How long can executions be delayed?

The Supreme Court denied the appeal of a Florida inmate on death row for 32 years.

Thirty-two years is a long time for a death-row inmate to contemplate his pending execution. But is it so long that it violates the Eighth Amendment's ban on cruel and unusual punishment?

That was the issue at the heart of an appeal filed at the US Supreme Court on behalf of Florida death-row inmate William Lee Thompson.

This week, the high court announced that it would not take up Mr. Thompson's case. The denial touched off a heated debate among three justices, including a harsh critique of capital punishment in America by Justice John Paul Stevens.

The exchange took place in written comments about the dismissed appeal. In addition to Justice Stevens, Justices Stephen Breyer and Clarence Thomas submitted comments.

The exchange offers insight into what may be an intensifying disagreement between the liberal and conservative wings of the high court over the future direction of the Supreme Court's death-penalty jurisprudence.

For 14 years, Justices Stevens and Breyer have been urging the court to hear cases examining whether long delays in carrying out executions amount to cruel and unusual punishment. Stevens first made the suggestion in the 1995 appeal of Texas death-row inmate Clarence Lackey. His execution had been pending for 17 years. In 1999, Stevens and Breyer urged the court to take up appeals involving two Florida inmates on death row 25 and 27 years.

"Today, condemned inmates await execution for an average of nearly 13 years," Stevens said in his written statement on the Thompson case. "This figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States."

Justice Thomas responded that the 32-year delay in Thompson's execution is the result of legal efforts by Thompson to overturn his death sentence.

"It makes a mockery of our system of justice ... for a convicted murderer, who, through his own interminable efforts of delay ... has secured the almost indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional," Thomas wrote. "It is incongruous to arm capital defendants with an arsenal of 'constitutional' claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed."

"It is a real bind for the court," says Richard Dieter, executive director of the Death Penalty Information Center in Washington. "This is a very difficult problem to resolve short of ending the death penalty."

In the 1990s, a British appeals court decided that in cases involving Caribbean Commonwealth countries, any execution delayed beyond five years was too long, according to Mr. Dieter. At that point, death sentences should be reduced to life sentences, the court held.

But Dieter says the high court is unlikely to follow such an approach. "The death penalty is on a collision course with our Constitution," he says.

Much of the problem is of the Supreme Court's own making, argues Kent Scheidegger, a death penalty expert at the Criminal Justice Legal Foundation in Sacramento, Calif. He says that Breyer concludes in his statement that flawed trial procedures are responsible for the delays in the Thompson case, not Thompson himself.

But Breyer is telling only part of the story, Mr. Scheidegger says. "The first trial was defective only because after the trial, the Supreme Court invented a new rule [for capital cases] out of whole cloth," Scheidegger says. "His trial was valid under the rules in effect at the time."

Scheidegger adds: "One of the big problems with a lot of these old cases is that for a number of years, the Supreme Court was making it up as they went along, so there had to be multiple trials of the same case. That certainly isn't the state's fault."

Stevens says that executions postponed for 20 or 30 years undercut the stated public purposes of having capital punishment – retribution and deterrence. "A punishment of death after significant delay is so totally without penological justification that it results in the gratuitous infliction of suffering," he said in his statement.

He added, "Our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable and that executing defendants after such delays is unacceptably cruel."

Thomas criticized Stevens for refusing to confront the "gruesome nature of the crimes" committed by Thompson and others on death row.

Thompson and another man, Rocco Surace, beat, sexually abused, and tortured a young woman to death in a Miami motel room in 1976. They did it in front of a witness.

There is no doubt that both men participated in the crime. The only issue in Thompson's appeal was the sentence – whether he should spend the rest of his life in prison or be put to death.

Thomas said three different juries returned a death sentence. Thompson's capital sentence has been reviewed by judges 17 times, he added. "It is the crime – and not the punishment imposed by the jury or the delay in [Thompson's] execution – that was unacceptably cruel," he wrote.

Breyer disagreed. "It is the punishment, not the gruesome nature of the crime, which is at issue," he countered.

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