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

A federal judge has intervened and issued a stay in the case of Romell Broom, the Ohio inmate whose execution was delayed last week when executioners could not find a suitable vein.  After two hours of “poking,” Ohio Gov.  Ted Strickland ordered executioners to stop and try again a week later.  U.S. District Court Judge Gregory Frost has decided that’s not enough time to determine if a ‘second execution’ is cruel and unusual punishment.

Broom’s attorneys plan to argue that a second execution attempt would be cruel and unusual punishment under the Eighth Amendment, as it would impose an “unconscionable” amount of physical and mental anguish on Brown.  To be sure, something deep down says it’s wrong to put a man in a chair and attempt to execute him twice.  But is that type of anguish any different from the anguish every prisoner faces in anticipating his/her sentence?

In 1989, the European Court of Human Rights (ECHR) ruled that, in some situations, “the ever present and mounting anguish of awaiting execution of the death penalty” is simply too much.  See Soering v. United Kingdom [PDF].  Scholars have dubbed this anguish “death row phenomenon.”  I’m not familiar with any U.S. case staying an execution becuase of a prisoner’s physical/mental anguish while anticipating his execution.  Nevertheless, there have been a few suggestions from a Justice or two that the sensitivities of death row inmates may present real Constitutional questions.

If a U.S. court nullifies Broom’s execution, that might be a step towards accepting the ECHR’s premise that some executions are simply too mentally trying.  Such a conclusion would raise a host of new questions.   How much mental anguish is too much?  What situations raise special anguish?  Is “mental anguish” objectively judged or something we examine on an individual basis?

Alternatively, the Court could rely on the physical pain suffered by Broom during the first injection to nullify any second attempt.  In 2008, the Supreme Court reaffirmed that “a series of abortive attempts” at execution could well be unconstitutional because it would cause a “substantial risk of serious harm.”  Baze v. Rees [PDF].  Resting on physical pain, rather than mental pain, would avoid any slippery slope into death row phenomenon arguments.   If the Court concludes that Broom’s mental anguish is enough to stop the sentence, however, it should be prepared to face a plethora of Soering-like arguments in future death penalty cases.

-Michael