Supreme Court

Texas Death Row Inmate Bernardo Tercero Wins Reprieve

HUNTSVILLE (August 25, 2015)
The Texas Count of Criminal Appeals Tuesday stopped the scheduled execution of a Nicaraguan man convicted of killing a Houston high school teacher during a robbery more than 18 years ago.
Bernardo Tercero, 39, was scheduled to receive a lethal injection Wednesday evening in Huntsville.
The Texas Court of Criminal Appeals issued a reprieve Tuesday after attorneys contended in an appeal that a prosecution witness at Tercero’s trial in 2000 gave false testimony.
The appeals court has returned the case to the trial court to review the claim.
Tercero was convicted in the shooting death of Robert Berger, 38, who was in a Houston dry cleaners shop in March 1997 when Tercero came in to rob it.
Prosecutors said Tercero was in the U.S. illegally at the time of the slaying.
Source: Associated Press, August 25, 2015

 

Colorado lawmakers bump into death-row inmate Nathan Dunlap

August 17, 2015

In June, four Colorado legislators got face-to-face with death row inmate Nathan Dunlap, the Chuck E. Cheese killer whose execution was postponed last October by Gov. John Hickenlooper to the dismay of many pro-death-penalty Coloradans.

Like they do most summers, these members of the Capital Development Committee were touring state colleges, universities and other facilities to find out how taxpayers’ dollars are being spent and to consider future funding requests.

The June 8-10 tour took the committee to northeastern Colorado, to tour the Sterling Correctional Facility, which houses the state’s three death row inmates.

Legislators on the Sterling visit were Reps. Ed Vigil, D-Fort Garland and J. Paul Brown, R-Ignacio; and Sens. Randy Baumgardner, R-Hot Sulphur Springs and Jerry Sonnenberg, R-Sterling.

According to the legislators, the accidental encounter was uneventful and Dunlap was “very polite.”

Baumgardner said Dunlap came out of an elevator with a guard and had to walk through the group of mostly pro-death-penalty lawmakers because the space was so tight.

The inmate was held by the arm by the guard and was in full chains and shackles, according to Vigil.

“We were surprised,” Baumgardner said, and he believed Dunlap was as well.

Vigil described the situation as “surreal. It took me a second to recognize him,” he said.

“It’s a pretty nice facility,” Baumgardner said of the prison. There are things that need to be looked at, but that’s true for all of the state’s prisons, he added.

As to how meeting Dunlap impacted their opinions about the death penalty, the encounter didn’t change any minds, according to the legislators.

 

LOUSIANA : No A/C for death row inmates at Angola: decision made final, barring another appeal

August 17, 2015

Death row inmates at Louisiana State Penitentiary who claimed in a federal lawsuit that triple-digit temperatures inside their cells at Angola amounts to cruel and unusual punishment have been denied a rehearing of their case.

The decision by the 5th U.S. Circuit Court of Appeals not to re-examine the case, which was handed down Friday (Aug. 14), upheld a decision delivered July 8 by a three-judge 5th Circuit panel. The July 8 decision found heat indices reaching up to 108 inside the inmates’ cells did, in fact, violate the Eighth Amendment of the U.S. Constitution. However, the panel explained in its July 8 decision, the prison should not be required to install air-conditioning on death row to remedy the violation.

U.S. District Judge Brian Jackson had earlier ruled the conditions were unconstitutional and ordered the state to create and implement a plan, which included air conditioning, for cooling off death row.

The state appealed Jackson’s decision, but in the meantime, a plan was drafted. Death row tiers, built in 2008, are only heated and ventilated. The plan would have also provided inmate with chests filled with ice and allowed them daily cold showers. An appeals court intervened on behalf of the state before the prison ever put the plans in place, halting the implementation with an injunction while agreeing to take a look at the case.

The 5th Circuit on July 8 offered a few reasons why installing air conditioning on death row would have gone too far to provide relief for the plaintiffs. Air conditioning would be available year-round, when temperatures were often not extreme; it would cool off inmates who didn’t have medical conditions worsened by heat; and air conditioning “of course is expensive.”

