, ‘‘that a state’s execution of [the life without parole] sentence raises
the possibility that it not only violates juvenile justice standards but also
contravenes international norms established by the United Nations Conven-
tion Against Torture. Globally, the consensus against imposing [life without
parole] sentences on children is virtually universal. Based on the authors’
research, there is only one country in the world today [as of 2008] that
continues to sentence child offenders to [life without parole] terms: the
United States.’’ (Footnote omitted.) Id., 985. A different source indicates
that one other country shares this dubious distinction, at least as of 2005.
That country is Somalia. See Amnesty International, Human Rights Watch,
‘‘The Rest of Their Lives: Life Without Parole for Child Offenders in the
United States,’’ (2005), p. 5, available at http://www.hrw.org/sites/default/
files/reports/TheRestofTheirLives.pdf (last visited August 22, 2019) (‘‘all
countries except the United States and Somalia have ratified the Convention
on the Rights of the Child, which explicitly forbids ‘life imprisonment without
possibility of release’ for ‘offenses committed by persons below eighteen
years of age’ ’’). It appears that our system of justice, in some ways a model
envied and emulated around the globe, lags behind the vast majority of
other countries with respect to our treatment of juvenile offenders. And if
Nelson Mandela spoke the truth when he said that ‘‘[t]here can be no keener
revelation of a society’s soul than the way in which it treats its children,’’
then our failure to keep pace with practices elsewhere in this regard should
be viewed as profoundly disturbing.
   4
     In Roper, Graham, and Miller, the United States Supreme Court relied
on this growing body of scientific and social science evidence to establish
the constitutionally significant differences between adults and juveniles.
See Miller v. Alabama, supra, 567 U.S. 472 n.5 (‘‘[t]he evidence presented
to us in these cases indicates that the science and social science supporting
Roper’s and Graham’s conclusions have become even stronger’’). Children
are different, the court explained, in significant part because their brains
are not yet fully developed or fully functioning. See Graham v. Florida,
supra, 560 U.S. 68 (noting that ‘‘developments in psychology and brain
science continue to show fundamental differences between juvenile and
adult minds’’). The various anatomical structures and neurochemical sys-
tems that govern decision making and impulse control not only remain
undeveloped in adolescents, but develop at different rates within the brain,
and this developmental mismatch is responsible for some of the most signifi-
cant impairments, such as impulsivity and lack of judgment and self-control,
so often observed in juveniles. See Miller v. Alabama, supra, 472 n.5. The
American Psychiatric Association (APA) submitted an amicus curiae brief
in Miller providing an extensive review of the science and social science
demonstrating these points. Id. (quoting APA’s amicus brief for proposition
that ‘‘ ‘[i]t is increasingly clear that adolescent brains are not yet fully mature
in regions and systems related to higher-order executive functions such as
impulse control, planning ahead, and risk avoidance’ ’’). In the present case,
a similar brief was filed by amicus curiae Connecticut Psychiatric Society,
which focused on the post-Miller literature further establishing the scientific
basis for treating children differently from adults for the purposes of crimi-
nal sentencing.
   5
     The defendant was convicted in 2003 of murder in violation of General
Statutes § 53a-54a (a), conspiracy to commit murder in violation of General
Statutes §§ 53a-54a (a) and 53a-48 (a), and assault in the first degree in
violation of General Statutes § 53a-59 (a) (5), after he and his younger half
brother shot and killed the victim and injured another individual in 2001.
State v. McCleese, 94 Conn. App. 510, 511–12, 892 A.2d 343, cert. denied,
278 Conn. 908, 899 A.2d 36 (2006). The defendant ‘‘conspired to murder [the
victim] . . . because the defendant believed that [the victim] was ‘messing
with’ [his younger brother].’’ Id., 512. The trial court imposed a sixty year
sentence on the murder count, a consecutive twenty year sentence on the
conspiracy count, and a consecutive five year sentence on the assault count,
resulting in a total effective sentence of eighty-five years.
