Page:Glossip v. Gross.pdf/51

 Cite as: 576 U. S. ____ (2015)

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BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES _________________

No. 14–7955 _________________

RICHARD E. GLOSSIP, ET AL., PETITIONERS v.

KEVIN J. GROSS, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[June 29, 2015]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting. For the reasons stated in JUSTICE SOTOMAYOR’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution. The relevant legal standard is the standard set forth in the Eighth Amendment. The Constitution there forbids the “inflict[ion]” of “cruel and unusual punishments.” Amdt. 8. The Court has recognized that a “claim that punishment is excessive is judged not by the standards that prevailed in 1685 when Lord Jeffreys presided over the ‘Bloody Assizes’ or when the Bill of Rights was adopted, but rather by those that currently prevail.” Atkins v. Virginia, 536 U. S. 304, 311 (2002). Indeed, the Constitu­ tion prohibits various gruesome punishments that were common in Blackstone’s day. See 4 W. Blackstone, Com­ mentaries on the Laws of England 369–370 (1769) (listing mutilation and dismembering, among other punishments). Nearly 40 years ago, this Court upheld the death pen­ alty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. See Gregg v. Georgia, 428 U. S. 153, 187 (1976) (joint opinion of Stewart, Powell,