Supremely Unintended

I would like to draw your attention, if I may, to this Supreme Court opinion. I should explain a bit of the procedure involved, because it might be difficult to understand what this opinion is unless you know a little about the law.

People who would like to have their cases heard by the United States Supreme Court must (generally) file a petition for a writ of certiorari ("cert" for short). If the writ is granted, the parties brief the cases, submit those briefs to the Court, and an oral argument is scheduled. Cert is granted when four of the nine justices on the Court agree that the case is important enough for them to hear. When three or fewer justices vote to hear the case, cert is denied. The denial of cert will come out in an order, often in a large list of other petitions which were denied. Usually nothing more is written than "the petitions for a writ of certiorari are denied." However, a justice who feels adamantly that cert ought to have been granted can, and occasionally (though it's fairly rare) does, write a dissent from the denial of cert. Bizarrely enough, in some cases, a justice who voted against cert can write a concurring opinion in the denial of cert. What we have here, from Justice Breyer, is a dissent from a denial of cert.

The facts and main issue are as follows:

Joe Clarence Smith, petitioner in this case, was first sentenced to death 30 years ago. Due to constitutional error, the Arizona courts in 1979 set this first sentencing aside. Smith was again sentenced to death later that year. Due to ineffective assistance of counsel, the federal courts in 1999 set this second sentencing aside. Smith was again sentenced to death in 2004. He now argues that the Federal Constitution’s prohibition against cruel and unusual punishments forbids his execution more than 30 years after he was initially convicted.

What vexes Justice Breyer is the thought that excecuting someone thirty years after his conviction is arguably unusual; and holding someone on death row for thirty years is cruel. Well, if both are so, why have they come about in this case? A man who should have been lawfully executed decades ago has been able to avoid execution because of overzealous courts and an appeals procedure that delays, even thwarts, justice. Perhaps, in order to avoid violating the Eighth Amendment's prohibition on cruel and unusual punishment, we ought to do away with such appeals. Is that more just?

Unintentionally, this liberal justice is pressing a dilemma upon us - either stop executing those who have been sentenced to death, or sharply curtail judicial review of capital sentences. Probably thinking that the second option is abhorrent, Justice Breyer thinks that the logical outcome of Supreme Court review would be to stop executing people such as Mr. Smith. I wonder how most people who don't wear black robes would feel about the choice?