In New Book, Media Interviews, Justice Breyer Addresses International Opinion, Arbitrariness of Death Penalty

In his new book, The Court and the World: American Law and the New Global Realities, and in media interviews accompanying its release, Supreme Court Justice Stephen Breyer discusses the relationship between American laws and those of other countries and his dissent in Glossip v. Gross, which questioned the constitutionality of the death penalty. In an interview with The National Law Journal, Breyer summarized the core reasons underlying his Glossip dissent: “You know, sometimes people make mistakes, [executing] the wrong person. It is arbitrary. There is lots of evidence on that. Justice Potter Stewart said it was like being hit by lightning, whether the person is actually executed. If carried out, a death sentence, on average takes place now 18 years after it is imposed. The number of people who are executed has shrunk dramatically. They are centered in a very small number of counties in the United States. Bottom line is, let’s go into the issue. It is time to go into it again.” In his book, Breyer argues that the laws and practices of foreign countries are relevant to and might be particularly informative on questions regarding the Eighth Amendment. He notes that international opinion has influenced decisions to end the death penalty for juveniles and for crimes that do not result in death. His Glossip opinion also mentioned international practices — that only 22 countries carried out executions in 2013 and that the U.S. was one of only eight that executed more than 10 people — among the reasons American capital punishment may be an unconstitutionally “cruel and unusual punishment.” That phrase, he says in his book, is itself of foreign origin. “It uses the word ‘unusual,’ ” Breyer says, “and the founders didn’t say unusual in what context.” Foreign law and practices, he argues, should form part of that context.