SUPREME COURT OF THE UNITED STATES
THOMAS KNIGHT, AKA ASKARI ABDULLAH
MUHAMMAD
98-9741 v.
FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
CAREY DEAN MOORE
99-5291 v.
NEBRASKA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF NEBRASKA
Nos. 98-9741 and 99-5291. Decided November 8, 1999
The petitions for writs of certiorari are denied.
Opinion of JUSTICE STEVENS, respecting the denial of
the petitions for writ of certiorari.
It seems appropriate to emphasize that the denial of
these petitions for certiorari does not constitute a ruling
on the merits. See, e.g., Barber v. Tennessee, 513 U. S.
1184 (1995).
JUSTICE THOMAS, concurring in denial of certiorari.
I write only to point out that I am unaware of any sup-
port 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 de-
layed. Indeed, were there any such support in our own
jurisprudence, it would be unnecessary for proponents of
the claim to rely on the European Court of Human Rights,
the Supreme Court of Zimbabwe, the Supreme Court of
India, or the Privy Council.#1
It is worth noting, in addition, that, in most cases rais-
ing this novel claim, the delay in carrying out the pris-
oner's execution stems from this Court's Byzantine death
penalty jurisprudence, e.g., Graham v. Collins, 506 U. S.
461, 478 (1993) (THOMAS, J., concurring) (criticizing the
Court's holding in Penry v. Lynaugh, 492 U. S. 302 (1989),
that Texas special issues violated the Eighth Amendment
by preventing the jury from giving effect to mitigating
evidence); Ohio Adult Parole Authority v. Woodard, 523
U. S. 272, 279 (1998) (opinion of REHNQUIST, C. J.) (dis-
agreeing with the view of five Members of this Court#2
that procedural due process principles govern a clemency
hearing in which the clemency decision is entrusted to
executive discretion); Simmons v. South Carolina, 512 U. S.
154, 178 (1994) (SCALIA, J., dissenting) (disputing Court's
holding that due process compels a State to inform a
sentencing jury of a capital defendant's ineligibility for
parole); Morgan v. Illinois, 504 U. S. 719, 739 (1992)
(SCALIA, J., dissenting) (disagreeing with the Court's
holding that the Sixth Amendment requires exclusion of a
sentencing juror who would always impose the death
penalty upon proof of the defendant's guilt of a capital
offense).#3 In that sense, JUSTICE BREYER is unmistakably
correct when he notes that one cannot "justify lengthy
delays [between conviction and sentence] by reference to
[our] constitutional tradition." Post, at 3. Consistency
would seem to demand that those who accept our death
penalty jurisprudence as a given also accept the lengthy
delay between sentencing and execution as a necessary
consequence. See Coleman v. Balkcom, 451 U. S. 949, 952
(1981) (STEVENS, J., concurring in denial of certiorari)
("However critical one may be of . . . protracted post-trial
procedures, it seems inevitable that there must be a sig-
nificant period of incarceration on death row during the
interval between sentencing and execution"). It is incon-
gruous to arm capital defendants with an arsenal of "con-
stitutional" claims with which they may delay their execu-
tions, and simultaneously to complain when executions
are inevitably delayed. See Turner v. Jabe, 58 F. 3d 924,
933 (CA4) (Luttig, J., concurring), cert. denied, 514 U. S.
1136 (1995); Kozinski & Gallagher, Death: The Ultimate
Run-On Sentence, 46 Case W. Res. L. Rev. 1, 25 (1995).
Ironically, the neoteric Eighth Amendment claim pro-
posed by JUSTICE BREYER would further prolong collateral
review by giving virtually every capital prisoner yet an-
other ground on which to challenge and delay his execu-
tion. See U. S. Dept. of Justice, Bureau of Justice Statis-
tics Bulletin, Capital Punishment 1997, p. 12 (Dec. 1998)
(for prisoners executed between 1977 and 1997, the aver-
age elapsed time on death row was 111 months from the
last sentencing date). The claim might, in addition, pro-
vide reviewing courts a perverse incentive to give short
shrift to a capital defendant's legitimate claims so as to
avoid violating the Eighth Amendment right suggested by
JUSTICE BREYER. Cf. United States v. Tateo, 377 U. S. 463,
466 (1964) ("From the standpoint of a defendant, it is at
least doubtful that appellate courts would be as zealous as
they now are in protecting against the effects of improprie-
ties at the trial or pretrial stage if they knew that reversal
of a conviction would put the accused irrevocably beyond
the reach of further prosecution. In reality, therefore, the
practice of retrial serves defendants' rights as well as
society's interest").
