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July 1, 2015

Despite Glossip, hope for judicial abolition of the death penalty endures

This new Slate commentary by Robert J. Smith highlights that, despite the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol, at least some still believe there could soon be five SCOTUS votes to do away with the death penalty altogether. The lengthy piece is headlined "The End of the Death Penalty?: Recent Supreme Court opinions suggest there are five votes to abolish capital punishment." And here is how it starts and ends:

On the surface, the Supreme Court’s opinion in Glossip v. Gross appears to give death penalty proponents something to celebrate.  After all, the court allowed states to continue to use the sedative midazolam as part of a multidrug formula for lethal injections, despite Justice Sonia Sotomayor’s warning that such executions “may well be the chemical equivalent of being burned at the stake.”  But the bitterly divided 5–4 opinion has implications that extend far beyond the narrow question.  This case may become an example of winning a battle while losing the war.

In a dissent, Justices Stephen Breyer and Ruth Bader Ginsburg concluded that it is “highly likely” that the death penalty violates the Eighth Amendment’s prohibition on cruel and unusual punishments.  While acknowledging that the Supreme Court settled the constitutionality of the death penalty 40 years ago, Breyer wrote that the “circumstances and the evidence of the death penalty’s application have changed radically since then.”

They are not the first sitting justices to call capital punishment’s constitutionality into question.  Justices Thurgood Marshall and William Brennan routinely dissented from decisions upholding a death sentence on the grounds that capital punishment is always a cruel and unusual punishment.  Shortly before his retirement, Justice Harry Blackmun famously wrote that he would “no longer tinker with the machinery of death.”  Justice John Paul Stevens similarly concluded that the death penalty is an excessive punishment.

But Glossip feels different. Breyer’s dissent is more of an invitation than a manifesto. “Rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” It also feels different because it is no longer unthinkable that there are five votes for ending the death penalty....

[Justice] Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions.  For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice.  Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states.  Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, “on the abolitionist side of the ledger” because it “suspended the death penalty and executed only two individuals in the past 40 years.”

In Glossip, Breyer fine-tuned Kennedy’s approach, looking not only at how infrequently states resort to the punishment but also at how “the number of active death penalty counties is small and getting smaller.” (It might be particular personalities within counties as much as it is particular counties responsible for most death penalty sentences.)...

After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.

In a similar vein, Cassandra Stubbs, director of the ACLU Capital Punishment Project, has this new MSNBC commentary headlined "The death penalty has an innocence problem — and its days are numbered."

July 1, 2015 at 10:28 PM | Permalink


Anyone who would hope for the federal judiciary abolishing capital punishment is un-American. It's that simple.

Posted by: federalist | Jul 2, 2015 12:00:48 AM

I can also think of few decisions that would more quickly erode what institutional respect the court maintains (Heller could have done so if it had come out the other way). But to rule that execution is categorically barred when the constitution explicitly contemplates the circumstances under which it can be imposed would be a naked judicial power grab and nothing more.

Posted by: Soronel Haetir | Jul 2, 2015 9:08:38 AM

Miranda rights. Forced busing. Abortion rights.

Those decisions were imposed on an unpersuaded public. The results were the opposite of the intent.

I have said that for the death penalty to be an effective remedy, it has to be applied in the thousands per year, to all repeat violent offenders, with certainty and immediacy. Otherwise it is a make work program for tax sucking parasite in the death penalty appellate business, wasting $billions on paper shuffling.

As such, it should go underground. End the legal death penalty, fire those lawyers and judges.

Then kill the bad guys in prison. and in the street. They already have a very high murder rate. That risk does not deter them. They cannot be deterred. They can only be eradicated. Withdraw the police, decrease the aggressiveness of investigation, make it easier to get away with murder than it is.

I would then support research on the prenatal testing for antisocial personality disorder and the encouraged abortion of these fetuses. As always, crime will be solved by technology, and the lawyer will remain irrelevant and worthless.

Posted by: Supremacy Claus | Jul 2, 2015 9:17:29 AM

Cassandra Stubbs finds it hard to understand why no one listens to her even though she keeps on telling the truth. "With a name like 'Cassandra,' shouldn't I be more successful?" [bit of classics humor]

Posted by: Joe | Jul 2, 2015 9:58:59 AM

Every year more than 1.000 Americans are killed by policemen: not enough ????

Posted by: claudio giusti | Jul 3, 2015 2:45:19 PM

Claudio Giusti. I am estimating between 5 and 10,000 executions would be enough to kill all the violent criminals in the United States. The number for Italy would be proportional to its population size.

Problem with getting rid of the criminals of Italy.

The legal system of Italy is so bad, it takes 30 years to collect a debt. That is a reason Fiat moved to the US and is Italian in name only. So if one kills the Mafia, there will be no more justice or effective legal system in Italy. If the American lawyer is a rent seeking dumbass, the Italian lawyer is a super rent seeking profoundly retarded asshole. The Mafia is the sole viable recourse to get justice or to enforce a business contract in Italy. That is what the opening scene of the Godfather I was really about.

Posted by: Supremacy Claus | Jul 3, 2015 9:32:51 PM

Last year we had 500 murders and America 15.000.

Posted by: claudio giusti | Jul 4, 2015 1:22:42 PM

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