In Glossip v. Gross, Justice Steven Breyer penned a historic dissent, joined by Ruth Bader Ginsburg (and likely reflecting the views ofothermembers of the Court), whichshows that the death penalty is now categorically unconstitutional. Scholars and capital defense lawyers should carefully consider the particular arguments pressed by Justice Breyer, which helists as follows:
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.
...[E]ach of these considerations, [in light of changes] that have occurred during the past four decades ..., [indicate that] the death penalty, in and of itself, now likely constitutes a legally prohibited "cruel and unusual punishmen[t]." U. S. Const., Amdt. 8.
Yesterday, I argued that Justice Breyer's dissent is a monumental development in Eighth Amendment jurisprudence not just because it's right but because the position he advances may command a majority of the Court before the end of this decade. (My suspicions that more than two Justices have already been persuaded tothe Breyer/Ginsburgabolitionist stance were further arousedwhen I read aboutJustice Scalia's extraordinary statement from the bench in Glossip.)
Here, I want to first summarize Justice Breyer's dissent and then highlight a substantial argument against capital punishment that Justice Breyer's dissentdoes not address: human beings may lack the sort of contra-causal free will that the current capital punishment regime presumes. Finally, I'll show that this argument from determinism, though perhaps philosophically attractive, is too risky to raise in court.
I.Justice Breyer's Arguments Against the Death Penalty
Justice Breyer's tour de force is practically an encyclopedia of all the strongest arguments that generations oflawyers, activists, and academics havedeployed to assailthe death penalty:
- Life imprisonment is sufficient to incapacitate the offender. Check.
- The death penalty (at least as currently practiced) does nothing at all to deter crime. Check.
- "[W]hatever 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." Check.
- Innocent people have been executed and will continue to be sentenced to death and executed if the death penalty persists. Check.
- The death penalty ismarred byracism, sexism, andgross geographical disparities. Check.
- The imposition of capital punishment on an apparently-random,extraordinarily small percentage of persons convicted of murder is as arbitrary as "being struck by lightning." Check.
- Capital trials are procedurally unfair and frequently violate fundamental constitutional guarantees of due process and the effective assistance of counsel. Check.
- The death penaltyis often imposed onpeoplewho, though guilty, don't really deserve it. Check.
- The death penalty is ruinously expensive compared to effective alternatives. Check.
- Thedecades-long, anxiety-riddenstayin the "dehumanizing conditions" ofdeath rowthat defendants must endure to receiveeven the pretense ofdue processis itself cruel and unusual punishment. Check.
- The decades-long delay between the imposition of a death sentence and its execution may mean that the state is executing a "changed" (Iwould say different)"human being." Check.
(Justice Breyer's argument is sophisticated,so thishastily-compiled synopsis no doubt misses some key points that other careful readers will catch.)
The features of our broken-beyond-repair capital punishment system highlighted by Justice Breyer are more than sufficient reason to find that the death penalty violates the Eighth Amendment. Further, Justice Breyer's dissent providescapital defense lawyerswithuseful guidance about whattroublesat least twoJustices (and maybe five?)about the death penalty and, thus, should set the agenda for capital litigation going forward.
II.Determinism and the Death Penalty
The comprehensiveness (and intellectual rigor)ofJustice Breyer's dissent makes it noteworthy that he does omit an intellectuallyserious constitutional argument against the death penalty. His Glossip dissent doesn'ttouch the substantial, and perhapstoo powerful,argument that retribution itself is illegitimate -- perhaps even incoherent --because no human being bears the sort of ultimate moral responsibility for his or her actionsthat just retribution requires.
Most neuroscientists and philosophers of mind agree that human beings' actions are, like everything else in the world, ultimatelydetermined by the physical laws of Physics, Chemistry, Biology, and the like. (If you're a believer, you can add God or gods to the list of ultimate causes.)
We all make choices, no doubt. Every day, most everyone makes choices unconstrained by any form of external coercion. But our choices are nevertheless determined; our choicesare determined by a millennia-long list of predicate causes: nature (genetics), nurture (environment), and perhaps Godor gods --forcesover which we have no control. After all, what else could our choices possiblybe based on?
In an influential piece of interdisciplinary scholarship, Joshua Greene and Jonathan Cohen show that "common-sense retributivism" (the sort of retributivism often thought to justify the death penalty) “really does depend on a notion of free will that is scientifically suspect.” As Greene and Cohen put it, we intuitively “want to punish those people who truly deserve it, but whenever the causes of someone’s bad behaviour are made sufficiently vivid, we no longer see that person as truly deserving of punishment.”
Of course, criminal punishments can be justified without resort to retribution. We may justifiably lock people up in prison because we want to prevent/discourage them from committing future crimes (incapacitation/specific deterrence). And we may be able to justifiably imprison people to discourage other people from committing future crimes (general deterrence). These punishments may be justified because imprisonment may be a cause of a person (even person without libertarianfree will) remaining free from crime.Indeed, suchconsequentialist considerationsexplain why we may temporarily incapacitate a person who is dangerously insane(a person who many would agree is without true free will): to reduce the risk that the person will commit a crime in the future.
But capital punishment -- muchmore sothanother criminal punishments --is difficult to justify onconsequentialist grounds, as Justice Breyer's Glossip dissent shows at 74 et seq. And deterrence and incapacitation are notthe real reason we execute our own citizens. Juries and judges alike generally only want put to death people who they think "truly deserve it" (in the common-sense retributivist sense of a Scalia or Thomas dissent from a grant of relief to a death-row prisoner).
But what if no one "truly deserves" criminal punishment because any choice to commit a crime was fully determined by causes beyond the control of the offender? What if, in other words, criminal punishment can be justified, but only onconsequentialist grounds? And hasn't the Court consideredscientific consensus to help itdecide difficult moral and philosophical questions like this before, as in cases like Obergefell and Hall v. Florida?
III.Implications for Practice
The proposition that punishment can only be justified onconsequentialist grounds, while having significant philosophical force, is still too radical to speak in court. So, while the entire notion of just dessertsmay bea charade, it's wise for litigators not to say so in their arguments to the Court.Cf. Schriro v. Landrigan, 550 U.S. 465, 481 (2007). It appears that all members of the current Court view determinism (wrongly, in my view) as too dangerous an idea to entertain.
The argument from determinism may, indeed, be too dangerous an idea for death-penalty opponents to even press in court. Itrisks a terrible backfiring if the death penalty is upheld. If the Justices were to conclude that the death penalty could be justified on purely-consequentialist grounds, then theargument against retributivism could cast doubt onwhat minimal protections theEighth Amendmentcurrently provides (e.g., Lockett v. Ohio) by suggesting thatbroad classes of mitigating evidencemay be lessmorally relevant.
So, while the argument from determinism may seem philosophically sound, the arguments fromJustice Breyer's historic Glossip dissent (supplemented with Kennedyesque arguments based in inherent human dignity)mustbe the roadmapfor the next generation of constitutional litigation over the death penalty.
The views expressed in this article are solely those of the author and do not necessarily represent the views of the Federal Public Defenders Office or any of the author's clients.