Attorneys for the inmates argued in their request for a rehearing that Jackson’s order for air conditioning was less intrusive — and involved more micromanaging — than the remedies suggested by the panel.

The three inmates who filed suit, Nathaniel Code, 57; Elzie Ball, 60; James Magee, 35, all have medical conditions, such as diabetes and hypertension, that can be exacerbated by high heat. 

It’s unclear, the inmates’ attorney Mercedes Montagnes indicated, whether or not the inmates will appeal the case to the U.S. Supreme Court.

“We…have not yet decided our next step,” she said in an emailed statement.

Death row inmate seeks medical evaluation

August 17, 2015

A medical examination done Friday on a death row inmate convicted in a 1994 Columbia triple murder is expected to determine whether a benign brain tumor will cause complications with the state’s lethal injection protocol, according to federal court documents.

Ernest Lee Johnson has been in prison since June 1995, and a noncancerous tumor was discovered in his brain years later. Doctors removed part of the tumor in 2008, and the last scan of Johnson’s brain, in 2011, showed the remaining tumor wasn’t growing, according to a motion filed in June by one of his attorneys, Kansas City-based Jeremy Weis. The motion requested funding to hire physician Joel Zivot, assistant professor of anesthesiology and surgery at Emory University’s School of Medicine and the medical director of the cardio-thoracic intensive care unit at Emory University Hospital, to examine and evaluate Johnson.

Chief Judge Greg Kays of the Western District of Missouri in late June approved $7,200 for Zivot to review Johnson’s medical records and perform another scan of the condemned man’s brain, as well as to pay for travel time, consultation with attorneys and help in drafting an affidavit. Zivot will “render an expert medical opinion as to how Mr. Johnson will respond to the lethal injection drugs and whether he will respond differently than other Missouri inmates due to his unique medical condition,” Weis wrote.

Weis and Johnson’s other attorney, William Gaddy, did not respond to messages seeking comment. Michael Spillane, a Missouri assistant attorney general, is representing Troy Steele, the warden of Potosi Correctional Center, where Johnson is being held, who is named as the defendant in the case. Nanci Gonder, spokeswoman for the attorney general’s office, said the examination was conducted on Friday and that Spillane is waiting to obtain a copy of Zivot’s findings. Johnson’s next court date has not been set.

The most recent federal litigation continues a flurry of post-conviction proceedings for Johnson. Johnson was convicted in 1995 of the Feb. 12, 1994, murders of Fred Jones, 58, Mary Bratcher, 46, and Mable Scruggs, 57. His death sentence was twice overturned, in 1999 and 2003. The Missouri Supreme Court in 2008 affirmed a 2006 Pettis County jury’s decision to put Johnson back on death row, despite arguments from his attorneys that his IQ was in the 60s, far below the average of 100. Attorneys had previously gotten the sentence reversed because of Johnson’s mental retardation. The state’s highest court in 2008 had ruled his representation hadn’t successfully proven Johnson’s mental handicap.

As Jones, Bratcher and Scruggs closed a Casey’s General Store on Ballenger Lane, Johnson came in armed with a handgun and robbed the cash register before bludgeoning the victims to death with a hammer and flat-head screwdriver.

Johnson’s case went to the Eighth U.S. Circuit Court of Appeals in early 2013. A three-judge panel in December that year denied his application for appeal, and the U.S. Supreme Court in October 2014 denied a petition to hear the case. Nothing has been filed in the pending U.S. District Court case since Kays approved Zivot’s examination on June 22.

© 2015 Columbia Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

BREAKING NEWS

BREAKING: The Connecticut Supreme Court has ruled that the death penalty violates the state constitution, overturning the death sentences of the 11 men remaining on death row after the state’s 2012 prospective repeal.

