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May 2, 2016

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 at 09:54 AM | Permalink


This has long been a concern of Justice Breyer (and Stevens). Ginsburg joined his Glossip dissent, which in part covered this ground. As seen by the excerpt.

It is notable to me that various executions were handed down, a few at least with some issues (one or more of the liberals even dissented from denial of cert etc. for at least a couple) but basically never (there was an exception or two) did Breyer et. al. say a word about the issues. "Notable" can be replaced with "troubling."

Posted by: Joe | May 2, 2016 10:12:08 AM

some discussion of this on Twitter -- https://twitter.com/chrisgeidner/status/727151055444701184

Posted by: Joe | May 2, 2016 3:01:12 PM

Breyer is sounding more and more like an anti death penalty activists, who happens to be a SCOTUS justice.

Judges are the case managers. It is hard to imagine how Breyer, or anyone else, cannot see that Ca judges are, intentionally, blatantly destroying the death penalty, as is, actively, the case in Kansas and Pa, as well.

In Glossip, when Breyer brought up both the Deluna and Willingahm cases, as likely innocents executed, my response was the same, which was I guess Breyer just decided reviews by anti death penalty folks was enough, not need for a thorough review.

Posted by: Dudley Sharp | May 3, 2016 8:16:03 AM

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