In a dis­sent­ing opin­ion in Glossip v. Gross, Justice Stephen Breyer (pic­tured), joined by Justice Ruth Bader Ginsburg, pro­vid­ed a sweep­ing analy­sis of why he believes the death penal­ty in the United States may be uncon­sti­tu­tion­al and called for a ​“full brief­ing” on ​“whether the death penal­ty vio­lates the Constitution.” Justice Breyer wrote that ​“Nearly 40 years ago, this Court upheld the death penal­ty under statutes that, in the Court’s view, con­tained safe­guards suf­fi­cient to ensure that the penal­ty would be applied reli­ably and not arbi­trar­i­ly.… The cir­cum­stances and the evi­dence of the death penalty’s appli­ca­tion have changed rad­i­cal­ly since then.” Justice Breyer said ​“those changes, tak­en togeth­er with my own 20 years of expe­ri­ence on this Court, … lead me to believe that the death penal­ty, in and of itself, now like­ly con­sti­tutes a legal­ly pro­hib­it­ed ​‘cru­el and unusu­al punishmen[t].’” Citing DPIC’s resources for many of the his­tor­i­cal facts under­ly­ing his opin­ion, Justice Breyer cat­a­logued what he described as ​“three fun­da­men­tal con­sti­tu­tion­al defects” in the admin­is­tra­tion of the death penal­ty today that may make it cru­el and unusual punishment.

First, he said, the death penal­ty is cru­el because of its ​“seri­ous unre­li­a­bil­i­ty,” as evi­denced by ​“con­vinc­ing evi­dence … that inno­cent peo­ple have been exe­cut­ed” and ​“strik­ing” evi­dence that ​“it has been wrong­ly imposed” on more than 100 inno­cent men and women, with a greater like­li­hood of wrong­ful con­vic­tion than in non-cap­i­tal cas­es. He point­ed to fac­tors such as pub­lic pres­sure to obtain a con­vic­tion, dis­tor­tions in the jury selec­tion process, flawed foren­sic tes­ti­mo­ny, and offi­cial mis­con­duct as con­tribut­ing fac­tors in these wrong­ful cap­i­tal con­vic­tions. Second, he said the death penal­ty is cru­el because it is arbi­trar­i­ly imposed, fail­ing to mean­ing­ful­ly dis­tin­guish between the worst of the worst crimes and killers while at the same being improp­er­ly influ­enced by fac­tors relat­ing to race, gen­der, geog­ra­phy, dis­par­i­ties in the exer­cise of pros­e­cu­to­r­i­al dis­cre­tion, insuf­fi­cient resources to rep­re­sent cap­i­tal­ly charged inmates, and polit­i­cal pres­sures on elect­ed judges. Third, Justice Breyer said the death penal­ty is cru­el because it suf­fers from ​“uncon­scionably long delays that under­mine the death penalty’s peno­log­i­cal pur­pose.” Although extend­ed appeals are nec­es­sary to exon­er­ate the inno­cent and to assure the fair­ness and reli­a­bil­i­ty of cap­i­tal pro­ceed­ings, the result is that death sen­tences are not car­ried out for decades, if at all, under­min­ing any ret­ribu­tive or deter­rent val­ue the death penal­ty may have, with the dehu­man­iz­ing harsh con­di­tions of death row soli­tary con­fine­ment cre­at­ing its own set of con­sti­tu­tion­al issues. Finally, Justice Breyer wrote, the death penal­ty is ​“unusu­al” because ​“most places with­in the United States have aban­doned its use.” ​“30 States have either for­mal­ly abol­ished the death penal­ty or have not con­duct­ed an exe­cu­tion in more than eight years,” he wrote, and exe­cu­tions are ​“a fair­ly rare event” in nine oth­ers, with three states account­ing for 80% of all exe­cu­tions in 2014. Justice Breyer point­ed to the ​“con­sis­ten­cy of the direc­tion of change” away from the death penal­ty, includ­ing repeal of death penal­ty statutes and down­ward trends in exe­cu­tions and death sen­tences. Finding it ​“high­ly like­ly that the death penal­ty vio­lates the Eighth Amendment,” Justice Breyer called “[at the very least … for full brief­ing on the basic ques­tion.” For cov­er­age and com­men­tary on the Glossip deci­sion, click here. For excerpts from the dis­sent, with links to the DPIC resources cit­ed, click here.

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