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The End of the Death Penalty?
Recent Supreme Court opinions suggest there are five votes to abolish capital punishment.
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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.
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Henry Lee McCollum, left, and his half-brother, Leon Brown, are shown in booking photos provided by the North Carolina Department of Public Safety in Raleigh, North Carolina, on Sept. 2, 2014. The two men spent years on death row before being exonerated last year.
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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.
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