   6
     At the hearing on the defendant’s motion to correct an illegal sentence,
the trial court asked the state if it was disputed that the sentencing judge
‘‘[did not] follow the mandates of Miller v. Alabama in what should be
considered by a judge when sentencing [a juvenile offender] . . . [i]n other
words . . . the [sentencing] court did not factor in all the things that Miller
v. Alabama now requires?’’ The state answered: ‘‘Correct. . . . [T]hose fac-
tors were not taken into consideration.’’ This clarifying colloquy followed:
   ‘‘The Court: I mean, I’m not saying that the [judge] did not mention at
some point, you know, which normally they do in sentencing, the youth of
somebody, but . . . the sentencing [judge] didn’t address in the detail and
form in which Miller v. Alabama requires is what—
   ‘‘[The Prosecutor]: That is correct, Your Honor. . . . Age may have been
mentioned, but not in any detail as required under those cases.’’
   7
     No fault is attributable to the sentencing court here. As I previously
noted, the sentencing proceeding took place in 2003, nine years before Miller
and twelve years before this court decided Riley. There is no evidence in
the record that the defendant at sentencing submitted or referenced any of
the scientific studies or raised any legal claim on the basis of those studies.
   8
     Although the rehabilitative strand is found in Roper, Graham, and Miller,
the doctrinal expression of the rule is most closely associated with Graham,
and a sentence that satisfies the requirement of parole eligibility is often
referred to as ‘‘Graham compliant.’’ See, e.g., Willbanks v. Dept. of Correc-
tions, 522 S.W.3d 238, 256 (Mo.) (discussing Riley and its requirement of
‘‘a Graham-compliant sentence’’), cert. denied,           U.S.     , 138 S. Ct. 304,
199 L. Ed. 2d 125 (2017).
   9
     Our focus here is on punishment, but the concept of moral culpability
also is fundamental to the determination of criminal liability. ‘‘The contention
that an injury can amount to a crime only when inflicted by intention is no
provincial or transient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and a consequent
ability and duty of the normal individual to choose between good and
evil.’’ (Emphasis added.) Morissette v. United States, 342 U.S. 246, 250, 72
S. Ct. 240, 96 L. Ed. 288 (1952); see also R. Pound, Introduction to F. Sayre,
A Selection of Cases on Criminal Law (1927), pp. xxxvi–xxxvii (‘‘Historically,
our substantive criminal law is based [on] a theory of punishing the vicious
will. It postulates a free agent confronted with a choice between doing right
and doing wrong and choosing freely to do wrong.’’).
   10
      See Casiano v. Commissioner of Correction, supra, 317 Conn. 60, 68–70;
State v. Riley, supra, 315 Conn. 646–51.
   11
      The cases sometimes attribute the importance of assessing culpability
to generic penological goals such as retribution; see, e.g., Miller v. Alabama,
supra, 567 U.S. 472; and at other times to the eighth amendment ‘‘proportion-
ality’’ requirement. See, e.g., id., 469–71, 473.
   12
      It is important to understand at the outset that the court in Montgomery
could not, as a matter of federal law, establish limitations on Connecticut’s
ability to provide a remedy for a Miller violation that is more generous than
that provided by federal courts. See Danforth v. Minnesota, supra, 552 U.S.
288 (holding that ‘‘the remedy a state court chooses to provide its citizens
for violations of the [f]ederal [c]onstitution is primarily a question of state
law’’). This point is discussed shortly.
   13
      For the sake of simplicity, I adopt the majority’s use of the shorthand
phrases ‘‘Graham violation’’ and ‘‘Miller violation.’’ See footnote 3 of the
majority opinion. A Graham violation refers to a sentencing court’s failure
to account for the likelihood of rehabilitation by providing a juvenile offender
with parole eligibility; a Miller violation refers to a sentencing court’s failure
to take into account the ‘‘hallmarks of youth’’ in determining the most
appropriate term of incarceration proportional to the trial court’s assessment
of the offender’s moral culpability and related penological objectives. State
v. Delgado, supra, 323 Conn. 806 n.5.
   14
      This individualized sentencing hearing is the proceeding that we have
deemed to be essential to the fundamental fairness of the judicial proceeding,
central to an accurate determination of a proportionate sentence, and
implicit in the very idea of ordered liberty. Casiano v. Commissioner of
Correction, supra, 716 Conn. 70–71.
   15
      See also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2015
Sess., p. 943, remarks of Chief State’s Attorney Kevin Kane (stating that
‘‘the Connecticut Supreme Court went a little farther [in Riley] than I ever
thought the U.S. Supreme Court intended to go in Graham and Miller’’);
id., p. 959, remarks of former Representative Robert Farr (agreeing that
Riley ‘‘went beyond the U.S. Supreme Court decision’’ in Miller).
   16
      Montgomery did not reach the issue.
