Out of the Depths of Hell, a Light Beckons

Portrait of Chief Justice Earl Warren.
Image is in the public domain.

In contrast to the 103 countries that have abolished capital punishment and the 50 additional countries no longer practicing it, an intransigent US, marching mostly to its own drummer, continues to execute people.

Most recently, on Monday June 29, the U.S. Supreme Court voted, 5 to 4, in the Glossip v. Gross case, that Oklahoma could execute three inmates with the drug midazolam without violating Eighth Amendment prohibitions against cruel and unusual punishment. A dark day for social justice indeed. Fortunately, out of the reeking inhumanity of that judgment comes a clarion call from Justice Stephen Breyer to recognize that the death penalty itself violates the Eighth Amendment.

Official Picture of Justice Stephen Breyer.
Image is in the public domain.

Breyer’s arguments remind me of the monumental decision in the Supreme Court case of Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). In this case, the Court, led by Chief Justice Earl Warren, ruled that state laws establishing separate public schools for black and white students were unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896, which allowed state-sponsored segregation in public school systems.

One of the remarkable features of both the Brown v. Board of Education case and Justice Breyer’s argument regarding the death penalty is the extent to which they draw on social science (largely psychological) evidence. Based on such data, the Warren Court argued unanimously that “separate educational facilities are inherently unequal.” (emphasis added).

Breyer’s dissent regarding the (un) constitutionality of capital punishment included the following social science research findings:

irrelevant or improper factors—such as race, gender, local geography, and resources—do significantly determine who receives the death penalty…”

[N]early all death penalty States keep death row inmates in isolation for 22 or more hours per day…. And it is well documented that such prolonged solitary confinement produces numerous deleterious harms.”

The Brown v. Board of Education led to a major (still unfulfilled) effort to correct educational practices injurious to children. We now need to do some more over-turning of misguided judicial thinking to correct punitive practices injuring our society’s moral fabric along with the lives of thousands.

Kathie Malley-Morrison, Professor of Psychology