Advocates Disagree On Getting High Court To Rule Against Capital Punishment


Breyer's dissent was joined only by Justice Ruth Bader Ginsburg. Some advocates believe they can picking up the votes of Justices Sonia Sotomayor, Elena Kagan, and Anthony Kennedy. Much has changed since the Supreme Court reinstated the death penalty in 1976, four years after it had effectively struck it down. Last year, only seven states carried out executions. Nineteen states and the District of Columbia have abolished the death penalty entirely, seven of them in the last decade. Governors and courts have imposed moratoriums in others, and the number of death sentences and executions continues to drop. The Supreme Court has barred the execution of juvenile offenders, people with intellectual disabilities and those convicted of crimes other than murder in the last decade. The more cautious, step-by-step approach would ask the court to further narrow the availability of the death penalty by forbidding the execution of mentally ill people and of accomplices who did not kill anyone. The more assertive one would introduce a broad case aimed at the death penalty itself. A Texas case could serve as the right vehicle to mount a broad challenge. It concerns Julius Murphy, who was convicted of robbing and killing a stranded motorist. One of his lawyers, Neal Katyal, a prominent Supreme Court litigator and a former law clerk to Justice Breyer, said that after Breyer’s dissent, “the time to test his views in the crucible of argument before the full court has come.”

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