The Future of the Death Penalty: The Seeds of Time

The article examines Justice Anthony Kennedy's potential role as a pivotal vote in determining the constitutionality of contemporary state capital punishment statutes under the Eighth and Fourteenth Amendments. It explores whether Kennedy might join Justices Breyer, Ginsburg, Sotomayor, and others in declaring such statutes unconstitutional, given the growing critiques of the death penalty's reliability, arbitrariness, and delays. The analysis highlights Justice Breyer's dissenting arguments, which emphasize the failure of the Court's assumptions in Gregg v. Georgia and related cases, and calls for a broader reexamination of the death penalty's constitutionality.