Having issued landmark rulings on gay marriage and the Affordable Care Act last week, the Supreme Court on Monday tackled another complex legal and social question: the death penalty.
This time, however, the majority’s 5-4 decision didn’t prompt the wild celebrations and anguished condemnations sparked by its rulings last week.
The court turned away concerns by Oklahoma death-row inmates who contended the use of the sedative midazolam will leave them at risk of severe pain during executions, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.
In Glossip v. Gross, the justices affirmed lower court rulings that said the prisoners hadn’t gone far enough to prove the risk of severe pain. The majority also took the disappointing step of making inmates’ lawyers responsible for identifying available, less risky alternative methods.
“Because it is settled that capital punishment is constitutional,” Justice Samuel Alito wrote for the majority, “(i)t necessarily follows that there must be a (constitutional) means of carrying it out.”
But Justice Stephen Breyer, in a long, impassioned dissent, raised the question growing numbers of Americans are asking: Given the mounting evidence of its many flaws, is it time for America to abandon the death penalty?
If we can’t exercise this most profound form of government power fairly, accurately and without torturing the accused on their deathbeds, how can we still call it constitutionally valid?
There is mounting evidence to suggest the system is failing.
Breyer, in his dissent, noted that the number of exonerations in capital cases now has risen to 115, with six inmates exonerated in 2014 alone based on actual innocence. Among them: the North Carolina case of Henry Lee McCollum and Leon Brown, two mentally disabled half-brothers who have been pardoned in the rape and murder of an 11-year-old girl.
Justice Antonin Scalia once used that crime’s horrors as justification for the death penalty. Now, Breyer’s dissent cites McCollum’s innocence in arguing the unreliability of capital punishment, and the long, unsuccessful efforts by states to weed out problems.
“We now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before,” Breyer wrote. “I believe it is highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”
Indeed.
— The Charlotte Observer
