Robert J. Smith of Slate.com asks an interesting question following the Supreme Court’s recent ruling that allows states to keep using the drug midazolam as part of a lethal injection cocktail: could the Court be close to abolishing the death penalty?
Smith points first to the dissent in this most recent case, in which Justices Stephen Breyer and Ruth Bader Ginsburg question whether the death penalty itself is unconstitutionally “cruel and unusual punishment.” From there, he moves to a discussion of other cases, other rulings, and the political climate in general, cobbling together an imaginary coalition of five justices who—based on prior rulings—might be open to ending capital punishment. Justice Kennedy, as the Court’s notable swing vote, could be persuaded to join the four liberal justices, Smith believes. He has expressed concern about the death penalty in practice, and Smith notes that there is no shortage of problems that may exacerbate that concern:
The most damning problem is the inability to guarantee the factual guilt of the people juries send to death row. Justice Antonin Scalia once underscored that lethal injection was an ‘enviable’ death compared with that suffered by an ’11-year old girl raped by four men and then killed by stuffing her panties down her throat.’ Last year, DNA evidence demonstrated that Henry Lee McCollum and Leon Brown, the two men sentenced to death for the crime Scalia used as his poster case for the death penalty, are innocent. Or consider the case of Paul House, an inmate sentenced to death who claimed that the scratches on his arm came from ‘tearing down a building, and from a cat’—not as the result of a struggle with the victim. Chief Justice John Roberts mockingly commented on House’s version of events: ‘Scratches from a cat, indeed,’ he wrote. In 2009, DNA evidence exonerated Paul House.
Public perception matters, Smith argues, especially when it comes to defining what is “cruel and unusual:”
Justice Scalia wrote, ‘not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.’ But the Supreme Court has affirmed time and time again that the prohibition on cruel and unusual punishments is drawn from society’s current standards of decency as they have evolved over time.
Justice Kennedy, it just so happens, seems more focused on changing societal norms than most Justices:
Kennedy has embraced a view of societal norms that is much more holistic than a simple exercise that counts state legislative decisions. For instance, in Graham v. Florida, the case in which the Supreme Court barred sentences of life without parole for nonhomicide juvenile offenders, Kennedy looked beyond the law on the books to see how the law was used in practice. Even though most states allowed the sentence, Kennedy found that sheer infrequency reflected a consensus against its use, as did the fact that sentences were concentrated in a handful of states. Most recently, in Hall v. Florida, Kennedy counted Oregon, a state that formally retains capital punishment, ‘on the abolitionist side of the ledger’ because it ‘suspended the death penalty and executed only two individuals in the past 40 years.’
Finally, Smith derives optimism from Kennedy’s heartfelt decision to legalize gay marriage nationwide, a decision that relied heavily on noticeable changes in how the public sees the issue:
After Kennedy’s opinion in Obergefell, the flashlight is shining brightly on Kennedy’s death penalty jurisprudence. His road map for considering the evolution of contemporary societal norms, coupled with Breyer’s invitation to challenge the death penalty in its entirety, plausibly heralds the twilight of the death penalty in America.