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March 9, 2009

An SCOTUS exchange in a cert. denial concerning a long stay on death row

As detailed in this CNN report, a few Supreme Court Justices discussed the death penalty in little separate opinion response to the denial of cert in a Florida capital case.  Here are the basics:

Two Supreme Court justices on opposite sides of the ideological aisle exchanged tough words Monday over the fate of a Florida murderer who has been on death row for 32 years.

The high court has refused to hear the appeal of William Thompson, who had plead guilty twice in the March 1976 kidnapping and torture-murder of a woman.  His case and subsequent appeals have been litigated since, but a new execution date has not been set. A key part of his request to be spared lethal injection is that three decades as a capital inmate constitutes cruel and unusual punishment.

"Our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such is unacceptably cruel," said Justice John Paul Stevens, who disagreed with the court's decision to allow the execution to proceed. He was supported by Justice Stephen Breyer in his objection to the court's ruling on Monday in the case, Thompson v. McNeil (08-7369).

But Justice Clarence Thomas took issue with his colleagues' conclusions.  "It is the crime and not the punishment imposed by the jury or the delay in execution that was 'unacceptably cruel,'" he responded.  Thomas took time in his concurrence to detail the graphic crime that led to the conviction of Thompson and his co-defendant.

Justice Stevens' statement in Thompson is available at this link; Justice Breyer's dissent from the denial of cert. in Thompson is available at this link; Justice Thomas' concurrence in support of the denial of cert. in Thompson is available at this link.

March 9, 2009 at 05:50 PM | Permalink


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Well said, Justice Thomas. Well said.

Posted by: federalist | Mar 9, 2009 6:12:30 PM

And let's hope gets set for this brutal killer ASAP. Time for the 32 year wait to end.

Posted by: federalist | Mar 9, 2009 6:19:57 PM

While Justice Thomas may be right that the crime was "especially cruel," surely a textualist like himself is aware that the Constitution and Bill of Rights protects the rights of those accused and convicted of crimes but provides exactly zero protection for crime victims. As such, his policy musings are not relevant.

Posted by: dm | Mar 9, 2009 6:21:28 PM

dm, surely the nature of a crime is relevant to the question whether a particular punishment is "cruel". It's considerably more cruel to execute someone for shoplifting than it is to execute someone for murder. It's your drive-by comments that are not relevant here, not Justice Thomas's statement.

Posted by: ab | Mar 9, 2009 6:32:53 PM

Wow, dm, you must be really impressed with yourself on that one.

Posted by: federalist | Mar 9, 2009 6:36:47 PM

So, three plus decades on death row is "unacceptably cruel" but LWOP wouldn't be? Huh? [I know, I know, the goal posts will be moved once the abolitionists get rid of the death penalty. Then LWOP will be cruel and unusual too.]

Really, Stevens needs to be put out to pasture already.

Posted by: Ben | Mar 9, 2009 6:37:48 PM

I am not sure I am following the prisoner's argument about cruel and unusual punishment. Can someone provide a link to his petition for cert?

Posted by: Commerce Claus | Mar 9, 2009 6:39:35 PM

Breyer swallowed that BS also.

Posted by: federalist | Mar 9, 2009 7:03:50 PM

Ben, the difference between LWOP and three decades on death row is that the former time is absent the psychological torture of waiting for the executioner, a form of torture all civilized countries recognize to be cruel (and which would have been considered cruel and unusual at common law at the time of this nation's founding). Whatever the defendant did, one thing he did not do was hold death over his victim for 30+ years. A question we should ask ourselves is whether we wish to be any better than the people we execute. If not, then none of this stuff matters (as does any justification for a death penalty). If so, then it does matter.

Posted by: DK | Mar 9, 2009 8:48:05 PM


And who's fault is that?????

I mean, really.... don't pee in my ear and tell me it's raining for god's sake.

Posted by: ipsedixiter | Mar 9, 2009 9:13:11 PM

Ipsedixiter, more often than not, it is the State's fault, either for violating the constitution in the course of obtaining a death sentence (necessitating a retrial) or for delaying in resolving appeals and habeas corpus petitions. Many appeals sit in courts for years because the courts are inefficient and do not resolve them, not for any fault of the inmates.

Again, none of this matters if we believe we need not behave any better than those we execute.

Posted by: DK | Mar 9, 2009 9:22:41 PM

Don't put Stevens out to pasture yet please. I need his vote in Dean v. US.

Posted by: Scott Forster | Mar 9, 2009 9:29:42 PM

DK, I've long ignored your posts as antithetical to common sense. I'm not going to change that now that you've directly responded to one of mine. Let it suffice to say that we will do nothing but speak past one another and that ipsedixiter's final sentence nailed it.

Posted by: Ben | Mar 9, 2009 9:44:22 PM

Ben, you ought to continue to ignore my posts, because rarely will I defend a position by appeals to common sense.