The death penalty is about to go on trial in California. Here’s why it might lose

On Aug. 31, the death penalty will go on trial at the Ninth Circuit Court of Appeals. The oral argument stems from a judgment in 2014, in which Federal District Judge Cormac Carney ruled that California’s death penalty system was unconstitutional.
Carney argued that because of the extremely low likelihood of execution and long delays on death row, the system was actually a penalty of life without parole with the remote possibility of death. His ruling declared that execution after such a long delay serves no retributive or deterrent purpose beyond the long prison term, and is therefore arbitrary and unconstitutional (see Jones v. Chappell, 2014). As Carney wrote in his California decision, no rational jury or legislature would design a system that functions as the system actually works. But, he argued, we must evaluate the system we do have, not the one we might prefer to have.
Nationwide, the “new” death penalty consists of 20 years or more on death row, followed by some probability of execution. The average delay from crime to execution for those executed since 2010 is 16 years across the United States, even longer in California, as the judge noted. 38 % of inmates executed nationally since 2010 served more than 20 years; 17 % served more than 25 years; 5 inmates were killed after more than 35 years of delay. The vast majority are never executed.
In a previous post Anna Dietrich and I documented that only about 16 % of condemned inmates across the nation have been executed. By far, the most likely outcome of a death sentence is that it will be overturned on appeal. Many death row inmates simply die of old age. For those few where the death sentence is actually carried out, increasing percentages languish on death row literally for decades before execution.
Supporters of the death penalty argue that Carney overstepped with his sweeping decision throwing out the entire California death penalty. Oral arguments in the Ninth Circuit Court of Appeals will begin at the end of this month. California certainly was at the low end of the distribution of “efficiency” in carrying out its death sentences in our previous analysis. Out of more than 900 death sentences, the state has carried out just 13 executions. It stands as one of the few states, along with Pennsylvania, that has large numbers of death sentences that result in very few executions.
What’s the lag time between sentence and execution outside California?
Except for Virginia, no state in the country carries out even 1/2 of all its death sentences. The most common outcome after a death penalty, by far, is reversal of the death sentence with a new sentence of life without parole. Inmates may sit on death row for years before this reversal.
This graph looks at 1,379 of the 1,394 executions that were carried out between 1977 and 2014 (I could not recover the date of the crime for 15 cases), showing the length of time from crime to execution. Of course, inmates do not move straight from the crime scene to death row. However, there has been no significant increase in the time between crime and death sentence, which averages 1.5 years.
Why is there so much time from sentence to execution?
Delays come for many reasons. Death penalties in California and elsewhere trigger a mandatory appeal to a state’s top court, and then, if not reversed, through the federal system. These are part of the safeguards mandated by the U.S. Supreme Court in the 1976 Gregg decision ushering in the “modern” death penalty. Carney noted that in California, appeals attorneys are not appointed for 3 to 5 years. They take 4 years to learn the case and file their appeal. Attorneys for habeas appeal (through the federal courts) are not appointed, on average, until 8 to 10 years after the death sentence.
Most of this delay results from a severe backlog of death penalty cases, a lack of qualified attorneys who are willing to accept capital assignments under the conditions that the state offers, and delays in appointing required qualified defense counsel.
How long does it take, exactly, to carry out the death penalty?
Each dot on the figure refers to a particular inmate executed. At the lower-left corner, the 1st case is the 1st “modern” execution: Gary Gilmore, executed by firing squad in Utah in 1977. Vertical placement of the dot indicates the number of years from the crime to the execution. Horizontal placement indicates the date of the execution.
As you can see, some executions occur relatively quickly, even today. Across the bottom of the graph are those inmates who “volunteer” for execution by instructing their attorneys to abandon all appeals. 20 of the 206 inmates executed since 2010 waited fewer than 5 years from crime to execution. However, you can see that average delays are increasing dramatically (about one additional year of delay every 3 years), and that increasing numbers of inmates are serving very long sentences before being executed. Many more remain on death row with no execution in sight.
For the 206 inmates executed since 2010, their average time from crime to execution was 16 years. 36 served more than 25 years before their execution. Overall, through 2014, 178 inmates have been executed after serving more than 20 years; 58 after more than 25 years; 14 after more than 30 years; and 5 after more than 35 years. Florida executed Thomas Knight in January 2014 for a crime committed in January 1974 – almost 40 years later. In contrast, Gilmore was killed by Utah’s firing squad in January 1977 for a crime that occurred in July 1976. Knight’s crime came 2 years before Gilmore’s, but he waited another 37 years after Gilmore’s execution on Florida’s death row before that state put him to death.
In the recent Glossip v. Gross decision affirming the use of lethal injection, the U.S. Supreme Court affirmed its support for the death penalty in the opening words of the majority decision: “Because capital punishment is constitutional, there must be a constitutional means for carrying it out.”
In his dissenting opinion, Justice Stephen Breyer noted a number of practical problems with the administration of the punishment. He noted 3 “fundamental constitutional defects”: 1) unreliability; 2) arbitrariness; and 3) unconscionably long delays. These have led, he wrote, to 4) abandonment of the penalty by most places within the United States. Since the Court’s 1976 reaffirmation of capital punishment, replete with new constitutional “safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily,” numerous practical problems have emerged, Breyer wrote. “The circumstances and the evidence of the death penalty’s application have changed radically since then,” he wrote. “Given those changes, I believe it is now time to reopen the question.”
Source: The Washington Post, Frank Baumgartner, August 5, 2015. Mr. Baumgartner is the Richard J. Richardson distinguished professor of political science at the University of North Carolina-Chapel Hill.

