Time On Death Row

The Supreme Court and Time on Death Row

The Supreme Court

The Supreme Court has not yet accept­ed any case based on the length of a prisoner’s tenure on death row, but both Justice Stephen Breyer (pic­tured) and for­mer Justice John Paul Stevens have ques­tioned the con­sti­tu­tion­al­i­ty of the long delays.

Stevens was the first to broach the top­ic in court writ­ings in a 1995 case involv­ing a Texas man who had spent 17 years on death row. He urged low­er courts to act as lab­o­ra­to­ries” for exam­in­ing whether exe­cut­ing pris­on­ers after pro­longed peri­ods on death row might vio­late the Eighth Amendment. (Lackey v. Texas).

Breyer added that the issue is an impor­tant unde­cid­ed one,” though nei­ther Justice dis­sent­ed from the Court’s deci­sion declin­ing to con­sid­er the appeal.

In a sub­se­quent case, Breyer wrote, It is dif­fi­cult to deny the suf­fer­ing inher­ent in a pro­longed wait for exe­cu­tion,” dis­sent­ing from the Court’s deci­sion not to hear the appeals of two death-row pris­on­ers – one who had spent near­ly 25 years on Florida’s death row and one who had spent near­ly 20 years on Nebraska’s. (Knight v. Florida; Moore v. Nebraska, 1999). Justice Clarence Thomas, con­cur­ring with the deci­sion not to review the two cas­es, crit­i­cized Breyer’s opin­ion and blamed the Supreme Court’s own Byzantine death penal­ty jurispru­dence” for the execution delays.

It is incon­gru­ous to arm cap­i­tal defen­dants with an arse­nal of con­sti­tu­tion­al’ claims with which they may delay their exe­cu­tions, and simul­ta­ne­ous­ly to com­plain when exe­cu­tions are invari­ably delayed,” he wrote.

But Breyer not­ed that the aston­ish­ing­ly long delays” expe­ri­enced by the pris­on­ers were large­ly a result of con­sti­tu­tion­al­ly defec­tive death penal­ty pro­ce­dures,” not friv­o­lous appeals brought on behalf of prisoners.

Where a delay, mea­sured in decades, reflects the State’s own fail­ure to com­ply with the Constitution’s demands, the claim that time has ren­dered the exe­cu­tion inhu­man is a par­tic­u­lar­ly strong one.” 

— U.S. Supreme Court Justice Stephen Breyer

In 2009, 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 had been on death row in Florida for 32 years. He claimed the exces­sive time he 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 Thompson dur­ing his 32 years on death row dehu­man­iz­ing,” and 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,” as well as two near exe­cu­tions in which he received 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)).

Other excerpts from Justice Stevens’ opinion:

[In my 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 Stevens point­ed to DPIC’s list of exon­er­at­ed defen­dants in sup­port of his point that a care­ful review of cap­i­tal cas­es is necessary.

Justice 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 Thomas again dis­agreed with Breyer, point­ing to the cru­el­ty of the mur­der for which Thompson had been sen­tenced to death and assert­ing that Thompson him­self had caused the delays in question.

Justice Thomas con­clud­ed that it was the crime — and not the pun­ish­ment imposed by the jury or the delay in petitioner’s exe­cu­tion — that was unac­cept­ably cruel.”

In 2014 and 2015 in oral argu­ments before the U.S. Supreme Court, Justice Anthony Kennedy raised con­cerns about the exten­sive time pris­on­ers spend on death row and the rela­tion between this time and the sound­ness of the death penal­ty sys­tem. Click here for his questions.

In a 2015 dis­sent­ing opin­ion in Glossip v. Gross, Justice Breyer joined by Justice Ruth Bader Ginsburg, pro­vid­ed a sweep­ing analy­sis of why they believe the death penal­ty in the United States may be uncon­sti­tu­tion­al and called for a full brief­ing” on whether the death penal­ty vio­lates the Constitution.” One of Justice Breyer’s con­sti­tu­tion­al con­cerns was the length of time pris­on­ers spend on death row. Justice Breyer said the death penal­ty is cru­el because it suf­fers from uncon­scionably long delays that under­mine the death penalty’s peno­log­i­cal pur­pose.” Although extend­ed appeals are nec­es­sary to exon­er­ate the inno­cent and to assure the fair­ness and reli­a­bil­i­ty of cap­i­tal pro­ceed­ings, the result is that death sen­tences are not car­ried out for decades, if at all, under­min­ing any ret­ribu­tive or deter­rent val­ue the death penal­ty may have, with the dehu­man­iz­ing harsh con­di­tions of death row soli­tary con­fine­ment cre­at­ing its own set of constitutional issues.

Justice Breyer con­tin­ued to express doubts about the con­sti­tu­tion­al­i­ty of the death penal­ty in his dis­sent in Bucklew v. Precythe, a method-of-exe­cu­tion case in which the Court’s major­i­ty crit­i­cized what it char­ac­ter­ized as last-minute lit­i­ga­tion” as a tac­tic to delay exe­cu­tions. Justice Breyer wrote, It may be that there is no way to exe­cute a pris­on­er quick­ly while afford­ing him the pro­tec­tion that our Constitution guar­an­tees to those who have been sin­gled out for our law’s most severe sanction.”