Justice Breyer argues the death penalty isn’t just cruel, it’s unusual too

83% of the U.S. population lives in places where the death penalty is unusual either by law or by practice.

by Rachel Gandy, July 2, 2015

On Monday, the U.S. Supreme Court narrowly upheld the constitutionality of a drug used to carry out executions, but one of the dissenting judges raised a more fundamental question: Is the death penalty itself constitutional? In his dissent to the Glossip v. Gross decision, Justice Stephen Breyer fiercely argued that, by today’s societal standards, capital punishment is both cruel and unusual.

To prove the cruelty of capital punishment, Justice Breyer reviewed three key points. First, death sentences lack reliability because they are frequently (and erroneously) given to two types of people: those who are innocent and those whose convictions must be thrown out due to constitutional errors in their trials. Shockingly, courts and state governors are 130 times more likely to exonerate a defendant when a death sentence is imposed than when one is not. Second, capital punishments are arbitrary. Judge Breyer summarized the evidence showing that race, gender, and geography are often more influential than the severity of a crime in determining if people will be sentenced to death. Third, the long delays necessitated by due process both harm defendants and undermine any deterrent or retributive effects of the death sentence.

To me, the most intriguing part of Justice Breyer’s dissent was his argument that capital punishment is unusual. He presented data to show that the death penalty has fallen out of favor nationwide. For example, the number of death sentences imposed and the number executions conducted have sharply declined in the last 15 years. (See Appendices A and B in the dissent for the graphs that correspond with these facts). Justice Breyer then makes a powerful point about how rare the death penalty has become by calculating the percent of U.S. residents who live in states that have recently conducted an execution. His findings are striking, so we used the data he provided to illustrate his argument with this graph:

The death penalty is on its way out. The portion of the country that lives in a state where the death penalty was recently used has been in consistent decline for 15 years. In 1999, 70% of the U.S. population lived in a state that used the death penalty within the last three years, but by 2014, only 33% of the U.S. population lived in such a state.

To be sure, public opinion polls show consistent theoretical support for the death penalty, but the reality is that capital punishment is rarely used. Today, 19 states (and the District of Columbia) have formally abolished the death penalty, but the map below shows that a death sentence can hardly be considered “usual” punishment in the remaining 31 states:

In the 31 states that do not legally forbid the death penalty, more than a third have not actually conducted an execution since 2007. (Therefore, in total, 30 states have eliminated the death penalty either through legislative action or by common practice.) Another nine states have conducted fewer than five executions since 2007. That leaves only 11 states where the death penalty cannot be deemed “unusual.”

Even in the 11 states where the death penalty isn’t “unusual,” three states conduct an overwhelming majority of the total executions. In 2014, 80% of all U.S. executions took place in Texas, Missouri, and Florida, where less than 17% of the U.S. population lived. That leaves 83% of the U.S. population living in places where the death penalty is unusual either by law or by practice.

The Supreme Court’s decision shines a spotlight on a decades-old debate that tends to focus primarily on the cruelty of capital punishment. Justice Breyer, however, used his dissent to shift the conversation. He unequivocally showed that the Eighth Amendment’s other requirement is being violated—the death penalty is increasingly unusual, and it’s time to rethink its constitutionality.

Correction: The map originally published with this post incorrectly switched the colors for Vermont and Utah. This was corrected at noon on July 3, 2015.