U.S. Supreme Court Justice Stephen Breyer Cites Professor James S. Liebman in Dissenting Opinion
The U.S. Supreme Court today ruled 5-4 to uphold a procedure used by states to carry out executions by lethal injection, stating that use of the drug does not violate the Eighth Amendment prohibition on cruel and unusual punishment, despite plaintiffs’ claims that the drug posed a risk of causing excruciating pain.
Justice Stephen Breyer issued a separate dissent in the case, Glossip v. Gross, writing that it is “highly likely that the death penalty violates the Eighth Amendment” and four times citing the work of death penalty expert Columbia Law School Professor James S. Liebman.
New York, June 29, 2015—The U.S. Supreme Court today ruled 5-4 to uphold a procedure used by states to carry out executions by lethal injection, stating that use of the drug does not violate the Eighth Amendment prohibition on cruel and unusual punishment, despite plaintiffs’ claims that the drug posed a risk of causing excruciating pain.
Justice Stephen Breyer issued a separate dissent in the case, Glossip v. Gross, writing that it is "highly likely that the death penalty violates the Eighth Amendment" and four times citing the work of death penalty expert Columbia Law School Professor James S. Liebman. On first reference, Breyer referred to Liebman’s groundbreaking investigation into the 1989 execution of Carlos De Luna, a man who was innocent according to evidence unearthed by Liebman and a team of Columbia Law School students. Breyer said (page 3):
For one thing, despite the difficulty of investigating the circumstances surrounding an execution for a crime that took place long ago, researchers have found convincing evidence that, in the past three decades, innocent people have been executed. See, e.g., Liebman, Fatal Injustice; Carlos DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a Dangerous Idea, L. A. Times, June 1, 2012, p. A19 (describing results of a 4-year investigation, later published as The Wrong Carlos: Anatomy of a Wrongful Execution (2014), that led its authors to conclude that Carlos DeLuna, sentenced to death and executed in 1989, six years after his arrest in Texas for stabbing a single mother to death in a convenience store, was innocent)…
Several times addressing the issue of exoneration in the opinion, Breyer noted Liebman’s seminal work on capital punishment, “A Broken System,” stating: (page 8)
Finally, if we expand our definition of “exoneration” (which we limited to errors suggesting the defendant was actually innocent) and thereby also categorize as “erroneous” instances in which courts failed to follow legally required procedures, the numbers soar. Between 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them. Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on direct and postconviction review overturned 47% of the sentences they reviewed. Id., at 232. Federal courts, reviewing capital cases in habeas corpus proceedings, found error in 40% of those cases. Ibid.
Breyer also discussed geographical differences in resources provided to defense counsel, citing more of Liebman’s scholarship: (page 13)
Justice Stephen Breyer issued a separate dissent in the case, Glossip v. Gross, writing that it is "highly likely that the death penalty violates the Eighth Amendment" and four times citing the work of death penalty expert Columbia Law School Professor James S. Liebman. On first reference, Breyer referred to Liebman’s groundbreaking investigation into the 1989 execution of Carlos De Luna, a man who was innocent according to evidence unearthed by Liebman and a team of Columbia Law School students. Breyer said (page 3):
For one thing, despite the difficulty of investigating the circumstances surrounding an execution for a crime that took place long ago, researchers have found convincing evidence that, in the past three decades, innocent people have been executed. See, e.g., Liebman, Fatal Injustice; Carlos DeLuna’s Execution Shows That a Faster, Cheaper Death Penalty is a Dangerous Idea, L. A. Times, June 1, 2012, p. A19 (describing results of a 4-year investigation, later published as The Wrong Carlos: Anatomy of a Wrongful Execution (2014), that led its authors to conclude that Carlos DeLuna, sentenced to death and executed in 1989, six years after his arrest in Texas for stabbing a single mother to death in a convenience store, was innocent)…
Several times addressing the issue of exoneration in the opinion, Breyer noted Liebman’s seminal work on capital punishment, “A Broken System,” stating: (page 8)
Finally, if we expand our definition of “exoneration” (which we limited to errors suggesting the defendant was actually innocent) and thereby also categorize as “erroneous” instances in which courts failed to follow legally required procedures, the numbers soar. Between 1973 and 1995, courts identified prejudicial errors in 68% of the capital cases before them. Gelman, Liebman, West, & Kiss, A Broken System: The Persistent Patterns of Reversals of Death Sentences in the United States, 1 J. Empirical L. Studies 209, 217 (2004). State courts on direct and postconviction review overturned 47% of the sentences they reviewed. Id., at 232. Federal courts, reviewing capital cases in habeas corpus proceedings, found error in 40% of those cases. Ibid.
