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.

(R. Teague Beckwith, ​“Supreme Court Justice Argues World Opinion Matters on the Death Penalty,” TIME, September 14, 2015; A. Liptak, ​“Justice Breyer Sees Value in a Global View of Law,” The New York Times, September 12, 2015; T. Mauro, ​“Q&A: Justice Breyer’s Interview With The NLJ,” The National Law Journal, September 12, 2015.) See U.S. Supreme Court, International, and Books.

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