In a new book, Against the Death Penalty, Professor John Bessler of the University of Baltimore School of Law presents Justice Stephen Breyer’s his­toric dis­sent in Glossip v. Gross, which ques­tioned the con­tin­u­ing con­sti­tu­tion­al­i­ty of cap­i­tal pun­ish­ment in the United States, in a new for­mat intend­ed to make the opin­ion more acces­si­ble to a broad audi­ence. ​“I tried to con­tex­tu­al­ize the opin­ion by doing a longer intro­duc­tion which makes the opin­ion into a book and sum­ma­rize what the oth­er jus­tices did in their opin­ions,” Bessler told the National Law Journal. In his Glossip dis­sent, which was joined by Justice Ruth Bader Ginsburg, Breyer raised — and set forth a poten­tial blue­print for answer­ing — a num­ber of ques­tions con­cern­ing the con­sti­tu­tion­al­i­ty of the death penal­ty. Breyer wrote: ​“Today’s admin­is­tra­tion of the death penal­ty involves three fun­da­men­tal con­sti­tu­tion­al defects: (1) seri­ous unre­li­a­bil­i­ty, (2) arbi­trari­ness in appli­ca­tion, and (3) uncon­scionably long delays that under­mine the death penalty’s peno­log­i­cal pur­pose. Perhaps as a result, (4) most places with­in the United States have aban­doned its use.” Bessler praised Breyer’s efforts to make his dis­sent more wide­ly avail­able, say­ing, ​“One of the things Justice Breyer been real­ly good at has been going out there with his books, try­ing to engage the pub­lic about the impor­tance of the law and the Constitution. He wants to get his ideas out. …I think this will be picked up and read by peo­ple and, hope­ful­ly, they will get a bet­ter under­stand­ing of the Eighth Amendment and the death penalty itself.”

(S. Breyer, edit­ed by J. Bessler, ​“Against the Death Penalty,” Brookings Institution Press, August 23, 2016; M. Coyle, ​“An Annotated Justice Breyer on the Death Penalty,” The National Law Journal, August 10, 2016.) See Books and U.S. Supreme Court.

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