Breyer's powerful death penalty dissent

In U.S. Supreme Court history, a few powerful dissenting opinions have eventually won over a majority of the court. In Glossip v. Gross, 2015 DJDAR 7481 (June 29, 2015), Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a powerful dissenting opinion on the death penalty that presented compelling reasons why capital punishment violates the Eighth Amendment's prohibition on "cruel and unusual punishment." Depending on the court's makeup after the 2016 election, Breyer's dissent may well become the law of the land.

In 1976, the Supreme Court reinstated the death penalty under state statutes that attempted to set forth safeguards to ensure the penalty would be applied reliably and not arbitrarily. But Breyer found that the "circumstances and the evidence of the death penalty's application have changed radically since then." The court thought that the constitutional infirmities in the death penalty could be healed. But, according to Breyer, almost "40 years of studies, surveys, and experience strongly indicate ... this effort has failed." "Today's administration of the death penalty," Breyer said, "involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."

Cruel: Unreliability. Breyer found "increasing evidence" that the death penalty lacks reliability. Researchers "have found convincing evidence that, in the past three decades, innocent people have been executed." Breyer cites the shameful examples of Carlos DeLuna, Cameron Todd Willingham, Joe Arridy and William Jackson Marion. As of 2002, there was evidence of approximately 60 exonerations in capital cases. Since then, the number of exonerations in capital cases has risen to 115 and may be as high as 154. In 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for over 30 years.

Including instances in which courts failed to follow legally required procedures, the numbers soar. Between 1973 and 1995, courts found prejudicial errors in an astounding 68 percent of the capital cases. For Breyer, the research suggests "there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime."

Cruel: Arbitrariness. As Breyer puts it, the "arbitrary imposition of punishment is the antithesis of the rule of law." In 1976, the Supreme Court acknowledged that it is unconstitutional if "inflicted in an arbitrary and capricious manner." Despite the court's hope for fair administration of the death penalty, Breyer concludes it has become "increasingly clear that the death penalty is imposed arbitrarily, i.e., without the 'reasonable consistency' legally necessary to reconcile its use with the Constitution's commands."

Breyer cites various studies and concludes that "whether one looks at research indicating that irrelevant or improper factors-such as race, gender, local geography, and resources-do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors-such as 'egregiousness'-do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily." Breyer concludes that the "imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary."

Cruel: Excessive delays. Breyer found the problems of reliability and unfairness lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row.

In 2014, 35 individuals were executed. Those inmates spent an average of 18 years on death row. At present rates, it would take more than 75 years to carry out the death sentences of the 3,000 inmates on death row; thus, the average person on death row would spend an additional 37.5 years there before being executed.

These lengthy delays create two special constitutional difficulties. First, a lengthy delay in and of itself is especially cruel because it "subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement." Second, lengthy delay undermines the death penalty's penological rationale.

Breyer explained that the death penalty's penological rationale rests almost exclusively upon deterrence and retribution. But Breyer asks: Does it still seem likely that the death penalty has a significant deterrent effect?

He considers what actually happened to the 183 inmates sentenced to death in 1978. As of 2013, 38 (or 21 percent) had been executed; but 132 (or 72 percent) had had their convictions or sentences overturned or commuted; and 7 (or 4 percent) had died of other causes. Six (or 3 percent) remained on death row. Of the 8,466 inmates under a death sentence at some point between 1973 and 2013, 16 percent were executed but 42 percent had their convictions or sentences overturned or commuted, and 6 percent died by other causes; the remainder (35 percent) are still on death row.

To speed up executions, Breyer asks which constitutional protections we should eliminate. He poses the dilemma: "A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place. But a death penalty system that minimizes delays would undermine the legal system's efforts to secure reliability and procedural fairness."

Breyer is clear. "We cannot have both. And that simple fact ... strongly supports the claim that the death penalty violates the Eighth Amendment."

Unusual: Decline in Use. The Eighth Amendment forbids punishments that are cruel and unusual. Breyer points out that between 1986 and 1999, 286 persons on average were sentenced to death each year. But approximately 15 years ago, the numbers began to decline. In 1999, 98 people were executed. Last year, just 73 persons were sentenced to death and 35 were executed.

The number of death penalty states has fallen, too. In 1972, the death penalty was lawful in 41 states. As of today, 19 states and the District of Columbia have abolished the death penalty. In 11 other states where the death penalty is on the books, no execution has taken place in over eight years. Of the 20 states that have conducted at least one execution in the past eight years, 9 have conducted fewer than five in that time, making an execution in those states a fairly rare event.

That leaves 11 states in which it is fair to say that capital punishment is not "unusual." And just three (Texas, Missouri and Florida) accounted for 80 percent of executions nationwide (28 of the 35) in 2014. Indeed, last year, only seven states conducted an execution. In other words, in 43 States, no one was executed. If we ask how many Americans live in a state that at least occasionally carries out an execution (at least one within the prior three years), the answer two decades ago was 60 to 70 percent. Today, it's 33 percent.

Breyer concludes that the matters he has discussed, "such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction - indeed the unfair, cruel and unusual infliction - of a serious punishment upon an individual."

Consequently, the Supreme Court is "left with a judicial responsibility" and it has made clear that "the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment."

Breyer's authoritative dissent may have set the stage for ending state killing once and for all. And it may have its most immediate impact on Aug. 31, when the 9th U.S. Circuit Court of Appeals hears oral argument in Jones v Chappell, in which last year U.S. District Judge Cormac Carney found California's death penalty unconstitutional for many of the very same reasons Breyer has so cogently expressed.

Stephen Rohde, an author and constitutional lawyer, is immediate past chair of the ACLU Foundation of Southern California, vice president of Death Penalty Focus, and national chair of Bend the Arc, a Jewish Partnership for Justice.