Justice Stephen Breyer is right. The Supreme Court should revisit the death penalty’s constitutionality. And, as he indicates, evidence mounts capital punishment is unconstitutional.
It isn’t the “’worse of the worse’” he said, who are chosen to die, but “individuals are chosen at random, on the basis of geography … or still worse, on the basis of race.”
The data support Breyer’s conclusion. According to the Death Penalty Information Center, 82% of executions occur in 10 southern states, and persons who kill whites are five times more likely to be sentenced to death than those who kill African Americans.
Breyer’s recent statement also echoes the court’s 1972 finding in Furman V. Georgia, which ruled capital punishment unconstitutional.
In his concurring opinion, Justice Potter Stewart wrote: “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. … The petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.”
Breyer cites Romell Broom’s case to buttress his argument about capital punishment being cruel and unusual. Sentenced to die for the 1984 rape and murder of 14 year-old Tryna Middleton, Broom was scheduled to be executed in Ohio in 2009.
Broom’s executioners jabbed him 18 times unsuccessfully trying, for more than two hours, to find a receptive vein for the drugs, despite his screaming and crying in anguish before the execution was halted.
Earning the dubious distinction as the only person to survive a lethal injection, Broom recently sought relief from the court when Ohio set another execution date for him.
Despite his compelling claims related to cruel and unusual punishment and double jeopardy, the court distressingly refused to hear Broom’s petition. Because Broom’s case raises disturbing questions about cruel and unusual punishment, however, Breyer said he would have heard the case, and Justice Elena Kagan concurred.
Increasingly more commonplace, botched executions like Broom’s underscore death penalty’s cruel and unusual nature. Once thought to be more humane, lethal injections have a 7% botched rate, higher than any other execution method employed in US history, according to “The Daily Beast.”
In 2014, Arizona injected inmate Joseph Wood 15 times with an experimental combination of Hydromorphone and Midazolam. Woods gasped 600 times for more than two hours before he died.
Midazolam also played a role in Oklahoma inmate Clayton Lockett’s 2014 death. His execution’s observers witnessed the grisly spectacle of Lockett choking and gasping, writhing and grimacing for 43 minutes before he died.
Lethal injections have become more problematic and troubling because states are experimenting with unreliable drugs such as Midazolam to carry out executions. That’s so because drug companies, ethically opposed to their drugs being used to take lives, since 2008, have refused to sell prisons drugs formerly used in executions such as Sodium Thiopental and Nembutal.
And when the huge pharmaceutical company Pfizer recently decided it wouldn’t provide execution drugs any longer, it effectively closed the open market for these drugs.
This has compelled some states such as Georgia and Virginia to shield the identity of drug makers, who sell drugs used in executions. Virginia recently signed a contract to pay a secret supplier $16,500 per execution for lethal injection drugs, 30 times more than what the state used to pay for lethal injection drugs.
This lack of transparency and accountability should trouble even those who support capital punishment, and this deviousness reflects how low some states will sink in the putative name of justice, desperate to maintain a dying system of death.
Besides concerns about botched executions, arbitrariness and racial bias, those raised by 153 innocent persons exonerated from death rows nationally, and exorbitant execution costs have prompted many to reconsider their positions on capital punishment.
And the witness of Sister Helen Prejean, Pope Francis, and murder victims’ family members opposed to capital punishment have grown the movement to abolish the death penalty.
19 states have abolished the death penalty, and Colorado, Pennsylvania, Washington, and Oregon have moratoria on executions. And the number of death sentences juries impose nationally continues to decline from a peak of 316 in 1996 to 49 in 2015.
Public support for capital punishment, more significantly, according to a 2016 Pew Research Poll, has slipped from a high of 80% in 1994 to 49%.
Americans increasingly understand: we can be safe, and hold murderers accountable without sinking to their level. State killings haven’t made society safer or better, or brought closure to murder victims’ families. The court should finally declare this inhumane practice unconstitutional.