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It has been 40 years since the Supreme Court ruled outright on the constitutionality of the death penalty. The court took up issues related to the death penalty — what kind of drugs can be used to kill a man, for instance — but, as to whether lethal injection by the state amounts to cruel and unusual punishment, a violation of the 8th amendment, the court has not visited constitutionality since 1976. That could change in the near future because of what might turn out to be a landmark dissent by Justice Stephen Breyer.
In June 2015, dissenting from the majority’s opinion in an Oklahoma case known as Glossip v. Gross, Breyer suggested that the death penalty had become so problematic in its application — arbitrary, unfair, unreliable — that it might be unconstitutional. He said the court should consider the question again and invited a new challenge to it. Legal scholars believe Breyer’s dissent sets the stage for a fresh look at the death penalty by the Supreme Court.
The Brookings Institution in Washington asked University of Baltimore law professor John Bessler to analyze and annotate Justice Breyer’s dissent in the Glossip case so that more Americans could read it and understand it. The result is a small, but fascinating book titled "Against The Death Penalty," with John Bessler, one of the nation’s leading authorities on the death penalty, as editor.
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