Concurrence Opinion
concurring.
I writе only to point out that I am unaware of any support in the American constitutional tradition or in this Court’s precedent 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. Indeed, were there any such support in our own jurisprudence, it wоuld 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.
Ironically, the neoteric Eighth Amendment claim proposed by Justice Breybr would further prolong collateral review by giving virtually every capital prisoner yet another ground on which to challenge and delay his execution. See U. S. Dept, of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment 1997, p. 12 (Dee. 1998) (for prisoners executed between 1977 and 1997, the average elapsed time on death row was 111 months from the last sentencing date). The claim might, in addition, provide reviewing courts a perverse incentive to give short shrift to a capital defendant’s legitimate claims so as to avoid violating the Eighth Amendment right suggested by Justice Breyer. Cf. United States v. Tateo,
Five yeаrs ago, Justice Stevens issued an invitation to state and lower courts to serve as “laboratories” in which the viability of this claim could receive further study. Lackey v. Texas,
Notes
In support of his claim, petitioner Knight cites Blaсkstone, who remarked that “a delayed execution ‘affects the minds of the spectators rather as a terrible sight, than as the necessary consequence of transgression.’” Pet. for Cert. in No. 98-9741, p. 15 (quoting 4 W. Blackstone, Commentaries *397). Blackstone was speaking of the effect speedy execution would have on deterring crime: “[P]unishment should follow the crime as early as
See
Furthermore, I observed prior to Congress’ adoption of the Antiterrorism and Effective Death Pеnalty Act of 1996 (AEDPA), Pub. L. 104-132, Tit. IV-B, 5413(f), 110 Stat. 1269, that this Court has radically expanded federal habeas corpus review for state prisoners, which until AEDPA had been delineated in scope by an unchanged statutory formulation. See Wright v. West,
Each of these cases rejected the claim on the merits. I am not aware of a single American court that has accepted such an Eighth Amendment claim. Some judges have dismissed the claim in the strongest of terms. See, e. g., Turner v. Jabe,
Dissenting Opinion
dissenting.
These petitions ask us to consider whether the Eighth Amendment prohibits as “cruel and unusual punishmen[t3” the execution of prisoners who have spent nearly 20 years or more on death row. Both of these cases involve astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures. 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. I believe this Court should consider that claim now. See Lackey v. Texas,
The petitioner in Moore v. Nebraska was sentenced to death on June 20, 1980, more than 19 years ago. By mid-1982, Moore had invoked all his direct appellate remedies and lost. By mid-1984, he had invoked all state collateral remedies and lost. But in 1988 a Federal District Court agreed with Moore that Nebraska’s death sentence procedures violated the Constitution because its standards were too vague, permitting the death penalty’s arbitrary application. See Furman v. Georgia,
In April 1995, after modifying its death sentence procedures and 15 years after Moore’s first sentencing proceeding, the State held a new sentencing proceeding; Moore was again sentenced to death. By April 1997, Moore had invoked all direct appellate remedies and lost. He then invoked state collateral review and lost in the lower courts. See
The petitioner in Knight v. Florida was sentenced to death on April 21, 1975, nearly 25 years ago. By mid-1976, Knight had invoked all his direct appellate remedies and lost. By mid-1983, he had invoked all state collateral remedies and lost. But Knight had also filed a petition for habeas corpus in federal court; and in December 1988, the Federal Court of Appeals for the Eleventh Circuit found 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. See Lockett v. Ohio,
In February 1996, the State held a new proceeding, and Knight was again sentenced to death. In November 1998, the Florida Supreme Court affirmed.
It is difficult to deny the suffering inherent in a prolonged wait for execution — a matter which courts and individual judges have long recognized. See Lackey, supra, at 1045-1047. More than a century ago, this Court described as “horrible” the “feelings” that accompany uncertainty about whether, or when, the execution will take place. In re Medley,
At the same time, the longer the delay, the weaker the justification for imposing the death penalty in terms of punishment's basic retributive or deterrent purposes: Lackey, supra, at 1046. Nor can one justify lengthy delays by reference to constitutional tradition, for our Constitution was written at a time when delay between sentencing and execution could be measured in days or weeks, not decades. See Pratt v. Attorney General for Jamaica, [1994] 2 A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) (Great Britain’s “Murder Act” of 1751 prescribed that execution take place on the next day but one after sentence).
A growing number of courts outside the United States — courts that accept or assume the lawfulness of the death penalty — have held that lengthy delay in administering a lawful death penalty renders ultimate execution inhuman, degrading, or unusually cruel. In Pratt v. Attorney General for Jamaica, supra, for example, the Privy Council considei'ed whether Jamaica lawfully could execute two prisoners hеld for 14 years after sentencing. The Council noted that Jamaican law authorized the death penalty and that the United Nations Committee on Human Rights has written that “‘capital punishment is not per se unlawful under the [Human Rights] Covenant.’” Id., at 26, 4 All E. R., at 780. But the Privy Council concluded that it was an “inhuman act to keep a man facing the agony of execution over a long extended period of time,” id., at 29, 4 All E. R., at 783, and the delay of 14 years was “shocking,” id., at 33, 4 All E. R., at 786. It held that the delay (and presumptively any delay of more than five years) was “‘inhuman or degrading punishment or other treatment’” forbidden by Jamaica’s Constitution unless “due entirely to the fault of the accused.” Id., at 29, 4 All E. R., at 783.
