THE BOYS' BRIGADE

The U.S. Supreme Court Justices

Justices Breyer and Ginsburg: 'It is highly likely' the death penalty is unconstitutional

The Supreme Court's decision on Monday to uphold a controversial lethal injection procedure used by Oklahoma was reached because the 5 justices in the majority were not swayed by arguments that a particular sedative caused executions that could be deemed cruel and unusual punishment.

But in 1 of the dissents, Justice Stephen G. Breyer said he disagreed with the decision before moving on to a much larger question: Is the death penalty itself unconstitutional?

"I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer wrote. "At the very least, the Court should call for full briefing on the basic question."

In a 41-page dissent - longer than the majority opinion authored by Justice Samuel A. Alito Jr. - Breyer, who was joined by Justice Ruth Bader Ginsburg, wrote that country's use of the death penalty has dramatically changed since the court upheld capital punishment in 1976.

He went on to say that these changes, combined with his 2 decades on the high court, have convinced him that the death penalty likely violates the Eighth Amendment prohibition against cruel and unusual punishment.

"In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems," Breyer wrote. "Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed."

In his dissent, Breyer pointed to several issues that he said create constitutional problems with the death penalty. These problems, which are familiar to anyone who follows the death penalty in the United States in recent years, combine to show "a serious problem of reliability," Breyer wrote.

Meanwhile, in response to Breyer's dissent, Justices Antonin Scalia and Clarence Thomas each filed an opinion dismissing these arguments, both criticizing him for suggesting that the judiciary - rather than the people - should abolish the death penalty. Scalia, who is known for his fiery opinions, wrote that Breyer "does not just reject the death penalty, he rejects the Enlightenment."

Breyer, in his dissent, highlighted cases of innocent people who have been sentenced to death over the years, including men in Louisiana and North Carolina who spent three decades on death row before being released. (Most Americans - including big majorities of those who favor and oppose the death penalty - agree that innocent people can be put to death under the current system.) In addition, Breyer pointed to the FBI's admission that its forensic examiners gave flawed testimony that resulted in more than 30 death sentences.

But Breyer also raised another concern that has been discussed before, most notably in a federal judge's order last year - that of a system functioning arbitrarily. He cited studies that have found differences in how death sentences are handed down depending on the race of the victims and the accused, and he noted that he has found, after looking at thousands of death penalty cases, "discrepancies for which I can find no rational explanation."

"The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary," he wrote. "From a defendant's perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning."

He also pointed to another reality for people sentenced to death - what he termed the "unconscionably long delays that undermine the death penalty's penological purpose." People sent to death row are unlikely to be executed in a timely manner, if at all, owing to a combination of appeals, problems with carrying out executions and exonerations.

Death-row inmates across the country have spent an average of 14 years there, while the number of executions has been steadily dropping. The death-row population has been shrinking, but not because of executions; rather, inmates are leaving death row because courts are overturning their sentences or convictions, or they are dying of other causes. Indeed, Breyer said that these long stints are themselves troubling, because the inmates are generally in isolation, and solitary confinement has been found to cause catastrophic psychological effects.

As an example of the practice's declining usage, Breyer noted the recent news that Nebraska just became the 19th state to formally abolish the death penalty (in addition to other states where executions are on hold or have not taken place for years). He also said that the "unusual" part of cruel and unusual is borne by the increasing rarity of executions: The number of inmates put to death each year continues to shrink, dropping last year to the lowest number in 2 decades, and these executions are taking place in an increasingly small pool of places. Last year, 4 out of 5 executions occurred in just 3 states (Texas, Missouri and Florida). Rare executions, and capital sentences that are never implemented at all, Breyer wrote, undermine the concept of a death sentence as a means of deterrence or retribution.

Still, Breyer acknowledged the dilemma posed by a fair system - one that has courts reviewing death sentences at every level - because that system will also carry with it inevitable delays. This is what he said ultimately backs up the idea that the death penalty violates the Constitution.

"In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application," he wrote. "We cannot have both."

Breyer said he understands the argument allowing for states to make their decisions. But, he wrote, the last four decades have shown that responses from the states have not worked.