Five years ago, JUSTICE STEVENS issued an invitation to
state and lower courts to serve as "laboratories" in which
the viability of this claim could receive further study.
Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum
respecting denial of certiorari). These courts have re-
soundingly rejected the claim as meritless. See, e.g.,
People v. Frye, 18 Cal. 4th 894, 1030-1031, 959 P. 2d 183,
262 (1998); People v. Massie, 19 Cal. 4th 550, 574, 967
P. 2d 29, 44-45 (1998); Ex Parte Bush, 695 So. 2d 138, 140
(Ala. 1997); State v. Schackart, 190 Ariz. 238, 259, 947 P.
2d 315, 336 (1997), cert. denied, 525 U. S. 862 (1998); Bell
v. State, 938 S. W. 2d 35, 53 (Tex. Crim. App. 1996), cert.
denied, 522 U. S. 827 (1997); State v. Smith, 280 Mont.
158, 183-184, 931 P. 2d 1272, 1287-1288 (1996); White v.
Johnson, 79 F. 3d 432, 439-440 (CA5), cert. denied, 519
U. S. 911 (1996); Stafford v. Ward, 59 F. 3d 1025, 1028
(CA10 1995).#4 I submit that the Court should consider the
experiment concluded.
Footnotes
1 In support of his claim, petitioner Knight cites Blackstone, who
remarked that "a delayed execution 'affects the minds of the spectators
rather as a terrible sight, than as the necessary consequence of trans-
gression.' " Pet. for Cert. in No. 98-9741, p. 15 (quoting 4 W. Black-
stone, Commentaries *397)). Blackstone was speaking of the effect
speedy execution would have on deterring crime: "[P]unishment should
follow the crime as early as possible; that the prospect of gratification
or advantage, which tempts a man to commit the crime, should in-
stantly awake the attendant idea of punishment." Ibid. In this regard,
Blackstone observed that "throughout the kingdom, by statute 25 Geo.
II. c. 37. it is enacted 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." Ibid. I have no doubt that such a system, if reen-
acted, would have the deterrent effect that JUSTICE BREYER finds
lacking in the current system, but I am equally confident that such a
procedure would find little support from this Court.
2 See 523 U. S., at 288 (O'CONNOR, J., concurring in part and concur-
ring in judgment); id., at 290 (STEVENS, J., concurring in part and
dissenting in part).
3 Furthermore, I observed prior to Congress' adoption of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.
L. 104-132, Tit. IV-B, S413(f), 110 Stat. 1269, that this Court has
radically expanded federal habeas corpus review for state prisoners,
which until AEDPA had been delineated in scope by an unchanged
statutory formulation. See Wright v. West, 505 U. S. 277, 285-287 (1992)
(opinion of THOMAS, J.) (tracing the expansion of federal habeas corpus
relief from its original conception as a mechanism for prisoners
to challenge the jurisdiction of the state court that had rendered
judgment).
4 Each of these cases rejected the claim on the merits. I am not aware
of a single American court that has accepted such an Eighth Amend-
ment claim. Some judges have dismissed the claim in the strongest of
terms. See, e.g., Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995) (Luttig,
J., concurring) (describing a similar claim as a "mockery of our system
of justice, and an affront to lawabiding citizens").
SUPREME COURT OF THE UNITED STATES
THOMAS KNIGHT, AKA ASKARI ABDULLAH
MUHAMMAD
98-9741 v.
FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
CAREY DEAN MOORE
99-5291 v.
NEBRASKA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF NEBRASKA
Nos. 98-9741 and 99-5291. Decided November 8, 1999
JUSTICE BREYER, dissenting from the denial of
certiorari.
These petitions ask us to consider whether the Eighth
Amendment prohibits as "cruel and unusual punish-
men[t]" the execution of prisoners who have spent nearly
20 years or more on death row. Both of these cases involve
astonishingly long delays flowing in significant part from
constitutionally defective death penalty procedures.
Where a delay, measured in decades, reflects the State's
own failure to comply with the Constitution's demands,
the claim that time has rendered the execution inhuman is
a particularly strong one. I believe this Court should
consider that claim now. See Lackey v. Texas, 514 U. S.
1045 (1995) (STEVENS, J., respecting denial of certiorari);
Elledge v. Florida, 525 U. S. 944 (1998) (BREYER, J., dis-
senting from denial of certiorari).
