To: Stephen Breyer, Associate Justice, U.S. Supreme Court

From: Joe Mathews

Re: Switch to decaf, dude

Just read your dissent from a U.S. Supreme Court decision turning down a challenge to the death penalty in California. You alone among the eight justices wanted to hear the case. And after reading it, I’ve gotta give you some advice:


I know you don’t like the death penalty. I know you don’t think it’s unconstitutional. But California is not the place to make your legal stand.

You probably should know this. You were born and raised in San Francisco, a graduate of Lowell High. But then again, it’s been a while since you lived here. So you’re making your judgment based on legal briefs, and a very literal reading of California’s law and constitution. And that’s a big mistake—our law and constitution often has very little to do with what goes on here.

In fact, relying on the law could leave you with the misimpression that we have the death penalty here.

Don’t worry. We don’t.

Yes, it’s on the books. But California has brilliantly made such a hash of the death penalty rules that we can’t really put anyone to death. It’s been more than a decade since we did so. And it’s unlikely that we’re going to start again anytime soon.

It’s actually sort of brilliant. The death penalty is legal but no one is put to death. The best of both worlds! Even the folks on death row seem to like it. When voters were asked recently to throw out the death penalty, many of the people on death row publicly opposed eliminating the death penalty. They like the special treatment they get – especially access to lawyers and the ability to file appeals and challenge their convictions. Call it a win-win-win.

Your dissent, in a too-literal and academic way, thus completely misses this point. You think all the costs and delays are some sort of problem, instead of the lasting accommodation they represent.

“Put simply,” you wrote, “California’s costly administration of the death penalty likely embodies three fundamental defects… serious unreliability, arbitrariness in application and unconscionably long delays.” You also noted that more death row inmates had died or committed suicide than were executed by the state.

Your Honor, those are not defects – those are features. Our death penalty policy is working for us.

Shouldn’t you be bothering Texas or Virginia or someplace where they actually put people to death?