The U.S. Supreme Court appears on track to revisit the constitutionality of the death penalty, with recent remarks from justices and world leaders sparking fresh optimism from opponents of capital punishment.
The high court under Chief Justice John Roberts has in recent terms agreed to rule on cases related to how states handle death penalty prosecutions and conduct executions, but has yet to weigh in on whether the practice violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Some court watchers say that will soon change, pointing to signals suggesting an appetite among some of the justices to delve into that question in the near future, if not this term.
“There is a feeling that this is not a long shot with the court anymore,” said Cassandra Stubbs, director of the American Civil Liberties Union’s Capital Punishment Project. “I think there is no question we have four votes.”
Many in the legal field have pointed to Justice Stephen Breyer’s dissenting opinion in a case known as Glossip v. Gross as evidence of the court’s trajectory. The case, decided last year, centered on whether state can use of the drug midazolam in lethal injections.
While the majority ruled in the affirmative, some viewed Breyer’s dissent — which was joined by Justice Ruth Bader Ginsburg — as practically inviting lawyers defending death row inmates to bring a broad challenge, and providing a blueprint for what it might look like.
“Today’s administration of the death penalty involves three fundamental constitutional defects: serious unreliability, arbitrariness in application, and unconscionably long delays that undermine the death penalty’s penological purpose,” Breyer wrote. “Perhaps as a result, most places within the United States have abandoned its use.”
Robert Dunham, executive director of the Death Penalty Information Center, said there are a handful of capitol punishment cases working their way through the courts. But which, if any, the justices will grant this term is anyone’s guess.
The court has wide discretion to choose which cases it takes and, though it takes just four to grant a hearing, the justices weigh many factors in deciding which ones to consider.
“Just because the magic words ‘the death penalty is unconstitutional’ appear doesn’t mean they represent the issue that the court seems to be interested in,” Dunham said.
Though it takes four votes to take a case, the justices still need at least five votes to stay an execution — a tall order on a court generally considered to lean right.
But even conservative Justice Antonin Scalia says it could happen.
During a speech last month at a Tennessee college, Scalia said he “wouldn’t be surprised” if the court ruled the death penalty unconstitutional, suggesting there are at least four justices that hold that view, according to a report in The Los Angeles Times.
Based on decisions in past Eighth Amendment cases, the ACLU’s Stubbs said Justice Anthony Kennedy – often the court's swing vote member – is likely to be the fifth vote against the death penalty.
The speculation comes amid renewed attention on the divisive issue, sparked most recently by Pope Francis’ call during September’s address to Congress for the “global abolition” of the death penalty.
President Obama, who supports the death penalty in certain cases, has himself shown signs of shifting his position, particularly after a botched execution in Oklahoma last year that prompted him to order a study of issues surrounding capitol punishment.
The White House said Obama was “influenced” by the pope’s remarks in Washington. And in a recent interview with The Marshall Project, Obama said he finds the practice of the death penalty "deeply troubling.” He went on to reference racial disparities in it’s application, how long it takes to carry out, inmates who have been found innocent and recent executions that, as he said, have been “gruesome and clumsy.”
“All of this has led me to express some very significant reservations,” Obama said.
Proponents of the death penalty, however, push back against the notion that the tide has begun to turn against the death penalty.
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, pointed to an October Gallup poll showing stable support.
The poll found that 63 percent of Americans favor the death penalty for convicted murderers, numbers that proved generally consistent with attitudes in 2008.
Stubbs however said polls that ask if Americans prefer the death penalty to life in prison without parole reflect a dramatic shift.
“It’s not opposition in theory; it’s opposition to the death penalty as we’ve applied it in America,” Stubbs said. “ What we’ve seen is we can’t get it right.”
Public support or not, Scheidegger said cases challenging the death penalty have been coming before the court for over 50 years.
“It’s not something that is a new idea,” he said. “I would not expect them to grant certiorari on a question of whether the death penalty violates the Eight Amendment in the foreseeable future.”
Even so, Scheidegger said potential vacancies on the Supreme Court coupled with a new president could threaten a practice that’s legal in 31 states.
“It’s been a consistent pattern that justices nominated by Democratic presidents are more criminal friendly than those appointed by a Republican president,” he said. “ I would expect that pattern to continue to hold.”
For now, the court has only agreed to hear questions on procedural aspects of death penalty cases. On Monday, for example, the court will hear arguments in Foster v. Chatman, which questions if race was used to discriminate against potential jurors in a capital case out of Georgia.
Scheidegger said these types of cases have very little to do with the justice of the case, but rather are designed to chip away at capitol punishment.
“Polls consistently show the death penalty is just and right in some cases,” he said. “They are trying to grind it down through a war of attrition.”