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February 21, 2021

Justice Breyer Reprises Death Penalty Critique Following Federal Execution Spree

By Aimee Clesi, DPRP Intern
In his dissent in U.S. v. Higgs, Supreme Court Justice Breyer urges consideration of the constitutional issues raised by recent federal executions.

In his dissent in U.S. v. Higgs, Supreme Court Justice Breyer urges consideration of the constitutional issues raised by recent federal executions.

The recent barrage of federal executions has reignited Justice Stephen Breyer’s concerns and conclusions about the constitutionality of the death penalty. In United States v. Dustin John Higgs, Justice Breyer signed on to Justice Sonia Sotomayor’s dissent and echoed her reasoning against the Court’s decision to vacate the stay of execution issued by a January 13, 2021 order of the U.S. Court of Appeals for the Fourth Circuit. Higgs’s death on January 15, 2021 was the thirteenth federal execution since July 2020, and followers of court news will recognize the familiar argument against the death penalty that Justice Breyer advances, adjacent to Justice Sotomayor’s impassioned dissent.

In his dissent in Higgs, Justice Breyer urges readers to “[c]onsider some of the other questions that the federal death penalty cases have raised,” and discusses the constitutionality of executing a defendant even when presented with evidence that they have an intellectual disability or have filed habeas petitions raising potentially meritorious—but unresolved—issues. Additionally, Justice Breyer reflects on the dangerous consequences of executing prisoners with pentobarbital, which experts have said subjects prisoners to a “sensation of drowning akin to waterboarding.” This effect could be amplified by the lung damage caused by COVID-19, which Mr. Higgs contracted prior to his execution. (Of note, the executions at the federal prison in Terre Haute, Indiana have been called “super-spreader” events in light of the large number of people who witnessed or were involved in the executions later testing positive for COVID-19. In addition, a widespread outbreak of COVID-19 devastated federal death row shortly after the November 2020 executions took place.)

Justice Breyer does not let the constitutional issues presented by Higgs up for air, and asks:

  • To what extent does the Government’s use of pentobarbital for executions risk extreme pain and needless suffering? See Leesupra, at ___ (BREYER, J., dissenting) (slip op., at 2).
  • Should a court apply contemporary diagnostic standards to determine whether an inmate is intellectually disabled at the time of his execution, such that the execution is unlawful? See Bourgeois v. Watson, ante, p. ___.
  • Is a defendant’s second habeas challenge to his death sentence subject to the demanding standard for successive challenges, even though Government conduct prevented him from being able to bring those claims in his first habeas petition? See Bernard v. United Statesante, p. ___.

Given these pertinent questions, Justice Breyer asserts that “judges [must] consider and resolve challenges to an inmate’s conviction and sentence,” since death sentences are final and severe. He explains that Higgs, alongside other federal capital cases, are “examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.” Justice Breyer also believes that the length of time prisoners spend on death row prior to execution (recent federal death penalty cases have taken 12 to 21 years to finalize, from conviction to completion), along with other issues, “calls into question the constitutionality of the death penalty itself.”

Simultaneously, he criticizes the rapid pace at which the Government has sought to execute federal death row prisoners, and contends that the Court unduly authorized the Government to evade the traditional appellate review process to ensure Higgs’s execution would proceed. Justice Breyer argues that, by vacating the stay of execution issued by the Fourth Circuit prior to that Circuit’s resolution of Mr. Higgs’s case, the Court significantly departed from ordinary practice. With these concerns in mind, Justice Breyer joined Justices Sotomayor and Kagan in dissenting from the Court’s decision to vacate the stay and grant the Government’s unusual application for judgment before writ of certiorari.

Breyer's dissent in Glossip, in which he questions the constitutionality of the death penalty, provides a basis for his later dissent in U.S. v. Higgs

Breyer's dissent in Glossip, in which he questions the constitutionality of the death penalty, provides a basis for his later dissent in U.S. v. Higgs

Breyer on Death Penalty in Glossip v. Gross 

To grasp Justice Breyer’s dissent in Higgs from all angles, it is important to understand his dissent in Glossip v. Gross, the 2015 case that assessed whether Oklahoma's use of midazolam as the initial drug in that state’s execution protocol violated the Eighth Amendment's prohibition against cruel and unusual punishment.

