Justice Breyer and the Death Penalty

Justice Stephen G. Breyer

To the Editor:

“Breyer Continues His Push Against the Death Penalty” (news article, Dec. 13), about Justice Stephen G. Breyer’s dissenting opinion in the case of Ronald B. Smith, who was recently executed in Alabama, is far too generous.

Twenty inmates have been executed in the United States in 2016. More than half (including a client of mine) have sought last-minute stays of execution from the Supreme Court (as Mr. Smith did). Justice Breyer recorded opposition in only three of these executions.

If Justice Breyer sincerely has constitutional reservations about the carrying out of the death penalty, he should do what other justices have done upon reaching a similar conclusion, by voting to prevent the execution from going forward.

Until his actual voting pattern demonstrates principled consistency, his on-again, off-again critique of the death penalty not only helps sustain an arbitrary system, but it also exemplifies it.

Source: The New York Times, The Opinion Pages, Letter, David R. Dow, December 22, 2016. The writer is a professor at the University of Houston Law Center.

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