Source: Washington Post, June 29, 2015

In a Brave, Powerful Dissent, Justice Breyer Calls for the Abolition of the Death Penalty

Justice Stephen Breyer

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?

Predictably, Breyer's dissent sends Scalia and Clarence Thomas into fits of rage. Scalia asserts that Breyer "rejects the Enlightenment" and "takes on the role of the abolitionists in this long-running drama." Thomas details the grisly murders with which several death row inmates were charged, as if to say that, no matter how painful their punishment, they'll get what they deserve.

But neither justice really contends with the moral passion and legal logic that Breyer carefully lays out in his opinion. Like Justice Harry Blackmun before him, Breyer has decided that the Constitution can no longer condone America's peculiar practice of state-sanctioned murder. The machinery of death may grind on. But Justice Breyer dissents.

Source: vox.com, June 29, 2015

Justice Scalia: The death penalty deters crime. Experts: No, it doesn't.

Justice Antonin Scalia

In upholding Oklahoma's use of a controversial lethal injection drug on Monday, Justice Antonin Scalia wrote that it seems "very likely" to him that the death penalty deters crime, and he cherry-picked several studies in his defense. But what seems "very likely" to Scalia apparently doesn't seem so likely to criminologists and other experts who have studied this issue.

The Death Penalty Information Center, one of the top nonpartisan sources for information about capital punishment, summarized a 2009 survey in which a large majority of criminologists said the death penalty isn't proven to deter homicides:

88 % of the country's top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a new study published in the Journal of Criminal Law and Criminology and authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder, and Traci Lacock, also at Boulder.

Similarly, 87% of the expert criminologists believe that abolition of the death penalty would not have any significant effect on murder rates. In addition, 75% of the respondents agree that "debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems."

The survey relied on questionnaires completed by the most pre-eminent criminologists in the country, including Fellows in the American Society of Criminology; winners of the American Society of Criminology's prestigious Southerland Award; and recent presidents of the American Society of Criminology. Respondents were not asked for their personal opinion about the death penalty, but instead to answer on the basis of their understandings of the empirical research.

Part of the issue here is that the research on the death penalty's deterrent effect - including the studies that Scalia cited - is, frankly, terrible, because it's so difficult to pull out other mitigating factors that might contribute to crime. We know, for example, that states without the death penalty tend to have lower murder rates than those with the death penalty. But how much of that is related to the death penalty, or the numerous other contributors to crime and homicide rates, such as socioeconomic issues or even the amount of lead in gasoline?

Still, the overall body of research suggests there is no deterrent effect. A February 2015 review of the research by the Brennan Center for Justice found no evidence that the death penalty had an impact on crime in the 1990s and 2000s, and it concluded that the studies that suggested there was a deterrent effect were methodologically weak.

Why doesn't the death penalty pose a deterrent effect? One would think that a would-be killer would at least consider the possibility that he may be executed. But the Brennan Center for Justice report suggested that this misunderstand the thinking of most killers:

[I]t is debatable whether an individual even engages in such objective calculations before committing a crime. Much psychological and sociological research suggests that many criminal acts are crimes of passion or committed in a heated moment based only on immediate circumstances, and thus potential offenders may not consider or weigh longer-term possibilities of punishment and capture, including the possibility of capital punishment.

So Scalia may think it's "very likely" that the death penalty deters crime, and he may be able to find a few studies that suggest as much. But the criminologists and experts who have looked at the overall body of evidence have come to starkly different conclusions.

Source: vox.com, June 29, 2015

What The Supreme Court Just Did To The Death Penalty

Glossip v. Gross is a crushing blow to opponents of the death penalty. The narrow issue in this case is whether a particular drug that Oklahoma wants to use in executions sufficiently dulls inmates pain that the intense suffering caused by the remainder of the state's lethal drug cocktail does not amount to cruel and unusual punishment. Yet the Court's 5-4 decision goes well beyond this narrow question. It effectively enlists death row inmates' attorneys to become agents of their clients' demise. And it elevates the death penalty to a kind of super-legal status that renders it impervious to many constitutional challenges.