   17
      The majority opinion criticizes the scope of my analysis on the ground
that ‘‘[t]he defendant never has advanced any of the dissent’s arguments,’’
and states that the court should decline to decide this case ‘‘based on issues
not raised by the parties.’’ I disagree that the ground I cover is outside the
scope of the claims raised by the defendant. The defendant argued in his
initial brief that the remedial component of Montgomery v. Louisiana,
supra, 136 S. Ct. 718, is not binding on this court pursuant to Danforth v.
Minnesota, supra, 552 U.S. 280–81; that resentencing is required as a matter
of state law under Casiano v. Commissioner of Correction, supra, 317 Conn.
70–71, which designated Miller a watershed rule of criminal procedure;
that the sentencing judge, not the Board of Pardons and Parole, has the
constitutional obligation to sentence the defendant on the basis of an individ-
ualized assessment of the Miller factors; and that concerns about practicality
cannot outweigh the fundamental rights at stake. After the defendant filed
his initial brief, this court issued its decision in State v. Delgado, supra, 323
Conn. 801. The defendant thereafter filed a reply brief in which he argued
that ‘‘[t]his court should reconsider and overrule’’ Delgado because ‘‘Delgado
was decided when the law was in flux, without full briefing of the issues,
and the decision is ‘incorrect and unjust.’ ’’ To the extent that this dissenting
opinion may expand on certain arguments made by the defendant, or draw
out additional significance or different implications on the basis of argu-
ments that come within the scope of the defendant’s claims, I see nothing
improper or unusual about doing so. Cf. Michael T. v. Commissioner of
Correction, 319 Conn. 623, 635 n.7, 126 A.3d 558 (2015) (distinguishing
between ‘‘claim[s]’’ and ‘‘argument[s]’’ and noting that appellate courts may
review ‘‘legal arguments that . . . are subsumed within or intertwined with
arguments related to the legal claim’’ [internal quotation marks omitted]).
   Finally, because I would conclude that the parole eligibility conferred by
P.A. 15-84 was not intended to remedy the violation of juvenile offenders’
constitutional rights at sentencing pursuant to Miller, I do not address the
question of whether the legislature can, without violating the separation
of powers enshrined in article second of the state constitution, modify a
defendant’s sentence to remedy a Miller violation. It is an open question
whether the legislature would transgress constitutional limitations were P.A.
15-84 construed to either (1) delegate to the Board of Pardons and Paroles,
an agency wholly outside of the Judicial Branch, the authority to exercise
an act of sentencing discretion already conferred to the Judicial Branch, or
(2) preempt the judiciary from requiring resentencing to remedy a constitu-
tional violation committed by a judicial officer exercising his judicial discre-
tion in a judicial proceeding. See Conn. Const., art. II (‘‘[t]he powers of
government shall be divided into three distinct departments, and each of
them confided to a separate magistracy, to wit, those which are legislative,
to one; those which are executive, to another; and those which are judicial,
to another’’). I do not read the majority’s separation of powers discussion
to address these particular points, because its view, following Delgado, is
that parole eligibility negates the Miller violation, thus making resentenc-
ing unnecessary.
   18
      Teenage children unquestionably are capable of making moral choices
and conform their conduct accordingly. We are speaking about matters of
degree. The physiological and psychological impediments at issue, moreover,
are not distributed in equal shares to all juveniles.
   19
      The length of a defendant’s sentence also affects an inmate’s classifica-
tion, which is used to ‘‘determine the inmate’s appropriate confinement
location, treatment, programs and employment assignment whether in a
facility or the community.’’ (Internal quotation marks omitted.) Anthony A.
v. Commissioner of Correction, 326 Conn. 668, 671–72 and n.3, 166 A.3d
614 (2017), quoting Department of Correction, Administrative Directive 9.2
(3) (a) (effective July 1, 2006).
   20
      The majority opinion points out that the board has explained in an
annual report that it gives ‘‘ ‘great weight to the diminished culpabilities of
juveniles as compared to adults, the hallmark features of youth, and any
subsequent growth and maturity that has been displayed when considering
an offender for suitability.’ ’’ See footnote 12 of the majority opinion. This
statement carries no legal force, of course, because the directive is not
contained in any administrative regulation or in P.A. 15-84. In any event,
parole eligibility is not an adequate substitute for a Miller-compliant resen-
tencing by a judge.