Breyer also discussed geographical differences in resources provided to defense counsel, citing more of Liebman’s scholarship: (page 13)
Others suggest that the availability of resources for defense counsel (or the lack thereof) helps explain geographical differences. See, e.g., Smith 258–265 (counties with higher death-sentencing rates tend to have weaker public defense programs); Liebman & Clarke, Minority Practice, Majority’s Burden: The Death Penalty Today, 9 Ohio S. J. Crim. L. 255, 274 (2011) (hereinafter Liebman & Clarke) (similar)…
Additionally, Breyer noted Liebman’s work on the differing prevalence of capital punishment throughout the United States: (page 35)
At the same time, use of the death penalty has become increasingly concentrated geographically. County-by-county figures are relevant, for decisions to impose the death penalty typically take place at a county level. See supra, at 12–13. County-level sentencing figures show that, between 1973 and 1997, 66 of America’s 3,143 counties accounted for approximately 50% of all death sentences imposed. Liebman & Clarke 264–265; cf. id., at 266. (counties with 10% of the Nation’s population imposed 36 GLOSSIP v. GROSS BREYER, J., dissenting 43% of its death sentences). By the early 2000’s, the death penalty was only actively practiced in a very small number of counties: between 2004 and 2009, only 35 counties imposed 5 or more death sentences, i.e., approximately one per year. See Appendix D, infra (such counties colored in red) (citing Ford, The Death Penalty’s Last Stand, The Atlantic, Apr. 21, 2015). And more recent data show that the practice has diminished yet further: between 2010 and 2015 (as of June 22), only 15 counties imposed five or more death sentences. See Appendix E, infra. In short, the number of active death penalty counties is small and getting smaller. And the overall statistics on county-level executions bear this out. Between 1976 and 2007, there were no executions in 86% of America’s counties. Liebman & Clarke 265–266, and n. 47; cf. ibid. (counties with less than 5% of the Nation’s population carried out over half of its executions from 1976–2007).
Breyer explained that the Liebman’s studies and others he cites throughout his dissenting opinion “…bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years.”
Justice Ruth Bader Ginsburg '59 joined Breyer's opinion.
At the same time, use of the death penalty has become increasingly concentrated geographically. County-by-county figures are relevant, for decisions to impose the death penalty typically take place at a county level. See supra, at 12–13. County-level sentencing figures show that, between 1973 and 1997, 66 of America’s 3,143 counties accounted for approximately 50% of all death sentences imposed. Liebman & Clarke 264–265; cf. id., at 266. (counties with 10% of the Nation’s population imposed 36 GLOSSIP v. GROSS BREYER, J., dissenting 43% of its death sentences). By the early 2000’s, the death penalty was only actively practiced in a very small number of counties: between 2004 and 2009, only 35 counties imposed 5 or more death sentences, i.e., approximately one per year. See Appendix D, infra (such counties colored in red) (citing Ford, The Death Penalty’s Last Stand, The Atlantic, Apr. 21, 2015). And more recent data show that the practice has diminished yet further: between 2010 and 2015 (as of June 22), only 15 counties imposed five or more death sentences. See Appendix E, infra. In short, the number of active death penalty counties is small and getting smaller. And the overall statistics on county-level executions bear this out. Between 1976 and 2007, there were no executions in 86% of America’s counties. Liebman & Clarke 265–266, and n. 47; cf. ibid. (counties with less than 5% of the Nation’s population carried out over half of its executions from 1976–2007).
Breyer explained that the Liebman’s studies and others he cites throughout his dissenting opinion “…bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years.”
Justice Ruth Bader Ginsburg '59 joined Breyer's opinion.