“Normal Accidents”

The Crime Report, The Death Penalty’s ‘Normal Accidents’, By James Doyle
July 16, 2015

“In the final days of this year’s Supreme Court term, Justice Stephen Breyer unexpectedly launched a new offensive against the American system of capital punishment. The offensive was announced in his dissenting opinion in a case upholding the legality of Oklahoma’s lethal injection protocol.

Some commentators believed that Breyer was training his artillery on one particular target: namely, Justice Anthony Kennedy, the Roberts Court’s perennial swing voter. Just days earlier, Kennedy had displayed his taste for making history in a grandiloquent opinion for the Court in the same-sex marriage case of Obergefell v. Hodges. He might be ripe for conversion.

Others argue that Breyer had a wider array of targets in mind. The Obama administration is waning. A presidential campaign is in its early stages. With four justices of the narrowly divided court over 75 years of age, the electorate might decide to make the death penalty an issue. Breyer, these onlookers contend, wants to shape that battlefield in advance.

Breyer’s immediate objective may be veiled, but his general strategic approach is perfectly clear. He will attack the death penalty simultaneously on four fronts, and for his ammunition he will use empirical research…

“Justice Antonin Scalia called it “Gobbledegook.”

James Doyle, a Boston defense lawyer and author, was a 2011-2014 Visiting Fellow at the National Institute of Justice, and the principal essayist in the National Institute of Justice Special Report, Mending Justice: Sentinel Event Reviews (2014). The opinions expressed here as his own. He welcomes comment from readers.


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