THE BLOG
05/10/2016 02:37 pm ET Updated May 11, 2017

The Constitutional Fight Over Delay

Justice Stephen Breyer may be the only current member of the Supreme Court to have argued that the inevitably long delays death row prisoners suffer before execution is a significant factor leading to the unconstitutionality of the death penalty but his persistence in arguing for this position has provoked passionate rejoinders. Just recently Breyer dissented from the Court's decision not to review the case of a California man who was sentenced to death 32 years ago.

According to the authoritative Death Penalty Information Service "inmates in the U.S. typically spend over a decade awaiting execution." Some prisoners have been on death row for well over 20 years and others have been executed after 30 years. No surprise then that many, often confined 23 hours a day in solitary confinement, die in prison, or attempt or successfully commit suicide.

Breyer (and Justice John Paul Stevens before him) argue that delay "subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement," as well as undermining the supposed function of the death penalty.

In a scathing post, Harvard Law professor Noah Feldman, writing in his regular Bloomberg View column, takes Breyer to task for claiming that "death delayed is worse than death itself." According to Feldman, taking a line similar to that of the late justice Antonin Scalia, Breyer is really asserting that execution should "be administered quickly... to avoid the convicted person living on many years in prison." Alas, Feldman has totally misconstrued the argument about long confinement on death row which is not that executions should take place shortly after sentence but that legitimate due process concerns over reliability, procedural fairness and the irrevocability of death have led judges as well as other actors in the criminal justice system to create a legal process which produces disproportionate human suffering, pain so great that it contributes to an unconstitutional result.

The core of Feldman's indictment of the Breyer position is his claim that "In every case where an inmate has been in death row for many years, it's by choice...the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts."

This is a distorted concept of choice. Feldman believes it is freely present in "In every case" because a defendant can simply "skip the appeals" and ask to die. Many would think that a choice in name but not in reality. And he attributes postponement of decision by the courts, not in any way to the judges who delay and their justifiable concerns about reliability or doubts about capital punishment, but only to the prisoner's hunger for days more of life.

What Feldman fundamentally misses is that the Supreme Court has created a system that does not work because it has not and probably cannot resolve a clash of inconsistent constitutional values. The Court has approved laws in those states (mostly in the South) that actively execute but it has also decided that in the service of proportionality the Constitution requires steps supposed to ensure individualized but not arbitrary or discriminatory selection of the condemned. The result of this required judicial scrutiny of death cases is that those statistically few individuals who are actually executed only die after the deterrent and retributive aims of the criminal law are no longer served by their death. After decades of delay, even a victim's family members are hardly likely to feel great satisfaction that justice has been done. The point is one can just as easily argue that a dysfunctional death penalty should be totally eliminated as what Feldman advocates, "The remedy for death delayed, after all, can only be death itself."

One last proposition Feldman asserts seems to come from a place remote from direct experience. He rejects Justice Breyer's concern that living in prison under the threat of execution for years and years is a kind of torture. " Many of us will die in the next 32 years," he writes, "And none of us knows as exactly on what day that will occur."

To be sure death is never pretty and we are never sure of its arrival. Still to equate the prospect of how a cell-confined man expects to die--years of last minute reprieves granted or denied, isolation from others, knowing that prison guards will come with a hood and strap him on a gurney, drugs of unknown capacity forced into your body--with the death most of us expect or hope for--surrounded by loved ones, supported by medical personnel--is sheer illusion.

The real choice now with capital punishment is not the inmate's but ours. It is whether we have had enough of what the late Justice Harry Blackmun called "tinkering" with a system of costly, brutal, unnecessary and, yes, long delayed mostly symbolic executions. Breyer's lone dissent notwithstanding, this is a constitutional question that the Supreme Court will have to confront. Perhaps, soon after this year's election but if not then shortly thereafter.

*Michael Meltsner, Matthews Distinguished Professor of Law at Northeastern Law School was one of the lawyers in Furman v Georgia, the 1972 Supreme Court ruling against the death penalty