In the wake of the Supreme Court's refusal early Wednesday 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. Wednesday. 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 (pdf), 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 (pdf), 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."
This article first appeared on The BLT: The Blog of Legal Times.