Last week’s execution of convicted killer Cecil Johnson — who murdered three people, including a 12-year-old boy, during a 1980 robbery at Bob Bell’s Market (now 12South Taproom) — was preceded by a spirited legal dispute between U.S. Supreme Court Justices John Paul Stevens and Clarence Thomas.
Despite the detailed case references — with its attendant italics, page numbers and general formality — Thomas’ written response, in particular, to Stevens’ High Court statement supporting a last-minute stay of execution for Johnson read like a high-stakes legal bitch slap.
Johnson, who was 23 at the time of his crime and 53 at the time of his death last week, had been challenging his guilt for 29 years using the same sorts of constitutional proceedings most death row inmates use to delay their deaths or, in rare cases, to exonerate themselves.
Though there’s really no doubt about Johnson’s guilt, Stevens argued that Johnson’s Eighth Amendment claims about “cruel and unusual punishment” outlined in the stay
request had merit, given the lengthy duration of his time on death row.
“Johnson bears little, if any, responsibility for this delay,” Stevens wrote the night of Johnson’s lethal injection, arguing as part of a minority (along with Justice Stephen Breyer) for the stay. “The delay itself subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” And the justice stressed his “strongly held view that state-caused delay in state-sponsored killings can be unacceptably cruel.”
He also noted that justices don’t have to accept, as he believes and has formerly written, that capital punishment represents “the pointless and needless extinction of life with only marginal contributions to any discernable social or public purposes” to find that long delayed imposition of the death penalty is “without constitutional justification.”
That was the essence of Stevens’ piece, at which point Thomas went on a scorching legal tear representing the majority opinion.
“In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery,” Thomas wrote. “He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. … He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the ‘lengthy and inhumane delay’ occasioned by his appeals would violate the Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’ ”
But that was just the prelude to the prosaic pyrotechnics.
“It has been 14 years since Justice Stevens proposed this ‘novel’ Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority … for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”
Cue now the acerbic sarcasm.
“In Justice Stevens’ view, it seems the State can never get the timing just right. The reason, he has said, is that the death penalty is wrong. But this is where he deviates from the Constitution and where proponents of his view are forced to find their support in precedent from the ‘European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.’
“At bottom, Justice Stevens’ arguments boil down to policy disagreements with the Constitution and the Tennessee legislature. … As long as our system affords capital defendants the procedural safeguards this Court has long endorsed, defendants who avail themselves of these procedures will face the delays Justice Stevens laments.”
In a biting conclusion, Thomas suggests that there’s a remedy for what Stevens argues: Apply the principle that punishments — executions — should swiftly follow conviction. “I have no doubt that such a system would avoid the diminishing justification problem Justice Stevens identifies, but I am equally confident that such a system would find little support from this Court.”
In the end, Johnson’s execution proceeded on schedule. But the seemingly irreconcilable divide in the justices’ concept of cruel and unusual punishment — and the rancor underlying it — will survive for years to come.