The Supreme Court ignored pleas from two liberal justices to look at abolishing the death penalty when it ruled Monday on whether a legal injection drug violated the Constitution.
Justices Stephen Breyer and Ruth Bader Ginsburg asked the court to consider whether the entire death penalty violates the Constitution. The justices’ efforts were in vain, but the request shows the fissures along the court on the issue.
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The court ruled 5-4, with Ginsburg and Breyer dissenting, that use of a drug called midazolam in executions does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. The drug is used as an anesthetic, but death row inmates sued after a botched execution last year in which the inmate could still feel pain.
The ruling allows states to procure midazolam, which is helpful since there has been a shortage of lethal injection drugs.
The court fell along partisan lines, with perennial swing vote Anthony Kennedy joining the court’s conservative wing to make the decision.
But the request by Ginsburg and Breyer is significant as it calls for the court to go beyond the case before them.
The death penalty was reinstated in 1976, with states having the power on how to apply it. But the “circumstances and the evidence of the death penalty’s application have changed radically since then,” reads the opinion by Breyer, which was joined by Ginsburg. “Given those changes, I believe that it is now time to reopen the question.”
The justices point to research that innocent people have been executed, noting that since 2002 there was evidence of about 60 exonerations of people who had been sentenced to death.
When the death penalty was reinstalled in 1976, the court ruled that it needed to be applied only to the “worst of the worst.”
Ginsburg and Breyer said that hasn’t happened as the penalty is arbitrarily applied, citing a recent study of all death penalty sentences in Connecticut from 1973 to 2007.
Over that time, the state sentenced nine people to death out of 205 homicide cases. Of those nine people, only one would be considered the “worst of the worst,” the opinion said.
They also argued that excessive delay in being put to death because of exhausting all appeals is in fact cruel. Last year, 35 individuals were executed, and those executions occurred on average nearly 18 years after the sentence.
It may seem odd that such a delay would be cruel, but Ginsburg and Breyer argued they created constitutional difficulties. Namely, a lengthy delay could subject death row inmates to decades of confinement as nearly all death penalty states keep death row inmates in isolation for 22 or more hours a day, the opinion said.
“Given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals,” the justices said.
Justice Clarence Thomas took aim at their opinion, noting that the studies cited by Breyer and Ginsburg were conducted by death penalty opponents and were flawed. He said that the studies on defining the “worst of the worst” were unreliable and insulted the victims.
“We owe victims more than this sort of pseudo-scientific assessment of their lives,” he wrote in his own opinion. “It is bad enough to tell a mother that her child’s murder is not ‘worthy’ of society’s ultimate expression of moral condemnation. But to do so based on cardboard stereotypes or cold mathematical calculations is beyond my comprehension.”
