BOOK REVIEW: "Against the death penalty, by Stephen Breyer, edited by John D. Bessler," reviewed by David Wecht, in a review headed "A U.S. Supreme Court Justice disputes the justice of the death penalty," published by The Pittsburgh Post-Gazette, on December 24, 2016. (David Wecht is a justice of the Supreme Court of Pennsylvania. Any views expressed here are his and are not offered on behalf of the court.)
GIST: "The Constitution of the United States forbids “cruel and unusual punishments.” What does this mean? It seems clear that, when they enacted the Eighth Amendment in 1791, the framers aimed to prohibit pillorying, drawing and quartering, gibbeting, beheading, burning, breaking on the rack, and other horribles paraded for centuries in English squares. It’s equally clear that the framers did not intend to bar the death penalty itself. Over time, our courts have ordered, and states have imposed, execution by hanging, firing squad, electrocution, poison gas and, most recently, lethal drug injection. For the recently deceased Supreme Court Justice Antonin Scalia, the original intent of the framers was the polestar of constitutional interpretation: Any punishment not deemed cruel and unusual in 1791 is not cruel and unusual now. For Justice Stephen Breyer, by contrast, the test changes over time according to what the court has called “evolving standards of decency.” “Against the Death Penalty” (Brookings Institution Press, $14.95), written by Stephen Breyer and edited by John Bessler, gives us Justice Breyer’s view, as articulated in his 2015 dissent in the Glossip v. Gross case. In addition to Justice Breyer’s Glossip dissent, this slim volume includes as well a thorough and well-annotated introductory essay by John Bessler, a scholar of the death penalty who teaches at the University of Baltimore School of Law. Mr. Bessler summarizes the history of American jurisprudence on the death penalty and sketches the views of both its proponents (Justice Scalia, Justice Clarence Thomas and others) and its critics such as Justice Breyer. Justice Breyer marshals several arguments against the constitutionality of the death penalty. First, he argues that the penalty is cruel because it is unreliable. He details research documenting numerous wrongful convictions and ultimate exonerations of death row inmates. He describes evidence of prosecutorial misconduct, false confessions, death inclinations of death-qualified jurors, flawed forensics and other phenomena. Justice Breyer also argues that the death penalty is cruel because it is arbitrary. He cites studies showing that, while the penalty is meant to be imposed on what former Justice David Souter called “the worst of the worst,” it is in fact imposed most often not based on egregiousness of the crime but upon circumstances that ought to be irrelevant, such as race, gender and geography. With respect to the latter, evidence that Justice Breyer invokes suggests that the discretionary authority of local prosecutors, the disparate resources available for defense counsel and the election of judges all play a role, and that these problems are largely intractable. Comparing several cases where prisoners were put to death to several where perpetrators of far more heinous and reprehensible multiple killings were not, Justice Breyer concludes, as the late Justice Potter Stewart did decades ago, that the death penalty is arbitrary and capricious in the same way that being struck by lightning is arbitrary and capricious.........Justice Breyer further maintains that the death penalty is cruel because of the excessive delays that attend its imposition. He shows that procedural safeguards required by our Constitution indicate that these delays will continue. He argues that the years and often decades of solitary confinement that ensue induce mental and physical harms, particularly in the many cases where governors have signed death warrants only to later revoke them.........This book is a valuable contribution to the discussion. Justice Breyer and Mr. Bessler’s decision to omit the majority opinion of Justice Samuel Alito, the concurring opinions of Justices Scalia and Thomas, and the dissenting opinion of Justice Sonia Sotomayor may be forgivable as an editorial matter. But interested citizens could begin further research and thinking on the subject by reading all of those writings and then doing some quiet reflection of their own."
The entire review can be found at:
http://www.post-gazette.com/ae/books/2016/12/24/Book-review-Against-the-Death-Penalty-by-Stephen-Breyer-edited-by-John-D-Bessler/stories/201612250012
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/
