Last week, the Connecticut Supreme Court ruled 4-3 that the state’s death penalty was unconstitutional. The state had already passed a law in 2012 outlawing the death penalty but the eleven people who were already on death row were not exempted. The Supreme Court’s action means that their lives too will be spared. In the past 54 years, only two people have actually been executed in the state and they both volunteered for it. Connecticut becomes the 17th state to eliminate the death penalty and the fifth in the last five years.

The death penalty has become more controversial as new investigations using new forensic methods are revealing that in many cases, people convicted of capital crimes were wrongly found to be guilty. The thought that innocent people might be executed should be reasonenough to abolish the death penalty but the US remains one of the decreasing number of countries that continues this practice. There has been a slow but significant shift in sentiment against it over the last two decades, though a majority still favors it by a margin of 63-33%.

One recent US Supreme Court ruling concerned the death penalty but it did not get as much attention as it deserved because it was released around the same time as the same-sex marriage and Obamacare rulings. On June 29, the opinion in Glossip v. Gross was released. In a 5-4 split, justice Alito (joined by Roberts, Scalia, Thomas, and Kennedy) ruled against the plaintiff Richard E. Glossip, a death row inmate in Oklahoma.

Sodium thiopental, one of the old cocktails of drugs that had been used to carry out executions, had to be changed because under pressure from death penalty opponents, the manufacturer had refused to have it used for executions. Lawyers for Glossip had argued that it its replacement midazolam was a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment because the method being used was an untested one that created an unacceptable risk of severe pain.

Alito said in denying the appeal that Glossip had failed to identify a more suitable method of execution and had also failed to show that the new method violated the Eighth Amendment. It is quite extraordinary, macabre even, that the court requires the death row inmates to suggest ways to have themselves killed in a way that satisfies the US Constitution.

But another unusual part of the case was the dissent by justice Stephen Breyer. I am one of those who has generally not been impressed by Breyer in the past but his dissent (scroll down) in this case (joined by justice Ginsburg) is well worth reading. Rather than limiting himself to this particular mode of execution being unconstitutional, he argued that the death penalty itself was unconstitutional, marshaling a range of arguments as to why it should be abolished.

He said that the death penalty was unreliable because of the fact that we now know that innocent people have been executed or wrongly condemned to such even if not carried out.

The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.

He pointed out that the problems with the death penalty have resulted in a gradual decline in the number of death penalty sentences and executions (citations omitted).

Last year, in 2014, only seven States carried out an execution.
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In 1977—just after the Supreme Court made clear that, by modifying their legislation, States could reinstate the death penalty—137 people were sentenced to death. Many States having revised their death penalty laws to meet Furman’s requirements, the number of death sentences then increased. Between 1986 and 1999, 286 persons on average were sentenced to death each year. But, approximately 15 years ago, the numbers began to decline, and they have declined rapidly ever since. In 1999, 279 persons were sentenced to death. Last year, just 73 persons were sentenced to death.

That trend, a significant decline in the last 15 years, also holds true with respect to the number of annual executions. In 1999, 98 people were executed. Last year, that number was only 35.

He also pointed out that the number of states carrying out the death penalty had also declined (citations omitted).

In 1972, when the Court decided Furman, the death penalty was lawful in 41 States. As of today, 19 States have abolished the death penalty (along with the District of Columbia), although some did so prospectively only. In 11 other States that maintain the death penalty on the books, no execution has taken place for more than eight years.
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Accordingly, 30 States have either formally abolished the death penalty or have not conducted an execution in more than eight years. Of the 20 States that have conducted at least one execution in the past eight years, 9 have conducted fewer than five in that time, making an execution in those States a fairly rare event. That leaves 11 States in which it is fair to say that capital punishment is not “unusual.” And just three of those States (Texas, Missouri, and Florida) accounted for 80% of the executions nationwide (28 of the 35) in 2014.

Furthermore, Breyer openly invited a challenge to the death penalty itself, rather than to particular forms of it. .

It looks like the lawyers for Glossip have taken up the challenge. They filed a fresh appeal challenging the death penalty. They are using one of the arguments made by Breyer, that the death penalty carries grave risks of executing innocent people, Glossip has always maintained his innocence in the murder that took place in 1997 and there are grounds for taking that claim seriously.

Glossip worked as a manager for a motel in Oklahoma City, which was owned by Van Treese. Nineteen-year-old Justin Sneed, who worked under Glossip, confessed to beating Van Treese to death — but then implicated Glossip, saying he had ordered Sneed to commit the murder. Sneed testified against Glossip to avoid a death sentence; he is serving life in a medium security prison. Aside from Sneed’s word, however, there was no evidence implicating Glossip in the crime. In fact, last fall, as Glossip faced an execution, Sneed’s daughter O’Ryan Justine Sneed wrote a letter to Oklahoma’s Pardon and Parole Board, asking the state to spare Glossip’s life. She said her father had lied to avoid the ultimate punishment and is now afraid to come forward, fearing the state would revoke his deal and sentence him to die.

Justice Breyer’s invitation to lawyers to challenge the death penalty directly may mean that he thinks he has four votes to accept such a case. That there are four votes to reject the death penalty seems likely. But whether they vote to accept the case may depend upon their judgment as to whether they can get a fifth vote on their side. Scalia and Thomas wrote vigorous concurring opinions challenging Breyer’s dissent and upholding the death penalty and they, along with Alito, have to be considered hopeless.

Roberts and Kennedy joined Alito’s majority opinion but did not write separate concurring opinions. Whether either can be swayed by Breyer and the others is the key question. I am not hopeful.