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 CASIANO v. COMMISSIONER OF CORRECTION—SECOND DISSENT

   ESPINOSA, J., dissenting. I disagree with the majority
that the decision of the United States Supreme Court
in Miller v. Alabama,       U.S. , 132 S. Ct. 2455, 183
L. Ed. 2d 407 (2012), applies under the facts of the
present case. As I explained in my dissenting opinion
in State v. Riley, 315 Conn. 637, 664,   A.3d     (2015),
Miller applies only to mandatory sentencing schemes.
Accordingly, because Connecticut’s sentencing scheme
allows a judge to exercise discretion in determining
whether to sentence a juvenile offender to life without
the possibility of parole, Miller does not apply at all to
our sentencing scheme. Even if I had agreed with the
majority in Riley that Miller applied to Connecticut’s
discretionary sentencing scheme; id., 653; I would not
agree, however, that Miller applies in the present case
for the simple reason that it applies only to sentences
of life without the possibility of parole. Because the
sentence of the petitioner, Jason Casiano, is one for a
term of years—fifty years of incarceration—Miller does
not apply. Accordingly, I would affirm the judgment
of the habeas court granting the motion for summary
judgment filed by the respondent, the Commissioner of
Correction, and, therefore, I respectfully dissent.
   As a threshold matter, because I conclude that Miller
applies only to sentences of life without the possibility
of parole, I need not address the question of whether
Miller applies retroactively. I fully agree, however, with
Justice Zarella’s well reasoned analysis in his dissent in
the present case explaining that Miller is not retroactive
because it did not announce a watershed rule of crimi-
nal procedure pursuant to Teague v. Lane, 489 U.S. 288,
301, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). Rather,
as Justice Zarella explains, the implementation of Miller
‘‘represents an incremental step’’ in Connecticut’s sen-
tencing laws and procedures affording defendants the
protection of due process. Justice Zarella’s discussion
of the statutory provisions governing the creation and
utilization of the presentence investigation report is
particularly enlightening, as it demonstrates that when
the petitioner was sentenced in 1997, years before
Miller was decided, our sentencing scheme already
required judicial consideration of many of the factors
that the United States Supreme Court focused on in
Miller. Indeed, as Justice Zarella explains thoroughly,
the sentencing judge in the present case considered
the petitioner’s presentence investigation report, which
was very detailed, and described at length the petition-
er’s upbringing, his educational background, behavioral
problems, previous offenses, his supportive and stable
family environment, his leading role in the vicious mur-
der of an innocent victim, and many of the other factors
discussed in Miller. I conclude, based on Justice Zarel-
la’s detailed discussion of the petitioner’s presentence
investigation report and sentencing procedure, that the
petitioner already has received every protection dic-
tated by Miller. As I explain in this dissent, however,
those protections, although required by Connecticut
law and provided to the petitioner in the present case,
are not mandated by the eighth amendment to the
United States constitution.
   The majority’s application of Miller to the present
case cannot be reconciled with the trilogy of cases
governing the constitutional limits placed on the punish-
ment of juvenile offenders, Roper v. Simmons, 543 U.S.
551, 568, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), Graham
v. Florida, 560 U.S. 48, 75, 130 S. Ct. 2011, 176 L. Ed.
2d 825 (2010), and Miller v. Alabama, supra, 132 S. Ct.
2458. The United States Supreme Court has limited the
scope of those three decisions to the two most extreme
punishments available under our criminal justice sys-
tem—execution, and life without the possibility of
parole. That narrow scope is evident in: (1) the structure
of the trilogy, which reveals an unmistakable and care-
fully considered progression; (2) the substantive analy-
sis in Graham, which limits the sentencing practice at
issue in both Graham and Miller to life without the
possibility of parole; and (3) the language that both
Graham and Miller use in discussing the sentence of
life without the possibility of parole. Moreover, as I
explain in this dissent, extending Miller to sentences
for a lengthy term of years yields different results in
different jurisdictions, calling into question the ability
of courts to apply the rule in a manner comporting
with principles of fundamental fairness. Finally, the
majority’s extension of Miller cannot be reconciled with
Connecticut’s statutes, which define the sentence of
life without the possibility of release to preclude even
the possibility that a defendant will be released from
prison within his natural lifetime.
