PHOTOGRAPH BY SCOTT EISEN/GETTY

The two most unusual opinions of the past Supreme Court term addressed issues that were not even presented by the cases before the Court. In a dispute involving claims of racial discrimination in jury selection, Justice Anthony Kennedy took it upon himself to write a separate five-page opinion condemning the practice of prolonged solitary confinement and inviting a future constitutional challenge. (The defendant in the case, Hector Ayala, had been in solitary confinement for most of his twenty-five years on death row, prompting Kennedy’s concern, even though Ayala never raised the issue.) And, on the term’s last day, in a case questioning the validity of Oklahoma’s particular method of administering lethal-injection drugs for executions, Justice Stephen Breyer wrote a forty-page dissent questioning the constitutionality of the death penalty itself, and calling for a challenge raising that question.

As a rule, the Court addresses only the questions presented to it in concrete cases. Indeed, under the Constitution, it lacks the power to do otherwise. Individual Justices are free to raise whatever concerns they want in separate opinions, but they generally stick to the matter at hand. Evidently, Kennedy and Breyer felt strongly enough about the issues of solitary confinement and capital punishment to break from that tradition.

Politically speaking, Kennedy and Breyer both occupy positions in the middle of the Court. Kennedy is a conservative but frequently votes with the liberal Justices, and Breyer is the liberal Justice most likely to agree with his conservative colleagues. That middle-of-the-roaders raised these concerns suggests that they are likely to be taken seriously when properly presented. And the fact that the Court’s two most moderate Justices would, on their own, raise questions about these practices is further evidence not only that the brutality and harshness of the American criminal-justice system is out of hand but also that concern about it has reached the highest levels of government.

As Kennedy noted, an estimated twenty-five thousand inmates in the United States are currently serving their sentences in solitary confinement—a condition in which the prisoner is generally held, as Kennedy put it, “in a windowless cell no larger than a typical parking spot for 23 hours a day.” The hour each day when prisoners are allowed out, to shower or exercise, is also usually in isolation. This practice deprives individuals of almost all human contact, other than with guards. Some prisons go even further. According to Human Rights Watch, prisoners in solitary confinement in Pennsylvania are not allowed to have photographs of family members, or newspapers and magazines (unless the periodicals are religious).

Justice Kennedy is not the first justice to acknowledge the peculiar horrors of solitary confinement. In 1890, the Supreme Court found that, when held in isolation, “a considerable number of the prisoners fell, after even a short confinement, into a semi-fatuous condition … and others became violently insane; others, still, committed suicide.” Yet a hundred and twenty-five years later, the practice continues, with similar effects. Jennifer Gonnerman reported for this magazine on the case of Kalief Browder, a young man held without trial at Rikers Island for three years, nearly two of them in solitary confinement. On June 6th, Browder hanged himself in his parents’ home. As Gonnerman reported, Browder had previously attempted suicide while in solitary at Rikers.

Kennedy suggested that the judiciary “may be required to determine whether workable alternative systems for long-term confinement exist, and if so, whether a correctional system should be required to adopt them.” Because Kennedy is most often the decisive vote on the Court, that invitation should be welcome to the thousands held behind steel doors, if their wardens allow them to read of it.

Justice Breyer raised a still more profound question: Is the death penalty unconstitutional, as a form of “cruel and unusual punishment” prohibited by the Eighth Amendment? Capital punishment is expressly mentioned in the Fifth Amendment, which requires a grand-jury indictment for a capital crime, so the Court has never held the death penalty unconstitutional under all circumstances. But, in 1972, the Court did declare the death penalty—as it was then administered—unconstitutional, reasoning that the imposition of death, at the time left to the unfettered discretion of prosecutors and juries, rendered the sanction so arbitrary as to be cruel and unusual. As Justice Potter Stewart famously put it, “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” (Four years later, the Court restored the death penalty, concluding that new procedures and requirements were, in theory, sufficient to limit arbitrary decisions.)

Justice Breyer asks whether the death penalty, as it is now administered, has once again become unconstitutional. Harking back to Justice Stewart’s concern, he suggests that the procedural reforms put in place in the nineteen-seventies notwithstanding, who lives and who dies has again become as arbitrary as being struck by lightning. And, as Breyer writes, “the arbitrary imposition of punishment is the antithesis of the rule of law.”

There are about fifteen thousand murders a year in the United States. Last year, we executed thirty-five people. Studies, Breyer notes, have consistently found that what determines who lives or dies is more likely to be race, geography, or the quality of one’s lawyer than the defendant’s culpability. In addition, DNA evidence has demonstrated that, no matter how many procedural safeguards we put in place, human error is inevitable. A hundred and fifteen people convicted and sentenced to die have subsequently been found innocent of the crime, and that number certainly will continue to rise. Last year alone, six death-row inmates were exonerated, but not before spending more than thirty years each on death row. Capital cases are notoriously beset by errors; from 1973 to 1995, state and federal courts found constitutional errors in nearly seventy per cent of all capital cases before them.

What’s more, Breyer noted, defendants today routinely spend decades on death row while their cases are reviewed. That lengthy period of intense uncertainty, nearly always spent in solitary confinement, adds to the cruel and unusual character of capital punishment. The thirty-five individuals executed in 2014 spent, on average, nearly eighteen years on death row. In 1960, the average delay between sentence and execution was two years. As Justice John Paul Stevens argued in 2009, such delays expose inmates to “decades of especially severe, dehumanizing conditions of confinement”—in particular, the solitary confinement that Kennedy finds so problematic. And the delays undermine whatever deterrent or retributive value death sentences are supposed to provide, as a penalty carried out several decades after the crime is unlikely to serve as a warning to others or to offer much solace to the victim’s family. “The upshot,” Breyer writes, “is that lengthy delays both aggravate the cruelty of the death penalty and undermine its jurisprudential rationale.”

The problem, Breyer suggests, may be irresolvable. We can have executions without long delays, or we can have the procedural review necessary to avoid unfair executions, but we can’t have both. If the Constitution requires both, the death penalty may well be unconstitutional.

Only Justice Ruth Bader Ginsburg joined Justice Breyer’s opinion. He would need three more votes to declare the death penalty, as currently carried out, unconstitutional. Until the question is squarely presented, we cannot know whether the votes are there. In the meantime, the American public seems to be changing its mind. A 2014 Washington Post poll reported that a majority of Americans favored life without parole over death as a penalty for murder. Over the past fifteen years, both death sentences and executions have dropped dramatically. Thirty states have either abolished the death penalty or not conducted an execution in more than eight years. Those states that still execute have become outliers even within the United States, which in turn is an outlier in the developed world. Considering these trends, the abolition of capital punishment is probably only a matter of time. Whether its end will come at the hands of the Supreme Court or the people remains to be seen.