This morning the Supreme Court denied the request of three Oklahoma prisoners to ban a controversial drug used in lethal injections that has been alleged to cause a severely painful death. But the most interesting news item to come out of the court’s decision was the dissenting opinion of Justice Stephen Breyer, who proposed that perhaps it is time to confront a bigger question: Whether capital punishment itself is a violation of the Eighth Amendment.
Breyer, in an opinion joined by Justice Ruth Bader Ginsburg, said that the death penalty may very well constitute cruel and unusual punishment. “Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
The actual case before the court stemmed from the highly publicized execution of Oklahoma prisoner Clayton Lockett in 2014, which raised serious questions about the drugs being used in lethal injections. The Atlantic last month offered an in-depth look at Lockett’s execution, and I for one had a hard time reading the gruesome details. If that type of a death isn’t “cruel and unusual,” I’d hate to see one that is.
The execution of Lockett, and other recent execution horror stories, have swayed the opinions of some Americans against the death penalty, giving a boost to the longstanding movement to end capital punishment in the United States once and for all. Last month, Nebraska became the 19th state in the nation to abolish the death penalty. And many prominent Catholic voices, from Sister Helen Prejean to Pope Francis, have argued against capital punishment from a faith perspective. As Francis put it plainly, the death penalty “contradicts God’s plan for man and society.”
Yet Catholics remain divided on the issue—in fact, all five Supreme Court justices in the majority on today’s ruling against the Oklahoma inmates are Catholic. One such Catholic justice, Antonin Scalia, called Breyer’s comments on abolishing the death penalty “gobbledy gook.” (Also of note is the fact that the U.S. bishops have, at the time of this writing, not made any statements about the death penalty decision; in contrast, they responded almost immediately to Friday’s Supreme Court ruling on marriage.)
But there is a current among people of faith to work toward ending the death penalty, one that reaches across denominations. Justice Breyer even raising the question today should give hope to these advocates. The current court may be unlikely to strike down capital punishment as a violation of the Eighth Amendment even if confronted with such a case, but the day when the death penalty is dealt its final blow–either through legislation or judicial ruling—may not be too far in the future.
