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."