Group Following Justice Breyer’s Playbook to Abolish Death Penalty

breyerginsburgThe death penalty abolition movement is finally coming out into the open according to Buzzfeed News, which interviewed Henderson Hill and Rob Smith, of The 8th Amendment Project. The author writes:

“When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.”

The primary focus of Hill and Smith’s organization is “the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.”

The article highlights the moment when the Supreme Court announced in January that they would hear the Glossip v. Gross case as pivotal for The 8th Amendment Project and one that would eventually bring the organization center-stage.

The case was brought by death row inmates in Oklahoma challenging the state’s use of  sedative in its execution protocol. The author writes that during the case the Supreme Court seemed increasingly split on “both the implementation of the death penalty in America and the broader question of the constitutionality of capital punishment.” Although the Supreme Court went on to uphold Oklahoma’s use of midazolam as their sedative a dissenting opinion written by Justice Stephen Breyer and joined by Justice Ruth Bader Ginsburg would dominate the headlines.

In the opinion Justice Breyer writes that, “rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” In the remaining pages of the opinion Breyer quotes the work of Rob Smith in evidence of his conclusion that “the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punish men[t].”

This took the criminal justice and death penalty abolitionists by surprise. The author writes, “Dale Baich, one of the federal public defenders who worked on the Glossip Supreme Court case, said that the dissent was surprising, in part, “because our approach to the case was to keep it very narrow. ‘This is just about midazolam.’” Yet, with Breyer’s dissent, that became the story — with even conservative Justice Antonin Scalia saying several times since June that he “wouldn’t be surprised” if the court ended up striking down capital punishment.”

But more than merely surprising, the opinion also brought further hope for a favorable ruling in the future. The author writes, “Breyer’s dissent also sent another key message, one about the possibility of getting Justice Kennedy’s vote in a challenge to the constitutionality of the death penalty itself.”

The surprising dissent by Justice Breyer, the author concludes, has become a game-changing moment for the death penalty abolition advocates. “Smith, Hill, and the 8th Amendment Project — along with other lawyers, advocates, and many others around the country — believe their work, and Kennedy’s views, could be leading to a change.