As Supreme Court Rejects Death Penalty Petitions, Justice Breyer Renews Call For Constitutional Review

In the span of one week, the U.S. Supreme Court declined to review peti­tions from six death row pris­on­ers, deny­ing them relief in their cas­es. The peti­tion­ers raised issues relat­ed to DNA pro­ce­dures, con­flict of coun­sel, a dis­put­ed guilty plea, juror bias, judi­cial over­ride, and a pre­vi­ous­ly botched exe­cu­tion attempt. In two of the cas­es, the Court allowed exe­cu­tions to pro­ceed in Georgia and Alabama. The case of Ronald Smith left the Court dead­locked 4 – 4, with enough votes to grant review in his case, but not enough to halt his execution.

On December 12, as the Court denied review in four oth­er death penal­ty cas­es, Justice Stephen Breyer (pic­tured) authored a writ­ten dis­sent in the case of Florida death row pris­on­er Henry Perry Sireci indi­cat­ing that he would have grant­ed review to Sireci, Smith, and Ohio death row pris­on­er Rommell Broom to con­sid­er the con­sti­tu­tion­al­i­ty of the death penal­ty in the United States. Breyer wrote: ​“Individuals who are exe­cut­ed are not the ​‘worst of the worst’ but, rather, are indi­vid­u­als cho­sen at ran­dom on the basis, per­haps of geog­ra­phy, per­haps of the views of indi­vid­ual pros­e­cu­tors, or still worse on the basis of race. The time has come for this court to recon­sid­er the con­sti­tu­tion­al­i­ty of the death penal­ty.” Breyer pre­vi­ous­ly called for a con­sid­er­a­tion of cap­i­tal pun­ish­men­t’s con­sti­tu­tion­al­i­ty in his dis­sent in Glossip v. Gross, which was joined by Justice Ruth Bader Ginsburg. 

Justice Kagan also not­ed her dis­sent from the denial of cer­tio­rari in Broom’s case. In 2009, Ohio attempt­ed to exe­cute Broom, but the exe­cu­tion was halt­ed after two hours of repeat­ed painful attempts to estab­lish IV access failed, includ­ing strik­ing Broom’s bone with the execution needle. 

In his dis­sent, Justice Breyer not­ed that Sireci has been on death row ​“under threat of exe­cu­tion for 40 years. When he was first sen­tenced to death, the Berlin Wall stood firm­ly in place. Saigon had just fall­en.” Referencing Broom’s peti­tion, Breyer wrote that Sireci’s was not ​“the only case dur­ing the last few months in which the Court has received, but then reject­ed, a peti­tion to review an exe­cu­tion tak­ing place in what [he] would con­sid­er espe­cial­ly cru­el and unusual circumstances.”