The denial of a certiorari petition gave several justice of the Supreme Court an opportunity to argue about the death penalty.
The disagreement – carried out through a statement by Justice John Paul Stevens, a dissent by Justice Stephen Breyer and a concurrence by Justice Clarence Thomas – came after the Court declined to take up the case of Thompson v. McNeil, which presented the issue of whether being on death row for 32 years constitutes unconstitutionally cruel and unusual punishment.
Stevens, who has recently been vocal in his opposition to the death penalty, stopped short of dissenting in the cert denial. But in his accompanying opinion, he pointed out that the case – like many others – evidences the need for reconsideration of the way capital punishment is administered.
“As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23 hours per day in isolation in a 6- by 9-foot cell,” Stevens wrote of the defendant, William Lee Thompson. “Two death warrants have been signed against him and stayed only shortly before he was scheduled to be put to death. The dehumanizing effects of such treatment are undeniable.”
Stevens pointed out that such a case is not rare. “Today, condemned inmates await execution for an average of nearly 13 years,” Stevens wrote. “To my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”
Stevens went on the say that the existence of such “inescapable” delays “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.”
But Thomas took issue with that characterization.
“[B]ecause petitioner chose to challenge his death sentence, [Stevens and Breyer] suggest that the subsequent delay caused by petitioner’s 32 years of litigation creates an Eighth Amendment problem,” Thomas wrote.
Thomas added: “Justice Stevens criticizes the ‘dehumanizing effects’ of the manner in which petitioner has been confined, but he never pauses to consider whether there is a legitimate penological reason for keeping certain inmates in restrictive confinement.”
Finally, Thomas notes that Stevens “refuses to take into consideration the gruesome nature of the crimes” for which Thompson was convicted, and Thomas then recounts the grizzly facts in his opinion.
Breyer addresses Thomas’ point by noting “it is the punishment, not the gruesome nature of the crime, which is at issue.”
As for Thomas’ point that the defendant is partially to blame for the delay in his time on death row, Breyer writes: “I do not believe that petitioner’s decision to exercise his right to seek appellate review of his death sentence automatically waives a claim that the Eighth Amendment proscribes a delay of more than 30 years.”
Breyer went on to write that “the delay here resulted in significant part from constitutionally defective death penalty procedures for which petitioner was not responsible. In particular, the delay was partly caused by the sentencing judge’s failure to allow the presentation and jury consideration of non statutory mitigating circumstances, an approach which we have unanimously held constitutionally forbidden.”