Glossip opens with the 8 most frightening words a liberal will ever read: "JUSTICE ALITO delivered the opinion of the Court." In characteristic fashion, Alito uses his opinion to pry open gaps in the Court's precedents that lead to extraordinarily conservative outcomes. By the time he is done, some of the most important victories for death penalty opponents in the last several years have been transformed into defeats.

At oral arguments, Alito was openly contemptuous of the work of death penalty opponents - many of whom work for companies that manufacture drugs that various states would like to use in their execution protocols. The reason why Oklahoma was in court seeking the ability to use a painkiller of questionable reliability in its executions is because many drug companies have refused to sell their products to states if those states intend to use them to kill a human being. During arguments in this case, Alito labeled this effort a "guerrilla war against the death penalty."

As a legal matter, it is not at all clear why the actions of drug companies have any relevance whatsoever to a constitutional challenge to the death penalty. Drug companies are private actors, not government actors, so they are free to sell or not to sell whatever they choose so long as they comply with the law. Alito's opinion, however, effectively punishes these drug companies for their opposition to the death penalty by holding that, should the companies continue to make their more reliable drug unavailable, then executions will just move forward with less reliable painkillers.

The key paragraph in Alito's opinion is a declaration that, no matter what happens, there must always be a way to execute inmates:

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, "[i]t necessarily follows that there must be a [constitutional] means of carrying it out." And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

Ordinarily, lawsuits claiming that a particular method of punishment is unconstitutionally cruel and unusual limit their focus to a narrow question - whether the specific method used by the state is cruel and unusual or not. With this one paragraph, Alito turns that analysis on its head. Now, there must always be a method of execution available to the state. And if the only method available inflicts cruel and unusual amounts of pain on an inmate, that's not the Court's problem.

As a final blow to anti-death penalty advocates, Alito effectively drafts them into the task of determining how their clients should be killed. Alito reaches his conclusion, at least in part, "based on petitioners' failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution." In other words, a lawyer challenging a particular method of execution must name another, alternative method that can be used instead. Needless to say, this places attorneys who have an obligation to represent the interests of their client in a serious ethical bind.

Rejecting Alito's conclusion that if all methods of execution are unconstitutional then some method must be allowed, Justice Stephen Breyer writes in dissent that the opposite is true. "[R]ather than try to patch up the death penalty's legal wounds one at a time," Breyer writes, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution."

Source: thinkprogress.org, June 29, 2015

SCOTUS Deeply Divided In Fractured Rulings on Death Penalty

The Court upheld a controversial execution method, but 2 justices said it's time to review whether the death penalty is unconstitutional.

The Supreme Court upheld a controversial execution method Friday, even as 2 justices said it's time to reconsider whether the death penalty is unconstitutional in the first place.

The justices were sharply and sometimes personally at odds in a 5-4 ruling that ultimately upheld the use of a particular lethal-injection cocktail. But one dissenter said the Court's ruling opened the door to all sorts of "barbarous" punishments, while 2 of the Court's liberal members said it's time to revisit the basic question of whether capital punishment is even constitutional in the first place.

4 justices - 2 from each side - read parts of their decisions aloud from the bench on Friday, a highly unusual development that only underscored the deep divisions on the Court. (Even in high-profile, highly charged issues like same-sex marriage, the maximum is usually 2 oral statements.)

Justices Stephen Breyer and Ruth Bader Ginsburg said not only that they disagreed with the Court's decision Friday, but that they would go a step further and reopen the question of whether the death penalty itself violates the Eighth Amendment's ban on "cruel and unusual punishment."

Although the Court has upheld the death penalty before, times have changed, Breyer argued. Justice Antonin Scalia wrote a separate, concurring opinion largely to fight with Breyer.

"The response is ... familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good," Scalia wrote. "Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible."

Ostensibly, Friday's case was about the use of the drug midazolam. Midazolam is used as the 1st drug in a 3-drug cocktail for some lethal injections. It's an anesthetic, designed to put inmates into a deep coma-like state so they can't feel the pain of the drugs that actually kill them.

But midazolam does not always work.

