When William Lee Thompson committed the murder that landed him on Florida's death row, Gerald Ford was president. Thompson has now been incarcerated for almost 33 years, most of it under sentence of death. He has spent much of that time in isolation 23 hours a day, in a 6-by-9-foot cell. Death warrants for him were signed twice and stayed only shortly before he was to be executed.
This week, the Supreme Court refused to hear Thompson's claim that his execution after more than 30 years on death row would violate the Eighth Amendment's prohibition on cruel and unusual punishment. Normally when the Court declines to hear a case it does so without comment, but this case sparked lively debate.
Justice Clarence Thomas ridiculed the idea that a prisoner who challenges his death sentence can then complain about the length of time he has spent on death row. Justices Stephen Breyer and John Paul Stevens, however, took Thompson's claim far more seriously. Breyer noted that the delay was hardly all Thompson's fault. The judge at his trial had excluded certain mitigating evidence, which the Supreme Court later ruled was unconstitutional, resulting in a new sentencing hearing 13 years after the crime. Stevens pointed out the "dehumanizing effects" of the conditions under which Thompson has been confined for more than half of his life and argued that such a prolonged delay diminishes any possible benefit society may receive from carrying out a death sentence.
While Justices Breyer and Stevens are decidedly in the minority on the US Supreme Court, other courts have recognized that extended periods under sentence of death can be unacceptably cruel. In 1989, the United States asked the United Kingdom to extradite Jens Soering, a West German facing murder charges and a possible death sentence in the state of Virginia. The United Kingdom agreed, but the European Court of Human Rights blocked the extradition.
Noting that the average condemned prisoner in Virginia spent six to eight years on death row in "extreme conditions," the Court ruled that extraditing Soering to Virginia would violate the European Convention on Human Rights, which provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. (After Virginia authorities agreed not to seek the death penalty, Soering was extradited and convicted of murder, and received two life sentences).
Similarly, in 1993 the Judicial Committee of the British Privy Council - at that time the final court of appeal for some Caribbean nations -- considered the case of Earl Pratt and Ivan Morgan, who had been under sentence of death in Jamaica for 14 years. The Committee concluded that confinement on death row for more than five years presumptively constituted "inhuman or degrading punishment or other treatment" prohibited by the Jamaican Constitution.
These rulings are consistent with psychology and with common sense. As the Judicial Committee said in the Pratt and Morgan case, "The statement of these bare facts is sufficient to bring home to the mind of any person of normal sensitivity and compassion the agony of mind that these men must have suffered as they have alternated between hope and despair in the 14 years that they have been in prison facing the gallows." Even without the threat of impending execution, it is well known that prolonged solitary confinement can inflict great suffering; indeed, the US Supreme Court has identified it as one of the techniques of "physical and mental torture" that have been used by governments to coerce confessions.
The suffering can be particularly unbearable for the many prisoners who have brain damage, mental illness, or mental retardation. One federal judge wrote that putting such prisoners in isolated confinement "is the mental equivalent of putting an asthmatic in a place with little air to breathe." Thompson shows signs of brain damage, and as a child consistently scored in the mid-70s on IQ tests.
In the United States today, the average condemned prisoner awaits execution for nearly 13 years - far longer than the delays found to be intolerably cruel in the Soering and Pratt and Morgan cases. Some might argue that the solution is to reduce appellate review of death sentences, but that cure would be worse than the disease. More than 30 percent of death sentences imposed between 1973 and 2000 have been overturned, and 130 persons have been released from death row after they were found to be innocent of the crimes for which they had been sentenced to die. Cutting back on judicial review would increase the risk of executing an innocent person - a risk no civilized society should tolerate.
Justice Stevens has served on the Supreme Court since 1975 - that is, for the entirety of the modern death penalty era in the United States, during which more than 1,150 persons have been put to death. From that vantage point he has come to see, as he wrote this week, "the fundamental inhumanity and unworkability of the death penalty as it is administered in the United States." The Thompson case, like so many others, shows how right he is.