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Carlos Wood

Publication Date

12-2023

Document Type

Survey Article

Abstract

In Glossip v. Gross, a 2015 Supreme Court of the United States case that addressed the constitutionality of Oklahoma’s lethal injection protocol, Justice Breyer authored a dissent, joined by Justice Ginsburg, in which he noted the declining use of the death penalty in the United States. Justice Breyer began his dissent by noting the downward trajectory of the number of convictions that resulted in capital sentences. The evidence he cited included the following: from 1986 to 1999, approximately 300 people on average were sentenced to death every year, but in 2000, this number began to decline rapidly. In 2014, the year prior to Glossip, only seventy-three people were sentenced to death in seven states. He noted a similar decline with respect to the number of people executed. Justice Breyer went on to note that thirty states have formally abolished the death penalty or have not conducted an execution in years, and in cases when a death sentence is returned, it overwhelmingly happens in specific geographic areas of the country. This data led Justice Breyer to conclude that the death penalty is “unusual” within the context of the Eighth Amendment’s Cruel and Unusual Punishment Clause when it comes to the imposition of capital punishment in the United States in total. From this data, Justice Breyer inferred that most Americans, if chosen to serve on a jury deciding capital punishment, would choose to sentence someone to life in prison without the possibility of parole instead. The obvious question raised, then, is why the death penalty is on the decline.

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