The petitioner in Moore v. Nebraska was sentenced to
death on June 20, 1980, more than 19 years ago. By mid-
1982, Moore had invoked all his direct appellate remedies
and lost. By mid-1984, he had invoked all state collateral
remedies and lost. But in 1988 a Federal District Court
agreed with Moore that Nebraska's death sentence proce-
dures violated the Constitution because its standards were
too vague, permitting the death penalty's arbitrary appli-
cation. See Furman v. Georgia, 408 U. S. 238 (1972) (per
curiam). The District Court issued a writ of habeas cor-
pus. The Eighth Circuit affirmed. And in May 1992, this
Court denied the State's petition for certiorari, making
final the lower federal court decision in Moore's favor.
In April 1995, after modifying its death sentence proce-
dures and 15 years after Moore's first sentencing pro-
ceeding, the State held a new sentencing proceeding;
Moore was again sentenced to death. By April 1997,
Moore had invoked all direct appellate remedies and lost.
He then invoked state collateral review and lost in the
lower courts. See 210 Neb. 457, 316 N. W. 2d 33 (1982).
He now seeks certiorari, asking us to review his claim of
inordinate delay (among others)-19 years and 4 months
after he was first sentenced to death.
The petitioner in Knight v. Florida was sentenced to
death on April 21, 1975, nearly 25 years ago. By mid-
1976, Knight had invoked all his direct appellate remedies
and lost. By mid-1983, he had invoked all state collateral
remedies and lost. But Knight had also filed a petition for
habeas corpus in federal court; and in December 1988, the
Federal Court of Appeals for the Eleventh Circuit found
that Florida's death penalty sentencing procedure was
constitutionally defective because it did not require the
jury to take account of an unusually traumatic and abu-
sive childhood as a potentially mitigating factor. See
Lockett v. Ohio, 438 U. S. 586 (1978). The Court of Appeals
ordered a new sentencing proceeding.
In February 1996, the State held a new proceeding, and
Knight was again sentenced to death. In November 1998,
the Florida Supreme Court affirmed. 721 So. 2d 287
(1998). Knight now seeks certiorari, asking us to review
his claim of inordinate delay (among others)-24 years
and 6 months after he was first sentenced to death.
It is difficult to deny the suffering inherent in a pro-
longed wait for execution-a matter which courts and
individual judges have long recognized. See Lackey,
supra, at 1045-1047. More than a century ago, this Court
described as "horrible" the "feelings" that accompany
uncertainty about whether, or when, the execution will
take place. In re Medley, 134 U. S. 160, 172 (1890). The
California Supreme Court has referred to the "dehuman-
izing effects of . . . lengthy imprisonment prior to execu-
tion." People v. Anderson, 6 Cal. 3d 628, 649, 493 P. 2d
880, 894 (1972). In Furman v. Georgia, supra, at 288-289
(concurring opinion), Justice Brennan wrote of the "in-
evitable long wait" that exacts "a frightful toll." Justice
Frankfurter noted that the "onset of insanity while await-
ing execution of a death sentence is not a rare phenome-
non." Solesbee v. Balkcom, 339 U. S. 9, 14 (1950) (dissent-
ing opinion). See Strafer, Volunteering for Execution, 74
J. Crim. L. & C. 860, 872, n. 44 (1983) (a study of Florida
inmates showed that 35% of those confined on death row
attempted suicide; 42% seriously considered suicide). And
death row conditions of special isolation may well aggra-
vate that suffering. See Connolly, Better Never Than
Late, 23 New Eng. J. on Crim. & Civ. Confinement 101,
121 (1997); Strafer, supra, at 870-871, n. 37.
At the same time, the longer the delay, the weaker the
justification for imposing the death penalty in terms of
punishment's basic retributive or deterrent purposes.
Lackey, supra, at 1046. Nor can one justify lengthy delays
by reference to constitutional tradition, for our Constitu-
tion was written at a time when delay between sentencing
and execution could be measured in days or weeks, not
decades. See Pratt v. Attorney General of Jamaica, [1994] 2
A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) (Great
Britain's "Murder Act" of 1751 prescribed that execution
take place on the next day but one after sentence).
A growing number of courts outside the United States-
courts that accept or assume the lawfulness of the death
penalty-have held that lengthy delay in administering a
lawful death penalty renders ultimate execution inhuman,
degrading, or unusually cruel. In Pratt v. Attorney General
of Jamaica, supra, for example, the Privy Council consid-
ered whether Jamaica lawfully could execute two prison-
ers held for 14 years after sentencing. The Council noted
that Jamaican law authorized the death penalty and that
the United Nations Committee on Human Rights has
written that " 'capital punishment is not per se unlawful
under the [Human Rights] Covenant.' " Id., at 26, 4 All
E. R., at 780. But the Privy Council concluded that it was
an "inhuman act to keep a man facing the agony of execu-
tion over a long extended period of time," id., at 29, 4 All
E. R., at 783, and the delay of 14 years was "shocking," id.,
at 33, 4 All E. R., at 786. It held that the delay (and pre-
sumptively any delay of more than five years) was " 'in-
human or degrading punishment or other treatment' " for-
bidden by Jamaica's Constitution unless "due entirely to
the fault of the accused." Id., at 29, 4 All E. R., at 783.
