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.
Part of this plausibility stems from a political mood far more favorable to abolition than at any other point in the modern era. In the past few years, a number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have formally abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have vowed not to execute anyone. And a number of states, including the four moratorium states and also places like Kansas, Montana, New Hampshire, and Wyoming, have performed one execution or fewer per decade over the past half-century. It is no surprise, then, that death sentences have reached historic lows nationally. The death penalty is disappearing even in the Deep South, as Louisiana, Mississippi, North Carolina, and South Carolina have seen major drops, such as 70 percent declines in new death sentences. Texas, a state that reached a high of 48 death sentences in a single year, had no new death sentences in the first half of 2015.
The Supreme Court’s own struggle with capital cases further underscores this sense of plausibility. Justice Anthony Kennedy—who presumably would have the deciding vote on whether to abolish the death penalty—recently emphasized that the court’s capital punishment jurisprudence law lacks a “unifying principle” and that it “has produced results not altogether satisfactory.” The court has taken a piecemeal approach to try to ensure that the death penalty is reserved for the worst of the worst offenders. The reality, though, is that even after prohibiting the execution of juveniles, the intellectually disabled, and individuals who participated in a crime but did not do the killing, the court’s approach is still, as Kennedy says, “not altogether satisfactory.”
The most damning problem is the inability to guarantee the factual guilt of the people juries send to death row. Justice Antonin Scalia once underscored that lethal injection was an “enviable” death compared with that suffered by an “11-year old girl raped by four men and then killed by stuffing her panties down her throat.” Last year, DNA evidence demonstrated that Henry Lee McCollum and Leon Brown, the two men sentenced to death for the crime Scalia used as his poster case for the death penalty, are innocent. Or consider the case of Paul House, an inmate sentenced to death who claimed that the scratches on his arm came from “tearing down a building, and from a cat”—not as the result of a struggle with the victim. Chief Justice John Roberts mockingly commented on House’s version of events: “Scratches from a cat, indeed,” he wrote. In 2009, DNA evidence exonerated Paul House.
Even among those who are guilty of an aggravated homicide, the Constitution limits the death penalty to those people “whose extreme culpability makes them the most deserving of execution.” Thus, as Kennedy recently explained in Hall v. Florida, “to impose the harshest of punishments on an intellectually disabled person violates his or her inherent dignity as a human being.” Similarly, in Roper v. Simmons, Kennedy reasoned that “the lesser culpability of the juvenile offender” renders persons younger than 18 categorically ineligible for execution. These categorical prohibitions have not guaranteed that only the most deserving offenders will be executed. In fact, most offenders who were recently executed possess signs of significant mental deficits. Two examples from this year: Georgia executed Andrew Brannan, a bronze-star earning Vietnam veteran who developed severe post-traumatic stress disorder and had twice been hospitalized as a result of his bipolar disorder. Texas executed Robert Ladd, a man with an IQ score of 67 who could not prove to the satisfaction of the state courts that he was intellectually disabled.
Justice Breyer highlighted these flaws in his Glossip dissent. And he deemed them fatal: “The Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems,” he wrote. “Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed.” In response, Scalia referred to Breyer’s arguments as “surrealism.” Justice Clarence Thomas described the idea that the Eighth Amendment prohibits arbitrary death sentencing as “imaginary.” He then suggested to Breyer that if he wants to eliminate arbitrary outcomes, “the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.”
Justice Scalia wrote, “not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.” But the Supreme Court has affirmed time and time again that the prohibition on cruel and unusual punishments is drawn from society’s current standards of decency as they have evolved over time.
As Kennedy wrote last week in the context of marriage equality:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
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.)
It was Justice Kennedy, though, in Obergefell v. Hodges, the marriage case, who finally articulated a vision of a fluid and sophisticated approach to gauging societal norms:
There may be an initial inclination in these cases to proceed with caution—to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. … Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades.
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.