 

Case Targets Florida Death Penalty Sentencing

The U.S. Supreme Court this fall will hear arguments in a challenge to the way Florida sentences people to death — a challenge backed by 3 former Florida Supreme Court justices and the American Bar Association.
The case, which stems from the 1998 murder of an Escambia County fast-food worker, focuses on the role that juries play in recommending death sentences, which ultimately are imposed by judges.
Attorneys representing death row inmate Timothy Lee Hurst, including former U.S. Solicitor General Seth Waxman, contend that Florida’s unique sentencing system is unconstitutional. Supporting that position in friend-of-the-court briefs are former Florida Supreme Court justices Harry Lee Anstead, Rosemary Barkett and Gerald Kogan, along with the American Bar Association and seven former Florida circuit judges.
Part of the argument centers on what are known as “aggravating” circumstances that must be found before defendants can be sentenced to death. Hurst’s attorneys argue, in part, that a 2002 U.S. Supreme Court ruling requires that determination of such aggravating circumstances be “entrusted” to juries, not to judges.
Also, they take issue with Florida not requiring unanimous jury recommendations in death-penalty cases. A judge sentenced Hurst to death after receiving a 7-5 jury recommendation.
“Florida juries play only an advisory role,” Hurst’s attorneys wrote in a May brief. “The jury recommends a sentence of life or death based on its assessment of aggravating and mitigating circumstances, but that recommendation has no binding effect. Moreover, the jury renders its advisory verdict under procedures that degrade the integrity of the jury’s function. Unanimity, and the deliberation often needed to achieve it, is not necessary; only a bare majority vote is required to recommend a death sentence.”
But in an earlier brief, attorneys for the state argued that the U.S. Supreme Court and the Florida Supreme Court have repeatedly denied challenges to the sentencing process, including the Florida Supreme Court rejecting Hurst’s challenge. The state attorneys argued that a jury, in recommending the death penalty, has found facts that support at least one aggravating factor — which can be the basis for sentencing a defendant to death.
“Therefore, because the jury returned a recommendation of death, this court may infer the jury did find at least one aggravating circumstance beyond a reasonable doubt,” state attorneys wrote in a January brief in the U.S. Supreme Court.
The U.S. Supreme Court this week scheduled oral arguments in the case for Oct. 13, according to an online docket. The court agreed in March to take up the case.
Hurst, now 36, was convicted in the 1998 murder of Cynthia Lee Harrison, who was an assistant manager at a Popeye’s Fried Chicken restaurant where Hurst worked. Harrison’s body was discovered bound in a freezer, and money was missing from a safe, according to a brief in the case.
In sentencing Hurst to death, a judge found 2 aggravating circumstances — that the murder was committed during a robbery and that it was “especially heinous, atrocious or cruel,” according to the brief filed by Hurst’s attorneys. That brief, along with others in the case, were posted on an American Bar Association website and on SCOTUSblog, which closely tracks U.S. Supreme Court proceedings.
Much of the October hearing could focus on how to apply the 2002 U.S. Supreme Court decision — a major case known as Ring v. Arizona — to the Florida law. Hurst’s attorneys contend that the 2002 decision held that “findings of fact necessary to authorize a death sentence may not be entrusted to the judge.” They said Florida’s system undermines the juries’ constitutional “functions as responsible fact-finder and voice of the community’s moral judgment.”
The brief filed on behalf of Anstead, Barkett and Kogan raised similar arguments and said there is “no assurance that Florida death sentences are premised on a particular aggravating circumstance found by the jury.”
“And because jury unanimity is not mandated during the sentencing process, there is no assurance that a Florida jury’s death recommendation represents a reliable consensus of the community,” the brief said. “As a consequence, (the former justices) believe that the jury’s role is impermissibly denigrated and that there is an unacceptable risk that Florida death sentences are erroneously imposed, in violation of the Sixth and the Eighth Amendments to the Constitution of the United States.”
Source: WUSF news, August 1, 2015

