Justice Harry Blackmun
got there in 1994, after twenty-four years on the bench. For Justice John Paul Stevens,
it took twenty-three years. Today, after twenty-two and twenty-one years, respectively,
Justices Stephen Breyer and Ruth Bader Ginsburg, too, now recognize there is no constitutionally sufficient way to implement the death penalty.
The pair were among the dissenters from a 5-4 decision of the court this morning which held that Oklahoma death row defendants failed to prove that there was a less painful method of death available to them, and they had no right to a painless death. "Because it is settled that capital punishment is constitutional," wrote Justice Alito for the Court, “it necessarily follows that there must be a constitutional means of carrying it out. And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain."
To Justices Breyer and Ginsburg, however, enough's enough:
In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
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 punishmen[t].” U. S. Const., Amdt. 8.
If you thought the next presidential election was crucial already, it just got a whole lot bigger. Four Justices (Kennedy, Scalia, Ginsburg, and Breyer) are between 77 and 82 years old. Elections matter.
More, below the fold.
It is a scholarly opinion, going into great detail into all four enumerated areas, and is well worth your time to read in full. Among other things, the dissent notes as to the delay issue:
Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16% were executed, 42% had their convictions or sentences overturned or commuted, and 6% died by other causes; the remainder (35%) are still on death row. Id., at 20 (Table 17); see also Baumgartner & Dietrich, Most Death Penalty Sentences Are Overturned: Here’s Why That Matters, Washington Post Blog, Monkey Cage, Mar. 17, 2015 (similar).
Thus an offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. In a word, executions are rare. And an individual contemplating a crime but evaluating the potential punishment would know that, in any event, he faces a potential sentence of life without parole.
These facts, when recurring, must have some offsetting effect on a potential perpetrator’s fear of a death penalty. And, even if that effect is no more than slight, it makes it difficult to believe (given the studies of deterrence cited earlier) that such a rare event significantly deters horrendous crimes. See Furman, 408 U. S., at 311–312 (White, J., concurring) (It cannot “be said with confidence that society’s need for specific deterrence justifies death for so few when for so many in like circumstances life imprisonment or shorter prison terms are judged sufficient”).
But what about retribution? Retribution is a valid penological goal. I recognize that surviving relatives of victims of a horrendous crime, or perhaps the community itself, may find vindication in an execution. And a community that favors the death penalty has an understandable interest in representing their voices. But see A. Sarat, Mercy on Trial: What It Means To Stop an Execution 130 (2005) (Illinois Governor George Ryan explained his decision to commute all death sentences on the ground that it was “cruel and unusual” for “family members to go through this . . . legal limbo for [20] years”).
The relevant question here, however, is whether a “community’s sense of retribution” can often find vindication in “a death that comes,” if at all, “only several decades after the crime was committed.” Valle v. Florida, 564 U. S. _, _ (2011) (Breyer, J., dissenting from denial of stay) (slip op., at 3). By then the community is a different group of people. The offenders and the victims’ families have grown far older. Feelings of outrage may have subsided. The offender may have found himself a changed human being. And sometimes repentance and even forgiveness can restore meaning to lives once ruined. At the same time, the community and victims’ families will know that, even without a further death, the offender will serve decades in prison under a sentence of life without parole.
To which Justices Scalia and Thomas, in response, do what they do,
in the style that Americans are used to:
Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. They rely on this provision because it is the only provision they can rely on. They were charged by a sovereign State with murder. They were afforded counsel and tried before a jury of their peers—tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.
The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield to his “20 years of experience on this Court,” and inviting full briefing on the continued permissibility of capital punishment.
And the problem, they say, is with the court's getting involved in evaluating the Eighth Amendment under an "evolving standards of decency" standard in the first place:
Indeed, for the past two decades, Justice Breyer has been the Drum Major in this parade. His invocation of the resultant delay as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, Justice Breyer uses the fact that many States have abandoned capital punishment—have abandoned it precisely because of the costs those suspect decisions have imposed—to conclude that it is now “unusual.” ...
If we were to travel down the path that Justice Breyer sets out for us and once again consider the constitutionality of the death penalty, I would ask that counsel also brief whether our cases that have abandoned the historical understanding of the Eighth Amendment, beginning with Trop, should be overruled. That case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind. Justice Breyer’s dissent is the living refutation of Trop’s assumption that this Court has the capacity to recognize “evolving standards of decency.” Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted that things have “changed radically,” and has sought to replace the judgments of the People with their own standards of decency.
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.
While they're on a roll, Justice Thomas also throws in (with Scalia concurring) that maybe we should get rid of the arbitrariness by going back to making the death penalty mandatory in some cases:
Whatever one’s views on the permissibility or wisdom of the death penalty, I doubt anyone would disagree that each of these crimes was egregious enough to merit the severest condemnation that society has to offer. The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims. Arbitrariness has nothing to do with it.^^
^^ Justice Breyer appears to acknowledge that our decision holding mandatory death penalty schemes unconstitutional, Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), may have introduced the problem of arbitrary application. Post, at 14. I agree that Woodson eliminated one reliable legislative response to concerns about arbitrariness. Graham v. Collins, 506 U. S. 461, 486 (1993) (Thomas, J., concurring). Because that decision was also questionable on constitutional grounds, id., at 486–488, I would be willing to revisit it in a future case
To which, Justice Breyer responds:
I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here. ...
The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.
Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. See Marbury v. Madison, 1 Cranch 137, 177 (1803); Hall, 572 U. S., at _ (slip op., at 19) (“That exercise of independent judgment is the Court’s judicial duty”)....
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.