  The structure of the trilogy of cases reveals the mea-
sured steps that the Supreme Court has taken in mark-
ing the limits that the eighth amendment places on the
punishments that may be imposed on juvenile offend-
ers. The court took its first and biggest step in Roper,
categorically barring the imposition of the death penalty
as to all juveniles. Roper v. Simmons, supra, 543 U.S.
568. After Roper, however, the steps have become
increasingly smaller. This progression makes sense,
because in Graham and Miller the court essentially
has been defining the outer limits of the rule that it
announced in Roper, that the principles justifying the
imposition of the most extreme punishments apply dif-
ferently to children. Id., 570–71.
  In Roper, Graham, and Miller, the court calibrated
the breadth of its rules quite carefully by controlling the
specific variables affected by each incremental change.
That is, the rule in each of the three decisions was
defined by three variables—the type of punishment
affected by the rule, the class of juveniles to which the
rule would apply, and the type of bar imposed by the
rule, categorical or one merely imposing procedural
limits. In each decision, the court meticulously deline-
ated the extent to which each of the variables would
be affected by the articulated rule. First, the court in
Roper set forth a bar on the execution of any juvenile
offender. Id., 568. Although the court’s rule was broad
in the sense that it imposed a categorical bar, and
applied it to all juveniles, it was also extremely narrow
in that its scope was limited to one type of punish-
ment—execution. Id. The step that the court took in
Graham was smaller. The court in Graham extended
the application of the bar only to include one additional
type of sentence, the second most extreme punishment
available in our criminal justice system, a sentence of
life without the possibility of parole. Graham v. Florida,
supra, 560 U.S. 74. The court in Graham also limited
the subset of juveniles to which the extended categori-
cal bar applied, confining its rule to juveniles convicted
of crimes other than homicide. Id. Finally, in Miller
the court prohibited the mandatory imposition of life
imprisonment without the possibility of parole on juve-
niles convicted of homicide. Miller v. Alabama, supra,
132 S. Ct. 2460. Miller is the only one of the three
decisions that does not impose a categorical bar, and
instead merely implements a procedural limit on the
imposition of life without the possibility of parole. Id.
The rule in Miller applies to the smallest subset of
juveniles affected by the trilogy—juvenile homicide
offenders. As I explain in this dissenting opinion, the
rule affects only one type of punishment, the mandatory
imposition of a sentence of life without the possibility
of parole. Miller represents the smallest step taken in
the trilogy, and the court’s desire to keep its footprint
small is justified considering that Miller governs only
the worst group of juvenile offenders, those who have
committed homicides.
   The very cautious, incremental approach that the
court has taken in applying the principle that children
are different for sentencing purposes supports the con-
clusion that in both Graham and Miller, when the court
limited its holding to sentences of life without the possi-
bility of parole, it meant what it said. A sentence of life
without the possibility of parole is one that ensures
that a defendant will die in prison. Extending the scope
of these two decisions to apply to sentences that are
the ‘‘functional equivalent’’ of life without the possibility
of parole ignores the structured and considered
approach that the court has taken in the trilogy of cases.
  The substantive analysis in Graham does not support
applying either Graham or Miller to sentences for a
lengthy term of years. I begin with what is undisputed:
Graham and Miller govern the same punishment. The
majority and I disagree, however, on precisely what that
punishment includes. I conclude that the punishment
governed by both cases is a sentence of life without
the possibility of parole; the majority contends that
both cases also govern sentences for a lengthy term of
years. Because Graham and Miller govern the same
punishment, the court’s analysis in Graham is relevant
to our understanding of whether Miller properly may
be extended to include sentences for a lengthy term
of years.
