Court watchers say that the John Roberts-led U.S. Supreme Court may at last take a case that directly pertains to whether or not the death penalty is a constitutional punishment.
Those who are working against the death penalty note that the four liberal justices are likely opponents of the sentence. Even conservative Justice Antonin Scalia recently noted that the court could get to such a case sooner rather than later.
Though he said he thinks the Constitution allows for it, during a September speech at Rhodes College in Tennessee, Scalia said he “wouldn’t be surprised” if the court takes a case that directly pertains to the constitutionality of the sentence.
As The Hill reported, advocates for invalidating the death penalty are enthused over the possibility that the court could take the case.
“There is a feeling that this is not a long shot with the court anymore,” Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project, told the Washington-based paper. “I think there is no question we have four votes.”
In fact, some activists against the most final of penalties point to a recent SCOTUS case, Glossip v. Gross, the dissent of which seems to invite lawyers to bring a broad challenge to the legitimacy of the penalty.
In the case, liberal justice Breyer issued a decision that Justice Ruth Bader Ginsburg joined that lays out several problems inherent in the death penalty.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote in June. “Perhaps as a result, most places within the United States have abandoned its use.”
Still, even in Glossip v. Gross, the final ruling was that Oklahoma’s use of the drug midazolam in executions did not count as cruel and unusual punishment. Some felt it was a blow to those who want the abolition of the sentence.
Abolitionists feel that the death penalty is cruel and unusual punishment and that it should be ruled unconstitutional. However, the Constitution does lay out specific crimes for which the penalty may be applied, so clearly the death penalty is not strictly unconstitutional.
Supporters of the penalty, though, point out that a strong majority of Americans still support the death penalty in theory. As recently as October 7, 61 percent said they still favored the death penalty.
Follow Warner Todd Huston on Twitter @warnerthuston or email the author at igcolonel@hotmail.com