Bench Memos

Law & the Courts

The Non-Finality of the Death Penalty in the Supreme Court

The Supreme Court in Washington, D.C., June 11, 2018. (Erin Schaff/Reuters)

This week, a 17-year hiatus on federal executions ended with the executions of Daniel Lewis Lee on Tuesday and Wesley Purkey Thursday morning. Both cases involved decades-old crimes and inmates who had long exhausted channels to review their convictions, but that did not prevent a series of last-minute filings to try to halt the imposition of the death penalty. In both cases, the executions proceeded only after the Supreme Court vacated stays of execution by a 5–4 vote, with the members of the liberal bloc issuing dissenting opinions.

In 1996, Lee, a white supremacist, robbed and murdered a couple and their eight-year-old daughter, whose bodies were found with plastic bags over their heads months after they were thrown into a bayou. In 1998, Purkey kidnapped, raped, and murdered a 16-year-old high school sophomore, whose remains he dismembered, burned, and dumped into a septic pond.

Lee’s execution went forward after the Court’s majority rejected a challenge to the lethal injection protocol adopted last year by the Justice Department, single-dose pentobarbital. Such a challenge must meet a high bar in order to succeed, and this one did not come close. Prisoners have repeatedly considered pentobarbital a less painful and risky alternative to other lethal injection protocols, not to mention less painful than other execution methods long considered constitutional, and it has been used without incident to carry out over 100 executions.

That did not stop Justices Breyer and Sotomayor from issuing dissents Tuesday morning. Breyer, joined by Justice Ginsburg, suggested that the method of execution presented a constitutional question, the solution to which “may be for this Court to directly examine the question whether the death penalty violates the Constitution.” Sotomayor, joined by Justices Ginsburg and Kagan, cited constitutional questions along with administrative law challenges to the change in protocol, but provided few details as to why she considered them meritorious.

Thursday morning, Breyer and Sotomayor released additional dissents in the Purkey case that voiced similar themes. They further made clear that they were unmoved by the fact that the inmate’s attorneys had disregarded the federal habeas statute when they advanced a last-minute, freestanding constitutional challenge in D.C. based on the inmate’s allegedly diminished mental competency. The record suggests that that claim was weak and the litigation strategy a possible case of forum-shopping in the nation’s capital after the proper Indiana venue where Purkey was incarcerated had ruled against him in another challenge to his conviction.

Writing for all four dissenters, Sotomayor found the possible procedural irregularities non-dispositive in the face of “constitutional doubt.” Writing for himself and Ginsburg, Breyer launched a short but sweeping critique of the death penalty’s shortcomings. For one thing, he wrote, there is its “inherent arbitrariness,” illustrated in the Lee case by his death sentence while his codefendant, who committed the same crime, got a life sentence. Breyer also discussed the “problem of delay,” which “undermines the penological rationales for the death penalty: deterrence and retribution.” He found a “mounting body of evidence that the death penalty cannot be reconciled with” the need to be “reasonably accurate, fair, humane, and timely.” Therefore, he “remain[ed] convinced of the importance of reconsidering the constitutionality of the death penalty itself.”

What Breyer suggests conjures the memory of Furman v. Georgia, the 1972 case in which the Court invalidated every existing death penalty statute in the nation. The five justices in the majority each produced separate opinions, but several of them made similar arguments about the death penalty’s seeming arbitrariness. The moratorium did not last, however, and a new generation of death-penalty laws containing additional procedural safeguards was upheld in Gregg v. Georgia (1976).

Nonetheless, the liberal bloc of the Court has repeatedly voted to whittle down the death penalty, and now it does not seem to matter that this penalty carries more avenues of review to prevent error than any other. That is a major reason for the delay that Breyer laments at the same time he claims a lack of reliability. Moreover, the arbitrariness of the penalty today is a function not of severity, but of its rarity in claiming only a fraction of perpetrators of the most heinous crimes. So would Breyer be happy with reducing procedural safeguards, for the sake of reducing delay, and multiplying the number of executed criminals? Of course not. He wants the complete abolition of the death penalty, beyond the Court-imposed moratorium of the 1970s.

None of this is to dispute the many legitimate concerns on both sides of the death penalty debate. What is relevant here is that the Constitution does not dictate a particular answer. This is one more issue that could be taken away from the people and their elected representatives by a future Court with a liberal majority.

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