Breyer and Ginsburg: ‘Highly Likely’ Death Penalty Unconstitutional

June 29, 2015 12:17 p.m.

While a case the Supreme Court decided in favor of the death penalty Monday focused on the use of a singular execution drug, Justice Stephen Breyer broke new ground in a dissent joined by Justice Ruth Bader Ginsburg, writing that it was “highly likely” that capital punishment as a whole violated the Constitution’s ban on cruel and unusual punishment.

“[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Breyer wrote.

According to Richard Dieter, senior program director of the Death Penalty Information Center, Ginsburg and Breyer have previously expressed some discomfort with capital punishment, but that Monday’s dissent represented “a new degree of frustration.”

“This is a sharper description of their concerns. They’re at least calling for a case, a review, a hearing — not necessarily saying the death penalty is unconstitutional, but pretty close to it,” Dieter said.

In his dissent, Breyer wrote that given the death penalty’s evolution since the Supreme Court last ruled on its broader constitutionality, “it is now time to reopen the question.”

“In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems,” Breyer wrote. “Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed.”

Breyer went on to hit a number of concerns that have been raised about capital punishment as of late.

He pointed to research showing that death penalty sentences are unreliable — perhaps even more unreliable than other punishments — and that compared to the last time the Supreme Court weighed the question, “there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law’s view) do not warrant the death penalty’s application. “

He also cited the lack of consistency with which the death penalty is applied, as studies have suggested that race, gender, local resources and political pressure can play a role in when death sentences are handed down.

“The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary,” Breyer wrote. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law? “

Breyer also examined the increasingly long delays between sentencing and execution — from about two years in 1960 to 18 years in 2014 — during which death row inmates are often kept in isolation. The wait itself may qualify as a “cruel” punishment, Breyer argued, but the decades-long delays also undermine the reasons often given to justify capital punishment.

“In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application,” Breyer wrote. “We cannot have both.”

Additionally, Breyer argued that the rarity of the death penalty likely violates the “unusual” clause on the Constitution’s ban on cruel and unusual punishment.

Finally, Breyer responded to the argument that abolition is a question left best to the political process.

“I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty,” he wrote. “The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.”

The conservatives on the court pushed back on Breyer’s dissent in their concurring opinions. Justice Antonin Scalia accused Breyer of rewriting the Eight Amendment in a way that was “full of internal contradictions and (it must be said) gobbledy-gook.”

Justice Clarence Thomas, meanwhile, zeroed in on Breyer’s arguments that the death penalty was arbitrary.

“To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means,” he concluded.

Breyer and Ginsburg are not the first justices to express strong concerns about the death penalty from the bench.

Justice Harry Blackmun wrote that he would “no longer shall tinker with the machinery of death,” in his dissent from the Supreme Court’s decision not to take a 1994 death penalty case, as he believed states faced grave constitutional issues in how they implemented capital punishment.

In a concurring opinion for a decision that upheld lethal injection protocols in 2008, Justice John Paul Stevens wrote that, nonetheless, “The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.”

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