The Supreme Court of India has held that an appellate
court, which itself has authority to sentence, must take
account of delay when deciding whether to impose a death
penalty. Sher Singh v. State of Punjab, A. I. R. 1983 S. C.
465. A condemned prisoner may ask whether it is "just
and fair" to permit execution in instances of "[p]rolonged
delay." Id., at 470-471. The Supreme Court of Zimbabwe,
after surveying holdings of many foreign courts, concluded
that delays of five and six years were "inordinate" and
constituted " 'torture or . . . inhuman or degrading pun-
ishment or other such treatment.' " Catholic Commission
for Justice and Peace in Zimbabwe v. Attorney-General,
[1993] 1 Zimb. L. R. 239, 240, 269 (S) (Aug. 4, 1999),
http://www.law.wits.ac.za/salr/catholic.html. And the
European Court of Human Rights, interpreting the Euro-
pean Convention on Human Rights, noted the convention
did not forbid capital punishment. But, in the Court's
view, the convention nonetheless prohibited the United
Kingdom from extraditing a potential defendant to the
Commonwealth of Virginia-in large part because the
6- to 8-year delay that typically accompanied a death
sentence amounts to "cruel, inhuman, [or] degrading
treatment or punishment" forbidden by the convention.
Soering v. United Kingdom, 11 Eur. Ct. H. R. (ser. A),
pp. 439, 478, 111 (1989).
Not all foreign authority reaches the same conclusion.
The Supreme Court of Canada, for example, held that
Canadian constitutional standards, though roughly simi-
lar to those of the European Convention on Human
Rights, did not bar extradition to the United States of a
defendant facing the death penalty. Kindler v. Minister of
Justice, [1991] 2 S. C. R. 779, 838 (joint opinion). And the
United Nations Human Rights Committee has written
that a delay of 10 years does not necessarily violate
roughly similar standards set forth in the Universal Dec-
laration of Human Rights. Views adopted by the United
Nations Human Rights Committee, 44th Sess., Mar. 30,
1992, In re: Barrett v. Jamaica (Nos. 270/1988 and
271/1988) S8.4. Given the closeness of the Canadian
Court's decision (4 to 3) and language that the United
Nations Human Rights Committee used to describe the
ten-year delay ("disturbingly long"), one cannot be certain
what position those bodies would take in respect to delays
of 19 and 24 years.
Obviously this foreign authority does not bind us. After
all, we are interpreting a "Constitution for the United
States of America." Thompson v. Oklahoma, 487 U. S. 815,
868, n. 4 (1988) (SCALIA, J., dissenting). And indeed, after
Soering, the United States Senate insisted on reservations
to language imposing similar standards in various human
rights treaties, specifying, for example, that the language
in question did not "restrict or prohibit the United States
from applying the death penalty consistent with the . . .
Constitution, including any constitutional period of con-
finement prior to the imposition of the death penalty."
136 Cong. Rec. 36192-36199 (Oct. 27, 1990) (U. S. Senate
Resolution of Advice and Consent to Ratification of the
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment).
Nonetheless, the treaty reservations say nothing about
whether a particular "period of confinement" is "constitu-
tional." And this Court has long considered as relevant
and informative the way in which foreign courts have
applied standards roughly comparable to our own consti-
tutional standards in roughly comparable circumstances.
In doing so, the Court has found particularly instructive
opinions of former Commonwealth nations insofar as those
opinions reflect a legal tradition that also underlies our
own Eighth Amendment. Thompson v. Oklahoma, supra,
at 830-831 (opinion of STEVENS, J.) (considering practices of
Anglo-American nations regarding executing juveniles);
Enmund v. Florida, 458 U. S. 782, 796-797, n. 22 (1982)
(noting that the doctrine of felony murder has been elimi-
nated or restricted in England, India, Canada, and a "num-
ber of other Commonwealth countries"); Coker v. Georgia,
433 U. S. 584, 596, n. 10 (1977) (observing that only 3 of 60
nations surveyed in 1965 retained the death penalty for
rape); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (noting
that only 2 of 84 countries surveyed imposed denationaliza-
tion as a penalty for desertion). See also Washington v.
