Is Delay in Capital Appeals an 8th Amendment Issue?


Last week, we argued that capital punishment as practiced in America does not work, because it takes too long.

The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the huge gap between the crime and the punishment, and the uncertainty as to whether execution would even result, adds even more injustice into the system while imposing enormous unnecessary societal costs.

Our point was not that appeals should be limited — on the contrary, they are never more necessary. Our point was simply that the process takes so long that it nullifies the whole reason for capital punishment in the first place.

We did not explore, however, whether this delay ought to count as “cruel and unusual punishment” in violation of the Eighth Amendment. We figured we’d leave that one for another day.

Well, today’s the day. In dueling opinions yesterday, Justices Stevens and Thomas went head-to-head over just that issue. We think they’re both right, and they’re both wrong.


The case is Cecil C. Johnson v. Phil Bredesen, Governor of Tennessee, et al., No. 09-7839. Stevens’ opinion can be found here, and Thomas’ can be found here.

Cecil Johnson was executed yesterday, after the Supreme Court denied cert.

In July 1980, a man robbed a convenience store in Nashville. During the robbery, the thief brutally murdered the store owner’s 12-year-old son, and two other men who were sitting in a taxi.

A couple of days later, Cecil Johnson’s father turned him in. There was no physical evidence that tied him to the crime. He was convicted and sentenced to death in 1981.

For the next 29 years, Johnson plodded through the capital appeals process, persistently maintaining his innocence.

In 1992, Tennessee for the first time gave him access to evidence that might have undermined key testimony against him.


Justice Stevens argues that this 11-year delay, before Tennessee finally made that disclosure, is a state-caused delay that counts as “unacceptably cruel.”

Thomas replies that it is pure chutzpah for a convict to file appeal after endless appeal, and then claim that the resulting delay violated his rights. He caused the delay, not the government.

But they’re both wrong. The delay wasn’t caused by the government in the way Stevens says, and that only covered the first of three decades anyway. It doesn’t affect the other two decades that this case meandered through the courts. And the delay wasn’t caused by Johnson in the way Thomas says. It’s not Johnson’s fault that the courts took so damned long.

So if the government wasn’t to blame as Stevens argued, and Johnson wasn’t to blame as Thomas argued, then who is to blame?


It is the procedural setup itself that is to blame. We cannot blame a convict for seeking review, to ensure that he was properly convicted and sentenced, and to ensure that the government did not abuse its power and violate his rights. Far from it — we insist on it. Ensuring that the government did it right for this defendant helps protect all of us, and Americans want it that way.

But we can blame the delays that are built into the system’s procedural rules. There is no reason why it should take years to get from a challenged ruling to an appellate decision on that ruling. The only reason why it does take years is because the procedural rules allow it. And human nature being what it is, it is hardly surprising that lawyers and judges will take all the time they are permitted to argue and decide matters of life and death.

Some amount of delay is reasonable, of course — it would be equally unjust to impose time limits that are too short to permit thoughtful argument and careful analysis. But even with longer than usual time limits, there is no reason why state appeals couldn’t be exhausted within a year of sentencing, and federal challenges exhausted within another year. Two years, not twenty or thirty.

(Think this way: Give the defendant 30 days after sentence to file a notice of appeal, then another 60 to file his brief. 90 days is more than enough time to do the work. Give the prosecution a generous 60 days to reply. Take 30 days to prepare for oral argument, and then give the judges another 30 days to noodle it through and make a decision. That’s 210 days, and the first appeal is over. Subsequent appeals are going to go over the same ground, so time limits can be shorter now. Say another 30 days for the defendant to announce he’s taking it to the state’s supreme court. Then 30 days to brief it, 30 days for the prosecution to brief it, 30 days to prepare for oral argument, and 30 days to reach a decision. That’s 360 days. One year. Federal appeals and habeas shouldn’t take more than one more year. And we’re done.)


Okay, so the delay is preventable. It’s caused by government rule-making. And the rules can be changed to protect the defendant’s interest in speedy resolution while continuing to protect his interest in thorough vetting of his conviction.

But does that make this delay “cruel and unusual punishment” for Eighth Amendment purposes? Probably not.

Think about it. All that’s happening to the defendant during this delay is that he’s being incarcerated. In a world without capital punishment, he’d be in the same position. He’d still be incarcerated, while going through the same appellate process that every other inmate goes through. The same process, and the same incarceration, that clearly does not violate ordinary convicts’ Eighth Amendment rights.

So no, the appellate delay is not cruel and unusual. But it still totally defeats the purpose of capital punishment in the first place, and for that simple policy reason the death penalty should be banned until such time as the system works out a way to complete the appellate process soon enough and consistently enough to make it worthwhile.


There are other problems with Stevens’ and Thomas’ arguments. Stevens, for example, is about to retire after a long tenure on the bench, and recent years have seen him going all-out to make a legacy for himself. He is adamantly opposed to the death penalty, and will make any argument against it. As a result, he winds up trying to have it both ways, as Thomas unkindly points out — decrying both the length of the appellate process, as well as the perversity of carrying out executions before every appeal has been exhausted.

Thomas, meanwhile, flatly ignores the interests of justice, and gets hung up on whether the technical procedural requirements were satisfied. He forgets that the procedures are there to serve the interests of justice, and not the other way around. The rules are there to help ensure that defendants’ rights are protected, but the rules are not the only safeguard. The mere fact that the rules were satisfied does not necessarily mean that the system worked properly. Judges — particularly Supreme Court justices — need to be able to step back and determine whether this individual’s rights really were protected, and whether society’s policy interests were advanced.

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