   It is highly significant, therefore, that the court in
Graham did not consider any nationwide statistics
regarding the imposition of sentences for a lengthy term
of years on juveniles. In Graham, the court explained
that because it was adopting a categorical rule, it would
follow its traditional approach: ‘‘The [c]ourt first consid-
ers objective indicia of society’s standards, as
expressed in legislative enactments and state practice
to determine whether there is a national consensus
against the sentencing practice at issue. . . . Next,
guided by the standards elaborated by controlling prec-
edents and by the [c]ourt’s own understanding and
interpretation of the [e]ighth [a]mendment’s text, his-
tory, meaning, and purpose . . . the [c]ourt must
determine in the exercise of its own independent judg-
ment whether the punishment in question violates the
[c]onstitution.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Graham v. Florida,
supra, 560 U.S. 61. In order to determine whether a
particular practice violates the eighth amendment, thus
requiring the imposition of a categorical bar, the court
surveys the nationwide statistics relating to the sen-
tencing practice at issue. The survey is part of the
analysis—if the court has not performed the survey, it
has not made any determination that the sentencing
practice violates the eighth amendment.
   Accordingly, in order to determine whether Graham,
and therefore Miller, properly may be extended to sen-
tences for a lengthy term of years, one need only exam-
ine the court’s review of the ‘‘sentencing practice at
issue’’ in Graham. Id. A quick review of Graham reveals
that the court did not include sentences for a lengthy
term of years in its review of the nationwide statistics.
Id., 62–67. Because the court was very careful to state
that its determination of whether the eighth amendment
categorically bars a ‘‘sentencing practice’’ depends on
this review, it is illogical to extend Graham beyond the
sentencing practice for which the court performed the
review. The majority provides no explanation for its
conclusion that Graham, and therefore Miller, apply
to sentences for a lengthy term of years, notwithstand-
ing the Supreme Court’s failure to review any statistics
regarding the imposition of such sentences on juveniles.
The majority simply concludes that, as a matter of pol-
icy, Graham should be extended to include these sen-
tences. That approach omits a key analytical foundation
that the Supreme Court has followed in decisions
imposing categorical bars, including Graham.
    The language of both Graham and Miller confirms
that the court confined the scope of those decisions to
sentences of life without the possibility of parole. In
Graham, for instance, the court likened the sentence
of life without the possibility of parole to the death
penalty, observing both that ‘‘life without parole is the
second most severe penalty permitted by law,’’ and that
‘‘life without parole sentences share some characteris-
tics with death sentences that are shared by no other
sentences.’’ (Emphasis added; internal quotation marks
omitted.) Graham v. Florida, supra, 560 U.S. 69. Neither
of these two statements makes sense if we read Graham
and Miller to extend to sentences that are the ‘‘func-
tional equivalent’’ of life without the possibility of
parole. Clearly, the Supreme Court views the two sen-
tences—execution and life without the possibility of
parole—as distinct from all other available punishments
within our criminal justice system. The court explained:
‘‘The [s]tate does not execute the offender sentenced
to life without parole, but the sentence alters the offend-
er’s life by a forfeiture that is irrevocable. It deprives
the convict of the most basic liberties without giving
hope of restoration, except perhaps by executive clem-
ency—the remote possibility of which does not mitigate
the harshness of the sentence. . . . [T]his sentence
means denial of hope; it means that good behavior and
character improvement are immaterial; it means that
whatever the future might hold in store for the mind
and spirit of [the convict], he will remain in prison
for the rest of his days.’’ (Citation omitted; emphasis
added; internal quotation marks omitted.) Id., 69–70.
These statements clarify that the court defined the sen-
tence that it was addressing in Graham, and subse-
quently in Miller, very narrowly, to include only a
sentence of life without the possibility of parole. A
sentence for a lengthy term of years, such as the fifty
year sentence that the petitioner in the present case
received, albeit a harsh punishment, does not even
remotely fit the description in Graham of a sentence
of life without the possibility of parole. As one court
explained, a sentence of life without the possibility of
parole, unlike a sentence for a term of years, is by
definition ‘‘mutually exclusive with eventual release.’’
Ellmaker v. State, Docket No. 108,728, 2014 WL 3843076,
*10 (Kan. App. August 1, 2014) (decision without pub-
lished opinion, 329 P.3d 1253 [Kan. App. 2014]).
    The language used in Miller confirms that the court
carefully limited the extent of its holding to sentences of
life without the possibility of parole. In the introductory
portion of the opinion, the court indicated that it viewed
the phrase ‘‘life without the possibility of parole’’ as
synonymous with a sentence that ensures that a defen-
dant will die in prison. That is, the court specifically
remarked that in each of the two cases that it had before
it, the sentencing authority had no discretion to impose
less than ‘‘life imprisonment without the possibility of
parole,’’ which, the court explained, meant that in both
cases, ‘‘[s]tate law mandated that each juvenile die in
prison . . . .’’ Miller v. Alabama, supra, 132 S. Ct. 2460.
