111 Nw. U. L. Rev. Online 1 (2016-2017)

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Copyright 2016 by JosephBlocher                                              Vol 111
Northwestern University Law Review



     THE DEATH PENALTY AND THE FIFTH AMENDMENT


                                                                Joseph Blocher*



                                 INTRODUCTION

      Can the Supreme Court find unconstitutional something that the text
of the Constitution contemplates?1 If the Bill of Rights mentions a
punishment, does that make it a permissible legislative choice immune to
independent constitutional challenges?2
      The dueling opinions in Glossip v. Gross3 have brought renewed
attention to the constitutionality of the death penalty.4 In a dissent joined by
Justice    Ginsburg,     Justice   Breyer    identified    three    fundamental
constitutional defects with the death penalty: (1) serious unreliability, (2)
arbitrariness in application, and (3) unconscionably long delays.5 These
defects led him to conclude that the death penalty, in and of itself, now
likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'6
Justice Breyer's dissent marked the first time that two members of the
current Court have announced a belief that the death penalty is likely
unconstitutional in and of itself, and the opinion has justifiably been
treated as a significant development.7
      In a blistering concurrence, Justice Scalia (joined by Justice Thomas)
wrote that the dissent was full of gobbledy-gook, and that not once in
the history of the American Republic has this Court ever suggested the





   I Duke Law School. Many thanks to Kevin Barry, James Boyle, Michael Doff, Corinna Barrett
Lain, Bruce Ledewitz, Maggie Lemos, Jeff Powell, Robert J. Smith, and John Stinneford for comments,
and to Daniel Driscoll and Paul Ream for excellent research assistance.
   1 Glossip v. Gross, 135 S. Ct. 2726, 2747 (2015) (Scalia, J., concurring) (emphasis removed)
[https :perma.cc/3ZY5-L3Y3].
   2 Baze  v. Rees, 553 U.S. 35, 87-88   (2008) (Scalia, J., concurring  in judgment)
[https:Hperma.cc/ZYL2-SK9G].
   3 135 S. Ct. 2726 (2015).
   4 See generally E.B., Capital Punishment and the Supreme Court: Last Gasps, THE ECONOMIST:
DEMOCRACY IN AM. (June 29, 2015, 10:51 PM) (analyzing the competing opinions in Glossip)
[http://perma.cc/C6R4-MKCK]; Linda Greenhouse, Editorial, Talking About the Death Penalty, Court
to Court, N.Y. TiMES (Aug. 20, 2015), http://www.nytimes.com/2015/08/20/opinion/talking-about-the-
death-penalty-court-to-court.html?smid-pl-share (arguing Glossip and state court cases signal that the
Supreme Court will eventually find the death penalty unconstitutional) [https://perma.cc/Y8AM-
EHZP]; Richard Wolf & Kevin Johnson, Courts, States Put Death Penalty on Life Support, USA
TODAY   (Sept. 14, 2015), http://www.usatoday.com/story/news/nation/2015/09/14/death-penalty-
execution-supreme-court-lethal-injection/32425015/ (The ruling gave impetus to states ... seeking to
jump-start executions after a hiatus of several years. But it also rejuvenated legal efforts by groups
opposed to the death penalty ....) [http://perma.cc/KF2P-E8CJ].
   5 Glossip, 135 S. Ct. at 2755-56 (Breyer & Ginsburg, JJ., dissenting).
   6 Id. at 2756 (Breyer & Ginsburg, JJ., dissenting) (alteration in original) (quoting U.S. CONST.
amend. VIII).
   7 See supra note 4 and sources cited therein.

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