Glucksberg, 521 U. S. 702, 710, n. 8, and 718-719, n. 16
(1997) (surveying other nations' laws regarding assisted
suicide); Culombe v. Connecticut, 367 U. S. 568, 583-584,
n. 25, and 588 (1961) (considering English practice con-
cerning police interrogation of suspects); Kilbourn v.
Thompson, 103 U. S. 168, 183-189 (1881) (referring to the
practices of Parliament in determining whether the House
of Representatives has the power to hold a witness in con-
tempt). Willingness to consider foreign judicial views in
comparable cases is not surprising in a Nation that from
its birth has given a "decent respect to the opinions of
mankind."
In these cases, the foreign courts I have mentioned have
considered roughly comparable questions under roughly
comparable legal standards. Each court has held or as-
sumed that those standards permit application of the
death penalty itself. Consequently, I believe their views
are useful even though not binding.
Further, the force of the major countervailing argument
is diminished in these two cases. That argument (as set
out by the Human Rights Commission) recognizes that
there must be an "element of delay between the lawful
imposition of a sentence of death and the exhaustion of
available remedies." Barrett, supra, S8.4. It claims that
"even prolonged periods of detention under a severe custo-
dial regime on death row cannot generally be considered to
constitute cruel, inhuman or degrading treatment if the
convicted person is merely availing himself of appellate
remedies." Ibid. As the Canadian Supreme Court noted,
"a defendant is never forced to undergo the full appeal
procedure, but the vast majority choose to do so. It would
be ironic if delay caused by the appellant's taking advan-
tage of the full and generous avenue of the appeals avail-
able to him should be viewed as a violation of fundamental
justice." Kindler, supra, at 838; see also Richmond v.
Lewis, 948 F. 2d 1473, 1491-1492 (CA9 1990).
The cases before us, however, involve delays which
resulted in large part from the States' failure to apply
constitutionally sufficient procedures at the time of initial
sentencing. They also involve extensive delays of close to
two decades or more. The petitioners argue that the state-
induced portion of the delay, perhaps up to 12 years in
Moore's case, up to 15 years in Knight's, should not be
charged against them in any constitutional calculus. Cf.
Pratt, 2 A. C., at 29, 4 All E. R., at 783 (counting against
the prisoner only that portion of the delay caused by "es-
cape . . . or frivolous and time wasting resort to legal
procedures"). Twenty years or more could not be neces-
sary to provide a "reasonable time for appeal and consid-
eration of reprieve." Id., at 33, 4 All E. R., at 786. For
these reasons, I think petitioners' argument cannot be
rejected out of hand.
Nor do I agree with JUSTICE THOMAS that the lower
courts have "resoundingly rejected" petitioner's claim.
Ante, at 4. I have found about two dozen post-1995 lower
court cases in which prisoners have raised Lackey claims.
Most involve procedural failings that in part or in whole
determined the outcome of the case. Of the eight cases
(other than the two cases below) that decided Lackey
claims solely on the merits, only four involve lengthy
delays for which the State arguably bears responsibility.
See Bell v. State, 938 S. W. 2d 35 (Tex. Crim. App. 1996)
(20 years; conviction overturned once); Ex parte Bush, 695
So. 2d 138 (Ala. 1997) (16 years; conviction overturned
twice); State v. Smith, 280 Mont. 158, 931 P. 2d 1272
(1996) (13 years; sentence overturned once); People v.
Massie, 19 Cal. 4th 550, 967 P. 2d 29 (1998) (16 years;
sentence overturned once). Neither the opinions in these
four cases, nor those in any other of the lower court cases
that I have found, discuss the potential significance of that
state responsibility at any length. Thus, although the ex-
periment may have begun, it is hardly evident that we
"should consider the experiment concluded." Ante, at 4-5.
Finally, the constitutional issue, even if limited to de-
lays of close to 20 years or more, has considerable practical
importance. Available statistics indicate that as of two
years ago, December 1997, 24 prisoners sentenced to
death had been on death row for more than 20 years. At
that time 125 prisoners on death row had been sentenced
in or before 1980 and therefore may now fall within the
relevant category. U. S. Dept. of Justice, Bureau of Jus-
tice Statistics Bulletin, Capital Punishment 1997, p. 13
(Dec. 1998). Given these figures and the nature of the
question, despite the absence of a division among the
lower federal courts, this Court should consider the issue.
I would grant the petitions for certiorari in these two
cases.
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