Justices Breyer and Ginsburg Question Constitutionality of the Death Penalty
In the case of Glossip v. Gross on this day, the Supreme Court upheld the constitutionality of a controversial Oklahoma lethal injection procedure by a 5-4 vote.
In a lengthy and detailed dissent, however, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, questioned the constitutionality of the death penalty, based on the experience with its usage since the key Court decisions from the 1970s. See Furman v. Georgia (June 29, 1972) and Gregg v. Georgia (July 2, 1976).
Some of the important parts of the Breyer/Ginsburg dissent include:
“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. Given those changes, I believe that it is now time to reopen the question.”
. . .
“I shall describe each of these considerations, emphasizing changes that have occurred during the past four decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishment.”
. . .
“The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?
. . .
“For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question. With respect, I dissent.”
Read: David Oshinsky, Capital Punishment on Trial: Furman v. Georgia and the Death Penalty in Modern America (2010)
Learn more at the Death Penalty Information Center: http://www.deathpenaltyinfo.org/
Read the great biography of Justice Ginsburg: Jane Sherron De Hart, Ruth Bader Ginsburg: A Life (2018)
Learn more: Stuart Banner, The Death Penalty: An American History (2002)