Nevada pursues death chamber, controversial drug

Monday, July 13, 2015

Nevada has no executions on the immediate horizon but is pushing ahead to build a new death chamber at Ely State Prison and would use a drug at the heart of a recent U.S. Supreme Court case to carry out lethal injections.
Brian Connett, deputy director at the Nevada Department of Corrections, said department lawyers were reviewing the June 29 decision over the use of midazolam in Oklahoma executions “to determine what, if any, impact it may have on Nevada.”
“Nevada would use the drugs midazolam and hydromorphone to administer a lethal injection and has an adequate supply of these drugs to carry out an execution if ordered,” he said in an email.
But death penalty watchdogs said use of the drug almost assuredly would spawn lawsuits after highly publicized incidents of botched executions.
Three Oklahoma death row inmates sued after that state first used midazolam last year in the execution of Clayton Lockett. Witnesses reported Lockett writhed, gasped and moaned. Prison officials tried to halt the execution process, but Lockett died after 43 minutes.
Midazolam, an anti-anxiety drug, is intended to put inmates in a comalike state before other drugs to bring about death are administered. Critics argue it does not guarantee unconsciousness to avoid pain from the subsequent drugs.
Similar prolonged executions using midazolam occurred in Ohio and Arizona in 2014.
LETHAL DRUG RULING
In its 5-4 decision, the Supreme Court said the use of midazolam does not violate Eighth Amendment protections against cruel and unusual punishment. The majority also noted that midazolam had been used in other executions about a dozen times without complications.
About 10 days later, Oklahoma set new execution dates in September and October for the 3 inmates who challenged the use of the drug.
A 2-drug injection of midazolam and the painkiller hydromorphone, the same combination planned for use by Nevada, was 1st used for lethal injection by Ohio in January 2014. Witnesses said that it took about 25 minutes for condemned killer Dennis McGuire to die and that during the process he made loud snorting or choking noises while his midsection convulsed.
Rob Dunham, executive director of the Death Penalty Information Center, a Washington-based nonprofit group, said the court’s decision doesn’t settle the question over midazolam’s use.
“That doesn’t mean that there will not be challenges to midazolam elsewhere,” he said.
Dunham said that while justices found the Oklahoma inmates didn’t meet their burden of proof to halt the use of the drug, “it doesn’t mean that midazolam is constitutional.”
He said a state “that is concerned about the execution process would have serious doubts about using midazolam.”
The last execution in Nevada was April 26, 2006, at the now-shuttered Nevada State Prison in Carson City. Daryl Mack was executed for the 1988 rape and murder of Betty Jane May in Reno.
Starting at least 11 years ago and up through Mack’s execution, Nevada used a combination of pentobarbital, pancuronium bromide and potassium chloride in its execution protocol. But Nevada and other states have been pressed to find alternatives after death penalty opponents pressured manufacturers not to sell them for executions.
Nevada has executed 12 inmates since the U.S. Supreme Court reinstated capital punishment in 1976. About 80 men are on Nevada’s death row.
NEW DEATH CHAMBER
Besides the issue of lethal drugs, Nevada is building a new death chamber at Ely State Prison after Nevada State Prison, where executions were conducted, closed in 2012.
Less than a week after Gov. Brian Sandoval signed a capital improvement bill on June 15 that included $860,000 to remodel a prison administrative building into a new death chamber, the state Public Works Board published a notice seeking statements of qualifications from architectural and engineering firms to perform the work.
The deadline for submitting those statements was Thursday, and it is unclear how many were submitted. The prison project was one of dozens of maintenance projects approved by state lawmakers for the next 2 years.
State lawmakers, who rejected funding for a new execution chamber in 2013, approved the expenditure this year despite reservations about the cost and lingering uncertainty over the death penalty.
San Quentin's brand new, costly - and still unused - death chamber
San Quentin’s brand new, costly – and still unused – death chamber
Critics have called the new execution chamber “an outrageous boondoggle.”
“This proposed new facility may sit unused forever, or it could require further remodeling if lethal injection is rejected in court,” Nancy Hart, president of the Nevada Coalition Against the Death Penalty, and Tod Story, executive director of the American Civil Liberties Union of Nevada, wrote in a May 27 opinion piece.
“Even if lethal injection is upheld, there are serious doubts about the availability of the lethal drugs needed for an execution,” they wrote.
Plans call for remodeling 1,900 square feet of visitation and courtroom areas of an administrative building at the Ely Prison to accommodate an execution chamber.
During legislative hearings, Chris Chimits, deputy administrator with the state Public Works Board, said the chamber would be modeled after California’s San Quentin State Prison execution facility, the construction of which was overseen by the 9th U.S. Circuit Court of Appeals.
Mary Woods, spokeswoman for the Nevada Department of Administration, said a design contract could be presented to the Board of Examiners for approval in November.
After that, the design, permitting and construction process is expected to take about a year.

