Are there five SCOTUS votes to overturn the death penalty?
Justice Anthony M. Kennedy could provide a key vote to hold the death penalty is unconstitutional, a law professor asserts.
Writing for Slate, University of North Carolina at Chapel Hill law professor Robert Smith notes the recent dissent by Justice Stephen G. Breyer in Glossip v. Gross calling for briefing on whether the death penalty is constitutional. Breyer’s dissent was joined by Justice Ruth Bader Ginsburg.
“Rather than try to patch up the death penalty’s legal wounds one at a time,” Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
Smith notes that a number of states have recently abolished capital punishment, and death sentences have reached historic lows. Meanwhile, Justice Anthony M. Kennedy in a 2008 ruling wrote that death penalty case law “is still in search of a unifying principle” and the results aren’t “altogether satisfactory.”
Breyer’s dissent “fine-tuned Kennedy’s approach” in prior opinions, Smith says, including Kennedy’s decision striking down Florida’s bright-line standard for determining which death row inmates are intellectually disabled, and his decision barring sentences of life without parole for juveniles who commit crimes other than murders. Both decisions looked at how the death penalty law was used in practice to determine societal norms.
Smith also noted Kennedy’s “vision of a fluid and sophisticated approach to gauging societal norms” in his opinion finding a constitutional right to gay marriage. According to Smith, Kennedy’s “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.”
Hat tip to How Appealing.
See also:
ABAJournal.com: “Free from prison, former Illinois governor creates group to fight death penalty”
Updated July 9 to link to subsequent coverage.
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