Nearly always it is a Supreme Court decision that sparks debate and political action which define us as a free people and a democratic nation. The Court’s recent denial of two petitions to review death- sentence cases has put international focus on a truly contentious issue: the often decades-long delay between conviction and execution in the United States. Normally, petitions for certiorari are denied in one sentence (for example, “The petition for writ of certiorari is denied”). But in Knight v. Florida and Moore v. Nebraska, two Supreme Court justices heatedly clashed over whether the death-sentence cases should even be reviewed.
The two petitions (consolidated by the Court) requested that the Supreme Court consider whether the Eighth Amendment prohibits as “cruel and unusual punishment” the execution of prisoners who have spent nearly 20 years or more on death row. The quick reaction to this question, by some, is that a prisoner should not be allowed to take advantage of the “full and generous avenue of appeals” (which often take years, even decades, to exhaust) and then turn around and complain that the delay in execution violates his fundamental rights. Indeed, both Knight and Moore took full advantage of every appellate right they had. Nearly half their time on death row is not the result of appellate maneuvering, however, but of “the State’s own failure to comply with the Constitution’s demands.” That is, Florida and Nebraska were responsible for Knight and Moore sitting on death row for 24 and 19 years, respectively. Is it cruel and unusual punishment if a state holds a prisoner on death row for over two decades?
In the United States, for prisoners executed between 1977 and 1997, the average time spent on death row was 9 years and 3 months. Both Knight and Moore spent more than twice this average time. Why? In both cases the prisoners were sentenced to death and spent the next 4 to 8 years exhausting all their state appellate avenues, both prisoners losing each and every step of the way. Both petitioned the federal courts to review the state court actions. The Eleventh Circuit held that “Florida’s death penalty sentencing procedure was constitutionally defective because it did not require the jury to take account of an unusually traumatic and abusive childhood as a potentially mitigating factor.” The Eighth Circuit held that Nebraska’s “death sentence procedures violated the Constitution because its standards were too vague, permitting the death penalty’s arbitrary application.” Both states were required to amend their death-sentence procedures. After doing so, both prisoners received new sentencing hearings and were again sentenced to death. But the process of redoing the death sentencing, to correct errors on the states’ behalf, added more time on death row to their sentences: 12 years for Moore and 15 for Knight.
That, Justice Breyer argues in his dissent against the denial of the petitions, is sufficient reason for the Supreme Court to at least review these Eighth Amendment claims. Without deciding the question, Breyer forcefully asserts that these prisoners’ Eighth Amendment claims, based upon state-induced delays of 12 and 15 years on death row, “cannot be rejected out of hand.” Breyer, seeking guidance from other democratic, constitutionally based countries, reviews the holdings of top courts in India, Zimbabwe, Jamaica, and Canada, in addition to the UN Committee on Human Rights and the European Court of Human Rights, which uphold the death penalty as constitutional but find lengthy delays between conviction and execution unconstitutional. Breyer notes that the Zimbabwe top court “concluded that delays of 5 and 6 years were ‘inordinate’ and constituted ‘torture’ and ‘inhuman or degrading punishment.’ ” The European Court, in an extradition case, refused to send a defendant back to Virginia “in large part because the 6 to 8 year delay that typically accompanied a death sentence amounts to ‘cruel, inhuman, [or] degrading treatment or punishment.’ ”
Breyer also notes that many court holdings in this country have recognized the suffering and “dehumanizing effects” of living on death row and the high rate of insanity among long-term death row inmates. As of 1997, Breyer points out, “24 prisoners sentenced to death had been on death row for more than 20 years.” Because the top courts of other democratic countries hold delays of less than 10 years on death row as unconstitutional, Breyer concludes that “this Court should consider the issue,” at least in the instance when the state, not the prisoner, is responsible for the added years.
Justice Thomas thunders his rejection of Justice Breyer’s dissenting arguments. “I am unaware of any support in the American constitutional tradition … for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.” Thomas’ disdain for Breyer’s argument drips from the page as he continues: “Indeed, if there were any such support in our jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.” The true fault at hand, Thomas asserts, “stems from this Court’s Byzantine death penalty jurisprudence.” But “those who accept our death penalty jurisprudence as a given also accept the lengthy delay between sentencing and execution as a necessary consequence.” As a final shot at Breyer, Thomas lectures that “ironically, the neoteric Eighth Amendment claim proposed by Justice Breyer would further prolong collateral review by giving virtually every capital prisoner yet another ground on which to challenge and delay his execution.”
Again, this clash of views is not a Supreme Court decision but rather a simple denial of Knight and Moore’s petitions to the Court to review their Eighth Amendment “cruel and unusual” claims. To amplify this point, Justice Stevens notes at the very beginning of the denial: “It seems appropriate to emphasize that the denial of these petitions for certiorari does not constitute a ruling on the merits.” So the question of whether holding prisoners on death row for decades due to no fault of their own is “humane” or “cruel and unusual punishment” remains unanswered by the Court. But, as Justice Breyer asks, can we as a people “justify lengthy delays by reference to constitutional tradition, [when] our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades”?