Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January.
The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.
The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.
Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment. Twenty people were executed this year, the lowest number in a quarter-century.
The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.
Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole. Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.
The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments. So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question. This month Justice Breyer took aim at the practice again, in a dissent from the court’s decision not to hear an appeal from a death-row inmate in Florida.
Pointing to the facts of several recent cases that had come before the court, Justice Breyer asked whether the death penalty itself — plagued by arbitrariness, racism, decades-long delays and faulty execution-drug protocols — violates the Eighth Amendment. The people who end up being executed, he wrote, “are not the ‘worst of the worst,’ but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.”
Meanwhile the court is making matters worse with its erratic decisions in recent last-minute death-penalty appeals. Who lives and who dies is arbitrary.
Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.
Source: The New York Times, The Editorial Board, December 26, 2016
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