Justice Stephen Breyer hasn’t given up on working to convince his colleagues — or America — that the time has come to reconsider the constitutionality of the death penalty.



“In my view,” Breyer wrote last week in disagreeing with the Supreme Court’s decision not to hear the appeals of two inmates on Mississippi’s death row, “many of the capital cases that come before this Court ... involve, like the cases of Richard Jordan and Timothy Evans, special problems of cruelty or arbitrariness.” As such, he wrote that he “remain[s] of the view” that the court should take a case to “consider whether the death penalty as currently administered violates the Constitution’s Eighth Amendment,” which bars cruel and unusual punishments.

Breyer made the statement even as the court and country were taking in the news that Justice Anthony Kennedy, the key vote over the past two decades in cases seeking to curb uses of the death penalty, would be retiring at the end of July. Kennedy sided with the more liberal justices in several key cases limiting who is eligible for the death penalty, but regularly joined his more conservative colleagues in rejecting challenges to the method of execution a state chose to use.

While most liberals across the country were writing out their concerns about how the court’s close decisions that went to the left could be reversed under a more conservative court, Breyer was putting the final touches on his dissent regarding Jordan's and Evans’ petitions. It was not, however, a cry of defeat or even a plea from the losing side of a battle. Far from that, his statement on the day after Kennedy announced his retirement was written in a way that suggested Breyer continues to believe, at least outwardly, that he can win over his colleagues to take up the question and end the death penalty.

Three years earlier, Breyer began this effort, writing a lengthy dissent in a death penalty case out of Oklahoma, Glossip v. Gross.

In the dissent, Breyer noted that the court had previously declared that the finality of the death penalty creates a heightened “need for reliability” in decisions that death is “the appropriate punishment” in any particular case. “There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability,” he wrote, in an opinion joined by Justice Ruth Bader Ginsburg.

The unreliability question was one of three areas that Breyer spent 40 pages addressing. The second — arbitrariness — focused on data showing that the death penalty does not punish “the worst of the worst,” as intended, and that a “county-by-county disparity” exists, resulting in most death sentences across the country being imposed in a small handful of counties. The final area — “in part a problem that the Consti­tution’s own demands create,” Breyer acknowledged — is excessive delays that Breyer, like retired Justice John Paul Stevens before him, believes lead to “a third independent constitutional problem.”

For these reasons, Breyer concluded, “I believe it highly likely that the death penalty violates the Eighth Amendment.” He, with support from Ginsburg, called for a “full briefing” on that “more basic question.”

In the three years since Breyer’s Glossip dissent, the court has trudged a complicated path on the death penalty — repeatedly refusing death row inmates’ requests for the court to take up that more basic question but halting a handful of executions and at times reversing individual death sentences or specific states’ procedures due to particularly egregious circumstances.

In those times when death row inmates have succeeded before the Supreme Court over the past few years — and particularly relevant now — Chief Justice John Roberts often has joined with Kennedy and the four more liberal justices in the majority.

Throughout that time, though, Breyer regularly has weighed in to remind his colleagues of the broader path he recommends. And while some advocates were pressing for a quick resolution — bringing cases to the court regularly that posed the question — Breyer has not taken the fact that the court has not done so as a sign that he should give up the effort. Rather than issuing a dissent declaring — as others have done before him — that he is done voting to allow any executions to proceed, he instead is continuing to take each case separately and highlight those that allow him to marshal additional facts to support his long-term effort.

In the January after his Glossip dissent, Breyer noted in a case out of Alabama that the “unfairness inherent” in treating similar cases differently because of how they arrive at the justices “only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment.”

Less than a month later, Justice Antonin Scalia unexpectedly died and, for a time, it seemed that those aggressive advocates might have a path ahead. A liberal court likely was ascending, it appeared — until it wasn’t.

In the days before the 2016 election, the eight-justice court granted a stay of execution for an Alabama man, with Roberts joining the more liberal justices as a “courtesy” to allow them time to consider the inmate’s request. A month after President Donald Trump’s unexpected victory, however, the court split 4–4 on a stay request — Roberts did not provide the “courtesy” fifth vote for a stay that time — and the execution proceeded.

Trump’s election did not, however, appear to change Breyer’s efforts. In early 2017, he highlighted his geographic concerns in a case the justices declined to hear — noting in dissent that the case had come to the justices from Caddo Parish in Louisiana, “a county that in recent history has apparently sentenced more people to death per capita than any other county in the United States.”

The addition of Justice Neil Gorsuch to the court, as well, did not lead to a change in Breyer’s "steady ahead" approach.

In another case where the court was constrained from reviewing the inmate’s claims due to limits on federal review of state criminal convictions, Breyer, in November 2017, reiterated his concerns about how the length of time people spend on death row creates new problems in a case in which the inmate “lived nearly half of his life on death row.”

Noting how many death row inmates facing execution are now older or even elderly, Breyer wrote of the practical concerns: “Rather than develop a constitutional jurisprudence that focuses upon the special circumstances of the aged, however, I believe it would be wiser to reconsider the root cause of the problem — the constitutionality of the death penalty itself.”

In March of this year, Breyer — joined by all three of his liberal colleagues — detailed the ways in which Arizona’s death penalty law, which includes so many circumstances as “aggravating factors” that almost all people convicted of murder are eligible for the death penalty, raises “an important Eighth Amendment question.”

The statement didn’t raise the broader question of whether the death penalty is ever constitutional. Instead, it focused on that “narrowing requirement” and included a request to get more “empirical evidence,” as Breyer put it, before the court on the issue. With four justices on board, enough to have granted the case if they desired to do so, the side-stepping statement appeared to be an effort to get lawyers to make a stronger evidentiary argument advancing the arbitrariness concerns that Breyer detailed in his Glossip dissent before having the full court hear — and vote on — the arguments on the issue.