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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Scalia cast key vote in Oklahoma death penalty case

The late U.S. Supreme Court Justice Antonin Scalia was a reliable conservative vote on any number of topics the court took up during his 30-year tenure, including a case last year dealing with Oklahoma's death penalty.

Scalia died Saturday at a ranch resort in west Texas, the San Antonio Express News reports.

In 2015, Scalia was 1 of 5 justices who sided with Oklahoma in Glossip v. Gross, in which attorneys for three Oklahoma death row inmates argued that the sedative the state used in its execution protocol could lead to an unconstitutional level of pain before death.

The court rejected that argument by a 5-4 vote. 

Writing in a concurrent opinion, Scalia was characteristically colorful, taking Justice Stephen Breyer to task for arguing that capital punishment ought to be ended entirely. 

Breyer's dissenting opinion was, Scalia wrote, "full of internal contradictions and (it must be said) gobbledy-gook."

"A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American republic has this Court ever suggested that the death penalty is categorically impermissible."

Source: The Oklahoman, Feb. 14, 2016

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