Justice Breyer indicates plan to retire … and first big legacy review ignores landmark Booker ruling to focus on capital dissent
Major outlets are today a buzz with news that US Supreme Court Justice Stephen Breyer has told Prez Biden that he plans to retire soon. Speculation about who Prez Biden might nominate as his replacement is already well underway, but I will save that discussion (with a sentencing spin) for future posts. Here I want to start a discussion of Justice Breyer’s sentencing and criminal justice legacy.
I suspect all readers of this blog know that, in the sentencing universe, Justice Breyer’s authorship of the advisory guideline remedy in Booker (and getting later Justice Ginsburg to sign on to it) has impacted many millions of criminal defendants. And, of course, as a staffer and judge, Breyer helped write the legislation leading to the federal sentencing guidelines and then helped write those guidelines. But, frustratingly and tellingly, this big Vox piece providing a huge sweep of Breyer’s career entirely ignores his work on the US Sentencing Commission, Booker and all sorts of other truly consequential criminal justice work by Justice Breyer and only talks about one dissent of his in a capital case:
Breyer’s commitment to democracy is profound, but it is not absolute. And the retiring justice did feel a special obligation to police arbitrary governmental practices.
In recent years, for example, Breyer became the Court’s most outspoken opponent of the death penalty — in large part because of his belief that it cannot be fairly administered. “Death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Breyer wrote in his dissenting opinion in Glossip v. Gross (2015), quoting from a 1972 opinion by Justice Potter Stewart. Rather than handing down death sentences exclusively to the worst criminals, such sentences are doled out to a “capriciously selected random handful” of the most serious offenders.
Breyer bolstered this argument with empirical studies showing that an offender is far more likely to be sentenced to die if their victim is white. Or if their victim is a woman. Or if the offender is merely unfortunate enough to be tried in the wrong location. “Within a death penalty State,” Breyer wrote in his Glossip dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.”
For these and other reasons, Breyer concluded that it is “highly likely that the death penalty violates the Eighth Amendment,” and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.
Sigh. Oh well, I am hopeful some other outlets will give some attention to his sentencing and criminal justice legacy. Perhaps readers can start in the comments.