A dissent written more than a half-century ago in Rudolph v. Alabama may have been a precursor to striking down the death penalty.
Supreme Court Justice Arthur Goldberg raised questions about the constitutionality of the death penalty in 1963. Goldberg wrote that “in light of the trend both in this country and throughout the world against punishing rape by death, does the imposition of the death penalty by those States which retain it for rape violate evolving standards of decency that mark the progress of a maturing society.”
Goldberg’s dissent is credited with being the first step in bringing about the 1972 decision in Furman v. Georgia that ruled the death penalty, as it was imposed at the time, was unconstitutional. It wasn’t long after Furman, that death penalty states rewrote their laws to pass constitutional muster.
This summer, Justice Stephen G. Breyer wrote a dissent in a case out of Oklahoma challenging lethal injection. He expressed his disagreement with the Court’s decision and then, according to the Washington Post, asked a more general question: Is the death penalty itself unconstitutional?
“I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer wrote. “At the very least, the Court should call for full briefing on the basic question.”
Breyer was joined in his dissent by Justice Ruth Bader Ginsburg. He wrote that the country’s use of the death penalty has dramatically changed since the court reinstated capital punishment in 1976.
The current state of the death penalty indicates that Breyer might be on the right track. This week marked the last two executions for 2015. On Thursday, Marcus Ray Johnson was executed for the 1994 murder of a woman in Georgia.
With no additional executions scheduled nationwide, 2015 will end with 27 executions--the fewest since 1991.
The death penalty has been under siege for several years. A number of states—Connecticut, Illinois, Maryland, New Jersey, New Mexico, New York, and Nebraska—have recently abandoned capital punishment. The governors of four other states—Colorado, Oregon, Pennsylvania, and Washington—have imposed execution moratoriums.
Although Justices Breyer may get some credit for getting the ball rolling if the death penalty is abolished, it won’t happen without Justice Anthony Kennedy. He would undoubtedly be the fifth vote to strike down the death penalty.
According to Slate, Kennedy has a strong belief in the idea that constitutional norms change as the times change--each generation is charged with deciding for itself how to define basic constitutional freedoms. Kennedy’s beliefs have contributed to the idea that he is ready sign-on to a decision abolishing the death penalty.
Kennedy voted with the Court’s majority in banning the execution of the intellectually disabled and those who kill while under the age of 18.
In 2008, Kennedy wrote the majority opinion keeping Louisiana from imposing the death penalty for the rape of a child where the crime did not result in the victim’s death.
Kennedy wrote, “There is a distinction between intentional first-degree murder, on the one hand, and non-homicide crimes against individuals, even including child rape.” Kennedy concluded that in cases of crimes against individuals, “the death penalty should not be expanded to instances where the victim’s life was not taken.”
Kennedy tends to be a bit cautious. He seems to prefer to nibble around the edges of the death penalty as opposed to putting it on the chopping block. If the matter came before the high court anytime soon, chances are that Kennedy would not be prepared to kill-off the death penalty.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.