Breyer Still Point Man for Death Penalty Abolition

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Lance J. Rogers

Jan. 22 — Justice Stephen G. Breyer Jan. 21 renewed his call for the U.S. Supreme Court to re-evaluate whether the death penalty is unconstitutional.

Dissenting from the court's refusal to halt the execution of Christopher Eugene Brooks, Breyer said he would have granted the stay, and Brooks's petition for certiorari, due to the inherent flaws of Alabama's death sentencing scheme.

The flawed system and its application to Brooks, Breyer said, “only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.”

Brooks was put to death hours after the court turned him down.

‘Advisory' Verdicts

Brooks was sentenced to death in 1993 under a procedure that allows jurors to render a nonbinding “advisory verdict.”

As recent as the week of Jan. 18, the court struck down a similar scheme used in Florida, which allowed juries to give advisory verdicts, which need not be unanimous, as to aggravating factors and punishment (Hurst v. Florida, 2016 BL 7258 (U.S. 2016)) (98 CrL 333, 1/20/16).

Although that case was decided on Sixth Amendment grounds, Breyer argued there—and again in his dissent in Brooks—that the schemes violated the Eighth Amendment as well.

Justices Sonia M. Sotomayor and Ruth Bader Ginsburg didn't join Breyer, but explained in a concurrence written by Sotomayor that they only voted to deny certiorari because they believed that “procedural obstacles” would have prevent the court from granting relief anyway.

Time for Renewed Debate..

In the summer of 2015, Breyer gave hope to death penalty opponents—dubbed “abolitionists” by the court's more conservative wing—when he dissented from the decision to uphold Oklahoma's controversial lethal injection protocol in Glossip v. Gross, 2015 BL 206563 (U.S. 2015) (97 CrL 402, 7/1/15).

In his dissent Breyer, joined only by Ginsburg, called for a renewed legal debate about the death penalty itself and suggested that prevailing notions of what qualifies as “cruel and unusual” have evolved significantly since the justices revived the death penalty in Gregg v. Georgia, 428 U.S. 153 (1976).

“For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer said. It is time for the court to stop trying to “patch up the death penalty's legal wounds one at a time,” Breyer wrote.

Breyer's dissent came 43 years to the day since the court effectively voided all 40 death penalty statutes in Furman v. Georgia, 408 U.S. 238 (1972).

Although Breyer took the opportunity, in an Oct. 2 MSNBC interview, to reiterate his belief that there are sound constitutional arguments in favor of abolishing the death penalty, this marks the first time since Glossip was decided that he has revived his stance in any of the capital punishment cases being reviewed by the court. 

...But Not Anytime Soon

Given that most of the other justices have so far shown little appetite to tackle the issue head-on, it is not exactly clear when this re-examination of capital punishment will occur.

On Jan. 25, for example, the court refused to hear a Pennsylvania woman's claim that the death penalty, per se, violates the Eighth Amendment because it no longer comports with modern standards of decency (Walter v. Pennsylvania, 2016 BL 18298, U.S., No. 15-650, review denied, 1/25/16; see related story this issue). As a matter of court custom, the court will hear a case if just four of the nine justices vote to grant certiorari.

The court is next scheduled to hear argument in a death penalty case on Feb. 29, when it will take up the question of whether the Eighth Amendment is violated when a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor (98 CrL 16, 10/7/15).

To contact the reporter on this story: Lance J. Rogers in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

Request White Collar & Criminal Law News