Slowly but steadily, America is losing its taste for the death penalty. Yesterday’s Supreme Court dissent by Stephen Breyer may go down as a landmark on America’s path to the death penalty’s inevitable abolition.

In yesterday’s death penalty case, Glossip v. Gross, the Supreme Court held in a 5-4 vote that Oklahoma’s use of the lethal injection drug midazolam does not constitute cruel and unusual punishment, despite some gruesome examples to the contrary. (The plaintiff in the case, death row inmate Richard Glossip, wrote us a letter about his case, which can be seen here.)

That the court swung conservatively is unremarkable, given its makeup and general tendency to follow rather than to lead social conscience. What was remarkable, though, was Stephen Breyer’s dissent, which amounted to a strong and full-throated rejection of the idea that the death penalty can be administered in a just way. He bases his rejection not upon pure ideology, but upon evidence accumulated over 40 years of American history:

In 1976, the Court thought that the constitutional infirmities in the death penalty could be healed; the Court in effect delegated significant responsibility to the States to develop procedures that would protect against those constitutional problems. Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. 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... it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].”

Breyer cites “convincing evidence” that “innocent people have been executed”—an idea once held up in an abstract way as something that would surely give America pause over the death penalty, but which in fact seems to have changed few minds in and of itself. He also cites the dozens of exonerations of people who had been sentenced to death, widespread flawed forensic testimony in capital cases, and statistical analysis pointing to a significant percentage of innocent people on death row as things that “suggest a serious problem of reliability.”

Yes, to say the least.

Breyer says the death penalty is clearly imposed in a manner arbitrary enough to render it unconstitutional. “[Studies] indicate that the factors that most clearly ought to affect application of the death penalty—namely, comparative egregiousness of the crime—often do not,” he writes. “Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do.” And he turns to his own experience reviewing death penalty appeals for decades, which strike him as having no solid rationale which distinguishes a person sentenced to die from one who is not:

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?

An honest reading of the evidence contained in Breyer’s dissent leaves little room for rejecting his conclusion: that the death penalty is both unconstitutional, and unjust. Even if you believe that a death penalty can exist justly, it is impossible not to acknowledge that here, in America, we have failed to find justice in our system of executions.

It’s only a matter of time before the death penalty ceases to exist in America. It will go down as one of history’s many cruel and unjust policies, done in by the imperfect march of human enlightenment.

[Photo: AP]