Death Clash at the High Court

In the wake of the Supreme Court's refusal early this morning to hear the last-minute appeal of a Tennessee death row inmate, two justices clashed--one with some bite--over whether execution after lengthy delay is cruel and unusual punishment under the Eighth Amendment.

Tennessee executed Cecil Johnson at 1:34 a.m. Dec. 2. Johnson had spent nearly 29 years on death row for three murders committed during a robbery of a Nashville convenience store. He was convicted in 1981.

A high court majority rejected his application for a stay of execution and his petition for review in which he raised the Eighth Amendment challenge.

Justice John Paul Stevens, joined by Justice Stephen Breyer, dissented, saying Johnson’s situation was “as compelling a case” as he had encountered raising the constitutional concerns that Stevens himself raised in a 1995 dissent from another denial of certiorari: Lackey v. Texas.

Stevens blamed the state for most of the delay in Johnson’s case. He noted that it was not until 1992, when a state law was changed, that Johnson had access for the first time to “substantial evidence” undermining key eyewitness testimony.

“We cannot know as a definitive matter whether, if the state had not withheld exculpatory evidence, Johnson would have been convicted of these crimes,” wrote Stevens. “We do know that Johnson would not have waited 11 years on death row before the State met its disclosure obligations.”

Besides the constitutional issue, Stevens said Johnson’s case raised two important procedural questions: whether, as in Johnson’s case, the Eighth Amendment challenge can be made as a civil rights claim under Section 1983, and, if it cannot, whether a second habeas petition raising the claim is a successive petition subject to a procedural bar. Treating the claim as a habeas petition—which the lower court here did—only contributes to additional delay, he said.

Stevens said he remained “steadfast” in his view that execution after such delay is unacceptably cruel because it subjects death row inmates to decades of severe, dehumanizing conditions of confinement. Delaying an execution, he added, also does not further the public purposes of retribution and deterrence.

Justice Clarence Thomas, in a spirited response, said Johnson spent 29 years challenging his conviction and sentence and “now contends that the very proceedings he used to contest his sentence should prohibit the state from carrying it out.”

Thomas said Stevens first proposed his “novel” Eighth Amendment argument 14 years ago. There was no support for the argument then and there is no support now, wrote Thomas.

Noting Stevens’ dissent and his criticism last week of states executing inmates before their appeals process has concluded, Thomas added, “In Justice Stevens’ view, it seems the state can never get the timing just right.” The reason, he said, is that Stevens believes the death penalty is wrong.

“But that is where he deviates from the Constitution and where 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.’”

There are alternatives to current procedural safeguards, added Thomas. As Blackstone observed, he said, the principle that punishment should follow the crime as early as possible was expressed in an English 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.”

Thomas wrote, “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.”

Comments

[Joe]

Stevens argues that the state is largely to blame for the delay and rests his views on a certain interpretation of the Constitution. Some reference was made to foreign law but only to serve as an example.

Thomas talks past him -- the litigant in his view is trying to game the system and since the Constitution doesn't apply, foreign law and policy is what Stevens allegedly rests on.

You can debate Stevens' constitutional analysis, and Thomas is the last one to oppose lone wolf appeals in that regard, but his annoyance rests on more than substantive disagreements, and on that ground is unconvincing.

The constitutional debate to me goes Stevens' way, but that surely can be debated. Oh, and Stevens notes there is clear evidence of doubt. This might not be enough to constitutionally overturn the sentence, but (even beyond families who oppose eye for an eye) it tempers Bill R's remarks some.

[GayDude]

I have to side with Justice Thomas on this one. It's clear that some on the Court hate the DP and will make up any excuse to overturn such a sentence or grant a stay. They don't have the votes to declare it in violation of the 8th Amendment, so they have to get creative. Oh, and by making its administration more and more difficult, their hope is that the states will eventually just give up. Once enough states have done so, they can get Justice Kennedy to go along with striking it down once and for all. It's so clear and so pathetic.

Oh, and every justice has gotten a bit personal in an opinion at one time or the other. (Yes, that includes Justice Stevens.)

[anon4utu]

I agree with Mr. Facciolo. Shouldn't our first concern, so long as we adhere to a death penalty, to ensure that all procedural mechanisms have been exhausted fully so that we don't execute, ever, an innocent? Thomas' opinion reminds me of the the Lord Judge, played by Harry Andrews in the movie, "The Ruling Class."

[David JJ Facciolo, Esquire]

Clarence Thomas’ remarks are an embarrassment. He would execute a clearly innocent person and find no violation of of substantive due process if he thought enough procedures were exhausted and has concurred with exactly that sentiment in the past. He wants to shut the door on remedies for all except those whose interests he favors.

His personal attack on Stevens in this case would be unbecoming even if there were a remote element of truth to it, which there isn’t.

Like Scalia he is often uncivil, uncouth and radically conservative and hence not a good constitutionalist or a good example of a judge with proper temperament.

[BillR.]

Kudos to Justice Thomas. Why doesn't Justice Stevens go speak to the families of the three murder victims and discuss "cruel and unusual punishment."