What's wrong with executions? Breyer offers opinions; 6 capital convictions to be reviewed
Justice Stephen G. Breyer has a couple reasons why he wants to hear arguments from both sides on the constitutionality of capital punishment.
Breyer called for briefing on the issue in a dissent, joined by Justice Ruth Bader Ginsburg, in a June decision that upheld the use of the execution drug midazolam. In an interview with MSNBC, Breyer explained why he’s ready to examine the issue.
Sometimes the wrong person is convicted in a capital case, he said, and sometimes the person executed isn’t the most deserving of the death penalty. “Often it’s very arbitrary as to who gets executed—it’s not the worst of the worst, very often,” he said.
“The risk of arbitrariness is so great, and the risk of the risk of the wrong person is enough, and the length of time [between conviction and execution] is so long, it’s like being hit by lightning 40 years later,” he said. “And all that put together convinced me that there is a good case to be made under the constitutional provision, is it a cruel and unusual punishment.”
The Supreme Court has so far agreed to hear capital punishment cases involving six defendants in the term that begins on Monday, the Wall Street Journal (sub. req.) reports.
“None of the death penalty cases scheduled so far represents a full-on assault on capital punishment,” according to the Wall Street Journal. “Instead the court has taken cases that give them the opportunity to calibrate capital punishment, as it has done in fits and starts since reaffirming the death penalty as constitutional in 1976.”
Two Kansas cases reach the Supreme Court on Wednesday. At issue in one case is whether two brothers convicted in the deaths of five people should have received separate sentencing hearings. At issue in that case and a second Kansas case is whether a trial judge should have instructed jurors that mitigating factors in the death penalty determination need not be found beyond reasonable doubt.
In October, the court will consider whether Florida judges have too much discretion in capital sentencing. In November the court will hear a case involving peremptory strikes of prospective black jurors. Another pending case, granted last Thursday, considers whether a Pennsylvania Supreme Court justice should have recused himself in a death penalty case because he approved the capital prosecution when he was district attorney.
Hat tip to How Appealing.
Related article:
ABA Journal: “Will the Supreme Court ‘peck away at’ capital punishment?”
