WASHINGTON — In the long legal struggle against the death penalty, the future has in some ways never looked brighter.
In a passionate dissent in June, Justice Stephen G. Breyer invited a major challenge to the constitutionality of capital punishment. This fall, Justice Antonin Scalia all but predicted that the court’s more liberal justices would strike down the death penalty.
But lawyers and activists opposed to the death penalty, acutely conscious of what is at stake, are bitterly divided about how to proceed. Some say it is imperative to bring a major case to the court as soon as practicable. Others worry that haste may result in a losing decision that could entrench capital punishment for years.
“If you don’t go now, there’s a real possibility you have blood on your hands,” said Robert J. Smith, a fellow at Harvard Law School’s Charles Hamilton Houston Institute. His scholarship was cited in Justice Breyer’s dissent from a decision upholding the use of an execution drug that three death row inmates argued risked causing excruciating pain.
But others are wary. “There are reasons to be cautious about pushing the court to a decision too early,” said Jordan M. Steiker, a law professor at the University of Texas.
The divide is partly generational. Many veteran litigators have suffered stinging setbacks in the Supreme Court, and they favor an incremental strategy. They would continue to chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion.
Some younger lawyers and activists urge a bolder course: to ask the Supreme Court to end capital punishment nationwide right away.
Though Justice Breyer’s dissent was joined only by Justice Ruth Bader Ginsburg, the more aggressive advocates are confident they can persuade five justices to do away with a punishment explicitly contemplated in the Fifth and 14th Amendments, which call for grand juries in federal cases involving “a capital or other infamous crime” and say that no person may be deprived “of life, liberty or property, without due process of law.” That means picking up the votes of not only the rest of the court’s liberal wing — Justices Sonia Sotomayor and Elena Kagan — but also, crucially, Justice Anthony M. Kennedy.
Source: The New York Times, Adam Liptak, November 3, 2015