May 28th, 2017


Delaying execution is cruel and unusual?

Noah Feldman

By Noah Feldman Bloomberg View

Published May 18, 2016

 Delaying execution is cruel and unusual?

Justice Stephen Breyer is against the death penalty --- but not because it's morally wrong. He briefly reiterated his arguments when dissenting from the court's refusal to hear a California death row inmate's case.

First, he said the death penalty may be unconstitutional in California because it's applied arbitrarily and unreliably. Those are plausible and unremarkable arguments. They no doubt appeal to the technician in Breyer, who believes that government should do things pragmatically and correctly.

But his third reason was most striking. Following a view he has held since the 1990s, Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.

The claim that death delayed is worse than death itself is a particularly shocking one because it's the converse of arguing that taking a human life before its natural endpoint is fundamentally immoral. Instead, the view asserts that death must be administered quickly after sentencing to avoid the convicted person living on many years in prison -- even if that person wants to live as long as possible.

Make no mistake: In every case where an inmate has been on death row for many years, it's by choice. In the case the defendant had been on death row for 32 years. That's the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.

A defendant who wants to die can skip the appeals, like Timothy McVeigh, the Oklahoma City bomber, who waived his appeals and was executed expeditiously.

The judges who hear capital appeals understand all this perfectly well. They could put death penalty cases on the top of the docket. But they don't, at least in part because they know that every day of delay is another day of life for the defendant. It's one of the persistent facts about the death penalty that almost every person who is sentenced to die chooses to fight the sentence.

In theory, it's easy to say you'd rather be executed than spend your life in prison. That sentiment is a stock line in television and film.

And I confess that I share it - or at least I think I do. But no matter how powerful the thought, the empirical evidence suggests that, when push comes to shove, the human instinct to live another day is overwhelming. That's why so-called volunteers such as McVeigh are vanishingly rare in our legal system.

If the defendant could choose to die at any moment, but instead wants to live, then how, exactly, can Breyer argue that delaying death is itself a ground to hold the death penalty unconstitutional?

The argument was first addressed by Justice John Paul Stevens in a 1995 opinion called Lackey v. Texas. Stevens suggested that too long a delay on death row might transform the death penalty into a form of cruel and unusual punishment.

To understand the argument, we need to recall the nature of cruel and unusual punishment under the Eighth Amendment. The premise of the constitutional provision is that certain forms of punishment, including death itself, are permissible. Others, however, are excessively cruel or unusual in the sense of being outside the normal range of Anglo-American penal practice.

Following that logic, the court has occasionally -- arbitrarily, if you will -- found certain methods of punishment to violate the Eighth Amendment. Because the words "cruel and unusual" are flexible rather than specific, the court's jurisprudence has reflected changing social mores. Today, hanging seems cruel and unusual; but to the Framers, it would've been utterly normal. No U.S. state uses the guillotine; but in revolutionary France in its day, it was considered the most humane and rapid form of capital punishment.

The Supreme Court's most famous use of the cruel and unusual punishment standard came in the 1972 case of Furman v. Georgia. The court held that the death penalty was overall a violation of cruel and unusual punishment because it was being applied arbitrarily, especially with respect to the race of the victim.

As it turned out, this judgment was short-lived. States "improved" their death penalty procedures and convinced a changed Supreme Court to bring the death penalty back four years later. It's been with us since, arguably stronger than before as a result of the apparent rationality of the process attached to it.

So in what sense could it be cruel and unusual not to execute someone over a long period of time while his appeals are pending?

The answer has to be that the long-term prospect of death is itself a kind of torture, worse than the experience of contemplating your own execution in the immediate future.

That insight seems to follow from our imagined scene of the prisoner in his cell awaiting execution, like a character out of Dostoevsky. The trauma and psychological pain of contemplating one's imminent mortality seem bad enough. Imagine if that same trauma and pain were repeated for 32 years. In these terms, the delay could be seen as an unconscionable form of quasi-permanent torture.

But the reality must surely be otherwise. A prisoner on death row doesn't actually expect to be executed every day that he is there. Yes, courts often set execution dates. But they do so in the full knowledge that those dates will probably be deferred.

From the perspective of the prisoner, the mere setting of the date is no doubt terribly upsetting. But over time, even the most sensitive prisoner would surely get used to the repetitive structure of sentencing date followed by delay. To cite Dostoevsky again, if imprecisely: "Man can get used to anything -- the brute!"

It emerges, I think, that the so-called Lackey claim to which Breyer is still devoted is psychologically unconvincing. To live every day in the knowledge that eventually one will die is in fact the universal human condition. Many of us will die in the next 32 years. And none of us knows exactly on what day that will occur.

Those who oppose the death penalty on moral grounds have plenty of strong arguments on their side. They don't need this one, which in fact undercuts their claims about the inherent value of every day of human life.

The remedy for death delayed, after all, can only be death itself.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."