Glossip v. Gross - Opinion Announcement - June 29, 2015 (Part 3)

Glossip v. Gross

Media for Glossip v. Gross

Audio Transcription for Opinion Announcement - June 29, 2015 (Part 1) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 2) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 4) in Glossip v. Gross
Audio Transcription for Oral Argument - April 29, 2015 in Glossip v. Gross

Audio Transcription for Opinion Announcement - June 29, 2015 (Part 3) in Glossip v. Gross

Stephen G. Breyer:

While Justice Ginsburg and I join Justice Sotomayor's dissenting opinion, we have also filed a separate dissenting opinion of our own.

In that opinion we state our belief that the time has come for the Court to again consider a more basic question, whether the death penalty itself is constitutional?

Now, what has changed since the Court last asked this same question in 1972, in Furman v. Georgia the Court held that certain death penalty statutes were unconstitutional, primarily because of procedural inadequacies.

Then four years later, in Gregg v. Georgia the Court moved in the opposite direction, finding other death penalty statutes constitutional, primarily because in the Court's view they contain sufficient procedural protections.

Now, since that time 40 years of experience with those procedures and protections, we believe, shows that they do not work, and for that reason we think it highly likely that the death penalty is now violative of the Constitution.

I shall highlight here briefly four special difficulties in considerations that 40 years of experience reveals and which the lengthy opinion we file discusses in considerable detail.

First, reliability or accuracy.

Since Gregg this Court has recognized that the “finality of the death penalty” creates the need for greater reliability in its imposition.

Yet, we now have persuasive evidence, 1, that innocent individuals have been executed; 2, that more than a hundred individuals convicted of capital crimes and sentenced to death have later been fully exonerated; and 3, that the rate of procedural error in capital trials is alarming, well over 60%.

Second, arbitrariness; arbitrariness is the antithesis of the rule of law.

It was the principal basis on which this Court initially concluded about 40 years ago in Furman that the death penalty as then administered was unconstitutional.

Numerous studies have demonstrated that application of the death penalty remains arbitrary.

Factors that should affect application of the death penalty often do not do so; for example, the special egregiousness of a crime.

Factors that should not affect imposition of the death penalty often do so; for example, race, gender and geography.

Third, delays; the average execution last year occurred almost 18 years after the individual was sentenced to death.

That's the average.

This type of lengthy delay creates two independent constitutional problems.

First, that kind of lengthy delay can itself be cruel; and second, it undermines the principle penological rationales for the death penalty.

Consider that second problem of rationales.

Insofar as executions take place decades after the death sentence is imposed, the execution no longer serves its basic justifying purposes, deterrence and retribution, but if executions were conducted swiftly, then we would see serious error creep in.

For example, last year Henry Lee McCollum was exonerated by DNA evidence after spending 30 years on death row.

If his death sentence had been carried out in 10 or even 20 years, McCollum would not have lived to witness his exoneration.

In some, administration of the death penalty can take place swiftly, but unreliably, or it can take place with long delays, but then without significant justifying purpose.

We cannot have it both ways.

And given that fact, it is difficult to see how the death penalty can be reconciled with the Constitution's basic demands.

Fourth, perhaps in light of the three considerations I have just mentioned, many jurisdictions within the United States have abandoned the death penalty.

19 states have abolished it, most recently Nebraska.

Last year, 2014, only seven states conducted an execution, in 43 states there were none.

Moreover, the practice is largely limited to a small and diminishing subset of counties and the trend line is clear.

Texas, for example, the state most associated with the death penalty has seen a sharp decline.