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Against the Death Penalty
"A landmark dissenting opinion arguing against the death penalty.
Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen Breyer argues that it does; that it is carried out unfairly and inconsistently and, thus, violates the ban on ""cruel and unusual punishments"" specified by the Eighth Amendment to the Constitution.
“Today’s administration of the death penalty,” Breyer writes, “involves three fundamental constitutional (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”
This volume contains Breyer's dissent in the case of Glossip v. Gross, which involved an unsuccessful challenge to Oklahoma's use of a lethal-injection drug because it might cause severe pain. Justice Breyer's legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty.
Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts including fellow Justice Antonin Scalia-as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer's mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions."
Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen Breyer argues that it does; that it is carried out unfairly and inconsistently and, thus, violates the ban on ""cruel and unusual punishments"" specified by the Eighth Amendment to the Constitution.
“Today’s administration of the death penalty,” Breyer writes, “involves three fundamental constitutional (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.”
This volume contains Breyer's dissent in the case of Glossip v. Gross, which involved an unsuccessful challenge to Oklahoma's use of a lethal-injection drug because it might cause severe pain. Justice Breyer's legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty.
Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts including fellow Justice Antonin Scalia-as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer's mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions."
- GenresLawNonfictionPolitics
164 pages, Kindle Edition
Published August 23, 2016
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About the author
Stephen G. Breyer
41 books78 followersStephen Gerald Breyer is a retired Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.
Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.
Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well-known as a law professor and lecturer at Harvard Law School starting in 1967. There he specialized in the area of administrative law, writing a number of influential text books that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust, and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.
In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues so as best to encourage popular participation in governmental decisions.
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Displaying 1 - 4 of 4 reviews
March 27, 2025
“The Eighth Amendment, ratified in 1791 as part of the U.S. Bill of Rights, prohibits “excessive” bail and fines as well as “cruel and unusual punishments.” It was modeled on two earlier legal instruments—the English Bill of Rights of 1689 and the Virginia Declaration of Rights of 1776—that also prohibited “cruel and unusual punishments.” The former was a by-product of the Glorious Revolution of 1688, a revolution that overthrew King James II of England, a Catholic, and installed Dutch stadtholder William III of Orange-Nassau and his wife, Mary II, as England’s new king and queen.118 After being presented to William and Mary in February 1689, the English Bill of Rights was read at their coronation on April 11, 1689, before it passed Parliament—and received royal assent—on December 16, 1689. Drafted by George Mason in May 1776, the Virginia Declaration was unanimously adopted by a state convention in Williamsburg, Virginia, on June 12, 1776, less than a month before the issuance of the American Declaration of Independence.”
“In the late eighteenth century, America’s founders and framers avidly read Enlightenment texts, including On Crimes and Punishments.151 George Washington and Thomas Jefferson bought copies of Beccaria’s book in 1769, and John Adams passionately quoted Beccaria in 1770 while representing British soldiers accused of murder following the Boston Massacre. “I am for the prisoners at the bar,” Adams said in an opening line, “and shall apologize for it only in the words of the Marquis Beccaria: ‘If by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessings and tears of transport shall be sufficient consolation to me for the contempt of all mankind.’ ” John Quincy Adams, the son of John Adams and the sixth U.S. president, later remarked on the “electrical effect” Beccaria’s words—as spoken by his father—had on jurors and spectators”
“The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.
Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. We have made clear that “ ‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ”
For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.
With respect, I dissent.”
“In the late eighteenth century, America’s founders and framers avidly read Enlightenment texts, including On Crimes and Punishments.151 George Washington and Thomas Jefferson bought copies of Beccaria’s book in 1769, and John Adams passionately quoted Beccaria in 1770 while representing British soldiers accused of murder following the Boston Massacre. “I am for the prisoners at the bar,” Adams said in an opening line, “and shall apologize for it only in the words of the Marquis Beccaria: ‘If by supporting the rights of mankind, and of invincible truth, I shall contribute to save from the agonies of death one unfortunate victim of tyranny, or ignorance, equally fatal, his blessings and tears of transport shall be sufficient consolation to me for the contempt of all mankind.’ ” John Quincy Adams, the son of John Adams and the sixth U.S. president, later remarked on the “electrical effect” Beccaria’s words—as spoken by his father—had on jurors and spectators”
“The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked.
Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. We have made clear that “ ‘the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’ ”
For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.
With respect, I dissent.”
This entire review has been hidden because of spoilers.
January 30, 2019
This was a good book that covers the death penalty and the case for the unconstitutionality of it by Justice Breyer.
This is ultimately just the dissent from the Gossnip case with an introduction by the editor.
The introduction is not as helpful but the dissent is providing good context and arguments to leverage the 8th amendment to justify the unconstitutionality of it.
Overall the book was insightful though limited in scope (for example it doesn't tackle other initiative to stop the death penalty by legislature).
This is ultimately just the dissent from the Gossnip case with an introduction by the editor.
The introduction is not as helpful but the dissent is providing good context and arguments to leverage the 8th amendment to justify the unconstitutionality of it.
Overall the book was insightful though limited in scope (for example it doesn't tackle other initiative to stop the death penalty by legislature).
August 2, 2017
Provocative examination of capital punishment. Thoughtful argument against this inhuman form of punishment which is neither reasonable or a deterrent. Justice Breyer makes a convincing case.
April 9, 2025
It's a good dissent; I just didn't realize the book was a 70 page intro with 50 pages of notes
Displaying 1 - 4 of 4 reviews