In an op-ed for The New York Times, Pulitzer Prize win­ning legal com­men­ta­tor Linda Greenhouse ana­lyzes the sig­nif­i­cance of and inter­play between the recent Connecticut Supreme Court deci­sion strik­ing down the state’s death penal­ty and Justice Stephen Breyer’s dis­sent in the U.S. Supreme Court case Glossip v. Gross. “[T]he Connecticut Supreme Court not only pro­duced an impor­tant deci­sion for its own juris­dic­tion; but it addressed the United States Supreme Court frankly and direct­ly,” Greenhouse says. ​“The deci­sion engages the Supreme Court at a cru­cial moment of mount­ing unease, with­in the court and out­side it, with the death penalty’s tra­jec­to­ry over the near­ly four decades since the court per­mit­ted states to resume exe­cu­tions.” As posed by the Connecticut court, the ques­tion is whether the broad dis­cre­tion afford­ed to pros­e­cu­tors and juries over whether to seek or impose the death penal­ty ​“inevitably allows in through the back door the same sorts of caprice and freak­ish­ness that the court sought to exclude” when it held U.S. death penal­ty statutes uncon­sti­tu­tion­al in 1972, ​“or, worse, whether indi­vid­u­al­ized sen­tenc­ing nec­es­sar­i­ly opens the door to racial and eth­nic dis­crim­i­na­tion in cap­i­tal sen­tenc­ing.” Justice Breyer’s dis­sent sim­i­lar­ly observed, ​“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. We can­not have both.” Greenhouse con­cludes, “[F]rom two courts, the high­est in the land and the high­est court of one of the small­est states, a fruit­ful con­ver­sa­tion emerged this sum­mer that will inevitably spread, gain momen­tum and, in the fore­see­able if not imme­di­ate future, lead the Supreme Court to take the step that I think a major­i­ty of today’s jus­tices know is the right one.”

(L. Greenhouse, ​“Talking About the Death Penalty, Court to Court,” The New York Times, August 20, 2015.) See Arbitrariness and U.S. Supreme Court.

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