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October 22, 2011

Notable report on notable comments by Justice Breyer on the death penalty

This local report by Laura Goldman on a recent speech by a sitting SCOTUS Justice, which is headlined "Justice Breyer Riffs On The Death Penalty, Citizens United, Bush v Gore," provides this account of some notable comments concerning the death penalty:

Last week, I had a chance to hear Supreme Court Justice Stephen Breyer speak at the World Affairs Council of Philadelphia. Breyer came to discuss his most recent book, "Making Our Democracy Work: A Judge's View....

The easygoing, affable Breyer only became defensive when the subject of the death penalty was raised.  "You have to understand that each death penalty case usually comes before the court three times.  The average defendant is on death row for 15 years," said Breyer.

He continued, "The recanting of witnesses is often raised.  That is not enough.  It is necessary to have proof that someone else has had to pull the trigger.  There would have to be something really wrong for the Supreme Court to hear anything significantly new that was not heard before by the lower courts.  We are presented with roughly the same arguments, just at the last minute."

Breyer explained that the court can not rule on the death penalty itself or address the racial disparity of its imposition since "it is mostly imposed by state law, rarely federal law.  Only the legislature can abolish the death penalty," said Breyer.

Citing the example of French President Mitterand, Breyer utilized his bully pulpit to urge the executive and legislative branches to abolish the death penalty in America.  "Europe is against the death penalty now," he said.  "In 1980, 2/3 of the French electorate supported the death penalty.  Still Mitterand, in a television interview, came out against the death penalty.  He immediately went up in the polls because he took a position of conscience. The same thing could happen here."

He doubts that abolition of the death penalty will happen.  "Politicians were in the popular club in high school.  They hold their finger up to the wind to measure popularity," opined Breyer.  "Judges are terrible politicians."

October 22, 2011 at 10:41 AM | Permalink


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"Judges are terrible politicians."

Actually, they're very good politicians, which is how they got to be judges. As the article correctly notes, Breyer himself is easygoing and affable. Those things, plus his being smart and personally modest, helped him get to the First Circuit after Reagan won in 1980.

Posted by: Bill Otis | Oct 22, 2011 11:28:39 AM

But there is a very lively death penalty in the US. First the 17,000 murder victims every year with no exceptions could number 30,000 were it not for advances in trauma care. Second, there are 100,000 unresolved missing persons reports a year. If you average intelligence and murder a person, you clean up after yourself, and get away with murder. So the real rate may not be 30,000, but 70,000 people a year. If you define murder as an intentional homicide, is withholding of care an intentional act of homicide if there is a high probability of death by withholding life sustaining medication, such as asthma medication, or insulin for diabetes. Then care givers may be murdering a number of people with 6 numbers, to accelerate any inheritance.

Why is no one seeking to prohibit those murders? Simple. Murderers generate massive government employment. Murder victims generate nothing and may rot, no matter their number. Citing a French political leader makes that point, since they are culturally committed to big government.

Posted by: Supremacy Claus | Oct 22, 2011 3:48:40 PM

"It is necessary to have proof that someone else has had to pull the trigger." So, he's said it - innocence is not enough for the Supreme Court. Post conviction, unless you can point to (with proof) someone else to take the rap, American justice demands your sacrifice. Jeez .... what a basis for the highest court in the land to work on.

Posted by: peter | Oct 23, 2011 3:29:58 AM

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