   21
      The violation that I would find occurred in this case likely would carry
implications for a relatively small number of similarly situated juvenile
offenders. As of March, 2015, there were ‘‘approximately 200 people [in
Connecticut] serving sentences of more than [twelve] years for crimes com-
mitted under the age of [eighteen]. About [fifty] are serving [fifty] years or
more.’’ Conn. Joint Standing Committee Hearings, supra, p. 953, remarks of
Professor Sarah F. Russell. The record does not disclose how many of these
individuals are serving sentences imposed after sentencing hearings that
did not comply with Miller.
   22
      I say ‘‘anemic’’ because such a narrow reading leaves us virtually alone,
among all countries in the world, in the severity of our juvenile sentencing
jurisprudence. See footnote 3 of this dissenting opinion.
   23
      Based on the chronology of events, it appears exceedingly unlikely
that the legislature was aware of this court’s decision in Casiano and its
designation of Miller as a watershed rule of criminal procedure at the time
P.A. 15-84 was enacted. The Casiano decision officially was released on
May 26, 2015, the very same day that the House of Representatives passed
the final version of the bill that became P.A. 15-84. See 58 H.R. Proc., Pt.
15, 2015 Sess., p. 4917. The Senate had passed the bill over a month earlier,
on April 22, 2015. See 58 S. Proc., Pt. 3, 2015 Sess., p. 734. It was required
to vote again, on May 29, 2015, because the House had adopted a minor
amendment to the bill immaterial to the present appeal. See 58 S. Proc., Pt.
8, 2015, p. 2646; see also 58 H.R. Proc., supra, p. 4910 (summarizing Senate
Amendment Schedule ‘‘A’’). The transcript of the proceedings demonstrates
that the May 29 Senate vote was little more than a formality—there was no
further discussion of the merits of the bill and certainly no mention of the
newly released Casiano decision.
   24
      For example, in 2014, the United States Sentencing Commission promul-
gated Amendment 782, commonly known as the ‘‘drugs-minus-two’’ amend-
ment, which was retroactively applicable to criminal defendants convicted of
certain drug offenses and resulted in ‘‘approximately 40,000 federal prisoners
eligible to seek shorter sentences.’’ J. Haile, ‘‘Farewell, Fair Cruelty: An
Argument For Retroactive Relief in Federal Sentencing,’’ 47 U. Tol. L. Rev.
635, 640 (2016). As a result of Amendment 782, ‘‘approximately 30,000 individ-
uals had their sentences reduced, with an average decrease of [twenty-five]
months.’’ C. Devins, ‘‘Lessons Learned From Retroactive Resentencing After
Johnson and Amendment 782,’’ 10 Fed. Cts. L. Rev. 39, 45 (2018). More
recently, in United States v. Johnson,        U.S.     , 135 S. Ct. 2551, 192 L.
Ed. 2d 569 (2015), the United States Supreme Court held that the residual
clause definition of a ‘‘violent felony’’ in the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924 (e) (2) (B), was unconstitutionally vague, resulting
in a 334 percent increase in the filing of motions to vacate, set aside or
correct sentences under 28 U.S.C. § 2255, and a 312 percent increase in the
filing of ‘‘second or successive collateral challenges under 28 U.S.C. § 2244’’
in the federal courts. C. Devins, supra, 10 Fed. Cts. L. Rev. 54–55. Pursuant
to Johnson and Welch v. United States,          U.S.     , 136 S. Ct. 1257, 1265,
194 L. Ed. 2d 387 (2016) (holding that Johnson was ‘‘a substantive decision
and so has retroactive effect . . . in cases on collateral review’’), criminal
defendants ‘‘eligible for relief [are] entitled to resentencing without the
ACCA’s residual clause.’’ C. Devins, supra, 10 Fed. Cts. L. Rev. 87. ‘‘Although
the Sentencing Commission estimates that Johnson resulted in sentence
reductions for [only] about 1,200 inmates nationwide, these cases are likely
underreported and . . . the actual number could be much higher.’’ (Foot-
note omitted.) Id., 80.
  25
     See T. Darden, ‘‘Constitutionally Different: A Child’s Right to Substantive
Due Process,’’ 50 Loy. U. Chi. L.J. 211, 267–68 (2018) (‘‘[a] permeating sub-
stantive due process right based on age status and its attendant disadvan-
tages in achieving fundamental fairness at certain stages of the justice
process seems aligned with fully interpreting the juvenile sentencing cases’’).
