Justice Breyer Calls the Supreme Court—Again—to Reconsider the Constitutionality of the Death Penalty

Echoing his 2015 dissenting opinion in Glossip v. Gross, where the Supreme Court upheld Oklahoma’s three-drug lethal injection protocol, Justice Breyer asked the Court to reconsider the constitutionality of capital punishment in his concurring opinion in Dunn v. Madison.

Vernon Madison was sentenced to the death for the 1985 murder of a police officer. In 2016 he argued he was no longer competent to be executed due to a series of strokes. His psychologist and the state’s psychologist agree that Madison understands that he is being executed in retribution for murder. But he doesn’t remember killing anyone.

A state trial court denied Madison’s petition concluding that the Supreme Court entitles relief only when a person can show that mental illness deprives him or her of “the mental capacity to rationally understand that he [or she] is being executed as a punishment for a crime.” 

Per the Antiterrorism and Effective Death Penalty Act, Madison could appeal to federal court if he could show the state court’s ruling involved an unreasonable application of clearly established federal law.  

In this case in a unanimous, per curium (unauthored) opinion the Supreme Court reversed the Eleventh Circuit’s grant of a certificate of appealability. The Supreme Court has never ruled that the failure to remember the commission of a crime means someone is no longer competent to be executed.

Justice Breyer wrote a concurring opinion “to underline the fact that this case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution.” He points out that Madison’s long incarceration isn’t unusual. The 21 people executed in 2017 were on death row for an average of more than 19 years.

Justice Breyer doesn’t suggest “develop[ing] a constitutional jurisprudence that focuses upon the special circumstances of the aged.” Instead he suggests it “would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

Justice Breyer wrote alone in Dunn v. Madison. Justice Ginsburg joined his lengthy dissent in Glossip v. Gross. In oral argument in a 2014 death penalty case, Hall v. Florida, Justice Kennedy suggested he too believes that lengthy incarceration before execution may be problematic.