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Before He Leaves High Court, Breyer Pushes Against Death Penalty

During his last few weeks in office, Supreme Court Justice Stephen Breyer is pushing for his colleagues to take up a constitutional challenge of the death penalty. Like some of his predecessors, Breyer's view on capital punishment has changed over time, a trend experts say comes from exposure to flaws in the U.S. system of capital punishment. During his last term, Breyer has repeatedly written statements reminding the court that he thinks the issue as a whole needs more attention, reports Courthouse News Service. “While I recognize ... that procedural obstacles make it difficult for us to grant certiorari ... I continue to believe that the excessive length of time that [inmates] have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered,” Breyer wrote this week.

Such pronouncements are a continuation of views Breyer first expressed in his 2015 dissent in Glossip v. Gross, which marked a shift in his views on capital punishment. He not the only justice to change stances on the issue. “If you aggregate all the justices who said the death penalty is not constitutional after they had voted otherwise, the death penalty would have been declared unconstitutional,” says Robert Dunham of the Death Penalty Information Center. Justice Harry Blackmun famously said, “I no longer shall tinker with the machinery of death” after a 20-year struggle over the issue. Justice John Paul Stevens and Lewis Powell also changed their views. , whose 1986 vote saved the death penalty in McCleskey v. Kemp, wrote that he regretted his vote after his retirement and said capital punishment should be abolished. Experts say this trend is influenced by how involved the justices are with death penalty cases. Despite Breyer's pleas, experts see the current court's death penalty rulings as more focused on prisoners’ access to federal judicial review of their cases. “This Supreme Court is not going to be considering questions relating to the systemic unconstitutionality of capital punishment,” Dunham said.


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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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