Retired U.S. Supreme Court Justice Stephen Breyer on the death penalty

Retired U.S. Supreme Court Justice Stephen Breyer recently talked with Beth Schwartzapfel of The Marshall Project about, among other things, the death penalty.

Over his decades on the court, Justice Breyer came to believe that the death penalty is unreliable and arbitrary, cruel and unusual. He argued that people must be able to thoroughly fight their cases — but allowing for that time creates delays that undermine the very purpose of the penalty. And that makes the system untenable.

“You can't have both, in my opinion: a system that is basically fair, a system that works honestly, a system that tries to treat people equally — and also have a death penalty, as I've seen it over 20 years,” he said.

Breyer was particularly animated about Dzokhar Tsarnaev, the surviving Boston Marathon bomber who, Breyer felt, was denied the opportunity to prove that he had been pressured and intimidated by his older brother into participating in the bombing.

“Jesus, what should you do with this person? Execute him? Please. How is that helping?” Breyer asked.

Breyer stated his opinion about the death penalty forcefully and compellingly in a 2015 dissent and an accompanying book. But ever the institutionalist, in the ensuing years, he often deferred to the court’s majority. “If I lose, I lose,” he said. “And I'm going to go back to following what the law is, in the absence of [the rest of the justices] taking my wise advice and reconsidering.”

Almost every time a state (or the federal government) plans to execute someone, the person facing the death chamber appeals to the Supreme Court to intervene. The justices weigh in more routinely on the details of this aspect of the criminal justice system than almost any other. And over the course of his quarter-century evaluating these cases, Breyer became increasingly skeptical of the practice. He issued a famous dissent in the 2015 case Glossip v. Gross where he argued it was time for the court to reconsider whether the death penalty was constitutional (Richard Glossip, the man at the center of that case, is still fighting his death sentence, which has now been rescheduled eight times). Breyer pointed to data that underscores the death penalty’s unreliability, arbitrariness and cruelty. He published the dissent as a book called “Against the Death Penalty.” In doing so, he followed in the footsteps of his predecessor on the court, Harry Blackmun. Before his retirement, Blackmun in a 1994 dissent called the death penalty a failed institution and famously wrote, “From this day forward, I no longer shall tinker with the machinery of death.”

It seems, from reading some of your writings about the death penalty pre-Glossip, you were never its biggest fan. But it wasn't until Glossip that you came out so forcefully and said, ‘It is unconstitutional.’

I didn't say that. I said we should reconsider [whether it was constitutional].

What led you to that conclusion?

I was careful, because I was asked by the Senate Judiciary Committee was I going to try to get the death penalty overruled, at my confirmation. “What do you think of the death penalty?” I said, “I am not going there to have it overruled.” They decided cases, and I will follow the case law that they decided. I’d better stick to that because I said it.

But over 28 years, 26 years, 20 years, what do I see? It isn’t that I had a deeply laid plot. I didn’t. But my God, what you see, is what I wrote in that opinion. It is so unfairly administered. There's neither rhyme nor reason. The whole point of this criminal justice system is fairness. Is justice. That's why it's called “criminal justice.” And that is not an oxymoron, at least in theory. So when I see that time after time, after time — I'm not saying “You're all innocent.” But there are a couple of cases where I really wonder.

I thought, “What can I do?” It's not a big deal for the world that I would go out and announce I'm against the death penalty. I want to do something, if I'm going to do this, that really explains what I've seen. And that's what I tried to do in Glossip. And it tries to explain to other people, who can explain it to state legislatures. And all it is, is what I've seen over a couple of decades. And by the way, it's going to get awful expensive. Why reconsider it? Because you can't have both: a system that is basically fair, a system that works honestly, a system that tries to treat people equally, and also have a death penalty, as I've seen it over 20 years.

You took Justice Blackmun's seat on the court and on his way out, essentially, he basically did the same thing.

He said he was against. He didn't want to participate. I didn't want to do the same thing because it's just one more person in 331 million people, you have one more against the death penalty. I wasn’t going to do it. What is it I can do? What I can do is, I can explain. And that's what I tried to do.

Can you talk a little bit about when these last-minute appeals come before the Supreme Court? I can't imagine a more profound decision for a human being to make.

No, it’s not so difficult. A last-minute [petition to stay the execution] comes. If the lower court has stayed it, I'll probably vote to stay it. The amount of time they've been in prison — 15 years, 18 years, 20 years, 25 years they've been on death row. Please. They can have a few more months in that lower court if there's a stay. Now, if there’s no stay, and he wants the stay, normally, there isn't much to the argument, because they've been to the Supreme Court three or four times already, probably.

So we have a system. The first part of it is that there are staff members in the court who follow what's going on with the death cases. So they are in touch with the lawyers, and they know when the execution is taking place, and they know pretty well what the argument is…. Each of us is responsible for one, sometimes two circuits. Now, I was responsible for the First Circuit and then before that the 10th. Very rarely was there a death case in the First Circuit. Virtually never. Almost never. There was one, the bomber.

Tsarnaev

Yeah. I wrote a dissent in that. Read that. You'll see. Jesus, what should you do with this person? Execute him? Please. How is that helping?

So I'll know through the staff and then my law clerk will, because if he's coming from the First Circuit or previously the 10th, my law clerk will start maybe a week ahead of the execution, to write a long memo about what this is about. And very rarely is it going to be something that we will take. But sometimes it is something that maybe we would take. So if we think there’s a chance that there's a real issue here, the next thing to do is that I will write a memo. My law clerk will do a draft, I’ll then revise it. We take it very seriously. And circulate it, and people vote.

The reason we do it that way is because if I just said no, or I said yes, it wouldn't matter. Because either side could go to the whole court immediately. So I might as well send it to the whole court, if it's something that's a serious possibility. And so I do. And then the others consider it, there might be a dissent, etc.

It used to be that if you had four votes for cert 13 — you need five votes for the stay — but somebody would give you the fifth, as a courtesy. And often if four people wanted the stay, it would be a courtesy fifth. But that happens less. But most of the emergency stay matters were death cases. And that's another reason why this last year was so complicated. Because it was Covid. And politics. These three new people who have just been appointed, aren’t used to that.

Thurgood Marshall made a point to vote to grant every stay of execution. Or, in cases where the stay was not granted, to dissent, every time.

I didn’t.

Can you talk about why?

Because I said when I wrote Glossip, “I think we should take it.” If I lose, I lose. And I'm going to go back to following what the law is, in the absence of your taking my wise advice and reconsidering. And I did, pretty much.

Every so often I would write something to remind people of Glossip. And I would say, this person has been on death row for 35 years. Is that going to make a difference to general deterrence? To specific deterrence? To reforming his character? Or even to vengeance, if you want to call it that, or retribution. I don't think so. I would write something and say, “What is going on? It's very expensive. What’s happening here? And look at this case.” So I do that occasionally because I don't want people to forget. The legislatures, too. They can read very well.

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