Is Time Running Out for Supreme Court on Death Penalty?

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Forty years after the Supreme Court reinstated the death penalty, the justices are increasingly divided over when it is applied, how it is administered, and whether it serves any purpose, reports USA Today. Since the turn of the century, they have ended executions for the intellectually disabled, those whose crimes were committed as juveniles, and those who do not commit murder or treason. Last year, Justices Stephen Breyer and Ruth Bader Ginsburg said it was time to decide whether capital punishment should be abolished. Time is not on their side. President-elect Donald Trump soon will nominate the late Justice Antonin Scalia’s successor, someone who is virtually certain to support the death penalty. Before his term is over, Trump could get the chance to replace one or more of the five justices who have limited its scope. Three of them — Ginsburg, Breyer and Anthony Kennedy — are long past traditional retirement age.

“The window is narrowing,” says Robert Smith of Harvard Law School’s Fair Punishment Project, which opposes the death penalty. If Trump names several strong capital punishment proponents, “there’s a chance the window closes for a generation.” Until then, the justices will wrestle with a series of legal challenges. Already this term, they’ve overturned a death sentence in Oklahoma because of improper testimony from victims’ family members and blocked an Alabama execution that a jury did not agree upon. That state’s system, which empowers judges over juries, could go the way of Florida’s and be struck down. Two other cases appear likely to result in further restrictions. During oral arguments on two Texas death sentences, a majority of justices appeared sympathetic to challenges from defendants involving racial discrimination and intellectual disability. More challenges are on the way, including some that simply question whether the range of problems renders capital punishment unconstitutional.

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