The New York Times

Tuesday, November 9, 1999

Court's Refusal to Hear Cases Preserves Delays on Death Row

By LINDA GREENHOUSE

WASHINGTON -- The question, as framed for the Supreme Court by lawyers for death row inmates in Florida and Nebraska, was whether -- all other arguments about the death penalty aside -- a decades-long wait for a death sentence to be carried out is itself so "cruel and unusual" as to be unconstitutional.

It was a question the court announced on Monday that it would not answer. The justices turned down appeals by two convicted murderers, one on Nebraska's death row for nearly 20 years, the other on Florida's for nearly 25. The action left in place a system under which the length of time a person spends on death row is free of constitutional scrutiny.

In both cases, the prolonged residence on death row was due in substantial part to the states' responses to the inmates' successful challenges to unconstitutional state procedures; rather than proceed quickly to new trials, as the lower courts had ordered, the states spent years appealing the adverse rulings back up through the judicial system. Eventually, the states prevailed and the inmates were resentenced to death.

While the inmates failed on Monday to get the necessary four votes for review, they undoubtedly got the court's attention. Justice Stephen G. Breyer, who wanted the court to hear the appeals, and Justice Clarence Thomas, who emphatically did not, engaged in an unusual written exchange that lifted the curtain a bit on the kind of internal debate over the court's agenda-setting function that usually remains hidden from public view.

While Justice Breyer stopped short of taking a stand on the merits of the inmates' contention that their prolonged incarceration violated the Eighth Amendment, he said their argument "cannot be rejected out of hand."

"Both these cases involve astonishingly long delays flowing in significant part from constitutionally defective death penalty procedures," Justice Breyer said. He added: "When 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."

Justice Thomas vigorously disagreed. "It is incongruous to arm capital defendants with an arsenal of 'constitutional' claims with which they may delay their executions, and simultaneously to complain when executions are inevitably delayed," he said.

Justice Thomas named several recent Supreme Court decisions that expanded the rights of inmates, suggesting that the court's "Byzantine death penalty jurisprudence" was responsible for the long delays through undue solicitude for defendants' rights. "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."

Justice Breyer noted that courts in a number of other countries that share with the United States the English common-law tradition, including Jamaica, India and Zimbabwe, have concluded that long delays are "inhuman." In an unusually modern touch for a Supreme Court opinion, he gave the Internet address for a decision issued three months ago by the supreme court of Zimbabwe: www.law .wits.ac.za/salr/catholic.html. The views of foreign courts "are useful even though not binding," Justice Breyer said.

Justice Thomas dismissed this line of inquiry. "Were there any such support in our own jurisprudence," he said, there would be no need to search for foreign evidence.

The only other justice who entered the discussion was John Paul Stevens, who offered a one-sentence caution against extrapolating the court's view on the merits of the issue from its refusal to hear the cases, Knight v. Florida, No. 98-9741, and Moore v. Nebraska, No. 99-5291.

It was Justice Stevens who had first identified the issue in 1995, when he called for review of a Texas inmate's argument that 17 years on death row was cruel and unusual. In that case, Lackey v. Texas, Justice Stevens said the question deserved the attention of the state and lower federal courts. Justice Breyer indicated his agreement in that case and in a subsequent one from Florida.

Since then, dozens of inmates have made similar arguments, none successfully. Ordinarily, the Supreme Court waits for a conflict to develop among the lower courts before agreeing to hear a case, and the absence of such a conflict may have persuaded some justices to decide against adding the issue to the court's docket.

There was another significant development at the court on Monday.

The court accepted an appeal under the Age Discrimination in Employment Act that could also determine how other types of job discrimination cases are handled in federal court.

The question is what happens once an employer's explanation for allegedly discriminatory behavior is shown to be a pretext.

Does the plaintiff then have the right to take the case to a jury? Or is the company nonetheless entitled to a dismissal of the lawsuit at this stage if the plaintiff cannot meet the further burden of producing direct evidence of discriminatory intent, a difficult legal test known as "pretext plus"?

This case, Reeves v. Sanderson Plumbing Products Inc., No. 99-536, is an appeal by a Mississippi man who was fired at age 57 after being told by a supervisor that he was too old to do the job. After showing that the employer's explanation for his dismissal was pretextual, he won his age discrimination case before a federal court jury, which awarded him $98,000.

The United States Court of Appeals for the Fifth Circuit, in New Orleans, overturned the verdict and ruled that the case should have been dismissed before reaching the jury because the plaintiff, Roger Reeves, had failed to meet the "pretext plus" standard of providing evidence that his firing resulted from intentional discrimination.