Supreme Court Justices Raise Questions About the Constitutionality of the Death Penalty


In a decision today addressing technical questions about the reliability of a specific lethal injection protocol in Oklahoma, two United States Supreme Court justices raised fundamental questions about the constitutionality of the death penalty itself.

In a dissenting opinion joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer explained that the unreliability and arbitrariness that infect death penalty cases likely render capital punishment unconstitutional under the Eighth Amendment.

The dissent detailed many problems with capital punishment, including the fact that innocent people have been executed; death penalty cases are tainted by racial bias; capital defendants often are inadequately represented by counsel; death penalty charging decisions are improperly politicized; and capital punishment is geographically arbitrary.

Justice Breyer observed that “the evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking.” The case of Anthony Ray Hinton was discussed as one example. Mr. Hinton spent 30 years on Alabama’s death row before the Supreme Court last year ordered further hearings in state court that led to his exoneration and release. As the dissent states, “[I]f this Court had not ordered that Anthony Ray Hinton receive further hearings in state court, he may well have been executed rather than exonerated.”

The 5-4 majority decision in Glossip v. Gross held that the inmates in the case failed to establish that Oklahoma’s specific protocol entails a substantial risk of severe pain.

In addition to the issues presented in today’s decision, several questions remain about Alabama’s method of execution, including the availability and legality of the drug the State has announced it intends to use.

The Anniston Star reported in February that Akorn, the drug manufacturer that the State claimed in court filings to have supplied drugs to the State, has denied doing so and “strongly objects” to its drugs being used in executions. Akorn recently sent a letter to the Alabama Department of Corrections asking it to return the drugs it supplied, raising further questions about the legality of Alabama’s new protocol. The ruling today from the Supreme Court did not address these questions specific to Alabama.