Time to re-examine the death penalty

Supreme Court Justice Stephen Breyer disagreed with the court majority Monday when it said states could continue using a key drug in lethal injections — but his stand on that case was not what he wanted to write about in his dissenting opinion.

Instead, Breyer laid out a powerful case against the death penalty. His 20 years hearing death-penalty appeals, he said, have left him weary of its fundamental flaws.

“But rather than try to patch up the death penalty’s legal wounds one at a time,” he wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

He wants to reopen the can of worms the court last sealed in 1976 when it said states could resume executions with “safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily.”

Almost 40 years have shown that effort to be a constitutional failure, and the death penalty “now likely constitutes a legally prohibited ‘cruel and unusual punishment,’” Breyer wrote.

The court should listen to him and bring the issue back for full re-examination.

Three “constitutional defects” have evolved in those 40 years:

▪ Serious unreliability. Last year alone, six Death Row inmates were shown to be innocent. All had been in prison for more than 30 years at the time of their exoneration.

▪ Arbitrariness. Evidence shows common factors in executions are not that these are the most egregious murders but that they were committed by minorities, that they occurred in a very small number of U.S. counties, or that the victims were white.

▪ “Unconscionably long delays” that obliterate any deterrent effect. The 35 executions in 2015 came an average of nearly 18 years after the sentence was initially pronounced. That delay has grown from just two years in 1960.

But, he added, “a death penalty system that minimizes delays would undermine the legal system’s efforts to secure reliability and procedural fairness.”

Three states (Texas, Missouri and Florida) accounted for 80 percent of the executions last year. Even in Texas, the leading state, executions fell from 40 in 2000 to 10 last year.

The issue is ripe for reconsideration.

This story was originally published June 30, 2015 at 5:55 PM with the headline "Time to re-examine the death penalty."