Thursday, July 2, 2015

Justice Breyer and Malcolm X: A concurring opinion from the past

“Welcome to Groundhog Day,” Justice Antonin Scalia wrote Monday in a caustic response to Justice Stephen Breyer’s dissent. In the Supreme Court’s 5-4 decision in Glossip v. Gross which reaffirmed states’ right to execute prisoners by lethal injection, Scalia bemoaned what he called a familiar scene in which petitioners “sentenced to die for crimes they committed” appeal to the cruel and unusual punishment clause of the Eighth Amendment. Not only is the scene familiar, so are many of the arguments. Large portions of Breyer’s dissent and Scalia’s response centered on the classical debate over the effectiveness of the death penalty as a deterrent. One long forgotten argument against deterrence theory and capital punishment is buried in the newspaper of the Norfolk Prison Colony (now called the Massachusetts Correctional Institute). The 1949 debate response was written by a 25-year-old prisoner named Malcolm Little, who had already adopted the surname: X.


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