Former Supreme Court Justice Stephen Breyer Expresses Continued Frustration with the Fair Administration of the Death Penalty

In a recent inter­view with The Marshall Project, for­mer United States Supreme Court Justice Stephen Breyer dis­cussed his twen­ty-eight years of expe­ri­ence on the Court and the evo­lu­tion of his view on the death penal­ty. He explained that he did not go to the Supreme Court intend­ing to over­turn the death penal­ty, but “[i]t’s so unfair­ly admin­is­tered. There’s nei­ther rhyme nor rea­son. The whole point of this crim­i­nal jus­tice sys­tem is fair­ness.… I’m not say­ing, ​‘You’re all inno­cent.’ But there are a cou­ple of cas­es where I really wonder.”

“You can’t have both, in my opin­ion: a sys­tem that is basi­cal­ly fair, a sys­tem that works hon­est­ly, a sys­tem that tries to treat peo­ple equal­ly — and also have a death penal­ty, as I’ve seen it over 20 years.”

His com­ments echoed the con­cerns he pre­vi­ous­ly iden­ti­fied in his dis­sent to the 2015 Supreme Court deci­sion in Glossip v. Gross, where he chal­lenged the Court to recon­sid­er whether the death penal­ty was constitutional. 

“Every so often I would write some­thing to remind peo­ple of Glossip,” Justice Breyer said. ​“And I would say, this per­son has been on death row for [25] years. Is that going to make a dif­fer­ence to gen­er­al deter­rence? To spe­cif­ic deter­rence? To reform­ing his char­ac­ter? Or even to vengeance, if you want to call it that, or ret­ri­bu­tion. I don’t think so. I would write some­thing and say, ​‘What is going on? It’s very expen­sive. What’s hap­pen­ing here? And look at this case.’ So I do that occa­sion­al­ly because I don’t want peo­ple to for­get. The [state] leg­is­la­tures, too. They can read very well.”

Richard Glossip recent­ly had his ninth exe­cu­tion date stayed by the Supreme Court while it con­sid­ers his claims of inno­cence. The Oklahoma Attorney General con­fessed error and moved to vacate his con­vic­tion, but the Oklahoma Court of Criminal Appeals upheld his con­vic­tion and death sen­tence. A peti­tion for cer­tio­rari is cur­rent­ly pend­ing at the Supreme Court, and on June 5, the Innocence Project and six legal schol­ars who focus on legal ethics and the pro­fes­sion­al respon­si­bil­i­ty of tri­al lawyers and pros­e­cu­tors filed sep­a­rate friend-of-the-court briefs in sup­port of Mr. Glossip.

In the inter­view, Justice Breyer dis­cussed oth­er cap­i­tal cas­es, includ­ing Dzokhar Tsarnaev, whose argu­ment that he had been denied the oppor­tu­ni­ty to present evi­dence dur­ing his tri­al in con­nec­tion with the Boston Marathon bomb­ing was reject­ed by the Court. ​“Jesus, what should you do with this per­son?” Justice Breyer asked. ​“Execute him? Please. How is that helping?”