Read this very short opinion (in PDF format) by Justice Thomas, which pours well-deserved scorn on Justice Breyer’s argument that the Eighth Amendment permits defendants to run out the clock on the death penalty and then complain that the delays caused by their appeals have created a cruel and unusual punishment. Justice Stephens adds a weak disclaimer to Thomas’ opinion.
I’m not totally a death penalty cheerleader, but arguments like this are appalling. Even if there was some merit to the “delay” argument, its proponents should at least recognize that the “delay” should – after the fashion of the Speedy Trial Act – exclude any delays caused by the defendant himself, including the pendency of appeals, delays in bringing a habeas petition, etc., which would exclude nearly all of the time at issue in most of these cases.