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In a Brave, Powerful Dissent, Justice Breyer Calls for the Abolition of the Death Penalty
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Justice Stephen Breyer took a brave, powerful stand against the machinery of death on Monday, writing that, to his mind, “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’ ” Breyer notes that his “20 years of experience on the court,” during which he has been forced to decide whether myriad inmates may live or die, led him to this conclusion.
In a courageous 41-page dissent from a pro-death penalty ruling joined only by Justice Ruth Bader Ginsburg, Breyer explains that the startlingly high number of exonerated death row inmates suggests that capital punishment is unreliable and error-prone—in the words of the Eighth Amendment, “cruel.” (In a stunning retort to Justice Antonin Scalia, Breyer discusses the exoneration of Henry Lee McCollum—“Scalia's favorite murderer.”) The death penalty, Breyer writes, is also unconstitutionally arbitrary, dispensed randomly, rarely, and unpredictably. This infrequency renders the punishment unconstitutionally “unusual,” as well.
Breyer also notes a number of troubling factors in death penalty sentencing. Race may play a role, he writes (correctly), as do judicial elections—judges may condemn convicts to die so that voters will perceive them as tough on crime. Breyer then declares:
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Justice Stephen Breyer took a brave, powerful stand against the machinery of death on Monday, writing that, to his mind, “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’ ” Breyer notes that his “20 years of experience on the court,” during which he has been forced to decide whether myriad inmates may live or die, led him to this conclusion.
In a courageous 41-page dissent from a pro-death penalty ruling joined only by Justice Ruth Bader Ginsburg, Breyer explains that the startlingly high number of exonerated death row inmates suggests that capital punishment is unreliable and error-prone—in the words of the Eighth Amendment, “cruel.” (In a stunning retort to Justice Antonin Scalia, Breyer discusses the exoneration of Henry Lee McCollum—“Scalia's favorite murderer.”) The death penalty, Breyer writes, is also unconstitutionally arbitrary, dispensed randomly, rarely, and unpredictably. This infrequency renders the punishment unconstitutionally “unusual,” as well.
Breyer also notes a number of troubling factors in death penalty sentencing. Race may play a role, he writes (correctly), as do judicial elections—judges may condemn convicts to die so that voters will perceive them as tough on crime. Breyer then declares:
The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?
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