Supreme Court Justice Closes Out The Year Railing Against The Death Penalty

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Kevin Daley Supreme Court correspondent
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Supreme Court Justice Stephen Breyer launched his latest broadside against the death penalty in a rare dissent from the Court’s decision not to take up a pair of death penalty appeals.

Henry Perry Sireci has been on death row since 1976 when he was convicted of the murder of a used car salesman. His lawyers argued to the justices that a Florida court’s refusal to grant him a new trial, based on new DNA evidence which may exonerate him, violated his constitutional guarantee of due process. Breyer argued the justices should have agreed to take up his case. He wrote:

This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is ‘one of the most horrible feelings to which he can be subjected.’ I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common. The number of yearly executions has fallen from its peak of 98 in 1999 to 19 so far this year, while the average period of imprisonment between death sentence and execution has risen from 12 years to over 18 years in that same period. 

“I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty,” he added. (RELATED: Supreme Court Justice Makes Powerful Appeal For The Disabled On Death Row)

Breyer also indicated he would have voted to review a second death penalty case from Ohio, in which inmate Romell Broom sought to end a second attempt to put him to death after the first attempt in 2009 went wrong. State officials spent nearly two hours sticking him with needles in an attempt to find a useable vein. They eventually abandoned the process when it became apparent they could not succeed. Brooms argues the pain he endured during the first botched execution, and the prospect of facing a second, constitutes unconstitutional cruel and unusual punishment. He said he would have heard the claim before shifting to a general condemnation of the arbitrariness of death penalty cases.

Breyer writes:

As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race.

Breyer was the lone dissenter from the Court’s cert denial Monday, but his sentiments have been echoed by Justice Ruth Bader Ginsburg.

He also made passing reference to a last-minute death penalty appeal the justices heard earlier in the month. In that case, the Court declined to delay the execution of Alabama inmate Ronald Smith, despite the fact four justices supported granting Smith a stay. It is generally unusual for the Court to sanction an execution if there are four votes in favor of granting a stay.

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