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.