Recently published figures showing executions of convicts in the US at a 25-year low reminded me of Justice Breyer’s dissent in Glossip v. Gross last term, in which he makes an impeccable case that the death penalty is infliction of cruel and unusual punishment in violation of the the Eighth Amendment: https://www.law.cornell.edu/supremecourt/text/14-7955#writing-14-7955_DISSENT_6 I encourage anyone who is doubtful of the death penalty’s unconstitutionality to read it.
Because of its excellence, I wish to summarize some of his points, beginning toward his ending. Quoting Atkins v. Virginia (which quotes Enmund v. Florida), he notes that “if the 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.’” But the death penalty can’t fulfill the goal of deterrence because, as demonstrated by unequivocal evidence that Breyer cites, it actually is an unusual punishment (and thereby serving one criterion of its unconstitutionality):
. . . if 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., three 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 three 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. See Furman, 408 U. S., at 311 (1972) (White, J., concurring) (executions could be so infrequently carried out that they “would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system . . . when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied”).
Punishment by death is also unusual on the international scene, at least among developed countries: https://en.wikipedia.org/wiki/Capital_punishment_by_country#Abolition_chronology
One of the primary reasons that so many states have either repealed or abandoned their death penalty statutes is due to the stunning cost. A 2008 report by a California Commission found that the death penalty costs the state $137 million per year whereas comparable life sentences without parole would cost $11.5 million per year. A 2000 investigative report in the Palm Beach Post calculated that each execution in Florida cost an additional $23 million above a sentence of life without parole.
Going back to Breyer’s beginning, he argues 3 different grounds on which the death penalty is cruel, easily fulfilling the first prong of the Eighth Amendment’s prohibition (1) its lack of reliability; (2) its arbitrariness; and (3) the excessive delays by which it is carried out.
Breyer explains that, despite the difficulty of investigating crimes that took place long ago, the evidence is unquestionable that in just the past few decades people who have essentially been proven innocent have been executed. He cites 3 such cases, one of whom was posthumously pardoned. These executions of innocents are in addition to the many cases in which the death penalty has been unjustly imposed, including, as of 2014, 175 exonerations prior to execution. Breyer notes (his emphasis):
[E]xonerations occur far more frequently where capital convictions, rather than ordinary criminal convictions, are at issue. Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue. Exonerations 2012 Report 15–16, and nn. 24–26.
Why is that so? To some degree, it must be because the law that governs capital cases is more complex. To some degree, it must reflect the fact that courts scrutinize capital cases more closely. But, to some degree, it likely also reflects a greater likelihood of an initial wrongful conviction. How could that be so? In the view of researchers who have conducted these studies, it could be so because the 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. See Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–533 (2005); Gross & O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical L. Studies 927, 956–957 (2008) (noting that, in comparing those who were exonerated from death row to other capital defendants who were not so exonerated, the initial police investigations tended to be shorter for those exonerated); see also B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) (discussing other common causes of wrongful convictions generally including false confessions, mistaken eyewitness testimony, untruthful jailhouse informants, and ineffective defense counsel).
(Continued . . .)
Because of its excellence, I wish to summarize some of his points, beginning toward his ending. Quoting Atkins v. Virginia (which quotes Enmund v. Florida), he notes that “if the 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.’” But the death penalty can’t fulfill the goal of deterrence because, as demonstrated by unequivocal evidence that Breyer cites, it actually is an unusual punishment (and thereby serving one criterion of its unconstitutionality):
. . . if 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., three 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 three 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. See Furman, 408 U. S., at 311 (1972) (White, J., concurring) (executions could be so infrequently carried out that they “would cease to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system . . . when imposition of the penalty reaches a certain degree of infrequency, it would be very doubtful that any existing general need for retribution would be measurably satisfied”).
Punishment by death is also unusual on the international scene, at least among developed countries: https://en.wikipedia.org/wiki/Capital_punishment_by_country#Abolition_chronology
One of the primary reasons that so many states have either repealed or abandoned their death penalty statutes is due to the stunning cost. A 2008 report by a California Commission found that the death penalty costs the state $137 million per year whereas comparable life sentences without parole would cost $11.5 million per year. A 2000 investigative report in the Palm Beach Post calculated that each execution in Florida cost an additional $23 million above a sentence of life without parole.
Going back to Breyer’s beginning, he argues 3 different grounds on which the death penalty is cruel, easily fulfilling the first prong of the Eighth Amendment’s prohibition (1) its lack of reliability; (2) its arbitrariness; and (3) the excessive delays by which it is carried out.
Breyer explains that, despite the difficulty of investigating crimes that took place long ago, the evidence is unquestionable that in just the past few decades people who have essentially been proven innocent have been executed. He cites 3 such cases, one of whom was posthumously pardoned. These executions of innocents are in addition to the many cases in which the death penalty has been unjustly imposed, including, as of 2014, 175 exonerations prior to execution. Breyer notes (his emphasis):
[E]xonerations occur far more frequently where capital convictions, rather than ordinary criminal convictions, are at issue. Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue. Exonerations 2012 Report 15–16, and nn. 24–26.
Why is that so? To some degree, it must be because the law that governs capital cases is more complex. To some degree, it must reflect the fact that courts scrutinize capital cases more closely. But, to some degree, it likely also reflects a greater likelihood of an initial wrongful conviction. How could that be so? In the view of researchers who have conducted these studies, it could be so because the 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. See Gross, Jacoby, Matheson, Montgomery, & Patil, Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & C. 523, 531–533 (2005); Gross & O’Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases, 5 J. Empirical L. Studies 927, 956–957 (2008) (noting that, in comparing those who were exonerated from death row to other capital defendants who were not so exonerated, the initial police investigations tended to be shorter for those exonerated); see also B. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (2011) (discussing other common causes of wrongful convictions generally including false confessions, mistaken eyewitness testimony, untruthful jailhouse informants, and ineffective defense counsel).
(Continued . . .)
