Justice Breyer’s 2015 dissent in Glossip v. Gross, which argued that the imposition of the death penalty likely violates the Eighth Amendment’s prohibition on cruel and unusual punishments, ranks among the boldest opinions of a justice in recent years. Indeed, it’s one of the rare Supreme Court opinions that you can purchase in book form. Yesterday morning saw Breyer again tiptoe out onto the abolitionist limb with a dissent from a denial of certiorari in the death penalty case Sireci v. Florida. His dissent, which focuses on the four-decade delay between Henry Sireci’s capital conviction and his scheduled execution, begins with this evocative description of Sireci’s everlasting purgatory on the green mile:
When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born.
This isn’t the first time Breyer has voiced concern about excessive delays in executions. In 1999, he dissented from denials of cert in two cases where the petitioners had been sentenced to death two decades earlier, writing that “[i]t is difficult to deny the suffering inherent in a prolonged wait for execution.”
In 2011, Breyer dissented from the denial of a stay of execution on grounds that the Court should consider the petitioner’s claim that the delay in his sentence (33 years) violated the Eighth Amendment. There was, Breyer said, “little doubt about the cruelty of so long a period of incarceration under a sentence of death.”
One might say that the solution to this is to reform the post-conviction process that causes such interminable delays. But in his Glossip dissent, where Breyer revisited the “cruelty” of excessive delay, he resisted this solution because “delays have helped make application of the death penalty more reliable.” And this, he wrote, “creates a dilemma: A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place.”
Breyer’s crusade to abolish the death penalty may be noble, but in Sireci it’s not persuasive. Living for decades under the inevitability of an approaching death is not a cheery prospect, but it is a prospect that is inherent to the human condition. And many believe it a boon to live a longer life, even if the remainder of that life is spent in confinement. In law school, I interned with a group of death penalty lawyers. In their eyes, every year the post-conviction process delays a client’s execution is a tiny win, even if the client eventually loses his legal claims. If an inmate is plagued by the delay to the point of psychological duress, he retains the power to expedite sentence by forgoing further layers of judicial review. (Timothy McVeigh forwent his appeals.) If the inmate rather chooses to avail himself of the appeals process, delay is the natural consequence (again, a consequence that many would deem a benefit).
The deficiency of Breyer’s reasoning is reflected in the court of public opinion. A Gallup poll from October 2014 asked capital punishment opponents why they disfavored death as a punishment for persons convicted of murder. Forty percent responded that it was wrong to take a life. Seventeen percent of respondents worried about the execution of innocent persons. You will not find uneasiness over delays from litigation among the other answers.
Who does Breyer have to convince, though? It’s doubtful that whomever Donald Trump picks to fill Justice Scalia’s seat will be sympathetic to his position. And Justice Ginsburg was the only other justice to join his dissent in Glossip. He doesn’t have the votes to abolish the death penalty, and there’s no sign that he will anytime soon. For now, Breyer can pursue his crusade on his own terms, bad arguments and all.