Over at The Intercept Tuesday, Liliana Segura wrote, What Justice Breyer’s Glossip Dissent Exposes About the Death Penalty. It is about Glossip v Gross, the case that questioned the constitutionality of Oklahoma’s lethal injection death penalty procedure. On the right, the response was, “Yippee, we get to continue killing people!” On the left, people have been focused more on Justice Alito’s callous comment, “While most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” It is a shocking statement: people burn to death in fires so we should execute people by burning them alive?
But Stephen Breyer (along with Ginsberg) argued that the entire death penalty is cruel and unusual. This idea was dismissed by the majority, of course. I think there is something fundamental here. There are simply some people who really want to kill other people. It is like Dick Cheney’s idea about having to work the “dark side.” Or Tom Clancy Combat Concepts. It’s about being “hard” and “tough.” Americans — men especially — are terrified to be seen as weak. I’ve always found it bizarre in a country that is so Christian. Americans apparently don’t go in much for sissy Christian concepts like mercy and grace.
What’s perhaps most interesting is that Breyer’s dissent is fact based. He talks about various problems with the death penalty: its racist application; its randomness; prosecutorial misconduct; and the fact that we kill innocent people all the time. The majority brushes all that aside. To them, as long as the states give it the old college try, it doesn’t matter if people are tortured to death or that we kill innocent people. Justice isn’t a matter of something that happens to individual people. It’s really just about the process. If innocent people have to die in the name of Americans feeling tough, well that’s a small price to pay. Besides, that kind of thing would never happen to someone Samuel Alito knows.
What’s notable about all of this is the lack of empathy when it comes to the death penalty. For a long time, I thought that The Mythical Perfect Government Killing Machine would make the death penalty untenable to most Americans. Once people saw that the system wasn’t perfect, they would rebel against it. After all, it would be one thing to be put to death by the government if you were guilty. Most people imagine they would never be in that position because they would never murder anyone. But being put to death when you are innocent? Well, that could happen to anyone.
But it turns out that even an argument based upon self-preservation doesn’t work. They think (rightly) that getting railroaded is something that happens almost exclusively to the poor and those with darker skin. The odds are already relatively low that one will be put to death. It is even lower that one will be innocent. And it is lower still that either of those things would happen to a nice middle class white person. So they just don’t care. The deaths of innocent people are just not that big a deal compared to being “tough.” And apparently, the conservatives on the Court don’t think any more deeply about this than the American people themselves.