Only Two Justices Want To Tackle Whether The Death Penalty Should End

Stephen Breyer and Ruth Bader Ginsburg are virtually alone in this effort.
Ruth Bader Ginsburg and Stephen Breyer: Alone in their quest to find out if the death penalty in America can end.
Ruth Bader Ginsburg and Stephen Breyer: Alone in their quest to find out if the death penalty in America can end.
NICHOLAS KAMM via Getty Images

The Supreme Court on Tuesday turned away an appeal from a Louisiana death row inmate that posed a question that has long vexed the justices: Is the death penalty cruel and unusual punishment?

A majority of the court's members didn't say why they didn't want to answer the question, but presumably some of them thought the court already answered it 40 years ago, when it reaffirmed the constitutionality of capital punishment after a brief moratorium.

It could also be that other justices, fearing a split ruling, simply want to wait it out until Merrick Garland or someone else fills the vacancy created by the death of Justice Antonin Scalia, a staunch proponent of the franchise. Garland himself has said he views the legality of the death penalty as settled law.

Whatever the court's behind-the-scenes rationale, it won't hear the case of LaMondre Tucker, who was convicted of murdering his pregnant girlfriend when he was only 18 and later sentenced to death.

The heinousness of Tucker's crime didn't stop Stephen Breyer and Ruth Bader Ginsburg from saying they would have given his case a cold, hard look.

The pair, but particularly Breyer, has been on a crusade to get the Supreme Court to reconsider its assumptions about the death penalty as a constitutional form of punishment -- in a day and age when it appears to be on life support.

Breyer pointed out that Tucker, who was barely an adult and had an IQ of 74 at the time of the crime, may have only received the ultimate punishment because of where he lived: Caddo Parish, a Louisiana county that is responsible for nearly half of the death sentences doled out in the state.

"Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography," Breyer wrote, in a dissent joined by Ginsburg.

That's one of the assumptions about the imposition of the death penalty that Breyer attacked in his own dissent in Glossip v. Gross, an explosive case that upheld Oklahoma's lethal injection protocol last summer.

Since then, Breyer has been beating the drum that he'd like to hear a case about "the need to reconsider the validity of capital punishment under the Eighth Amendment" -- including factors such as the excessive delays to mete it out, the countless cases of innocent people sentenced to death, or its plain arbitrariness.

"One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row," Breyer wrote on Tuesday.

Breyer and Ginsburg probably won't get to hear the case they want any time soon, but that won't stop America from letting the death penalty die a natural death: Louisiana, where Tucker is on death row, won't see a new execution until at least 2018. The drugs needed to carry out lethal injections are drying up.

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