Stephen Breyer
Stephen Breyer

The orders that were decided upon at the secret conference that the justices held the previous week were handed down by the Supreme Court on Monday morning. The court did not add any new cases to its docket for the 2022-23 term, nor did it seek the views of the federal government on any current petitions. Additionally, the court did not seek the views of any state governments. However, the justices declined to review the case of an Arizona inmate who had been sentenced to death for the first time in 1977. This prompted Justice Stephen Breyer, who will be retiring this summer, to once again express his concern regarding the constitutionality of such extended stays on death row.

Supreme Court
Death Row

More than four decades have passed since the inmate, Joe Clarence Smith, was first given a death sentence. Since that time, his death sentence has been overturned twice, in 1979 and 1999, only to be reinstated each times. Smith is one of the longest-serving death-row inmates in the country, and he has spent virtually all of his time in prison in solitary confinement, as Breyer pointed out in a two-page statement regarding the court’s decision to deny review in Smith’s case. Breyer’s statement was made in response to the decision of the court to deny review in Smith’s case.

Breyer and the Supreme Court

Breyer made the observation that the United States Supreme Court has stated that “the uncertainty of waiting in prison under the threat of execution for just four weeks is ‘one of the most horrible feelings'” that a person may go through. In addition to this, he said that “[y]ears upon years of near-total isolation exact a terrible price.” In this case, the emphasis was placed on the fact that Smith “has been subjected to those conditions not for four weeks, but for four decades.”

Breyer admitted that the presence of procedural concerns “makes it difficult for us to grant” review in this particular instance. (In its opposition to the review, the state contended that Smith should have challenged the constitutionality of his execution as a claim under federal habeas corpus law rather than as a claim under federal civil rights law.) However, in his written statement, Breyer stated that he continues “to believe that the excessive length of time that Smith and others have spent on death row awaiting execution raises serious doubts about the constitutionality of the death penalty as it is currently administered.”

There was not a single other justice who agreed with Breyer’s statement.

The next private meeting of the justices is planned to take place on Thursday, May 26. The orders that result from that conference are slated to be made public on Tuesday, May 31.

This article was first distributed through the Howe on the Court publication.

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