The Chutzpah Defense: Should Defendants be Able to Appeal Their Way to an 8th Amendment Violation?

Few would deny that 32 years is a long time to spend in jail. It’s a long time to spend on death row, as well. But is delaying the execution — particularly when the delay is caused by the convict’s own appeals — cruel and unusual punishment violating the 8th Amendment?

This issue has sparked a fierce debate among the justices of the Supreme Court, three of whom put their positions in writing this week. The Court itself punted the issue, which was brought by William Lee Thompson, declining to hear his claim that 32 years on death row was cruel and unusual. But Justices John Paul Stevens, Stephen Breyer and Clarence Thomas took their disagreement out of the conference room and put it on paper.

Justice Stevens has been trying to get the Court to take on this issue since 1995, when he wrote a memorandum statement arguing that, although novel at the time, the proposition was “not without foundation.” Lackey v. Texas, 514 U.S. 1045 (1995). The state’s interest in retribution, he then mused, might be satisfied by the uncertainties a prisoner must suffer during a lengthy delay of execution (though why he felt that retribution was a proper purpose of punishment in a modern civilized society is a whole nother topic). Any deterrent purpose would be negligible after such a delay, he argued, and any penalty with little marginal return would essentially be gratuitous, and therefore cruel and unusual. Stevens also pointed out that other countries’ courts had found similar arguments to be persuasive.

In his statement this week, Stevens pointed out that the average execution happens nearly 13 years after sentencing, adding that “to my mind, this figure underscores the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States.”

However, he went on to say that the delays are mostly the result of judicial process. “Judicial process takes time, but the error rate in capital cases illustrates its necessity. We are duty bound to [ensure] that every safeguard is observed when a defendant’s life is at stake.” He concluded that “our experience during the past three decades has demonstrated that delays in state-sponsored killings are inescapable, and that executing defendants after such delays is unacceptably cruel.”

We’re no fans of the death penalty, but Stevens’ argument is a bit too much of a non sequitur, even for us. His argument is essentially: A) Delay is necessary to ensure justice in capital cases, and B) Delay sucks, if you’re the one on death row, so therefore C) Delay is unconstitutionally cruel and unusual. Which is the opposite of A. It doesn’t follow.

Stevens doesn’t need it to follow, however, because his ulterior motive is to find the death penalty itself unconstitutional. He says as much in his conclusion (quoting a previous opinion of his, which itself echoed his argument in the 1995 statement).

Justice Breyer has been pushing this issue almost as long as Stevens has, joining the cause in 1999 when he opposed denial of cert. in two Florida cases, Foster v. Florida, 537 U.S. 990 and Knight v. Florida, 528 U.S. 990. His statement in this week’s case can be found here.

Like Stevens, Breyer clearly had an ulterior motive for wanting to grant cert. He also agrees that delay is necessary to ensure justice in capital cases, and the defendant caused most of the delay in his case with apparently meritless appeals.

However, critically important to Breyer is the fact that a portion of the delay was spent on a meritorious appeal. The trial judge didn’t allow some evidence at the sentencing hearing, but was compelled to allow it at a new hearing. The defendant got the same sentence of death.

Breyer’s argument is that the delay involved in the meritorious appeal was unconstitutionally cruel and unusual, because the appeal would not have happened but for the sentencing judge’s error, which is state action. The delay involved in the meritless appeals is a necessary safeguard of the criminal justice system, and is just fine.

Seriously, that’s his argument. Read it yourself. What Breyer really wanted was to undo the death sentence itself, which he felt wasn’t really deserved here.

So what about Justice Thomas? He took the other side, arguing the 32 years were spent in appellate litigation brought by the petitioner. He caused the very delay of which he now complains. He used a quote from Mike Luttig to make the point: “It makes a mockery of our system of justice . . . for a convicted murderer, who, through his own interminable efforts of delay . . . has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional.”

Thomas felt that ulterior motives should not undercut the decisions of three separate juries, each of which held that the petitioner should be executed for kidnapping and horribly torturing a woman to death. The Constitution permitted the death penalty, and it was “the considered judgment of the people of Florida” that it was warranted here.

So all three justices seem to tacitly admit that the Supreme Court will take on a case, even if the arguments presented aren’t the right arguments, if it feels there is some other injustice that needs to be cured. Stevens and Breyer wanted to take on this case, because they felt the death penalty shouldn’t have been imposed — Stevens because he thinks it should never be imposed, and Breyer because he thinks the petitioner wasn’t as guilty as his co-defendant, who didn’t get the death penalty. Thomas didn’t see any injustice, so didn’t need to overlook the defendant’s chutzpah, though his dwelling on the merits of the sentence indicate that he might have done so in another case.

As of now, there is still no “Chutzpah Defense.” But don’t be surprised if some enterprising defense attorneys don’t craft some new versions of that argument, inspired by these three opinions.