Is The Death Penalty in Danger?
Legal watchers are saying that public debate by the Supreme Court justices could open the door for a full-fledged attack on the death penalty — even though most Americans support it. (Photo: Corbis)
On Monday, the Supreme Court ruled 5-4 that the use of the controversial drug midazolam as a sedative in lethal injection does not constitute cruel and unusual punishment and, thus, can be continued to be used when enacting the death penalty.
But something historic happened when the ruling was read in court by the justices.
Both Justice Sonya Sotomayor and Justice Stephen Breyer made the unusual choice to read aloud from their dissents (the latter of which was joined by Justice Ruth Bader Ginsberg) and argued that the death penalty itself is unconstitutional.
Following the reading of the dissents, Justice Antonin Scalia stated in the chamber that while he concurred with the majority opinion, he had further thoughts he wished to share about the nature of the dissents, separate from what he had already written (but not read) in his own concurring opinion. Such public debate between the justices was a first, and some legal watchers are saying that this opens the door for a full-fledged attack on the death penalty.
Justice Breyer outlined his argument for why the death penalty, and this form of the death penalty, constitutes a legally prohibited “cruel and unusual punishment,” which Americans are protected from under the Eighth Amendment.
Breyer illustrates four points that, to him, qualify the death penalty as such:
The number of death penalty convictions (some posthumously) exonerated and the lack of reliability in proving and upholding a verdict for a crime for which the death penalty could be applicable.
The arbitrariness with which death penalty sentences are seemingly assigned (with factors like the race and gender of both the accused and their victims heavily influencing the issuance of death penalty sentences).
The cruelty of excessive delays between sentencing and punishment and the constitutional problems that arise as a result.
That the death penalty is in fact arguably “unusual” given the ratio of crimes which receive a death penalty sentence compared to criminal sentencing across the board.
“The majority, concurring and dissenting opinions exposed a profound division between the Justices’ views about the constitutionality of the death penalty,” Elisabeth Semel, a clinical professor of law and the director of the Death Penalty Clinic at the University of California-Berkeley’s School of Law told Yahoo Health.
Steven Vladeck, a law professor at American University, told CNN that he believed that while yesterday’s ruling might have upheld the use of midazolam, the opinions written by the various Justices regarding the ruling have “opened the door to frontal assaults on the death penalty” itself.
In Baze v. Rees, the 2008 decision approving Kentucky’s three-drug protocol only Justice Paul Stevens, who is now retired, took the opportunity to announce that, some thirty years after signing onto the decision to uphold new death penalty statutes, he had concluded the punishment could not stand under the Eighth Amendment, Semel explains.
“Justice Breyer, joined by Justice Ginsburg, in a meticulously detailed analysis of ‘the death penalty’s legal wounds,’ declared ‘it highly likely’ that Justice Stevens was correct,” says Semel.
Justice Sotomayor’s dissent — with Justices Kagan, Ginsburg, and Breyer — was principally intended to dismantle the majority’s attempt to make it increasingly more difficult for inmates to challenge lethal injection procedures at the very time “when States are engaged in what is in effect human experimentation.”
While one can by no means assume that Justices Sotomayor and Kagan have come to the same conclusion as Justices Breyer and Ginsburg — that the death penality itself is unconstitutional, “In rejecting the majority’s ‘contortions’ necessary to achieve its desired outcome, Justice Sotomayor’s reasoning is grounded in the Eighth Amendment’s animating principle: “the government’s duty to respect the duty of all persons,” says Semel.
Semel clarifies, though, that it is “a leap to presume that Sotomayor and Kagan share Breyer’s and Ginsburg’s view.” And it is an ever bigger leap to make that assumption about Justice Kennedy, who, in the current court, would be the essential fifth vote in overturning the death penalty.
“I am inclined to echo what Justice Breyer wrote, which is that the direction of change for the Court, as it is for the country, is toward abolition,” say Semel. “It has been seven years since Baze. That is how long it took for Breyer and Ginsburg to join Justice Stevens, who in Baze, became the fifth Supreme Court Justice in the case of] Gregg [v Georgia, the 1976 Supreme Court case in which the legality of the death penalty was affirmed] to renounce capital punishment.”
Semel looks to the majority opinions of Justice Kennedy— the court’s swing vote — in cases such as Roper, Kennedy, Miller, Plata, which all pertained to the rights of convicted inmates, ranging from finding it unconstitutional to impose the death penalty on those who committed crimes while minors to affirming that population limits in prisons are necessary under the Eighth Amendment and his public comments about solitary confinement — the Justice recently told the House Appropriations Subcommittee on Financial Services and Federal Government that “solitary confinement literally drives men mad” while criticizing the contemporary prison system in the United States — that
the Eighth Amendment’s "human dignity” principle is very much on his mind.
The “Reckless” System of Execution Could Bring on More Lawsuits
In the 2008 case Baze v. Rees, where a three-drug protocol for the administration of lethal injection was found to be legal, the majority’s decision was considered by experts to be splintered and confusing since no single opinion carried the majority, reflecting a lack of agreement from the Court on the legal implications of the death penalty itself. “Three Justices at the time (from all political viewpoints) warned that it would simply engender further litigation, notes Deborah Denno, the Arthur A. McGivney Professor of Law at Fordham University’s School of Law.
And it did. Glossip v. Gross, the ruling decided yesterday, was the second death penalty case the court has taken in 8 years, which is considered light years in court time. Justice Alito noted this in his majority opinion with the opening line “Welcome to Groundhog Day.”
And its ruling is also being considered to be murky and confusing by legal scholars.
“Glossip v. Gross is a narrow 5-4 opinion that pertains to one state (Oklahoma) and the use of one drug within that state (midazolam), hence the broader repercussions of the holding against the three death row inmates seeking to ban midazolam are not entirely clear especially in light of the immediate chaos that stemmed from Baze eight years ago,” says Denno.
“Given the amount of research that petitioners provided about the dangerous effects of midazolam and the quality of the experts offered,” notes Denno, “it is inexcusable that the Court has enabled for decades a system of execution that has only become more reckless and egregious with each passing year.”
Further botched executions that could be the collateral damage of a unclear decisions by the court could bring on future litigation that questions the constitutionality of the death penalty. David von Drehle, a journalist who has written extensively on the death penalty, told NPR’s Nina Totenberg that “It’s not about what you want to have happen or what you think is right thing to happen. After 40 years of this experiment, we have a reality we have to face up to: that it ain’t workin’.“
Marriage equality, affirmed by the Court last week in the Obergefell case, was found to be favored by 60 percent of the American public in a Gallop poll conducted in May of this year. And the death penalty is just as popular, with Gallop reporting in October 2014 that 63 percent of Americans approve of the sentence for those convicted of murder.
So while the future of the death penalty in America remains to be determined it’s safe to say that the debate about capital punishment is alive at the Supreme Court.