 

Florida Supreme Court rejects appeal by Jacksonville Death Row inmate Pinkney ‘Chip’ Carter

The Florida Supreme Court has upheld the conviction and death sentence of a Jacksonville man who killed his ex-girlfriend, her new boyfriend and her daughter.

FILE - Pinkney "Chip" Carter is seen in court for his arraignment on the triple murder of his former girlfriend, Elizabeth Smith Reed, 35, Reed's 16-year-old daughter, Courtney Smith, and Reed's new boyfriend, Glenn Carter Pafford, 49, on July 24, 2002. Times-Union staff

Pinkney “Chip” Carter, now 60, was convicted of three counts of murder in 2005. The jury found he drove to his ex-girlfriend’s Arlington home and shot and killed the victims. Liz Reed, his ex-girlfriend, was 35; her boyfriend, Glenn Pafford, was 49; and her daughter, Courtney Smith, was 16.

The murders occurred in 2002. All were shot with a .22-caliber rifle Carter said he took to the home to get answers from Reed about their break-up. Reed and Pafford died instantly, and Smith died later in a hospital.

The jury voted 9-3 for death for killing Pafford and 8-4 for death for killing Reed. Circuit Judge Lance Day sentenced Carter to two death sentences for those murders and gave him a life sentence for killing Smith.

Attorney Frank Tassone argued that Carter’s trial attorneys didn’t do a good enough job defending him, saying attorneys should’ve brought in mental-health experts to testify that Carter was experiencing a mental or emotional disturbance.

Carter was defended at trial by Bill White, who was then the elected public defender in Jacksonville, and former Assistant Public Defender Alan Chipperfield.

But the Supreme Court unanimously upheld the death sentence, finding that Carter’s trial counsel did investigate his mental health, retain experts and had full psychological evaluations done.

The defense team had previously said it did not call these mental-health experts during Carter’s penalty phase because the conclusion reached by them would not have helped. Attorneys instead attempted to argue that Carter was a good guy who deserved life in prison over death.

Introducing the experts also would have allowed prosecutors to produce more evidence of Carter’s violent past. For example, Carter once held a knife to an ex-wife’s throat and was declared a sexual deviant.

