Justice Breyer Resurrects an Old Debate: Is the Death Penalty Constitutional?

The liberal justice wrote that the death penalty is unreliable, arbitrary, cruel and increasingly unusual.
Photograph: Getty Images

In a blow to what the Justice Clarence Thomas called "death penalty abolitionists," the court ruled Monday that Oklahoma's use of the drug midazolam in executions did not count as cruel and unusual punishment.

But Monday's ruling also came with a face off between two of the court's liberal judges (Justices Stephen Breyer, joined by Ruth Bader Ginsburg) and two of the court's conservatives (Justices Antonin Scalia and Clarence Thomas) over whether the death penalty itself is constitutional. 

While Justice Sonya Sotomayor wrote the dissent to Samuel Alito's majority opinion, Breyer used his dissent to consider a different question, and it was a big one: "whether the death penalty violates the Constitution." In 41 pages, not counting appendices, he argued that it's "highly likely that the death penalty violates the Eighth Amendment." 

Breyer isn't the first justice to argue that capital punishment is unconstitutional. In 1976, in his dissent to Gregg v. Georgia, the late Justice William J. Brennan wrote:

Death is not only an unusually severe punishment, unusual in its pain, in its finality, and in its enormity, but it serves no penal purpose more effectively than a less severe punishment; therefore the principle inherent in the Clause that prohibits pointless infliction of excessive punishment when less severe punishment can adequately achieve the same purposes invalidates the punishment.

Nearly 40 years later, Breyer made four points against the death penalty: it is unreliable, given that there have been innocent people put to death; it is applied arbitrarily; it is cruel because death row inmates often wait several years for their sentence to be carried out; and it is unusual because of its declining popularity over the last 40 years. 

His fellow justices were unconvinced. Justice Antonin Scalia, in his concurring opinion responding to Breyer, wrote that the Eighth Amendment only prohibits punishments that add “terror, pain, and disgrace” to an otherwise legal punishment. “Rather than bother with this troubling detail, Justice Breyer elects to contort the constitutional text,” Scalia continued. “Redefining ‘cruel’ to mean ‘unreliable,’ ‘arbitrary,’ or causing ‘excessive delays,’ and ‘unusual’ to include a ‘decline in use,’ he proceeds to offer up a white paper devoid of any meaningful legal argument.” At one point he wrote that the reason the court has never challenged the constitutionality of the death penalty is because the constitution explicitly mentions capital punishment. 

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From Scalia's concurrence.

Thomas focused on Breyer's argument that the death penalty is applied arbitrarily. In a footnote he took issue with Breyer's argument that he has seen "discrepancies for which I can find no rational explanations":

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From Breyer's dissent.

 In response to Breyer's example, Thomas wrote:

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From Thomas's concurrence.

Breyer relied heavily on government data, statistics, criminal justice studies and articles online and print publications. To show the the death penalty is unreliable, he cites a 2009 New Yorker story on Cameron Todd Willingham, a Texas man executed in 2004 but believed to be innocent. To show that it is arbitrary, he references studies that show that the race and gender of the victim influence the use of the death penalty. To show that the long wait times death row inmates face are cruel, he noted that the inmates spend their time in solitary confinement, and research that shows the deleterious affects of solitary. And to show that the death penalty is unusual, he notes its decline over the last 40 years, both in frequency of executions and in the number of states that still execute offenders. 

Breyer is aware of the argument that capital punishment should be left to the states, and noted that in Furman v. Georgia, a 1972 death penalty case, the court's ruling against the prisoner's death penalty put pressure on the states to outline fair standards for sentencing someone to death.

But, he continued, the issues at stake here are judicial issues, and the states still haven't solved the problem. "The answer is that the matters I have 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," he wrote. While state legislatures responded with legislation "in the last four decades, considerable evidence has accumulated that those responses have not worked."