Is the Death Penalty Unconstitutional?

06/30/2015 04:53 pm ET | Updated Jun 30, 2016

Monday, Supreme Court Justice Stephen Breyer, joined by Supreme Court Justice Ruth Bader Ginsburg, suggested that the death penalty is unconstitutional.

They did so in dissent.

But what a powerful dissent it was.

The case in question was fairly straightforward. States with capital punishment wanted to use a new lethal injection drug because they ran out of ingredients for the old one. Opponents challenged the new proposed methods of execution as cruel and unusual.

The Supreme Court in its entire history of deciding cases has never found any method of execution to be unconstitutional.

So the outcome of yesterday's decision was perhaps not overly surprising. A majority of the Court upheld the new execution protocol, clearing the way for states to resume executions.

The case, however, was decided by a 5-4 vote, which means that four justices would have voted against the new protocol. Indeed, the dissenting opinion, written by Justice Sonia Sotomayor, likened the new method to "the chemical equivalent of being burned at the stake."

Two of the four dissenting justices -- Justice Breyer and Justice Ginsburg -- wanted the Court to go further. They called for a review of the death penalty itself.

Breyer in his detailed dissent raised significant concerns about the death penalty, including the execution of innocent people. He wrote at length about "convincing evidence that, in the past three decades, innocent people have been executed."

Breyer also cited to recent exonerations of people who were convicted, sentenced to die and were later found to have been innocent: "the evidence that the death penalty has been wrongly imposed (whether or not it was carried out), is striking."

But Breyer did not focus only on the issue of innocence. Rather, Breyer painstakingly captured the death penalty's many flaws, including a:

"lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose.... [and] the infliction-- indeed the unfair, cruel, and unusual infliction--of a serious punishment upon an individual."

He also described the arbitrary impact of race, poverty, and geography on the administration of death. And he referenced the reality that the United States stands as an international outsider in its commitment to capital punishment.

It's been almost 40 years since the Court revived capital punishment. National support for the death penalty is on the decline. More states have abolished capital punishment, and only a few states -- with Texas leading the pack by a wide margin -- execute people on death row with any degree of regularity.

Breyer and Ginsburg should be applauded for raising the timely question of whether the death penalty is constitutional as administered in this country, and whether the death penalty should ever be permitted as a form of punishment in a civilized society.

The entire Supreme Court should be willing to answer.