WASHINGTON (CN) — Justice Stephen Breyer is marking his last few weeks at the Supreme Court pushing for his colleagues to take up a constitutional challenge of the death penalty. Like some of his predecessors, the Clinton appointee’s view on capital punishment has changed over time — a trend experts say comes from exposure to flaws in the country’s system of capital punishment.
During his last term on the court, Breyer has repeatedly written statements respecting the court’s decision to not hear death penalty cases but reminding the court that he thinks the issue as a whole needs more attention.
“While I recognize, as I did in 2017, that procedural obstacles make it difficult for us to grant certiorari here, I continue to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered,” Breyer wrote in a statement on Monday.
Such pronouncements are a continuation of views Breyer first expressed in his 2015 dissent in Glossip v. Gross. Breyer’s Glossip opinion marked a shift in his views on capital punishment and he is not the only justice to change their stance on the issue.
“If you aggregate all the justices who said the death penalty is not constitutional after they had voted otherwise, the death penalty would have been declared unconstitutional,” Robert Dunham, executive director of the Death Penalty Information Center, said in a phone call.
Justice Harry Blackmun famously said, “I no longer shall tinker with the machinery of death” after a 20-year struggle over the issue. Justice John Paul Stevens joined the majority in Gregg v. Georgia and Jurek v. Texas but later came to regret those votes, renouncing the death penalty as a “pointless and needless extinction of life” in 2008. Justice Lewis Powell, whose 1986 vote saved the death penalty in McCleskey v. Kemp, wrote that he regretted his vote after his retirement and said capital punishment should be abolished.
Experts say this trend is influenced by how involved the justices are with death penalty cases.
“What happens is that in this job they touch virtually every case that gets to the point of execution, and sometimes multiple times. … They're very exposed to the death penalty, and if they're paying attention and being honest with themselves, they're going to unavoidably learn that the death penalty is a study in contradictions — contradictions between the supposed rule of law in a select number of states and the protections of our Constitution,” Brian Stull, senior staff attorney at the ACLU Capital Punishment Project, said in a phone call.
The court’s jurisprudence on capital punishment says the death penalty should be reserved for the worst crimes but experts who study the issue say those who are often sentenced to death also have the worst legal representation. This sentiment was also expressed by Justice Ruth Bader Ginsberg.
“People who are well represented at trial do not get the death penalty,” Ginsburg said in 2001. “I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”
A big influence on the justices’ changing views on the death penalty could be the number of convictions that get overturned. Justice Antonin Scalia infamously rebuked Blackmun’s questioning of the death penalty by pointing to Henry McCollum as an example of a guilty murderer who should be executed. After almost 30 years on death row, McCollum was exonerated by DNA evidence. Since 1973, 186 death-row prisoners have been exonerated of all charges, according to data from the Death Penalty Information Center.
Many of the justices who have changed course on their opinions on capital punishment are often more senior members of the court.
“When we see justices issuing opinions saying that they believe the death penalty is, per se, cruel and unusual punishment, we're talking about justices who have been on the court for a long time,” Dunham said.
Powell changed positions after he retired, and Blackmun wrote his “machinery of death” opinion the same year he retired. Breyer stands out as one of the few to question the death penalty a while before his retirement but, now that he plans to step down this term, it is unclear if any justice on the court will pick up the torch to continue bringing this issue to light.
Experts see this court’s rulings around the death penalty as very conservative and more focused on prisoners' access to federal judicial review of their cases.
“This Supreme Court is not going to be considering questions relating to the systemic unconstitutionality of capital punishment,” Dunham said. “This Supreme Court has a conservative supermajority that is more interested in closing the federal courtroom doors, and that's what it’s been granting review on. It's been granting review to chisel away at death row prisoners’ access to federal judicial review of their cases.”
That said, however, experts who have studied each of the justices who have flipped positions on the issue say it's possible that some justices on the court may follow the lead of their predecessors.
“I don't foresee this court anytime soon remotely contemplating declaring the death penalty unconstitutional, but that doesn't mean that one or two or even three of the members of the conservative supermajority change their views on at least some of the practices that they see happening,” Dunham said.
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