By Jim Lobsenz

Bob Dylan wrote “The times, they are a-changing,” and there appears to be good reason to think that is an appropriate assessment of judicial attitudes towards the death penalty. When the U.S. Supreme Court wound up its 2014-15 Term in June it issued one unfortunate decision that nevertheless contains the seeds of hope.

In Glossip v. Gross, 192 L.Ed.2d 761 (2015), a bare majority of the justices rejected the arguments of three Oklahoma death-row inmates that Oklahoma’s method of execution was cruel and unusual. Largely because abolitionists have succeeded in persuading pharmaceutical companies not to make or supply the drugs that have traditionally been used to execute people, Oklahoma recently began using a drug called midazolam to kill people. The prisoners argued that midazolam doesn’t reliably knock people out, and consequently when the killing drugs are administered the prisoner feels excruciating pain. Five justices rejected the prisoners’ argument that the use of midazolam amounted to cruel and unusual punishment in violation of the Eighth Amendment.

Perhaps this loss was to be expected, since the Supreme Court has put so many procedural obstacles in the way of a successful challenge to a method of execution. The majority held that the prisoners’ challenge failed because (1) they did not prove that Oklahoma’s use of midazolam created substantial risk of severe pain, and (2) because they failed to identify a known and available alternative method of execution that entailed a lesser risk of pain.

Justice Sotomayor, joined by three other justices, disagreed. They had a different view of the evidence, and they concluded that the prisoners had shown that the use of midazolam presented an intolerable risk of severe pain. The dissenters also blasted the majority for ruling that the prisoners bore the burden of proving that a preferable and more humane way of executing them was readily available:

“[U]nder the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have the [prisoners] drawn and quartered, slowly tortured to death, or actually burned at the stake: because [the prisoners] failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.”   

The prisoners did not raise any challenges to the death penalty itself. And yet Justice Breyer wrote a stirring dissent, joined by Justice Ginsburg, which he ended with an express call for the Court to reconsider whether the death penalty itself was simply unconstitutional:

“[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic q3uestion: whether the death penalty violates the Constitution.”

Justice Breyer presented all the arguments against the death penalty: (1) lack of reliability in determining guilt and the consequent occasional execution of the innocent; (2) the arbitrariness of who receives the death penalty and who doesn’t; (3) the geographic disparity of the penalty (fewer than 1% of the counties in the entire country accounted for over 50% of the death sentences imposed nationwide); (4) excessive delay in carrying out the penalty; (5) the decline in the number of cases where a death sentence is imposed, making the sentence highly “unusual”; and (6) the growing number of states and countries that have decided to abandon the death penalty.

He acknowledged that roughly forty years ago the Supreme Court threw out the mandatory death sentence statutes that existed in most States, and insisted that new and “fairer” death penalty laws be enacted. Noting that the attempts by the state legislatures to fashion “fairer” laws had failed, he concluded that the time for a legislative solution had expired:

“The legislatures responded. But in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law… That exercise of independent judgment is the Court’s duty… I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”

Justice Breyer’s call for reconsideration of abolition underscores the significance of who is picked to serve on the Supreme Court. Although Justice Ginsberg has said he is not considering retiring any time soon, that could always change. For the moment, however, it seems we may be a step or two closer to ending the death penalty. Undoubtedly there are plenty of abolitionist lawyers out there looking for the right case to present to the Court in response to Justice Breyer’s invitation to reconsider “the basic question.”

(Thumbnail photo by Rick Dahms)

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