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December 2, 2009

A few Justices discussing time on death row again

As noted in this effective post at SCOTUSblog by Lyle Denniston, a few Justices took the time to discuss the time that Cecil Johnson spent on death row before he was executed early Wednesday in Tennessee.   Here are the highlights of Lyle's effective reporting:

“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf.  The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution....

But, as has happened before, the Stevens complaint was met with a sharply worded retort from a colleague, Justice Clarence Thomas.  The Stevens-Breyer opinion is here, the Thomas opinion here....

Whatever the intensity of the verbal debate over the issue, it is clear that there are not four Justices on the Court who are ready to hear it.  None of the other Justices has weighed in on the question.

The last sentence in this SCOTUSblog report is perhaps what's most noteworthy here, especially the fact that new Justice Sotomayor (as well as still sort-of-new CJ Roberts and Justice Alito) did not feel compelled to join on to either opinion.

December 2, 2009 at 06:28 PM | Permalink


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In a move that could re-define the word "irony," a convicted killer on death row seeks more time for the Court to consider his claim that he's been awaiting execution for too much time.

Posted by: Bill Otis | Dec 2, 2009 9:08:55 PM

I did find it interesting that Sotomayor didn't join this dissent from denial the way she did earlier. I'm also glad she hasn't taken up the practice of dissenting from every denial in death penalty cases.

Posted by: Soronel Haetir | Dec 2, 2009 10:35:39 PM

Justices Stevens and Breyer do not dissent from every denial of cert. in DP cases. Regardless of the type of case, I believe that Justice Stevens files more dissents from denial of cert. than any other Justice.

I agree with Justice Stevens that the longer someone waits to be executed, the less value the sentence has. But I agree with Justice Thomas that there is no Constituional error. And I also agree with Justice Thomas that it's hugely ironic that a defendant avails himself of the panoply of appellate rights that the Supreme Court has helped to create, and then complains that they take too long.

Posted by: Marc Shepherd | Dec 3, 2009 9:41:54 AM

And congratulations -- indeed, Happy Christmas! -- to the prosecutors who thus successfully withheld evidence undercutting the eyewitness testimony on which this man's execution rests! Maybe they'll get a rich reward, like meeting a giant of humanity like Justice Thomas someday! How richly nostalgic to enjoy such a Dickensian judicial system.

Posted by: dh | Dec 3, 2009 10:08:34 AM

Local prosecutors in the death belt are often remarkably sloppy about due process and the rights of the defendant. Even when there is essentially no doubt as to guilt, many state's attorneys, out of either ignorance or malice, insist on cutting corners. They -- along with locally elected judges who fail to police the conduct at trial, and authorities who appoint incompetent defense counsel (after setting compensation rates at such miserly levels as to practically guarantee that only the incompetent or perhaps the "true believer" type would be willing to take such a case) -- must bear a good part of the blame for taking relatively open-and-shut cases and turning them into decades-long procedural nightmares.

In other words, in many of these cases, it can hardly be said that the State has exercised due diligence in ensuring that the proceedings are timely, fair, and reliable. Viewed in this context, I don't actually find these claims to be so ironic.

Posted by: Anon | Dec 3, 2009 1:56:00 PM

Anon --

Would you support the death penalty in cases where the proceedings ARE timely, fair, and reliable? If not, then procedural arguments are just side dishes to the main course, that being abolitionism.

Of course side dishes are all abolitionism has, since the public finds the main course indigestable.

Posted by: Bill Otis | Dec 3, 2009 7:52:21 PM

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