An Unusually Brittle Eighth Amendment Exchange

A few days ago, Tennessee executed Cecil Johnson for the brutal 1980 murders of three people, including a 12 year old boy, during a robbery of a market. Johnson made one last attempt at a stay when he petitioned the Supreme Court which refused to hear his case. In their opinions, Justice Clarence Thomas, writing for the majority, and Justice John Paul Stevens, writing the dissenting opinion, engaged in a rather contentious exchange. Excerpts from both opinions are reproduced below.

JUSTICE STEVENS

“the penological justifications for the death penalty diminish as the delay lengthens…”

Petitioner Cecil Johnson, Jr., has been confined to a solitary cell awaiting his execution for nearly 29 years. Johnson bears little, if any, responsibility for this delay. After his execution date was set and on the day the Governor of Tennessee denied him clemency, Johnson brought this Eighth Amendment challenge…

I remain steadfast in my view “that executing defendants after such delays is unacceptably cruel”…I would grant the stay application and the petition for certiorari.

Johnson was tried and convicted of three counts of first degree murder in 1981. He continues to maintain his innocence…There was no physical evidence tying Johnson to the crime… In 1992 a change in state law gave Johnson access, for the first time, to substantial evidence undermining key eyewitness testimony against him…This evidence calls into question the persuasive force of the eyewitness’ testimony, and, consequently, whether Johnson’s conviction was infected with constitutional error.


When I first expressed my views in Lackey [a 1994 death penalty case], I did not envision such procedural obstacles to the consideration of a claim that nearly three decades of delay on death row, much of it caused by the State, has deprived a person of his Eighth Amendment right to avoid cruel and unusual punishment. One does not need to accept the proposition “that the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose”… in order to agree that the imposition of the death penalty on these extreme facts is without constitutional justification. Most regrettably, a majority of this Court continues to find these issues not of sufficient weight to merit our attention.

In other words, the penological justifications for the death penalty diminish as the delay lengthens…Both the gravamen of petitioner’s complaint and one of the central concerns animating Lackey is that the “method” of the State’s execution of a death sentence—a lengthy delay due in no small part to the State’s malfea¬sance in this case—is itself unconstitutional.

JUSTICE THOMAS

“[STEVENS] deviates from the Constitution…to find [his] support in precedent from the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council…”

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument. [Lackey]…And I am unaware of any support for it now. There is simply no authority “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.”

In JUSTICE STEVENS’ view, it seems the State can never get the timing just right. The reason, he has said, is that the death penalty itself 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.”

At bottom, JUSTICE STEVENS’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature…As long as our system affords capital defendants the procedural safeguards this Court has long endorsed, defendants who avail themselves of these procedures will face the delays JUSTICE STEVENS laments. There are, of course, alternatives. As Blackstone observed, the principle that “punishment should follow the crime as early as possible” found expression in…[a 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.”

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.

TB