Death-penalty opponents are split on when to push SCOTUS for ban on executions
Death-penalty opponents are divided on whether to quickly accept Justice Stephen G. Breyer’s invitation for briefing on whether executions are a violation of the Eighth Amendment.
In a June dissent joined by Justice Ruth Bader Ginsburg, Breyer said it is “highly likely” the death penalty is unconstitutional. Since then, Justice Antonin Scalia has said he “wouldn’t be surprised” if the U.S. Supreme Court overturns the death penalty. But those who oppose capital punishment are differing over strategy, the New York Times reports.
Some want to bring a major case before the U.S. Supreme Court as soon as possible. Others believe it is better not to rush because of the possibility of a negative ruling. They endorse an incremental strategy, the Times says, that would “chip away at the death penalty in the courts, seek state-by-state abolition and try to move public opinion.”
The incremental approach would seek to narrow the application of the death penalty, banning its use, for example, on persons who are mentally ill and accomplices who did not kill.
A group called the Eighth Amendment Project points to one case that could quickly get the broader constitutional issue before the U.S. Supreme Court. The death-row inmate, Julius Murphy, is represented by Neal Katyal, a former acting solicitor general who once clerked for Breyer. His brief to Texas’ highest criminal court raised the Eighth Amendment issue.
“After Justice Breyer’s dissenting opinion,” Katyal said, “the time to test his views in the crucible of argument before the full court has come.”
Wording changed in fourth paragraph on Nov. 5.
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