The Supreme Court of India has held that an appellate court, which itself has authority to sentence, must take account of delay when deciding whether to impose a death penalty. Sher Singh
Not all foreign authority reaches the same conclusion. The Supreme Court of Canada, for example, held that Canadian constitutional standards, though roughly similar to those of the European Convention on Human Rights, did not bar extradition to the United States of a defendant facing the death penalty. Kindler v. Minister of Justice, [1991] 2 S. C. R. 779, 838 (joint opinion). And the United Nations Human Rights Committee has written that a delay of 10 years does not necessarily violate roughly similar standards set forth in the Universal Declaration of Human Rights. Views adopted by the United Nations Human Rights Committee, 44th Sess., Mar. 30, 1992, In re: Barrett v. Jamaica (Nos. 270/1988 and 271/1988) §8.4. Given the closeness of the Canadian Court’s decision (4 to 3) and language that the United Nations Human Rights Committee used to describe the 10-year delаy (“disturbingly long”), one cannot be certain what position those bodies would take in respect to delays of 19 and 24 years.
Obviously this foreign authority does not bind us. After all, we are interpreting a “Constitution for the United States of America.” Thompson v. Oklahoma,
Nonetheless, the treaty reservations say nothing about whether a particular “period of confinement” is “constitutional.” And this Court has long considered as relevant and informative the way in which foreign courts have applied standards roughly comparable to our own constitutional standards in roughly comparable circumstances. In doing so, the Court has found particularly instructive opinions of former Commonwealth nations insofar as those opinions reflect a legal tradition that also underlies our own Eighth Amendment. Thompson v. Oklahoma, supra, at 830-831 (opinion of Stevens, J.) (considering practices of Anglo-American nations regarding executing juveniles); Enmund v. Florida,
In these cases, the foreign courts I have mentioned have considered roughly comparable questions under roughly comparable legal standards. Each court has held or assumed that those
Further, the force of the major countervailing argument is diminished in these two cases. That argument (as set out by the Human Rights Commission) recognizes that there must be an “element of delay between the lawful imposition оf a sentence of death and the exhaustion of available remedies.” Barrett, supra, § 8.4. It claims that “even prolonged periods of detention under a severe custodial regime on death row cannot generally be considered to constitute cruel, inhuman or degrading treatment if the convicted person is merely availing himself of appellate remedies.” Ibid. As the Canadian Supremе Court noted, “a defendant is never forced to undergo the full appeal procedure, but the vast majority choose to do so. It would be ironic if delay caused by the appellant’s taking advantage of the full and generous avenue of the appeals available to him should be viewed as a violation of fundamental justice.” Kindler, supra, at 838; see also Richmond v. Lewis,
The eases before us, however, involve delays which resulted in large part from the States’ failure to apply constitutionally sufficient procedures at the time of initial sentencing. They also involve extensive delays of close to two decades or more. Petitioners argue that the state-induced portion of the delay, perhaps up to 12 years in Moore’s ease, up to 15 years in Knight’s, should not be charged against them in any constitutional calculus. Cf. Pratt, 2 A. C., at 29, 4 All E. R., at 783 (counting against the prisoner only that portion of the delay caused by “escape ... or frivolous and time wasting resort to legal procedures”). Twenty years or more could not be necessary to provide a “reasonable time for appeal and consideration of reprieve.” Id., at 33, 4 All E. R., at 786. For these reasons, I think petitiоners’ argument cannot be rejected out of hand.
Nor do I agree with Justice Thomas that the lower courts have “resoundingly rejected” petitioners’ claim. Ante, at 992. I have found about two dozen post-1995 lower court cases in which prisoners have raised Lackey claims. Most involve procedural failings that in part or in whole determined the outcome of the case. Of the eight cases (оther than the two cases below) that decided Lackey claims solely on the merits, only four involve lengthy delays for which the State arguably bears responsibility. See Bell v. State,
Finally, the constitutional issue, even if limited to delays of close to 20 years or more, has considerable practical importance. Available statistics indicate that as of two years ago, December 1997, 24 prisoners sentenced to death had been on death row fоr more than 20 years. At that time 125 prisoners on death row had been sentenced in or before 1980 and therefore may now fall within the relevant category. U. S. Dept, of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment 1997, p. 13 (Dec. 1998). Given these figures and the nature of the question, despite the absence of a division among the lower federal courts, this Court should consider the issue.
I would grant the petitions for certiorari in these two eases.
Lead Opinion
Sup. Ct. Fla.; and
Sup. Ct. Neb. Certio-rari denied. Reported below: No. 98-9741,
Opinion of Justice Stevens respecting the denial of the petitions for writ of certiorari.
It seems appropriate to emphasize that the denial of these petitions for certiorari does not constitute a ruling on the merits. See, e. g., Barber v. Tennessee,