While the nation focuses on whether the Supreme Court will take a conservative turn following Justice Anthony Kennedy’s retirement, Breyer is maintaining his effort to scale back or end the death penalty.
Justice Stephen Breyer hasn’t given up on working to convince his colleagues — or America — that the time has come to reconsider the constitutionality of the death penalty.
“In my view,” Breyer
wrote last week in disagreeing with the Supreme Court’s decision not to hear the appeals of two inmates on Mississippi’s death row, “many of the capital cases that come before this Court ... involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness.” As such, he wrote that he “remain[s] of the view” that the court should take a case to “consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment,” which bars cruel and unusual punishments.
Breyer made the statement even as the court and country were taking in the news that Justice Anthony Kennedy, the key vote over the past two decades in cases seeking to curb uses of the death penalty, would be retiring at the end of July. Kennedy sided with the more liberal justices in several key cases limiting who is eligible for the death penalty, but regularly joined his more conservative colleagues in rejecting challenges to the method of execution a state chose to use.
While most liberals across the country were writing out their concerns about how the court’s close decisions that went to the left could be reversed under a more conservative court, Breyer was putting the final touches on his dissent regarding Jordan's and Evans’ petitions. It was not, however, a cry of defeat or even a plea from the losing side of a battle. Far from that, his statement on the day after Kennedy announced his retirement was written in a way that suggested Breyer continues to believe, at least outwardly, that he can win over his colleagues to take up the question and end the death penalty.
Three years earlier, Breyer began this effort, writing a lengthy dissent in a death penalty case out of Oklahoma,
Glossip v. Gross.
In the dissent, Breyer noted that the court had previously declared that the finality of the death penalty creates a heightened “need for reliability” in decisions that death is “the appropriate punishment” in any particular case. “There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability,” he wrote, in an opinion joined by Justice Ruth Bader Ginsburg.
The unreliability question was one of three areas that Breyer spent 40 pages addressing. The second — arbitrariness — focused on data showing that the death penalty does not punish “the worst of the worst,” as intended, and that a “county-by-county disparity” exists, resulting in most death sentences across the country being imposed in a small handful of counties. The final area — “in part a problem that the Constitution’s own demands create,” Breyer acknowledged — is excessive delays that Breyer, like retired Justice John Paul Stevens before him, believes lead to “a third independent constitutional problem.”
For these reasons, Breyer concluded, “I believe it highly likely that the death penalty violates the Eighth Amendment.” He, with support from Ginsburg, called for a “full briefing” on that “more basic question.”
In the three years since Breyer’s Glossip dissent, the court has trudged a complicated path on the death penalty — repeatedly refusing death row inmates’ requests for the court to take up that more basic question but halting a handful of executions and at times reversing individual death sentences or specific states’ procedures due to particularly egregious circumstances.
In those times when death row inmates have succeeded before the Supreme Court over the past few years — and particularly relevant now — Chief Justice John Roberts often has joined with Kennedy and the four more liberal justices in the majority.
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Source: Buzz Feed News, Chris Geidner, July 5, 2018
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
