The death penalty looks like it may be on the decline due to a victory in the United States Supreme Court. A couple of U.S. Supreme Court Justices are pointing out how the death penalty is unconstitutional, citing the Eighth Amendment–part of the U.S. Bill of Rights, in the U.S. Constitution.

Though U.S. Supreme Court Justices recently upheld the use of midazolam, a sedative that is linked to three botched executions that were carried out in the past 18 months, a few justices contend that perhaps the death penalty is unconstitutional.

On one hand, The Atlantic reports that three condemned inmates in the Glossip v. Gross trial failed to prove that the drug carried a “substantial risk of harm.”

Justice Samuel Alito wrote the following for a 5-4 majority ruling.

“Because capital punishment is constitutional, there must be a constitutional means of carrying it out.”

On the other hand, a principal argument and dissent by Justice Sonia Sotomayor cites her complete rejection of Alito’s stance on the death penalty and argues as follows.

“Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means.”

In addition to Justice Sotomayor’s argument, surprisingly, Justices Stephen Breyer and Ruth Bader Ginsburg filed a separate dissent that called on the Supreme Court to re-examine whether the death penalty is, in fact, constitutional.

Here is an excerpt of the argument by the justices.

“In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed.”

The justices pointed out why the death penalty’s constitutionality is in question.

“Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”

Justice Breyer’s belief that it was “highly likely” that the death penalty is in violation of the Eighth Amendment is explained in 41 pages of her argument.

“At the very least, the Court should call for full briefing on the basic question.”

The death penalty is referenced alongside the Eighth Amendment quite often, according to Cornell University Law School.

The Eighth Amendment prohibits “cruel and unusual punishments” and reads as follows.

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

According to The Atlantic report, the dissents made by the Supreme Court Justices don’t mean the death penalty’s abolition is inevitable.

The justices can easily deny a petitioner’s appeal. They can also raise the legal threshold for method-of-execution challenges and without much difficulty.

Furthermore, it may be an intricate and complex measure for pharmaceutical companies to manufacture new drugs to perform executions.

2015 U.S. Supreme Court Justices. Back: Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, Elena Kagan. Front: Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg. (Photo courtesy of Bridge Builders)

Nevertheless, it is unmistakable public and judicial support for the death penalty is declining.

[Feature image via Cathleen Falsani]