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Justice Stephen Breyer may yet prevail in war against death penalty

David Von Drehle


Foreign Dispatch

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Supreme Court Justice Stephen Breyer holds up a copy of the US constitution as he announces he will retire at the end of the court's current term. Photo: Reuters/Kevin Lamarque

Supreme Court Justice Stephen Breyer holds up a copy of the US constitution as he announces he will retire at the end of the court's current term. Photo: Reuters/Kevin Lamarque

Supreme Court Justice Stephen Breyer holds up a copy of the US constitution as he announces he will retire at the end of the court's current term. Photo: Reuters/Kevin Lamarque

With its open-ended terms of office stretching across decades, the Supreme Court is Washington’s foremost home of the long game.

Justices find themselves in the majority sometimes and in the minority other times during a generation or more on the bench.

Win some, lose some – but sometimes a historic win arrives decades after the fact.

John Marshall Harlan is the court’s long-game champion. In 1896, he was the only vote against a decision on a big case from New Orleans.

Homer Plessy, a shoemaker with a black ancestor, challenged a state law that required him to travel in a rail car reserved for black people.

The winner that day appeared to be Justice Henry Billings Brown, whose intellectually and morally shabby opinion held black people responsible for thinking that their separate car was somehow inferior.

Today, Harlan is celebrated in history as the Great Dissenter. As for Brown, he is a historical cipher.  

Now Justice Stephen Breyer has announced his retirement after nearly 28 years on the court. Mr Breyer wrote his share of majority opinions, but he leaves behind an important long-game dissent. If the day comes when the Supreme Court ends capital punishment in the United States, Mr Breyer will have paved the way.

The case was Glossip v Gross, decided in 2015. Oklahoma inmates were challenging the planned use of a particular sedative in the state’s lethal injection protocol, pointing out that the drug had failed in a previous execution. The five-to-four majority opinion, written by Justice Samuel Alito, held that inmates who challenge an execution protocol must suggest an alternative way of killing them. 

Mr Breyer’s Glossip dissent was an almost 50-year retrospective of America’s thoroughly unsuccessful effort to meet standards set for the death penalty by the court in the 1970s. To satisfy the constitutional ban on “cruel and unusual” punishments, capital cases must be guided by defined standards that greatly reduce the risk of arbitrary, capricious or erroneous outcomes.

After decades of effort, Mr Breyer argued, the death penalty machinery was collapsing under the weight of its defects. In 86pc of US counties, Mr Breyer wrote, “there is effectively no death penalty”.

The average time between sentencing and execution – in those few cases where executions actually occur – had stretched to nearly 18 years. Roughly half of all condemned inmates had lived on death row for 15 years or more.

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Offenders, Mr Breyer noted, have “a good chance of dying from natural causes before any execution (or exoneration) can take place”.

Thus, the ultimate punishment had lost credibility, he observed.

“A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment,” he wrote, “and significantly undermine the rationale for imposing a sentence of death in the first place.”

Meanwhile, the trend of states giving up on the death penalty was already visible as Mr Breyer compiled his argument. Only about a third of all Americans live in a state where capital punishment is a practical reality. Yet this trend does not absolve the court of its duty to enforce its own standards, he wrote.

In the majority that day were justices who know from experience that the drawn-out, expensive, rarely used and unpredictable calamity described by Mr Breyer is the United States’ reality. But their solution was to undermine the promise of rationality and fairness made by the court in 1976, when it allowed the states to enforce new, supposedly improved, death penalty laws.

Mr Breyer’s dissent urged the court to live up to the standards it had set for itself. He marshalled the damning facts of the death penalty’s undeniable failure and asked his colleagues to look at them squarely.

He believed they would arrive at the same conclusion reached by justices Lewis Powell, John Paul Stevens, Harry Blackmun and Sandra Day O’Connor – all Republican appointees who laboured for years to try make the machinery work.

Capital punishment “serves no useful purpose,” Mr Breyer wrote, quoting Mr Powell, and is therefore unconstitutional.

He lost his argument that day. But don’t count him out of the long game.

© Washington Post


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