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UNITED STATES OF AMERICA: Supreme Court Upholds Use of Execution Drug, but Two Justices Question Constitutionality of Death Penalty Itself

10 Jul 2015
[International Secretariat]
Region: UNITED STATES OF AMERICA
Topic: Abolition of the Death Penalty

“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution… I believe it highly likely that the death penalty violates the Eighth Amendment.” US Supreme Court Justice Stephen Breyer, joined by Justice Ruth Ginsburg, Glossip v. Gross, 29 June 2015.

In a five-to-four ruling, the US Supreme Court has upheld the use of midazolam in Oklahoma’s three-drug lethal injection protocol. Executions in those states that have adopted this drug, including Oklahoma and Florida, are likely to move to resume executions after pausing in their killing while the decision was pending.

Amnesty International reiterates its call on the political branches of government in all the death penalty states of the USA, as well as at the federal level, to impose a moratorium on executions across the country, with a view to abolishing the death penalty altogether. This is a punishment that should have been consigned to history long ago.

Of particular note in the Glossip v. Gross ruling is a detailed dissent written by Justice Stephen Breyer, and joined by Justice Ruth Bader Ginsburg. Between them, these two Justices have more than four decades of experience on the Court. The dissent calls for the Court to hear arguments about the constitutionality of the death penalty per se, regardless of execution method. Justice Breyer concludes by revealing that he belives it “highly likely” that the death penalty violates the constitutional ban on “cruel and unusual punishments”.

Justice Breyer took his seat on the court in August 1994.

His 20 years of experience on the Court, Justice Breyer said, have contributed to his current belief that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment’”.

On the reliability question, Justice Breyer pointed to “convincing evidence” found by researchers indicating that “in the past three decades, innocent people have been executed. He also noted the more than 150 cases since 1973 of people who had been sentenced to death and later exonerated. There would appear to be a “serious problem of reliability” in the application of the death penalty in the USA, he wrote.

On arbitrariness, the dissent points to studies showing that.

“the factors that most clearly ought to affect application of the death penalty – namely, comparative egregiousness of the crime – often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do”.

After giving some examples of the length of time prisoners are being held on death row, Justice Breyer noted that “nearly all death penalty States keep death row inmates in isolation for 22 or more hours per day.” The “dehumanizing effect of solitary confinement”, he continued, is “aggravated by uncertainty as to whether a death sentence will in fact be carried out”. The lengthy delays in carrying out the punishment “aggravate the cruelty of the death penalty”, he asserted, and “it is not surprising that many inmates volunteer to be executed, abandoning further appeals” or that “many inmates consider, or commit, suicide”.

The length of time prisoners are held on death row, the dissent continues, also undermines its purported justifications such as retribution and deterrence. Rightly, he noted that speeding up the time between conviction and execution would undermine the death penalty’s constitutionality, including exacerbating the unreliability problem and contributing to procedural unfairness. Without such delays, some of those who have been released from death rows after decades for crimes they did not commit, would likely have been executed.

The last time that the US Supreme Court considered lethal injection, in Baze v. Rees in 2008, the then most senior Justice on the Court, John Paul Stevens, revealed that he had concluded that “the imposition of the death penalty represents the pointless and needless extinction of life”.

While Justice Breyer’s dissent is a welcome development, we should not have to wait while individual Justices learn from their experience that the death penalty is fundamentally flawed.

“The death penalty is a cruel and inhuman punishment in all circumstances. It risks irreversible error and inequity. It is incompatible with human dignity.

29 June 2015
AMNESTY INTERNATIONAL PUBLIC STATEMENT

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