When Oklahoma first used midazolam in an execution, the inmate, Clayton Lockett, was declared unconscious after receiving a dose of midazolam. But a few minutes later, after he had received the 2nd drug, which causes paralysis, he woke up, began to thrash around, and even said, "The drugs aren't working." Still, the Court said Friday, the use of the drug is not unconstitutional.

Source: National Journal, June 29, 2015

The 20 Best Lines from the Supreme Court Dissent Calling to End the Death Penalty

Enough is enough, says Justice Stephen Breyer.

The case before the Supreme Court concerned a specific question: was a certain sort of capital punishment via lethal injection constitutional? In a decision issued Monday morning, the 4 conservative justices plus swing-vote Justice Anthony Kennedy said yes, and Justice Sonia Sotomayor wrote a dissenting opinion for the court's liberals taking the opposite position. But in a stinging dissent of his own, Justice Stephen Breyer, who was joined by Justice Ruth Bader Ginsburg, went much further: he called for abolishing the death penalty, contending that capital punishment, as it is currently practiced, violates the Constitution. His opinion was methodically argued and chock full of research (on exonerations, various disparities in the application of the death sentence, and more). Breyer, who in 2008 sided with the court majority in upholding the use of lethal injections in Kentucky, noted that his own experience overseeing capital punishment cases has led him to a forceful and passionate position: the death penalty must go.

Here are the best passages from his opinion.

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today's administration of the death penalty involves 3 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.

I shall describe each of these considerations, emphasizing changes that have occurred during the past 4 decades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited "cruel and unusual punishmen[t]." U. S. Const., Amdt. 8.

* * *

[R]esearchers have found convincing evidence that, in the past 3 decades, innocent people have been executed.

* * *

[T]he evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking. As of 2002, this Court used the word "disturbing" to describe the number of instances in which individuals had been sentenced to death but later exonerated. At that time, there was evidence of approximately 60 exonerations in capital cases....Since 2002, the number of exonerations in capital cases has risen to 115......Last year, in 2014, 6 death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations.

* * *

[T]he crimes at issue in capital cases are typically horrendous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.

* * *

[R]esearchers estimate that about 4% of those sentenced to death are actually innocent.

* * *

[B]etween 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them.

* * *

This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime....Unlike 40 years ago, we now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before. In sum, there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law's view) do not warrant the death penalty's application.

* * *

Thus, whether one looks at research indicating that irrelevant or improper factors - such as race, gender, local geography, and resources - do significantly determine who receives the death penalty, or whether one looks at research indicating that proper factors - such as "egregiousness" - do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.

* * *

The studies bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations...Why does one defendant who committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and an after-the-fact robbery), while another defendant does not, despite having kidnapped, raped, and murdered a young mother while leaving her infant baby to die at the scene of the crime...Why does one defendant who committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and acting recklessly with a gun), while another defendant does not, despite having committed a "triple murder" by killing a young man and his pregnant wife?... For that matter, why does one defendant who participated in a single-victim murder-for-hire scheme (plus an after-the-fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?... In each instance, the sentences compared were imposed in the same State at about the same time.

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: 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?

* * *

[N]early all death penalty States keep death row inmates in isolation for 22 or more hours per day....This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days... And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and "Supermax" Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloging studies finding that solitary confinement can cause prisoners to experience "anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations," among many other symptoms)

* * *

The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it."... The Court was there describing a delay of a mere 4 weeks. In the past century and a quarter, little has changed in this respect - except for duration. Today we must describe delays measured, not in weeks, but in decades.

* * *

The 2nd constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty's penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society's need to secure deterrence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment - namely, life in prison without possibility of parole - also incapacitates.

* * *

Recently, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect and thus should "not be used to inform" discussion about the deterrent value of the death penalty.

* * *

Sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community's interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty.... In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits.

* * *

The upshot is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the death penalty does not fulfill the goals of deterrence or retribution, "it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment."

* * *

And that fact creates a dilemma: A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place...(one of the primary causes of the delay is the States' "failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentencing"). But a death penalty system that minimizes delays would undermine the legal system's efforts to secure reliability and procedural fairness.

