Justice Breyer’s Dissent in Glossip v. Gross


Guerny, Death Chamber, Oklahoma

The U.S. Supreme Court affirmed a medically dubious three-drug lethal injection sentence. No surprise there; the conservative block of this court is enthusiastic, if not legally rigorous, in finding ways to approve the killing of convicted criminals. The majority went through absolute legal convolutions – a jurist version of “Twister” – to avoid admitting that the substitute drug used by the State of Oklahoma, something called midazolam, doesn’t work. Essentially, the majority doesn’t care that Oklahoma tortures prisoners to death. An awful result, but hardly surprising from this court.

That decision ordinarily wouldn’t be worth a blog post. What makes it remarkable is the dissent by Justice Breyer, in which he addresses in detail the innumerable flaws in the United States death penalty process, and in which he concludes the death penalty is categorically unconstitutional. You know Justice Breyer inflicted some burn when Justice Scalia filed a concurring opinion to argue that Breyer’s “argument is full of internal contradictions and (it must be said) gobbledy-gook.” But not, it must be said, ad hominem fallacies. Like, say, Justice Scalia’s.

The reason Justice Breyer’s dissent is important is that it is an articulate, unflinching analysis of why the death penalty is unconstitutional. WC will touch on some of Breyer’s points, but the whole dissent is a readable by a non-lawyer and worth your time.

Justice Breyer:

Today’s administration of the death penalty 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.

He then goes on to document, in detail, each of these four flaws. For example, under “unreliability” he notes that since 1973, 154 persons under death sentence have been exonerated. There were six such exonerations in 2014 alone. All six had been imprisoned more than 30 years. Some exonerations come too late; Justice Breyer notes Cameron Todd Willingham was executed despite likely inno­cence, and that the State Bar of Texas recently filed formal miscon­duct charges against the lead prosecutor for his actions in that case,  actions that may have contributed to Willingham’s convic­tion.

Breyer discusses the arbitrariness of the death sentences. He points to a study out of Connecticut, in which only nine out of 205 similar homicides resulted in death sentences, and an analysis of the facts in each case showed the egregiousness of the crimes had nothing to do with the death sentence; the race of the accused is the overwhelmingly important factor. The State murders people because of their race, not the gruesomeness of their crimes.

Breyer notes that the delay between sentencing and execution is cruel. Among the 35 persons executed in 2014, the average delay was about 18 years. The delays, Breyer says, are cruel for several reasons, and points to Suarez Medina, who was told the date and time of his execution at least 15 times. And Willie Manning, who was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution. Two years later, Man­ning was exonerated after the evidence against him, in­cluding flawed testimony from an FBI hair examiner, was severely undermined.

The delays also hopelessly undermine the deterrent rationale for killing prisoners in the first place. The death penalty’s penological rationale in fact rests almost exclusively upon a belief in its tendency to deter and upon its ability to satisfy a community’s interest in retribution. The evidence for deterrence is very weak. There is “profound uncertainty” about the existence of a deterrent effect. Nor is there an obvious connection between deterrent value and the average of 20 years from sentence to execution. Breyer points out

[W]hat actually happened to the 183 inmates sentenced to death in 1978? As of 2013 (35 years later), 38 (or 21% of them) had been executed; 132 (or 72%) had had their convictions or sentences overturned or commuted; and 7 (or 4%) had died of other (likely natu­ral) causes. Six (or 3%) remained on death row.

A defendant sentenced to death is two or three times more likely to have his sentence be overturned or commuted as to actually be executed. And someone thinks there is a deterrent value?

Justice Breyer sees a place for the other reason offered for the death penalty: retribution. It’s the Old Testament, “eye for an eye.” For WC, this carries no weight at all. Retribution is a dead-end; read the Icelandic epic sagas to see where retribution leads.

Breyer makes a series of other, equally forceful points: that the death penalty itself is becoming unusual – only seven states imposed a death penalty in 2014. Three states account for 80% of all executions. Even in Texas, the State that carries out the most executions, the number of executions fell from 40 in 2000 to 10 in 2014, and the number of death sentences fell from 48 in 1999 to 9 in 2013 (and 0 thus far in 2015).

Arbitrary, unreliable, unusual and, under the three-drug protocol, demonstrably cruel. Why, Breyer asks, do we still have a death penalty?

Sooner or later, the United States Supreme Court is going to have to answer that question, address the issues Justice Breyer raises in his dissent. On their merits, not with Justice Scalia’s embarrassingly juvenile ad hominem attacks.

Why not now?

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