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October 15, 2007

SCOTUS denies cert in death row syndrome case

I missed in the quick review of SCOTUS action today that the Court rejected, yet again, a "death row syndrome" case.  Here are particulars from Lyle Denniston at SCOTUSblog:

The Court refused, for at least the fifth time in the past 12 years, to consider whether it is unconstitutional for a individual facing a death sentence to have to remain on Death Row for a long period of time. The Court declined to hear the case of Smith v. Arizona (07-5847), raising this issue: “Whether the standards of decency have evolved to the point that the execution of a person after confinement on death row for over three decades violates the Eighth Amendment’s prohibition against cruel and unusual punishment?” Justice Stephen G. Breyer, who has voted repeatedly to consider that issue (as has Justice John Paul Stevens), dissented from the denial, and filed a one-page opinion briefly outlined views he had expressed previously.  Justice Stevens did not note his vote this time.  Several times in the past, Justice Clarence Thomas has written opinions arguing that there is no constitutional problem in such prolonged waits for execution.  He did not write on Monday.

More details about the Smith case can be found in this Reuters report.

UPDATE:  Justice Breyer's one-page dissent is available here.

MORE:  And Kent at C&C comments here on Smith.

October 15, 2007 at 03:31 PM | Permalink


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I wonder why Breyer omitted his dissent in Allen v. Ornoski in 2006.

Posted by: ward | Oct 16, 2007 12:32:17 AM

I haven't read any of the cases Breyer cites, but as a purely practical matter his position seems absurd to me. It's cruel and unusual to let someone live longer? Granted, life on death row must suck. But given the choice, wouldn't the vast majority of death row inmates prefer to live longer on death row than to be executd sooner? To be sure, there is the occasional convict who seeks to forego his appeals and be executed. But at least in the vast majority of cases, where prisoners exhaust every frivolous appeal they are given, isn't it clear that the delay is welcome, and not "cruel" or "unusual"?

Posted by: | Oct 16, 2007 1:12:27 AM

“My doctrine is this, that if we see cruelty or wrong that we have the power to stop, and do nothing, we make ourselves sharers in the guilt”
Anna Sewell (1820 - 1878)

Posted by: peter | Oct 16, 2007 4:33:48 AM

Every human being on earth knows they will die someday. Few of us know when, or how, it is going to happen and it is largely out of our control. Given the state of capital litigation, endless appeals, and habeas challenges to every detail including now the method and sometimes finding a sympathetic federal habeas judge to start the whole process over again, it seems me that death row inmates, at least in California, now share a common human experience. A long life, knowing you are going to die, but not knowing how and when. Perhaps it is neither cruel, nor usual.

Posted by: David | Oct 16, 2007 9:22:36 AM

That's right, Peter. So if the death penalty does deter murder when it is actually enforced*, we have a moral obligation to enforce it. See Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (Jan. 2006)

*The preponderance of evidence is that is does, notwithstanding the DPIC's highly result-selective review of the literature.

Posted by: Kent Scheidegger | Oct 16, 2007 12:27:11 PM

Having successfully protected the public from further harm from this man for 30+ years (?), and having subjected him to conditions of punishment far harsher than many others also convicted of murder, the only possible reason for killing him is an unhealthy and gratuitous obsession with killing. The message that needs to be sent out to young men (and women) is that killing is wrong. That simply is not achieved by State sponsored killing. Doug used the example of speeding in another context. We can all agree that speed limits are in part set to educate people that fast driving leads to more accidents and death. When a law officer, legislator, or say a judge, exceeds the speed limit there is rightful outrage that such people can imagine there is one rule for us and another for them. The speed limit will only be widely respected, especially amongst the young, if it is seen to be respected by all. Now, maybe there are better examples I could have chosen, but the principle is clear. If you want to educate people about something then you had better ensure that you respect the same, in this case - life.
Your attitude demonstrates that you tend to view the death penalty purely, or primarily, in terms of retribution. As such, your arguments do not meet the requirements of the Constitution, nor of Justice.

Posted by: peter | Oct 16, 2007 2:02:39 PM

"When a law officer ... exceeds the speed limit there is rightful outrage...."

On the contrary, when a police officer goes faster than the posted speed limit with his flashing lights on because he is going to the scene of an emergency, people of sense are not outraged in the slightest. Thank you for that very helpful analogy. The speed limit is a general rule, but not a universal one. There are times when going faster is both legal and morally correct. So it is with killing. Killing is both legal and morally correct in self-defense, in defending the country from its enemies in war, and in carrying out a justified and duly imposed death sentence.

Following your logic, it would be impermissible to imprison kidnappers.

Posted by: Kent Scheidegger | Oct 16, 2007 2:15:36 PM

Along the lovely speeding analogy -- if I were going 5 mph over the limit and you were going 40 mph over the limit, the public would be outraged if we received the same punishment. The public expects penalties to increase directly with culpability. Your position would simply place a cap on the penalty (Presumably, LWOP)-- a cap which has repeatedly been rejected by a majority of Americans.

Posted by: JustClerk | Oct 16, 2007 2:26:32 PM

Nice try fellers, but it is doesn't hack it.
Even though I was of course referring to off-duty officers (as shown by the other examples given), the breaking of the speed limit in the line of duty is more analogous to killing during war. It is done essentially to defend (potential accident; attend another crime; etc). It isn't in itself a gratuitous act (unless of course you start the war for purposes of gain). In the case of the death penalty, the act of killing is done AFTER the apprehension and securing of the accused, and is therefore gratuitous.
As for the graduation of punishment idea of JustClerk, there is ALWAYS a cap on punishment. The lethal injection is supposed to be humane, but we know that there are far more horrific ways of killings, many of them put into practice over the course of history. LWOP might be acceptable as a cap by some, and contrary to your claims, the evidence is that given the choice, the country is split 50/50 on this. Since I believe LWOP also is an extreme likely to be abused by those empowered to sentence, as indeed it already is, it would only be acceptable under regular individual review, enabling re-assessment of risk beyond a more sensible tariff of retribution.
Your problem, under current sentencing policies, is that both minimum and maximum tariffs are, across the board, set insanely high - as I'm sure Doug would agree.

Posted by: peter | Oct 16, 2007 3:42:47 PM

The death penalty serves functions other than protecting against an immediate threat, and therefore it is not gratuitous. You may not agree that those other functions justify it, but that doesn't make it gratuitous.

Posted by: Kent Scheidegger | Oct 16, 2007 4:46:42 PM

In my book, the return served by the death penalty in respect of those other functions can be equally, if not better, achieved by other means - and that is the experience of all those nations that have abolished the death penalty. That is why I claim that the death penalty is gratuitous. Not to recognize that is to admit failure. Are we really less capable of imaginative, creative, effective solutions than our neighbors?

Posted by: peter | Oct 16, 2007 5:15:58 PM

While I think there are many good reasons for the death penalty, the Cass Sunstein article that Kent loves is so rampantly stupid that it's amazing any intelligent person could fall for it.

Posted by: Marc Shepherd | Oct 17, 2007 9:14:29 AM

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