Are Justices Breyer and Ginsberg Ready to Call It Quits on the Death Penalty?

June 30, 2015


On Monday the Supreme Court issued their decision in Glossip v. Gross, voting 5-4 to allow Oklahoma to continue to use midazolam in their lethal injection procedure. The Court ruled that the petitioners failed to provide an alternative method, and deferred to the District Court’s ruling that midazolam is likely to render a person unable to feel pain during the execution.

The case and the Court’s decision are narrow: they only examined the question of one particular drug used by some states in lethal injections. That means the Court did not address the bigger question of the death penalty itself and its many inherent flaws.

At least not yet: Justice Stephen Breyer, joined by Justice Ruth Bader Ginsberg, issued a dissent that asked those very questions. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

Based on a detailed analysis of the death penalty in the United States, Justice Breyer concluded that “The death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’”

Justice Breyer addressed three of the death penalty’s fundamental flaws: reliability and the risk of executing an innocent person, arbitrariness in the penalty’s application, and delays so excessive that they render the death penalty useless. “Perhaps as a result” of these three flaws, he says, “most places in the United States have abandoned its use.”

He also noted, incidentally, another flaw in the death penalty system beyond the purview of the Supreme Court but of concern to legislators and the public: that the costs of the death penalty are far greater than for alternative punishments.

On the question of reliability, Justice Breyer’s dissent discusses in detail many cases of wrongfully convicted individuals sentenced to die – over 100 who escaped execution by being exonerated in time (the number varies based on how its calculated), as well as two who were not so lucky. Cameron Todd Willingham and Carlos DeLuna, both from Texas, were executed despite significant evidence that experts have argued proves their innocence.

One of the wrongfully convicted individuals highlighted by Justice Breyer was Glenn Ford. Ford spent nearly 30 years on death row in Louisiana for a murder he did not commit. After he was exonerated, the prosecutor in his case issued a public apology and admitted that his own wrongdoing contributed to the wrongful conviction. He was exonerated in March, and enjoyed the final 15 months of his life in freedom. He died of lung cancer yesterday, just hours before Justice Breyer cited his case.

Glenn Ford (Photo: Henrietta Wildsmith/The Times) via  USA Today
Glenn Ford (Photo: Henrietta Wildsmith/The Times) via USA Today

Justice Breyer then went to the history of the death penalty in the Supreme Court, citing the 1972 ruling Furman v. Georgia in which the Court struck down the death penalty for being arbitrary and capricious. Justice Breyer echoed Justice Potter Stewart’s famous statement that “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” and ultimately argued that the death penalty today remains as arbitrary as a lightning strike.

Among the inappropriate factors that contribute to who lives and dies, Justice Breyer cited the continued results of racial bias in the application of the death penalty. “Numerous studies,” he writes, “have concluded that individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.”

Finally, Justice Breyer concluded that the death penalty causes unavoidable delays that effectively nullify the purpose of the punishment. The average wait on death row is currently 18 years – and continues to grow. Not only is this cruel in and of itself to inmates who wait decades without knowing their fate, but it renders the punishment useless.

All of these flaws lead to Justice Breyer’s final conclusion: in addition to being cruel, the death penalty may meet the standard for being unusual as well. That’s because it’s been all but abandoned across the United States.

Here Justice Breyer referenced the same statistics Amnesty has been reporting for years: the death penalty is declining in the US, with both death sentences and executions steadily decreasing. Last year only seven states carried out executions, and 80% of them were localized in just three states. 19 states plus the District of Columbia have abolished the death penalty in law, and many others have abandoned the death penalty in practice. Only a tiny fraction of US counties still sentence individuals to death.

For all those reasons, along with their four decades of combined experience on the Court, Justice Breyer and Justice Ginsberg yesterday called for a full briefing on whether the death penalty itself is constitutional. Soon other Justices will join in that call.

Our task is to continue to prove that the death penalty is a cruel, inhumane, and degrading punishment that is broken beyond all hope of repair. The evidence is all around us and we know how to win: if you live in a death penalty state, contact your legislators, join your local Amnesty group and connect with your state’s abolition movement. If you live elsewhere, educate your friends and family about the reality of this broken system. When more and more states stand up and abolish this ineffective and broken punishment, the Court will see that we can live without the death penalty.

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