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May 23, 2022

Justice Breyer pens solo cert denial statement to again express concern with long death row stays

At the end of this short new SCOTUS order list, which is otherwise uneventful, Justice Stephen Breyer has a four-paragraph statement respecting the denial of certiorari in Smith v. Shinn.  In the statement, Justice Breyer continues his (generally solo) lament of long stays on death row.  Here are excerpts:

Joe Clarence Smith was first sentenced to death in 1977, more than 44 years ago....  In 2007, 30 years after Smith was first sentenced to death, he petitioned this Court to review the constitutionality of his death sentence.  He argued that it would be cruel and unusual to execute him after such a lengthy delay.  The Court denied certiorari, and I dissented because I believed that Smith could “reasonably claim that his execution at this late date would be ‘unusual’ . . . particularly when much of the delay at issue seems due to constitutionally defective sentencing proceedings.” Smith v. Arizona, 552 U.S. 985, 986 (2007)....

Smith’s case is now before us for the third time. By now, more than 44 years have passed since his first death sentence. Pet. for Cert. 2.  And he “has spent almost all of [that] time” in solitary confinement, “alone in a cell that . . . measures 86.4 square feet, or roughly the size of a compact parking space.” Id., at 3–4 (footnote omitted).  Smith tells us that only four other prisoners in all of the United States have been on death row longer than he has. Id., at 4–5, and n. 2.

We have said that the uncertainty of waiting in prison under threat of execution for just four weeks is “one of the most horrible feelings to which [a person] can be subjected.” In re Medley, 134 U.S. 160, 172 (1890).  On top of that, “[y]ears on end of near-total isolation exact a terrible price.” Davis v. Ayala, 576 U.S. 257, 289 (2015) (Kennedy, J., concurring). Smith has been subjected to those conditions, not for four weeks, but for four decades.  While I recognize, as I did in 2017, that procedural obstacles make it difficult for us to grant certiorari here, I continue to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered.

May 23, 2022 at 09:43 AM | Permalink


The only other First World country that still has a death penalty is Japan, but they administer their penalty much differently than the U. S. Courts do. In Japan, all appeals and collateral attacks on the conviction and sentence are handled within 2 to 4 years. After that, no advance date is set for the execution of the prisoner. He sits in his cell, day after day, wondering if it will be his last. Then, one morning, officials come to his cell and take him out to be hanged inside the prison. No prior public announcement is made either. After the execution has been completed, the prison issues a press release announcing the time and day when the sentenced was carried out and that the prisoner is dead. His family is notified so that they can claim his body and bury it if they wish to claim it. The Japanese system exacts a far more anxious response among aa condemned prisoner who has exhausted his appeals. Their system gives new meaning to "one day at a time".

Posted by: Jim Gormley | May 23, 2022 8:15:27 PM

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