Wednesday, March 11, 2009

Statement of Stevens, J. USSC in William Thompson

Statement of STEVENS, J.



No. 08–7369. Decided March 9, 2009

The petition for a writ of certiorari is denied.

Statement of JUSTICE STEVENS respecting the denial of
the petition for writ of certiorari.

Last Term, in my opinion in Baze v. Rees, 553 U. S. ___
(2008), I suggested that the “time for a dispassionate,
impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits thatit produces has surely arrived.” Id., at ___ (slip op., at 12)
(opinion concurring in judgment).

This petition for certiorari describes costs that merit consideration in any such

In June 1976, having been advised by counsel that he would not receive the death penalty if he accepted responsibility for his crime, petitioner pleaded guilty to a capital offense. The advice was erroneous, and he was sentenced to death.
Since that time, two state-court judgments have
set aside his death sentence. See Thompson v. State, 351
So. 2d 701 (Fla. 1977); Thompson v. Dugger, 515 So. 2d
173 (Fla. 1987).

At a third penalty hearing—after petitioner presented mitigation evidence about his limited
mental capacity and dysfunctional childhood that had
previously been barred—five members of the advisory jury
voted against a death sentence, but the court again imposed a sentence of death.
Thirty-two years have passed since petitioner was first
sentenced to death.

In prior cases, both JUSTICE BREYER and I have noted that substantially delayed executions
arguably violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
See, e.g., Smith v.
Arizona, 552 U. S. ___, ___ (2007) (BREYER, J., dissenting
from denial of certiorari); Foster v. Florida, 537 U. S. 990,
991 (2002) (same); Knight v. Florida, 528 U. S. 990, 993
(1999) (same); Lackey v. Texas, 514 U. S. 1045 (1995)
(STEVENS, J., respecting denial of certiorari).

case involves a longer delay than any of those earlier

As he awaits execution, petitioner has endured especially severe conditions of confinement, spending up to 23
hours per day in isolation in a 6- by 9-foot cell. Two death
warrants have been signed against him and stayed only
shortly before he was scheduled to be put to death. The
dehumanizing effects of such treatment are undeniable.
See People v. Anderson, 6 Cal. 3d 628, 649, 493 P. 2d 880,
894 (1972)

(“[T]he process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture”); Furman v.
Georgia, 408 U. S. 238, 288 (1972) (Brennan, J., concurring) (“[T]he prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death”)
Moreover, as I explained in Lackey, delaying an execution
does not further public purposes of retribution and deterrence but only diminishes whatever possible benefit society might receive from petitioner’s death.

It would therefore be appropriate to conclude that a punishment of death
after significant delay is “so totally without penological
justification that it results in the gratuitous infliction ofsuffering.” Gregg v. Georgia, 428 U. S. 153, 183 (1976)
(joint opinion of Stewart, Powell, and STEVENS, JJ.).

While the length of petitioner’s confinement under sentence of death is extraordinary, the concerns his case raises are not unique. Clarence Allen Lackey had spent17 years on death row when this Court reviewed his petition for certiorari. Today, condemned inmates await
execution for an average of nearly 13 years. See Dept. ofJustice, Bureau of Justice Statistics, Capital Punishment,
2007 (Table 11) (2008), online at
bjs/pub/html/cp/2007/tables/cp07st11.htm (all Internet
materials as visited Feb. 20, 2009, and available in Clerk
of Court’s case file).

To my mind, this figure underscores
the fundamental in humanity and unworkability of the
death penalty as it is administered in the United States.
Some respond that delays in carrying out executions are
the result of this Court’s insistence on excessive process.
But delays have multiple causes, including “the States’failure to apply constitutionally sufficient procedures at
the time of initial [conviction or] sentencing.” Knight, 528
U. S., at 998 (BREYER, J., dissenting from denial of certiorari). The reversible error rate in capital trials is staggering.

More than 30 percent of death verdicts imposed
between 1973 and 2000 have been overturned,1 and 129
inmates sentenced to death during that time have been exonerated, often more than a decade after they were

Judicial process takes time, but the error rate in capital cases illustrates its necessity.

We are dutybound to “insure that every safeguard is observed” when“a defendant’s life is at stake.” Gregg, 428 U. S., at 187
(joint opinion of Stewart, Powell, and STEVENS, JJ.).

In sum, our experience during the past three decadeshas demonstrated that delays in state-sponsored killings
are inescapable and that executing defendants after such
1Dept. of Justice, Bureau of Justice Statistics Bulletin, Capital Punishment, 2005, p. 14 (Dec. 2006) (App. Table 12), http:/

This figure is underinclusive, as it does not account for the fact that many condemned inmates’ convictions and
sentences are still under review.
2See Death Penalty Information Center, Innocence: List of ThoseFreed from Death Row (Sept. 18, 2008), http://www.deathpenaltyinfo.
org/innocence-list-those-freed-death-row (showing that an average ofnearly 10 years elapsed between an inmate’s conviction and his exoneration).
delays is unacceptably cruel.

This inevitable cruelty,
coupled with the diminished justification for carrying out
an execution after the lapse of so much time, reinforces my opinion that contemporary decisions “to retain the death penalty as a part of our law are the product of habit and
in attention rather than an acceptable deliberative process.” Baze, 553 U. S., at ___, ___ (slip op., at 8, 17)

(STEVENS, J., concurring in judgment).

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