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty's application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death penalty violates the Eighth Amendment.

* * *

The Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only 7 States carried out an execution. Perhaps more importantly, in the last 2 decades, the imposition and implementation of the death penalty have increasingly become unusual.

* * *

[I]f we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., 3 States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last 3 years. And if we look to counties, in 86% there is effectively no death penalty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole.

* * *

I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legislators, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here....

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. They concern the infliction - indeed the unfair, cruel, and unusual infliction - of a serious punishment upon an individual.

* * *

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.

Source: Mother Jones, June 29, 2015

Supreme Court Justice Calls Death Penalty Drug "Equivalent of Being Burned at the Stake"

On Monday the Supreme Court upheld the use of the drug midazolam for lethal injections in a 5-4 decision that pitted the 5 conservative justices against the 4 liberal ones. Justice Sonia Sotomayor, who wrote her own dissent, argued that the use of the drug, which prolongs the execution process and sometimes doesn't work at all, was in violation of the Eighth Amendment's prohibition on "cruel and unusual punishment." Then she went a step further, comparing the drug to a more notorious form of punishment - the burning of heretics at the stake:

[T]he Court today turns aside petitioners' plea that they at least be allowed a stay of execution while they seek to prove midazolam's inadequacy. The Court achieves this result in 2 ways: 1st, by deferring to the District Court's decision to credit the scientifically unsupported and implausible testimony of a single expert witness; and 2nd, by faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions. On both counts the Court errs. As a result, it leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.

Later in her dissent, Sotomayor added a few more comparisons for good measure. "Under the Court's new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."

Justice Stephen Breyer, in a separate dissent, went a step further, arguing that the death penalty itself might be unconstitutional.

Source: Mother Jones, June 29, 2015

Antonin Scalia Compares Death Penalty Opponents to Marie Antoinette

Criticism of capital punishment reflects "a let-them-eat cake obliviousness to the needs of others," he says.

Justice Antonin Scalia

The Supreme Court's Monday ruling in favor of a controversial lethal injection drug gave the court's dissenting liberal justices an opportunity to argue against the constitutionality of the death penalty in general. That led conservative Scold-In-Chief Antonin Scalia, to reach deep into the history books - from Shakespeare to the Enlightenment to the French Revolution - to attack one of the dissenters, Stephen Breyer, for his opposition to capital punishment.

"Welcome to Groundhog Day," Scalia writes at the start of his concurrence to the ruling upholding Oklahoma's use of a sedative that's been responsible for multiple botched executions. In a "familiar" response, Scalia says, death penalty abolitionists like Breyer latch onto suspicious new studies "as though they have discovered the lost folios of Shakespeare [and] insist that now, at long last, the death penalty must be abolished for good."

Scalia sounds particularly perturbed by Breyer's citation of the long delays before execution as a reason to ditch the death penalty, as Scalia accuses the liberals on the court of being the cause of those delays. Breyer's "invocation of the resultant delay as grounds for abolishing the death penalty," Scalia writes, "calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan."

Scalia writes that Breyer "rejects the Enlightenment." His disdain for the abolitionist call from Breyer and Justice Ruth Bader Ginsburg reaches its most fevered pitch midway through the concurrence. Channeling almost Occupy Wall Street-style language bashing the out-of-touch 1 %, Scalia says the court's wealthy justices can't comprehend the fear that pervades Real America. "[W]e federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door," he writes. "We are not confronted with the threat of violence that is ever present in many Americans' everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate."

Source: Mother Jones, June 29, 2015

Amnesty International USA Responds to Supreme Court Decision on Lethal Injection

Steven W. Hawkins, executive director of Amnesty International USA, had the following reaction to today's decision by the Supreme Court regarding lethal injection:

"This decision does not change the fact that regardless of the method of execution, the death penalty is broken beyond repair. The death penalty is the ultimate violation of human rights. The Court's decision today will not resolve the death penalty's fundamental flaws, including the risk of executing a wrongfully convicted person. The only discussion should be how to put an end to this cruel, inhuman and degrading punishment once and for all."

Source: Amnesty International USA, June 29, 2015

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