Against the Death Penalty: Justice Breyer’s dissent and the future of the death penalty in the US

On  Election Day 2016, the death penalty was on the ballot in California, Nebraska, and Oklahoma. In each state, voters chose to uphold it.

Despite these ballot appearances, most questions regarding the death penalty ultimately end up in the courts. In 2015, a 5-4 Supreme Court decision in the case of Glossip v. Gross upheld the legality of a lethal injection drug used in Oklahoma. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, wrote a dissent that urged their colleagues on the bench to reconsider the constitutionality of the death penalty, arguing that it likely violated the Eighth Amendment.

A new project from the Brookings Institution Press takes this important dissent and puts it into a format that can be read by a wider audience. “Against the Death Penalty” shares Justice Breyer’s dissent in full, with edits and annotations by legal scholar John Bessler that transform the text into an accessible read free of technical legal jargon.

Additionally, a  new interactive page delves into the case of Glossip v. Gross and expands on the points Justice Breyer made in his dissent.

Against the death penalty Supreme Court graphic

With the death of Justice Antonin Scalia earlier this year, and his replacement in question at this moment, the Supreme Court is set to remain evenly divided on death penalty cases.

Without Scalia’s vote, it’s possible that upcoming cases could be split four-to-four, keeping any lower court rulings in place. Once a ninth justice is confirmed, that justice’s views will be pivotal in resolving future Eighth Amendment cases. Until then, the fate of the death penalty remains uncertain.

Learn more in “Against the Death Penalty.”