The court subsequently referred to the sentence as the
‘‘harshest possible penalty’’ that can be imposed on
juveniles. Id., 2469. The use of the superlative indicates
that the court had in mind a single sentence—life with-
out the possibility of parole—not a range of sentences
that could be interpreted to constitute the ‘‘functional
equivalent’’ of a sentence of life without the possibility
of parole. The court in Miller reiterated a very telling
observation that it first expressed in Graham, noting
that a life sentence is actually a greater punishment for
a juvenile than it is for an adult, because the juvenile
likely will spend a longer time in prison. Id., 2468; see
also Graham v. Florida, supra, 560 U.S. 70. That com-
parison would not have the same meaning, and the
likelihood of a juvenile serving more time than an adult
would decrease, if Miller, and Graham, were extended
to apply to sentences for a lengthy term of years.
   Reading Miller broadly, to apply to sentences for a
lengthy term of years, is not only contrary to the struc-
ture and language of the court’s juvenile sentencing
trilogy, as conceded by the majority, it also results in
the unpredictable and inconsistent application of the
protections of Miller. This is, in fact, precisely what
has happened across the country, due to several factors,
including a split as to whether Graham and Miller apply
at all to such sentences, disagreement as to whether
the decisions apply to aggregate sentences, and the
different conclusions that courts have arrived at as to
what precisely constitutes the functional equivalent of
a life sentence. See, e.g., Bunch v. Smith, 685 F.3d 546,
551 (6th Cir. 2012) (Graham does not apply to eighty-
nine year aggregate sentence, notwithstanding that
defendant’s ‘‘sentence may end up being the functional
equivalent of life without parole’’), cert. denied sub
nom. Bunch v. Bobby,         U.S. , 133 S. Ct. 1996, 185
L. Ed. 2d 865 (2013); Orr v. United States, Docket No.
3:98-CR-00322 (GCM), 2013 U.S. Dist. LEXIS 173101, *6
(W.D.N.C. December 10, 2013) (forty-six year sentence
not functional equivalent of life without possibility of
parole); People v. Caballero, 55 Cal. 4th 262, 267–68,
282 P.3d 291, 145 Cal. Rptr. 3d 286 (2012) (110 year
sentence is functional equivalent of life without parole
under Graham); People v. Lucero, Docket No.
11CA2030, 2013 WL 1459477, *1, 3 (Colo. App. April 11,
2013) (Graham does not apply to sentence of eighty-
four years with parole eligibility after forty years), cert.
granted, Docket No. 13SC624, 2014 WL 7331018 (Colo.
December 22, 2014); Mediate v. State, 108 So. 3d 703,
706–707 (Fla. App. 2013) (Graham does not apply to
130 year aggregate sentence); Thomas v. State, 78 So.
3d 644, 646 (Fla. App. 2011) (Graham does not apply
to concurrent sentences of fifty years); Brown v. State,
10 N.E.3d 1, 8 (Ind. 2014) (Miller applies to sentences
that are functional equivalent of life, and requires court
to revise aggregate sentence of 150 years to ‘‘a total
aggregate sentence of eighty years imprisonment’’);
State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (recognizing
that defendant’s sentence of fifty-two and one-half years
is ‘‘not technically a life-without-parole sentence’’ but
holding that ‘‘such a lengthy sentence imposed on a
juvenile is sufficient to trigger Miller-type protections’’);
Ellmaker v. State, supra, 2014 WL 3843076, *10 (Miller
does not apply to sentence of fifty years not imposed
pursuant to mandatory sentencing scheme). This
uneven application of Miller cannot be reconciled with
eighth amendment principles.
   It is highly problematic, indeed, for courts to rely on
concepts such as life expectancy, as the majority has
in the present case, in order to determine whether a
sentence for a lengthy term of years constitutes the
functional equivalent of a sentence of life without the
possibility of parole. How does one determine what a
juvenile’s life expectancy is? Like other courts across
the country, the majority relies on mortality tables,
which are traditionally broken down by gender and
race. See, e.g., Orr v. United States, supra, 2013 U.S.