In his dissent in Glossip, Justice Breyer described three constitutional defects in the administration of the death penaltythat render the death penalty a “cruel” punishment under the Eighth Amendment: unreliability, arbitrariness, and unconscionably long delays. He reasoned that these defects have caused most places (effectively 86% of counties have no death penalty) within the United States to abandon the use of the death penalty, and that this decline in the imposition and implementation of the death penalty has rendered it an unusual punishment.


First, Justice Breyer explains that capital defendants are 130 times more likely to be exonerated than noncapital defendants. He attributes this percentage to the intense scrutiny courts pay to capital cases, but also to capital defendants’ greater chances of receiving an initial wrongful conviction. Justice Breyer then points out research providing convincing evidence that innocent people have been executed, which the Court has found “disturbing.” The death penalty’s unreliability, Justice Breyer reasons, stems from the “intense community pressure on police, prosecutors, and jurors to secure a conviction,” the states’ death-qualification (to serve on a capital jury, one must be willing to impose the death penalty), flawed forensic testimony, and courts’ failure to follow necessary legal procedures.


Justice Breyer also paints a picture of the death penalty as cruel for its arbitrariness. It does not have the “reasonable consistency legally necessary to reconcile its use with the Constitution's commands,” he says. Proper factors that should affect the imposition of the death penalty, such as the comparative egregiousness of a crime, do not, whereas circumstances that should not determine who receives the death penalty, such as race, gender, or geography, often do. Justice Breyer also points out that the availability of legal resources for defense counsel also helps explain why the death penalty is ultimately imposed in some geographical areas and not others.

Delay and Decline

Finally, Justice Breyer poses two additional independent constitutional problems: (1) excessive delays make the death penalty cruel and (2) the decline in use of the death penalty make it an unusual punishment that violates the Eighth Amendment. To the first point, Justice Breyer argues that (1) death row prisoners are kept in unbearable isolation for 22 or more hours per day, and their confinement is worsened by the uncertainty as to whether their death sentence will be carried out; (2) these excessive delays undermine the death penalty's penological rationale, since communities change and retributive desires may fade; and (3) these lengthy delays significantly weaken the primary justification for capital punishment that the Founders gave when they wrote the Eighth Amendment: prevalence. That is to say, at the time of the framing of the U.S. Constitution, capital punishment was pervasive throughout the colonies. On account of delay in particular, a capital defendant is two or three times more likely to have their sentence overturned or commuted than to be executed, and they have a greater chance of dying from natural causes before any execution (or exoneration) can take place. Today, fewer people are sentenced to death and executed than at any other time in history. “In a word,” Justice Breyer posits, “executions are rare.” 

Constitutional Incompatibility

For these reasons, Justice Breyer concludes that “it [is] highly likely that the death penalty violates the Eighth Amendment,”and that he is faced with a serious obligation to interpret the Constitution as so finding. He says:

[The] 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. … 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.

Finally, Justice Breyer argues that there can be a death penalty system that serves “legitimate penological purposes,” or a “procedural system that at least arguably seeks reliability and fairness in the death penalty's application,” but not a system that does both. Either way, he asserts, an unreliable or procedurally unfair death penalty scheme violates the Eighth Amendment, as does a system that is reliable and fair in its application of capital sentences but serves no legitimate penological purpose.

In response to Justice Breyer’s comprehensive briefing on the permissibility of the death penalty, Justice Scalia fired back:

Justice BREYER elects to contort the constitutional text. Redefining “cruel” to mean “unreliable,” “arbitrary,” or causing “excessive delays,” and “unusual” to include a “decline in use,” he proceeds to offer up a white paper devoid of any meaningful legal argument. … He says that the death penalty is cruel because it is unreliable; but it is convictions, not punishments, that are unreliable.

In Higgs, Justice Breyer retorts by emphasizing how the penological justifications of the death penalty are outlived by the tenure of capital sentences. He questions the justness of a legal system willing to execute individuals “without consideration of a novel or significant legal question that [they] [have] raised.”

Justice Breyer’s argument from Glossip is reiterated in his dissent in Higgs. While Justice Breyer’s views about the death penalty have caused him to clash with fellow justices, Justice Breyer remains adamant that it is “highly likely” that the death penalty violates the Eighth Amendment. In sum, the recent series of fast-tracked federal executions, including Dustin Higgs’s execution, has only aggravated Justice Breyer’s concerns about the constitutionality of the nation’s greatest and most severe punishment.

The information and views provided in the American Bar Association (“ABA”) Death Penalty Representation Project’s blog do not constitute official statements by the ABA and do not represent official ABA policy. For more information, please visit our policy and statement pages.

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