Washington Post: Supremo no revisará casos de pena de muerte "cruel".

Court Won't Take Up Delayed Executions

Tuesday, October 16, 2007; Page A17
The Supreme Court declined once again yesterday to decide whether a lengthy delay in carrying out a death sentence amounts to cruel and unusual punishment, this time in the case of an Arizona man who murdered two teenage girls.

Justice Stephen G. Breyer was the only justice to go on record as wanting to take the case, and he explained why:

Justice Stephen Breyer alone called for review of the case. (Alastair Grant - AP)

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"Joe Clarence Smith, petitioner in this case, was first sentenced to death 30 years ago. Due to constitutional error, the Arizona courts in 1979 set this first sentencing aside. Smith was again sentenced to death later that year. Due to ineffective assistance of counsel, the federal courts in 1999 set this second sentencing aside. Smith was again sentenced to death in 2004. He now argues that the Federal Constitution's prohibition against cruel and unusual punishments forbids his execution more than 30 years after he was initially convicted.

"In my view, Smith can reasonably claim that his execution at this late date would be "unusual." I am unaware of other executions that have taken place after so long a delay, particularly when much of the delay at issue seems due to constitutionally defective sentencing proceedings. And whether it is "cruel" to keep an individual for decades on death row or otherwise under threat of imminent execution raises a serious constitutional question."

Breyer and John Paul Stevens have been the only justices to say they want to hear such a case. In 1999, when the court declined to hear Knight v. Florida, Justice Clarence Thomas explained his reasoning:
"I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. . . . It is worth noting, in addition, that, in most cases raising this novel claim, the delay in carrying out the prisoner's execution stems from this Court's Byzantine death penalty jurisprudence."

-- Robert Barnes