Saturday, September 5, 2015

Death Penalty Down

The death penalty is in retreat.  Three recent legal developments have shaken the foundations of modern death penalty jurisprudence, established over forty years ago.

On June 29, 2015, in Glossip v. Gross, Justice Breyer, joined by Justice Ginsburg, argued in dissent that it is “highly likely that the death penalty violates the Eighth Amendment,” and gave a number of reasons to support his tentative conclusion, including innocence, arbitrariness, delay, and disuse.

Six weeks later, the Connecticut Supreme Court handed down a sweeping decision in State v. Santiago, which ruled Connecticut’s 400-year-old death penalty cruel and unusual in violation of the state’s constitution, citing many of the same reasons as Justice Breyer.   Yesterday evening, Connecticut prosecutors filed a motion to reargue the merits of the Connecticut Supreme Court’s death penalty decision in Santiago.

This past Monday, August 31, 2015, a three-judge panel of the Ninth Circuit heard argument in Jones v. Davis, the case in which the U.S. District Court for the Central District of California declared California’s imposition of the death penalty “arbitrary” and without legitimate penological purpose in violation of the Eighth Amendment based on the extraordinary delay between sentencing and execution in California.

This is precisely the conversation we ought to be having over the death penalty.  Does it kill innocent people?  Is it hopelessly arbitrary and even downright racist?  Has the death penalty fallen into such disuse—where life waiting for death, not death itself, is the penalty—that we need to take it off life-support?

Time will tell.  When these important questions come before the U.S. Supreme Court, we should remember well the words of Justice Anthony Kennedy in Hall v. Florida last year:  “The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we are, and the Nation we aspire to be.”  What Nation do we aspire to be?  That turns out to be the most important question of all, and I think Justice Kennedy knows the answer.  I hope it’s the right one.

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