Breyer Is Right; Court Should Rule Capital Punishment Unconstitutional

 

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The eight justices, who preside at this building should outlaw the death penalty. 

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.

 

 

 

 

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One Vote Away From Ending Executions

We may be one Supreme Court Justice’s vote away from ending executions in the United States. The Supreme Court’s decision to hear Glossip V. Gross later this year gives death penalty opponents that hope. This case challenges the constitutionality of Oklahoma’s lethal injection protocols on the grounds they violate 8th Amendment prohibitions against cruel and unusual punishment. Attorneys will likely cite Oklahoma inmate Clayton Lockett’s April 2014 execution to exemplify why Oklahoma’s current form of lethal injection is cruel and unusual punishment. That execution’s observers witnessed the grisly spectacle of Lockett choking and gasping, writhing and grimacing for 43 minutes before he expired. The Court’s four liberal justices will likely rule Oklahoma’s form of lethal injection unconstitutional. Changes in lethal injection protocols since 2008 when the court upheld lethal injection’s constitutionality may convince one other judge to side with the liberal justices and rule lethal injection unconstitutional. Since 2008, European drug companies’ refusal to sell US prisons drugs formerly used in executions such as Sodium Thiopental and Nembutal has compelled states to develop new untested drug combinations to execute death row prisoners. As a result, executions have been carried out without any good idea how these new drugs would interact or their impact more significantly upon the persons on the gurneys. We have witnessed the horrific consequences of states’ ill-considered decisions: persons have become lab rats in states’ grotesque experiments in the putative name of justice. You would think states pursuing justice would want to act transparently. The opposite in true, however. A recently passed Ohio law protects the anonymity of persons involved in carrying out executions and of pharmacies, which provide drugs used in executions. The Virginia Senate has also passed legislation, which would shroud everything about Virginia executions in secrecy and bar Freedom of Information inquiries into executions. The Virginia House hasn’t voted on this legislation, which Minority Leader Richard Saslow (D) sponsored. He acknowledges he doesn’t want to return to the electric chair, and believes secrecy will ensure humane executions. His reasoning belies what most reasonable persons know is true: people act secretly because they know they’re wrong and don’t want to get caught. As officials in Virginia and elsewhere calibrate the right drug combinations to carry out lethal injections, more death row offenders will likely suffer cruel and unusual punishment, which will likely increase the public’s opposition to executions. Growing opposition will compel more states to conclude there isn’t a humane way to kill another person, and states will abandon the death penalty. The Court’s Glossip decision may forestall states’ scrambling to find elusive humane execution methods before concluding they can’t, and I hope Pope Francis and Chief Justice Roberts’ wife Jane influence Roberts to vote to end lethal injection. I hope as a Catholic Roberts is influenced by what the Pope said in October 2014: “It is impossible to imagine that states today cannot make use of another means than capital punishment to defend people’s lives from an unjust aggressor. All Christians and people of good will are called today to struggle … for the abolition of the death penalty.” Furthermore, I hope the man behind the words, who has inspired Catholics and non-Catholics, will also inspire Roberts to strike down lethal injection. If Pope Francis’ words and examples aren’t enough, perhaps his wife Jane will influence Roberts to do the right thing. For many years she has been involved with Feminists For Life, and currently serves as the group’s legal counsel. Feminists For Life opposes capital punishment because they connect it to abortion and euthanasia as “inconsistent with the core feminist principles of justice, nonviolence and nondiscrimination.” If the Pope and Roberts’ wife influence Roberts to side with the Court’s liberal justices to outlaw lethal injection, their decision would likely end executions in the United States because states wouldn’t want to revert to execution methods they don’t view as humane as lethal injection. In almost 40 years since capital punishment’s 1976 reinstatement, the vast majority of the more than 1,400 executions nationally have been carried out against the poor and persons of color in 13 southern states. These state killings haven’t made society safer or better, or brought closure to murder victims’ families. Executions have cheapened human life and degraded all. It’s past time we ended this inhumane practice. I hope Roberts concludes, he, as former Supreme Court Justice Harry Blackmun said, “shall no longer tinker with the machinery of death.”

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