Thompson v. McNeil ( 2009 )

Cite as: 556 U. S. ____ (2009) 1
Statement of STEVENS, J.
SUPREME COURT OF THE UNITED STATES
WILLIAM LEE THOMPSON v. WALTER A. MCNEIL,
SECRETARY, FLORIDA DEPARTMENT OF
CORRECTIONS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
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 that
it produces has surely arrived.” Id., at ___ (slip op., at 12)
(opinion concurring in judgment). This petition for certio
rari describes costs that merit consideration in any such
study.
In June 1976, having been advised by counsel that he
would not receive the death penalty if he accepted respon
sibility 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 peti
tioner 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 im
posed 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
2 THOMPSON v. MCNEIL
Statement of STEVENS, J.
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). Petitioner’s
case involves a longer delay than any of those earlier
cases.
As he awaits execution, petitioner has endured espe
cially 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., concur
ring) (“[T]he prospect of pending execution exacts a fright
ful toll during the inevitable long wait between the impo
sition 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 deter
rence but only diminishes whatever possible benefit soci
ety might receive from petitioner’s death. It would there
fore 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 of
suffering.” 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 spent
17 years on death row when this Court reviewed his peti
tion for certiorari. Today, condemned inmates await
Cite as: 556 U. S. ____ (2009) 3
Statement of STEVENS, J.
execution for an average of nearly 13 years. See Dept. of
Justice, Bureau of Justice Statistics, Capital Punishment,
2007 (Table 11) (2008), online at http://www.ojp.usdoj.gov/
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 inhumanity 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 certio
rari). The reversible error rate in capital trials is stagger
ing. 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
convicted.2 Judicial process takes time, but the error rate
in capital cases illustrates its necessity. We are duty
bound 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 decades
has demonstrated that delays in state-sponsored killings
are inescapable and that executing defendants after such
——————
1 Dept. of Justice, Bureau of Justice Statistics Bulletin, Capital Pun
ishment, 2005, p. 14 (Dec. 2006) (App. Table 12), http:/www.ojp.usdoj.
gov/bjs/pub/pdf/cp05.pdf. This figure is underinclusive, as it does not
account for the fact that many condemned inmates’ convictions and
sentences are still under review.
2 See Death Penalty Information Center, Innocence: List of Those
Freed from Death Row (Sept. 18, 2008), http://www.deathpenaltyinfo.
org/innocence-list-those-freed-death-row (showing that an average of
nearly 10 years elapsed between an inmate’s conviction and his exon
eration).
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Statement of STEVENS, J.
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
inattention rather than an acceptable deliberative proc
ess.” Baze, 553 U. S., at ___, ___ (slip op., at 8, 17)
(STEVENS, J., concurring in judgment).