In some ways Justice Anthony Kennedy has spent years chipping away at the death penalty. He has been a leader in the Supreme Court’s move to limit some classes of criminal defendants (for instance, juveniles) from being executed for their crimes. Keenly attuned to what the rest of the world thinks about capital punishment, he has been careful to confine the ways it is practiced in this country.
As a consequence, some have expressed hope that he is poised to do away with the death penalty altogether. He probably isn’t. Only two weeks ago, he sided with the four other conservative justices in Glossip v. Gross—a case that not only upholds the constitutionality of capital punishment but permits states to use a drug that has almost certainly resulted in a slew of excruciating botched executions. The five justices who voted to allow this practice—described in Justice Sonia Sotomayor’s dissent as “the chemical equivalent of being burned alive”—did so on the stunning legal theory that because some method of execution must be constitutional, there must be some constitutional means of carrying it out, and thus the use of the drug midazolam as part of the lethal injection cocktail must be constitutional.
So no, Kennedy is not about to take the position—advanced from the bench for the first time in a long time by Justices Stephen Breyer and Ruth Bader Ginsburg in Breyer’s lengthy dissent in Glossip—that capital punishment, as it is currently practiced, almost certainly violates the Constitution and should be abolished in the United States. But Kennedy should take that position. And if you read a surprising concurrence he recently wrote in an unrelated case, Davis v. Ayala, it’s clear that Kennedy’s own logic should get him there. His newfound concerns about the practice of ditching prisoners for decades in solitary confinement are in no way unrelated to the concerns about who we execute in America and how.
Of course capital punishment and solitary confinement are apples and oranges. As Justice Antonin Scalia was quick to point out in his concurrence in Glossip, the framers of the Constitution explicitly contemplated that executions were permissible. But if you consider the arguments laid out in Kennedy’s new, poignant call for Americans to re-examine their current solitary confinement policies, virtually every argument he makes could be applied to the death penalty as well.
The Ayala case concerned procedural matters in a capital trial; it actually has nothing directly to do with solitary confinement. But Kennedy used the occasion to write an impassioned concurrence, citing Dickens and British prison reformers, observing that the “condition in which prisoners are kept simply has not been a matter of sufficient public inquiry or interest.” He goes on to note, of the capital sentencing system as it currently exists, that “in many cases, it is as if a judge had no choice but to say: ‘In imposing this capital sentence, the court is well aware that during the many years you will serve in prison before your execution, the penal system has a solitary confinement regime that will bring you to the edge of madness, perhaps to madness itself.’ ”
One senses that it’s not just the cruelty of decades of solitary confinement that is bothering Kennedy here, but rather the inertia on the part of the American public and the legal community and what he claims to be “society’s simple unawareness or indifference.” His plea for more research, more vigilance, and more awareness of what he describes as “what comes next” following an adjudication of guilt could just as easily be deployed to ask about what comes next for those who are adjudicated guilty and then executed in ways that are painful and racially and geographically discriminatory, in a system that says more about the quality of your lawyer than the brutality of your crime. It is more than a bit ironic for Kennedy to worry about the ways capital defendants are detained in prison but to be altogether sanguine about the way they are executed.
This is why Breyer’s lengthy dissent in Glossip, calling for an end to capital punishment, seems all but written to appeal to Kennedy. As Evan Mandery, author of A Wild Justice: The Death and Resurrection of Capital Punishment in America, noted in this post for the Marshall Project, “Breyer’s tour de force exploration of the failings of the death penalty reads like what George Washington University law professor Jeffrey Rosen calls a ‘Kennedy brief’—in which ‘lawyers on both sides fall over themselves to court Kennedy’s favor by repeatedly citing the opinions of Justice Kennedy.’ ” Why is Breyer quoting death-penalty-doubter Kennedy back at death-penalty-embracer Kennedy? Because, as Mandery posits, “it seems reasonable to surmise that Breyer thinks (or at least recognizes that people might think he thinks) that Kennedy’s vote is available, and that the bar should act while the irons are hot in the fire.”