Dist. LEXIS 173101, *7; People v. Rainer, Docket No.
10CA2414, 2013 WL 1490107, *6 (Colo. App. April 11,
2013), cert. granted, Docket No. 13SC408, 2014 WL
7330977 (Colo. December 22, 2014); State v. Ragland,
836 N.W.2d 107, 119 (Iowa 2013); see also People v.
Caballero, supra, 55 Cal. 4th 267 n.3 (relying on juve-
nile’s natural life expectancy, which court observes
‘‘means the normal life expectancy of a healthy person
of [the] defendant’s age and gender living in the United
States’’). Relying on such classifications in order to
determine whether a given sentence violates the eighth
amendment suggests that a Caucasian girl should be
treated differently than an African-American boy.
   The majority also relies on statistics that demonstrate
that a person who is incarcerated has a lower life expec-
tancy than that enjoyed by the general population. I
observe that the majority relies on statistics supplied
by The Campaign for the Fair Sentencing of Youth, an
advocacy group. See Campaign for the Fair Sentencing
of Youth, ‘‘Michigan Life Expectancy Data for Youth
Serving Natural Life Sentences,’’ (2012–2015) p. 2, avail-
able at http://fairsentencingofyouth.org/wp-content/
uploads/2010/02/Michigan-Life-Expectancy-Data-
Youth-Serving-Life.pdf (last visited May 26, 2015). Addi-
tionally, a consideration of demographic factors and
their influence on life expectancy is problematic
because there are many variables, rendering it difficult
to predict the effect that a single variable will have on
any particular juvenile. For instance, is it not relevant,
in considering the effect that incarceration has on the
relative life expectancy of a juvenile, to consider that
juvenile’s background? Although incarceration may
lower the life expectancy for an advantaged juvenile,
it very well may increase the life expectancy of a juve-
nile who comes from a disadvantaged economic class
and background. See Boneshirt v. United States,
Docket No. CIV 13-3008 (RAL), 2014 WL 6605613, *11
(D.S.D. November 19, 2014) (rejecting petitioner’s reli-
ance on statistics demonstrating short life expectancies
for Native American males on basis that many demo-
graphic variables resulting in lower life expectancy,
such as ‘‘alcohol-related deaths and poor access to
healthcare on and near reservations,’’ would be miti-
gated by petitioner’s incarceration). I do not agree that
our application of eighth amendment protection to juve-
niles should vary depending on race, gender and demo-
graphic factors. Such a rule violates principles of
fundamental fairness.
    Finally, I observe that the majority’s rule is not recon-
cilable with General Statutes § 53a-35b, which defines
the sentence of life without the possibility of release
in a manner that makes it clear that our legislature
understands that sentence to be fundamentally distinct
even from a life sentence. Section 53a-35b provides: ‘‘A
sentence of life imprisonment means a definite sentence
of sixty years, unless the sentence is life imprisonment
without the possibility of release, imposed pursuant to
subparagraph (A) or (B) of subdivision (1) of section
53a-35a, in which case the sentence shall be imprison-
ment for the remainder of the defendant’s natural life.’’
As Justice Zarella observes in his dissent in the present
case, it is well established that this court defers ‘‘to the
broad authority that legislatures possess in determining
the types and limits of punishment for crimes.’’ State
v. Heinemann, 282 Conn. 281, 311, 920 A.2d 278 (2007);
see also State v. Reynolds, 264 Conn. 1, 79, 836 A.2d
224 (2003) (recognizing that it is ‘‘the prerogative of the
legislature to set public policy through its statutory
enactments’’), cert. denied, 541 U.S. 908, 124 S. Ct. 1614,
158 L. Ed. 2d 254 (2004). Accordingly, at the very least,
even if I agreed with the majority that Miller should be
extended to sentences for a lengthy term of years, our
legislature has drawn a clear line, designating sixty
years as the length of time it deems to constitute a
‘‘life’’ sentence. The majority offers no explanation for
its failure to defer to the legislature’s determination
that a sentence of life without the possibility of parole
is a punishment of a different type and character from
a sentence for a lengthy term of years.
  For the foregoing reasons, I respectfully dissent.