After the murders, Carter fled Jacksonville, traveling through several states before ditching the murder weapon in the Rio Grande and swimming to Mexico, where he was arrested for entering the country illegally. He was released by Mexican authorities after paying a fine and then disappeared.

Carter was finally arrested Jan. 6, 2004, near Paducah, Ky., where he was working as a roofer under the alias of Rodney Vonthun. He had been picked up earlier for being drunk in public and was released the next day. But an alert Kentucky state trooper later recognized his photo on an FBI wanted poster in another police station.

This was Carter’s second appeal, the Florida Supreme Court rejected a previous appeal in 2008.

Lawyers for Carter will likely begin appealing the decision in federal court.

 

The 20 Best Lines From the Supreme Court Dissent Calling to End the Death Penalty

The case before the Supreme Court concerned a specific question: Was a certain sort of capital punishment via lethal injection constitutional? In a decision issued Monday morning, the four conservative justices plus swing vote Justice Anthony Kennedy said yes, and Justice Sonia Sotomayor wrote a dissenting opinion for the court’s liberals taking the opposite position. But in a stinging dissent of his own, Justice Stephen Breyer, who was joined by Justice Ruth Bader Ginsburg, went much further: He called for abolishing the death penalty, contending that capital punishment, as it is currently practiced, violates the Constitution. His opinion was methodically argued and chockfull of research (on exonerations, various disparities in the application of the death sentence, and more). Breyer, who in 2008 sided with the court majority in upholding the use of lethal injections in Kentucky, noted that his own experience overseeing capital punishment cases has led him to a forceful and passionate position: The death penalty must go.

Here are the best passages from his opinion.

In 1976, the Court thought that the constitutional in­firmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those con­stitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

I shall describe each of these considerations, emphasiz­ing changes that have occurred during the past four dec­ades. For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to be­lieve that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual pun­ishmen[t].” U. S. Const., Amdt. 8.

*   *   *

[R]esearchers have found convincing evidence that, in the past three decades, innocent people have been executed.

*   *   *

[T]he evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking. As of 2002, this Court used the word “disturb­ing” to describe the number of instances in which individ­uals had been sentenced to death but later exonerated. At that time, there was evidence of approximately 60 exonerations in capital cases….Since 2002, the number of exonerations in capital cases has risen to 115……Last year, in 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations.

*   *   *

[T]he crimes at issue in capital cases are typically horren­dous murders, and thus accompanied by intense community pressure on police, prosecutors, and jurors to secure a conviction. This pressure creates a greater likelihood of convicting the wrong person.

*   *   *

[R]esearchers estimate that about 4% of those sentenced to death are actually innocent.

*   *   *

[B]etween 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them.

*   *   *

This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many in­stances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime….Unlike 40 years ago, we now have plausible evidence of unreliability that (perhaps due to DNA evidence) is stronger than the evidence we had before. In sum, there is significantly more research-based evidence today indicating that courts sentence to death individuals who may well be actually innocent or whose convictions (in the law’s view) do not warrant the death penalty’s application.

*   *   *

Thus, whether one looks at research indicating that irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty, or whether one looks at re­search indicating that proper factors—such as “egregious­ness”—do not determine who receives the death penalty, the legal conclusion must be the same: The research strongly suggests that the death penalty is imposed arbitrarily.

*   *   *

The studies bear out my own view, reached after consid­ering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations… Why does one defendant who committed a single-victim murder receive the death pen­alty (due to aggravators of a prior felony conviction and an after-the-fact robbery), while another defendant does not, despite having kidnapped, raped, and murdered a young mother while leaving her infant baby to die at the scene of the crime…Why does one defendant who committed a single-victim murder receive the death penalty (due to aggravators of a prior felony conviction and acting recklessly with a gun), while another defendant does not, despite having committed a “triple murder” by killing a young man and his pregnant wife?… For that matter, why does one defendant who participated in a single-victim murder-for-hire scheme (plus an after-the­ fact robbery) receive the death penalty, while another defendant does not, despite having stabbed his wife 60 times and killed his 6-year-old daughter and 3-year-old son while they slept?… In each instance, the sentences compared were imposed in the same State at about the same time.

