As I noted a while ago, there seems to be an increasing interest in U.S. jurisprudence in the notion of a “death row phenomenon.” That interest was reflected yet again in a denial of certiorari in the case of Cecil Johnson, who spent 29 years waiting to die (11 on death row) before being executed early today. In a statement [PDF] accompanying that denial, Justices Stevens and Breyer both expressed great concern about the length of Johnson’s stay on death row:
[There are] two underlying evils of intolerable delay. First, the delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement. Second, “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.” Thus, I find constitutionally significant both the conditions of confinement and the nature of the penalty itself.
[snip]
One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes,’” in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification.
(citations omitted)
Justice Thomas responded with a concurrence in the denial [PDF] that directly rejects any notion of death row phenomenon and mocks the philosophy’s implicit reliance on international law:
It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
[snip]
[Justice Stevens's view] deviates from the Constitution and . . . proponents of his view are forced to find their support in precedent from the “European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.”
[snip]
At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature. There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in a statute decreeing that “in case of murder, the judge shall in his sentence direct execution to be performed on the next day but one after sentence passed.” I have no doubt that such a system would avoid the diminishing justification problem JUSTICE STEVENS identifies, but I am equally confident that such a system would find little support from this Court.
(citations omitted)
This is a great articulation of both sides of the argument. Frankly, I don’t know which way to come out on this one, but it should be interesting to see what role international law plays in a debate over the proper interpretation of the Eighth Amendment.
-Michael
