The Supreme Court’s jurisprudence regarding the death penalty, whether or not cruel, has most certainly been unusual in the annals of criminal punishment. In the short span of four years, the Court foreclosed and then reopened this form of punishment in Furman v. Georgia and Gregg v. Georgia. One year later the Court would categorically exclude the punishment for the rape of an adult. Five years later the Court would again preclude the punishment, for any defendant convicted of felony-murder who did not participate or share in the homicidal act or intent. In 1986 the Court would struggle with the Orwellian issue of whether and how a person must be competent to be executed in Ford v. Wainwright. In 1989, in two cases decided on the same day, the Court refused to find that the “mentally retarded” or juveniles were categorically exempt from the death penalty, in opinions that both embodied the “national consensus” test for death penalty restrictions and questioned its exclusivity as the determinate measure of cruel and unusual punishment.

In the decade that followed, the ground began to shift under the Court’s jurisprudence in a number of ways. Coalitions opposed to the death penalty in specific instances and in general expanded to encompass international human rights advocates dedicated as amicus curiae or pro bono counsel to highlight the United States’ growing isolation in its official acceptance of the punishment. In 2002, the landmark case of Atkins v. Virginia would invigorate categorical exclusions from the death penalty, recognizing that the “mentally retarded” could not be subject to the harshest form of punishment. Roper v. Simmons would add juvenile offenders to the categorical exclusions. In 2008, rape of a child where the crime did not result, and was not intended to result, in the victim’s death, was added as an offense which did not qualify for the death penalty. In a span of four years, the Court would expand protection of juvenile offenders from life without parole, first for non-homicidal offenses, then for any offense.

In addition, the Court found itself mired after Furman in what one commentator has described as “an unparalleled level of constitutional micromanagement” as to how the death penalty can be imposed procedurally and when it can be imposed based on the nature of the offense and the status of the offender. For the October 2015 term, the Court granted certiorari in a consolidated trio of cases and an additional case raising such procedural issues. The Montgomery v. Louisiana decision on January 25, 2016 applied the prohibition on life without parole for juvenile offenders retroactively, releasing prisoners who had spent their entire “adult” lives behind bars.

Against this backdrop, the Court’s 2015 decision in Glossip v. Gross is a notable victory, as it were, for the death penalty. In the almost inevitable 5-4 split, the Court refused to find that the specific method of execution, a three-drug protocol begun with midazolam, constituted cruel and unusual punishment. The decision is at best a Pyrrhic victory for the death penalty, however, given the specificity of the method in question. More importantly, the majority opinion was largely eclipsed by Justice Breyer’s dissent, joined by Justice Ginsburg, which called for total abolition of the death penalty. This article also seeks to demonstrate that the opinion exemplifies the need for what might be termed “global realism” in recognizing that consideration of international legal norms and political realities is unavoidable in the Supreme Court’s jurisprudence. The method of execution itself was the unavoidable result of a refusal of drug suppliers outside the U.S. to continue supplying drugs for execution purposes, and Justice Breyer’s dissent brought to the forefront once again the isolation of the United States’ acceptance of the death penalty. Glossip v. Gross, thus, may be the beginning of the end of the death penalty due to a confluence of a shift in constitutional legal analysis from the “national consensus” analysis to proportionality and penological purposes served, empirical evidence that there is no national consensus in favor of the death penalty, a renewed recognition of the unreliability of decision-making whatever procedural prerequisites the Court imposes, and an overdue, forthright recognition of the significance of international norms and practices in determining “evolving standards of decency” under the Eighth Amendment. This recognition is explicit in Justice Breyer’s dissent, but also fundamental to evaluating what Justice Kennedy’s position might be on abolishing the death penalty, notwithstanding his joining the five justices in Glossip v. Gross.

Document Type


Publication Date

Fall 2016

Publication Information

11 Duke Journal of Constitutional Law and Public Policy 107-143 (2016)