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stew­art, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?

*   *   *

[N]early all death penalty States keep death row inmates in isolation for 22 or more hours per day….This occurs even though the ABA has suggested that death row inmates be housed in conditions similar to the general population, and the United Nations Special Rapporteur on Torture has called for a global ban on solitary confinement longer than 15 days…  And it is well documented that such prolonged solitary confinement produces numerous deleterious harms. See, e.g., Haney, Mental Health Issues in Long-Term Solitary and “Supermax” Confinement, 49 Crime & Delinquency 124, 130 (2003) (cataloging studies finding that solitary confinement can cause prisoners to experience “anxiety, panic, rage, loss of control, paranoia, hallucinations, and self-mutilations,” among many other symptoms)

*   *   *

The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out. In 1890, this Court recognized that, “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it.”… The Court was there describing a delay of a mere four weeks. In the past century and a quarter, little has changed in this respect— except for duration. Today we must describe delays measured, not in weeks, but in decades.

*   *   *

The second constitutional difficulty resulting from lengthy delays is that those delays undermine the death penalty’s penological rationale, perhaps irreparably so. The rationale for capital punishment, as for any punishment, classically rests upon society’s need to secure deter­rence, incapacitation, retribution, or rehabilitation. Capital punishment by definition does not rehabilitate. It does, of course, incapacitate the offender. But the major alternative to capital punishment—namely, life in prison without possibility of parole—also incapacitates.

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Recently, the National Research Council (whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine) reviewed 30 years of empirical evidence and concluded that it was insufficient to establish a deterrent effect and thus should “not be used to inform” discussion about the deterrent value of the death penalty.

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Sometimes the community believes that an execution could provide closure. Nevertheless, the delays and low probability of execution must play some role in any calculation that leads a community to insist on death as retribution. As I have already suggested, they may well attenuate the community’s interest in retribution to the point where it cannot by itself amount to a significant justification for the death penalty…. In any event, I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole (a sentence that every State now permits.

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The upshot is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale. And this Court has said that, if the death penalty does not fulfill the goals of deterrence or retribution, “it is nothing more than the purposeless and needless imposition of pain and suffering and hence an unconstitutional punishment.”

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And that fact creates a dilemma: A death penalty sys­tem that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capi­tal punishment and significantly undermine the rationale for imposing a sentence of death in the first place…(one of the primary causes of the delay is the States’ “failure to apply constitutionally sufficient procedures at the time of initial [conviction or] sentenc­ing”). But a death penalty system that minimizes delays would undermine the legal system’s efforts to secure relia­bility and procedural fairness.

In this world, or at least in this Nation, we can have a death penalty that at least arguably serves legitimate penological purposes or we can have a procedural system that at least arguably seeks reliability and fairness in the death penalty’s application. We cannot have both. And that simple fact, demonstrated convincingly over the past 40 years, strongly supports the claim that the death pen­alty violates the Eighth Amendment.

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The Eighth Amendment forbids punishments that are cruel and unusual. Last year, in 2014, only seven States carried out an execution. Perhaps more importantly, in the last two decades, the imposition and implementation of the death penalty have increasingly become unusual.

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[I]f we look to States, in more than 60% there is effectively no death penalty, in an additional 18% an execution is rare and unusual, and 6%, i.e., three States, account for 80% of all executions. If we look to population, about 66% of the Nation lives in a State that has not carried out an execution in the last three years. And if we look to counties, in 86% there is effectively no death penalty. It seems fair to say that it is now unusual to find capital punishment in the United States, at least when we consider the Nation as a whole.

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I recognize a strong counterargument that favors consti­tutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? The Constitution foresees a country that will make most important decisions democratically. Most nations that have abandoned the death penalty have done so through legislation, not judicial decision. And legisla­tors, unlike judges, are free to take account of matters such as monetary costs, which I do not claim are relevant here….

The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quin­tessentially judicial matters. They concern the infliction— indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual.

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I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.