Indeed, as Mandery astutely observes, it’s no accident that Breyer’s Glossip dissent focuses on arguments about the “cruelty” of solitary confinement, explicitly citing Kennedy’s Ayala dissent, “even though solitary confinement has not traditionally been a major weapon in the artillery of constitutional arguments against capital punishment.” Why does Breyer explicitly connect the two? Because a Kennedy worried about the cruelty inherent in an arbitrary and sordid system of solitary confinement can’t be completely blind to the cruelty inherent in the arbitrary and sordid ways we administer capital punishment. Thus, Breyer begins his section on the “cruelty” of the death penalty system by noting that nearly all death penalty states keep death row inmates in isolation for “22 or more hours per day.” Breyer goes on to add that the U.N. special rapporteur on torture has called for bans on solitary confinement for longer than 15 days. (You can be sure that this citation to the U.N. is not for Scalia’s benefit).
Breyer then segues to the cruel uncertainty inherent in delaying deaths for years and years while prisoners languish in solitary. The 35 people executed in 2014 spent, on average, nearly 18 years on death row. As Breyer puts it:
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 describing a delay of a mere four 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.
In other words, Breyer is saying that if decades of delays in solitary confinement worry the humanitarian in you, then the fact that they end in capital punishment should worry you as well.
In another subtle play for Kennedy’s someday-vote, the rest of Breyer’s opinion in Glossip goes to the question of how “unusual” the death penalty has become—and this requires a ritual Counting of the States, a procedure used by Kennedy himself when he attempts to divine whether there is a “national consensus” about whether various punishments violate the cruel-and-unusual restrictions of the Eighth Amendment. When Kennedy has led the court in recent years in finding that certain classes of people (for example, juveniles or the intellectually disabled) can’t be executed because there is a national consensus against it, he has used the state-counting methodology to get there.
So, for instance, in last year’s under-the-radar case of Hall v. Florida, a case that was supposed to be about intellectual disability and the death penalty, Kennedy used some interesting math when it came time to count states. As criminal defense lawyer David Menschel pointed out at the time, Kennedy counted Oregon as a state that had abolished the death penalty even though it had been done by way of a moratorium from the governor, and he counted states that have the death penalty but don’t use it as examples of “de facto abolitionism.” In this context, Breyer’s painstaking effort to track death penalty abolition states in Glossip is a callout to Kennedy. And when Breyer counts the same states Kennedy counted as all but abolishing it in Hall, what he is saying is that Kennedy led us here, and Kennedy should finish the job.
It is hardly inconsequential that Breyer and Kennedy are, respectively, the most conservative liberal and the most liberal conservative on the court today, as David Cole pointed out recently in the New Yorker. As Cole put it: “the fact that the Court’s two most moderate Justices would, on their own, raise questions about these practices is further evidence not only that the brutality and harshness of the American criminal-justice system is out of hand but also that concern about it has reached the highest levels of government.” Breyer has had enough of the death penalty, and Kennedy has had enough of solitary confinement, and not all that much ground necessarily separates the two. If one accepts that the criminal justice system is hopelessly tainted by arbitrary and cruel policies that torture and dehumanize prisoners for no discernible reason, it’s hard to look at any one policy in isolation without seeing the cruelty and arbitrariness at work in the aggregate. And Kennedy’s principal worries about solitary confinement—that the public isn’t upset enough and that judges’ hands seem to be tied—are also true of capital punishment; the only difference seems to be that Kennedy doesn’t want to drive people mad before we kill them, and Breyer believes that our whole system for killing people is mad.
So Kennedy may not come around on the death penalty. But—after reading his own words in Ayala—he probably should. Kennedy closes with the observation that “over 150 years ago, Dostoyevsky wrote, ‘The degree of civilization in a society can be judged by entering its prisons.’ ” But the inhumanity, racial and regional disparities, and madness-inducing cruelties of the criminal justice system hardly stop at what Kennedy describes as a “windowless cell no larger than a typical parking spot.” If we are going to take seriously his call for a harder, clear-eyed look at the flaws in the criminal justice, the road to reform may start with solitary confinement, but it cannot coherently end there.