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Cruel and unusual punishment

Petitioner was found guilty of a criminal act and has been sentenced to death. He has been in incarceration or on death row for approximately 17 years before the death sentence was supposed to be executed. Consequently, petitioner filed a petition for a writ of certiorari. Petitioner raised the question of whether executing a prisoner who has already spent some 17 years on death row violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The court denied the petition. Murder was charged.

In a memorandum, another justice of the court agreed and respected the denial of the certiorari. The reasons for and the justice’s opinion is stated as follows:

While the importance and novelty of the question presented by the certiorari petition are sufficient to warrant a review by the Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.
Here, while novel, petitioner’s claim was not without foundation. In the case of Gregg v. Georgia in 1976, the Court held that the Eighth Amendment does not prohibit capital punishment. The court’s decision rested in large part on the grounds that the death penalty was considered permissible by the Framers and the death penalty might serve two principal social purposes: retribution and deterrence. However, it is arguable that neither ground retains any force for prisoners who have spent some 17 years under a sentence of death. Such a delay, if it ever occurred, certainly would have been rare in 1789, and thus the practice of the Framers would not justify a denial of petitioner’s claim. Moreover, after such an extended time, the acceptable state interest in retribution has arguably been satisfied by the severe punishment already inflicted. Over a century ago, the Court recognized that when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it. If the Court accurately described the effect of uncertainty like in the case entitled In re Medley in 1890, which involved a period of four weeks, such description should apply with even greater force in the case of delays that lasted for many years. Lastly, the additional deterrent effect from an actual execution now, on the one hand, as compared to 17 years on death row followed by the prisoner’s continued incarceration for life, on the other, seems minimal. When the death penalty ceases realistically to further these purposes, its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. Sex was involved but assault was not.

According to petitioner, a number of English jurists have concluded that execution after inordinate delay would have infringed the prohibition against cruel and unusual punishments found in section 10 of the Bill of Rights, and as the court has recognized, that section is undoubtedly the precursor of the Eighth Amendment; and that the highest courts in other countries have found arguments such as petitioner’s to be persuasive.

Here, it must be noted that there may well be a constitutional significance to the reasons for the various delays that have occurred in petitioner’s case. It may be appropriate to distinguish, for example, among delays resulting from petitioner’s abuse of the judicial system by escape or repetitive, frivolous filings; the petitioner’s legitimate exercise of his right to review; and the negligence or deliberate action by the State. Thus, while the English cases indicate that the prisoner should not be held responsible for delays occurring in the latter two categories, it is at least arguable that some portion of the time that has elapsed since the petitioner was first sentenced to death in 1978 should be excluded from the calculus. Clearly, the court’s denial of the certiorari was proper.

Moreover, the Court’s denial of certiorari did not constitute a ruling on the merits. Often, a denial of certiorari on a novel issue will permit the state and federal courts to serve as laboratories in which the issue receives further study before it is addressed by the Court. The petitioner’s claim here, with its legal complexity and its potential for far-reaching consequences, seems an ideal example of one which would benefit from such further study.
Accordingly, the justice of the court agreed with the court denying the petition for a writ of certiorari that the issue was indeed an important undecided one.

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