On March 9, the U.S. Supreme Court declined review in Thompson v. McNeil, but three Justices issued strong­ly word­ed state­ments about the impor­tance of the legal issue raised. William Thompson has been on death row in Florida for 32 years. He claimed the exces­sive time he has spent on death row amount­ed to cru­el and unusu­al pun­ish­ment under the Eighth Amendment. Justice John Paul Stevens, in an opin­ion respect­ing the denial of cer­tio­rari, called the treat­ment of the defen­dant dur­ing his 32 years on death row ​“dehu­man­iz­ing,” not­ing that Thompson ​“has endured espe­cial­ly severe con­di­tions of con­fine­ment, spend­ing up to 23 hours per day in iso­la­tion in a 6- by 9‑foot cell” and has expe­ri­enced two stays of exe­cu­tion ​“only short­ly before he was sched­uled to be put to death.” Justice Stevens added that nei­ther ret­ri­bu­tion nor deter­rence were served in such a case and ​“a pun­ish­ment of death after sig­nif­i­cant delay is ​‘so total­ly with­out peno­log­i­cal jus­ti­fi­ca­tion that it results in the gra­tu­itous inflic­tion of suf­fer­ing.’” (quot­ing Gregg v. Georgia (1976)).

Justice Stephen Breyer summed up why he believed the Court should take this case: ​“The ques­tion here, how­ev­er, is whether the Constitution per­mits [the] exe­cu­tion after a delay of 32 years — a delay for which the State was in sig­nif­i­cant part respon­si­ble.” Justice Clarence Thomas, how­ev­er, dis­agreed with the views of his col­leagues, point­ing to the cru­el­ty of the mur­der for which the defen­dant was sen­tenced to death and assert­ing that it was the defen­dant him­self who caused the delays in ques­tion.

Other excerpts from Justice Stevens’ opinion: 

In Baze v. Rees, I sug­gest­ed that the ​“time for a dis­pas­sion­ate, impar­tial com­par­i­son of the enor­mous costs that death penal­ty lit­i­ga­tion impos­es on soci­ety with the ben­e­fits that it pro­duces has surely arrived.”

[O]ur expe­ri­ence dur­ing the past three decades has demon­strat­ed that delays in state-spon­sored killings are inescapable and that exe­cut­ing defen­dants after such delays is unac­cept­ably cru­el. This inevitable cru­el­ty, cou­pled with the dimin­ished jus­ti­fi­ca­tion for car­ry­ing out an exe­cu­tion after the lapse of so much time, rein­forces my opin­ion that con­tem­po­rary deci­sions ​“to retain the death penal­ty as a part of our law are the prod­uct of habit and inat­ten­tion rather than an accept­able deliberative process.”

Justice Thomas concluded:

It is the crime — and not the pun­ish­ment imposed by the jury or the delay in petitioner’s exe­cu­tion — that was ​“un-accept­ably cruel.”

(A. Liptak, ​“Justices Rule on Legal Effects of Slow-Moving Cases,” New York Times, March 9, 2009; see also Thompson v. McNeil, No. 08 – 7369, cert. denied; Stevens, J., respect­ing denial of cert.; Thomas, J., con­cur­ring; Breyer, J., dis­sent­ing (March 9, 2009)) (inte­nal cita­tions omit­ted). See Supreme Court and Time on Death Row. Justice Stevens point­ed to DPIC’s list of exon­er­at­ed defen­dants in sup­port of his point that a care­ful review of cap­i­tal cas­es is nec­es­sary. See Innocence.

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