Posted by: DK | Mar 9, 2009 10:24:54 PM

Justice Thomas's remarks concerning crime victims brought back the memory of his self-contradiction during his initial round of confirmation hearings: Thomas adamantly declared he could not express any opinion about the rights of women under Roe v Wade because he would be prejudging issues that might come before the court, yet he had no problem staking out his position that crime victims rights had to be respected. And of course, any reference to that original round of hearings must include his perjured testimony that he did not think he had ever discussed the issue of abortion with anybody. Missouri's Senator John Danforth had to restrain a conscientious pro-life advocate (who supported Thomas’s nomination) from taking the stand to expose Thomas's perjury because he had discussed the issue of abortion with Thomas just days earlier. Danforth insisted that Senator Leahy's question of whether Thomas had ever discussed abortion at any time was unclear (of course, Danforth later decried Bill Clinton for splitting hairs, shall we say, when he denied having “sexual relations” under the convoluted definition used in the Paula Jones deposition). Clinton retained the presidency, but got impeached. Thomas got to be on the Supreme Court, thanks to Senator Danforth’s obstruction of the witness who realized Thomas had perjured himself. Although Thomas continues to seethe with resentment for the revelations of Anita Hill about his sexual harassment, Thomas’s high and mighty declarations about justice (under the Eighth Amendment or any other legal subject) is a mockery of justice.

Posted by: hd | Mar 10, 2009 10:09:57 AM

I know that Supreme Court Justices think that they are always right, but is there any end to the arrogance here? We give huge amounts of process to these guys, and someone's going to constitutionalize time on the row. It just makes no sense from the standpoint of the rule of law.

This cannot go uncommented upon: "Whatever the defendant did, one thing he did not do was hold death over his victim for 30+ years. A question we should ask ourselves is whether we wish to be any better than the people we execute."

This is immoral sophistic babble. Whether you agree with capital punishment or not, the execution of a murderer simply cannot be compared to the murder of an innocent. That you do, DK, says a lot more about you than anything else.

Posted by: federalist | Mar 10, 2009 3:23:30 PM

This blog post explains what all three Justices are missing on this issue:


Posted by: attorney | Mar 10, 2009 3:42:43 PM

"Whether you agree with capital punishment or not, the execution of a murderer simply cannot be compared to the murder of an innocent."

Unless of course you believe that all human beings deserve compassion and the failure to exhibit that compassion is a moral failing in us and not only in those who perpetrate grave crimes.

While this is certainly not the sole way of looking at that moral question, it is a legitimate interpretation of a number of widely held world faiths -- like, for instance, Christianity and Buddhism.

Posted by: dm | Mar 10, 2009 7:12:40 PM

Federalist, of course the execution of a "murderer" (whatever that means) can be compared to the murder of an "innocent" (whatever that means). It is the same exact act--the snuffing out of a human life. The only difference is a subjective judgment as to desert, hardly a rigorous basis for making a decision to kill. Indeed, it is exactly the judgment the murderer himself made, i.e., that the person whose life was ended was not "worth it" vis-a-vis whatever is believed to be gained by the killing.

Speaking of desert, and unsurprisingly in view of the above, what you forget is that--by virtue of (1) your advocacy of policies intended to maintain social and economic conditions that we know cause violent crime and (2) my belief in accountability for the known consequences of one's acts--I hold you as responsible for murder as any murderer. In fact, I hold you more responsible, because I believe (1) you are privileged and educated and (2) you are responsible for all murders that could have been prevented but for your knowing choice to maintain violent social and economic conditions. The poor murderer is only responsible for the one dead by his acts--acts that are often reactions to your choice to deprive him of, e.g., mental health care and basic stability in other necessities of life. So whatever you justify doing to the poor murderer, you should at least consider that you are at the same time justifying my doing the same (or worse) to you. Luckily, I find you to be an utterly unpersuasive blowhard.

Posted by: DK | Mar 10, 2009 9:20:37 PM

Well, DK, since I am one of millions of law-abiding citizens, I am not sure how you could hold me responsible for murder. All I can do is follow the country's laws and try to provide for my family.

Somehow I doubt you'd be man enough to do anything to me.

Posted by: federalist | Mar 10, 2009 11:01:24 PM

An improvement to my last comment would be to amend the word "common" to the word "any." My bad.

Posted by: Ben | Mar 11, 2009 12:14:30 AM

"man enough"

In the assertion a truth is revealed.

Posted by: dm | Mar 11, 2009 12:47:18 AM

I think it would be cruel and unusual not to execute Mr. Thompson. After all, he has been mentally preparing himself to be executed for 32 years---how cruel would it be to dash those expectations by giving him a reprieve?!?

Posted by: Anonymous | Mar 11, 2009 10:44:28 AM

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