Opinion | If the Supreme Court ever abolishes the death penalty, we must thank Justice Breyer

In a powerful dissent, Justice Stephen G. Breyer outlined the clear unconstitutionality of capital punishment.

1/29/2022 9:28:00 AM

Opinion by David Von Drehle: If the Supreme Court ever abolishes the death penalty, we must thank Justice Breyer

In a powerful dissent, Justice Stephen G. Breyer outlined the clear unconstitutionality of capital punishment.

was an almost 50-year retrospective of America’s thoroughly unsuccessful effort to meet standards set for the death penalty by the court in the 1970s. To satisfy the constitutional ban on “cruel and unusual” punishments, capital cases must be guided by defined standards that greatly reduce the risk of arbitrary, capricious or erroneous outcomes.

After decades of effort, Breyer argued, the death penalty machinery was collapsing under the weight of its defects. In 86 percent of U.S. counties, Breyer wrote, “there is effectively no death penalty.” The average time between sentencing and execution — in those few cases where executions actually occur — had stretched to nearly 18 years, as backlogged lower courts attempted to give each appeal the promised scrutiny. Roughly half of all condemned inmates had lived on death row for 15 years or more.

Read more: The Washington Post »

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dissent was an almost 50-year retrospective of America’s thoroughly unsuccessful effort to meet standards set for the death penalty by the court in the 1970s. To satisfy the constitutional ban on “cruel and unusual” punishments, capital cases must be guided by defined standards that greatly reduce the risk of arbitrary, capricious or erroneous outcomes. After decades of effort, Breyer argued, the death penalty machinery was collapsing under the weight of its defects. In 86 percent of U.S. counties, Breyer wrote, “there is effectively no death penalty.” The average time between sentencing and execution — in those few cases where executions actually occur — had stretched to nearly 18 years, as backlogged lower courts attempted to give each appeal the promised scrutiny. Roughly half of all condemned inmates had lived on death row for 15 years or more. Offenders, Breyer noted, have “a good chance of dying from natural causes before any execution (or exoneration) can take place.” Advertisement Story continues below advertisement Thus, the ultimate punishment had lost credibility, he observed. “A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment,” he wrote, “and significantly undermine the rationale for imposing a sentence of death in the first place.” Meanwhile, the trend of states giving up on the death penalty — Virginia, last year, became the first Southern state to abolish capital punishment — was already visible as Breyer compiled his argument. Only about a third of all Americans live in a state where capital punishment is a practical reality. Yet this trend does not absolve the court of its duty to enforce its own standards, he wrote. “We are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law.”