ANALYSIS: Do Recent Connecticut and U.S. Supreme Court Decisions Portend Downfall of Capital Punishment?

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.