Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College.
The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new Supreme Court justice, and they failed yet again to get the court to take up a wholesale challenge to capital punishment. Through it all, Justice Stephen Breyer persisted in making the case that the death penalty violates the Eighth Amendment and “the evolving standards of decency that mark the progress of a maturing society.” His efforts had no greater payoff during the 2016 term than they have had in the past, but they helped to memorialize the many miscarriages of justice associated with the death penalty’s continued use and lay the groundwork for a future court to end capital punishment.
He made those efforts during a time of a gradual withering of America’s death penalty. This withering is evidenced by the fact that fewer and fewer death sentences are being imposed in fewer and fewer places across the country. At the same time, similar trends are occurring with regard to actual executions. Moreover, while a majority of the American public continues to support the death penalty, the number of people favoring it is lower than it has been since the 1970s.
But, during the last year, these developments were counterbalanced on several fronts. The hope for continued restraint in the pursuit of federal death-penalty cases, and for the appointment of a Supreme Court justice sympathetic to the anti-death-penalty cause, was dashed by the election of President Donald Trump, an avid supporter of capital punishment, and by Trump’s appointment of Jeff Sessions as attorney general of the United States. So vehement is Sessions’ support for the death penalty that, during his tenure as Alabama’s attorney general, he “worked to execute insane, mentally ill and intellectually disabled people, among others, who were convicted in trials riddled with instances of prosecutorial misconduct, racial discrimination and grossly inadequate defense lawyering.”
In addition, voters in California, Oklahoma and Nebraska supported the death penalty in several different referenda.
And, earlier this year, Arkansas drew international attention when it unveiled a plan to execute eight death-row inmates in 11 days.
While all this was going on, the Supreme Court was in a holding pattern on capital punishment. It addressed some unusual problems in ways that only served to prop up a failing system. And it declined to hear more direct challenges to the constitutionality of the ultimate penalty.
In three of its death cases, the court found for defendants seeking relief from blatant miscarriages of justice. So egregious were those problems that, in one case, even reliably pro-death-penalty Chief Justice John Roberts sided with its critics. Writing, for a six-justice majority, he said that a defendant was denied effective assistance of counsel when his own lawyer presented an expert who testified that he was more likely to be dangerous in the future because he is black. Roberts put it simply when he noted that “[n]o competent defense attorney would introduce such evidence about his own client.”
One month after this decision, the Supreme Court struck down Texas’ standard for evaluating intellectual disability in death-penalty cases. Here again the particulars of the case were so striking that Justice Ruth Bader Ginsburg’s majority opinion labelled the Texas situation an “outlier.” She held that “[b]y design and in operation, … [it] create[s] an unacceptable risk that persons with intellectual disability will be executed.”
Last week, a closely divided court ruled that an Alabama man had been unconstitutionally denied the assistance of a mental-health expert in evaluating, preparing and presenting his defense. Justice Neil Gorsuch, in his first vote on the merits in a death-penalty case, did not disappoint those who pushed for his appointment. He joined a dissent written by Justice Samuel Alito, which argued that an indigent defendant whose mental health will be a significant factor at trial is not “entitled to the assistance of a psychiatric expert who is a member of the defense team instead of a neutral expert who is available to assist both the prosecution and the defense.”
Throughout the term, the court repeatedly refused to take up cases raising problems that go to the heart of the death penalty itself. In a series of dissents in those cases, Breyer continued the work started in his dissenting opinion in Glossip v. Gross, repeatedly pointing out systemic and crippling problems in the administration of capital punishment.
Echoing Justice Harry Blackmun’s famous announcement “I no longer shall tinker with the machinery of death,” Breyer said in Glossip that “rather 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 question: whether the death penalty violates the Constitution.” Given the “circumstances and the evidence of the death penalty’s application,” he urged the court to “reopen” that basic question. Breyer called attention to what he labelled “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.”
This term, the Supreme Court denied certiorari in a case that asked it to decide “(w)hether imposition of the death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”
The petitioner in that case, Marcus Reed, argued:
Capital punishment is now constrained to a dwindling handful of locations, reserved not for the most culpable offenders, but for those unlucky few prosecuted under anachronistic circumstances. The declining numbers of death sentences and executions has not ensured that capital punishment is applied more carefully but rather enhanced the “not altogether satisfactory” application of the punishment.
Breyer filed a brief dissent in which he picked up a theme from Glossip. He noted that “[t]he “arbitrary role that geography plays in the imposition of the death penalty, along with the other serious problems I have previously described, has led me to conclude that the Court should consider the basic question of the death penalty’s constitutionality.”
In another case, Sireci v. Florida, the court refused to consider the Eighth Amendment claim of a man who has been on Florida’s death row for 40 years. Breyer dissented, noting that “delays of this kind have become more common.” He called execution after such an extended time on death row “especially cruel and unusual.”
Justice Breyer returned to this theme when he dissented yet again from a denial of certiorari, this time in the case of Rolando Ruiz, who was confined on death row for 22 years, 20 of them in solitary confinement. Ruiz claimed that his permanent solitary confinement on death row violated the Eighth Amendment, and Breyer agreed. Breyer noted the “terrible ‘human toll’ [that] is ‘wrought by extended terms of isolation.’” That toll is compounded, he claimed, by “a prisoner’s uncertainty before execution … ‘one of the most horrible feelings to which he can be subjected.’”
This term’s death-penalty opinions suggest that Breyer is intent on assuming the mantle of former Justices William Brennan and Harry Blackmun. Like them, he courageously and correctly took every opportunity to call the court’s, as well as the nation’s, attention to the day-to-day realities of our broken death-penalty system and to the ways those realities damage America’s commitments to due process, equal treatment and respect for the dignity of all of its citizens.