PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME COURT OF
petitions for writs of certiorari are denied.
JUSTICE BREYER, dissenting from the denial of certiorari.
dissenting opinion in Glossip v. Gross, 576 U.S.
___(2015), I described how the death penalty, as currently
administered, suffers from unconscionably long delays,
arbitrary application, and serious unreliability.
Id., at___ (slip op., at 2). I write to underline
the ways in which the two cases currently before us
illustrate the first two of these problems and to highlight
additional evidence that has accumulated over the past three
years suggesting that the death penalty today lacks
"requisite reliability." Id., at___(slip
op., at 3).
petitioner in the first case, Richard Gerald Jordan, was
sentenced to death nearly 42 years ago. He argues that his
execution after such a lengthy delay violates the Eighth
Amendment's prohibition on "cruel and unusual
punishments." I continue to believe this question merits
the Court's attention. See id., at ___-
___(slip op., at 17-33); Boyer v. Davis, 578 U.S.
___(2016) (BREYER, J., dissenting from denial of certiorari)
(slip op., at 1) ("Richard Boyer was initially sentenced
to death 32 years ago"); Ruiz v. Texas, 580
U.S.___(2017) (BREYER, J., dissenting) (slip op., at 1)
("Petitioner Rolando Ruiz has been on death row for 22
years, most of which he has spent in solitary
confinement"); Lackey v. Texas, 514 U.S. 1045,
1046 (1995) (Stevens, J., memorandum respecting denial of
certiorari) (discussing petitioner's "17 years under
a sentence of death").
than a century ago, the Court described a prisoner's
4-week wait prior to execution as "one of the
most horrible feelings to which [a person] can be
subjected." In re Medley, 134 U.S. 160, 172
(1890). What explains the more than 4-decade wait in
this case? Between 1976 and 1986, each of Jordan's first
three death sentences was vacated on constitutional grounds,
including by this Court. See Jordan v. Mississippi,
476 U.S. 1101');">476 U.S. 1101 (1986) (vacating death sentence and remanding
case in light of Skipper v. South Carolina, 476 U.S.
1 (1986)); see also Brief in Opposition in No. 17-7153, p.
4-5 ("Jordan was originally convicted and
automatically sentenced to death" in July
1976-the same month that this Court held mandatory death
sentences unconstitutional in Woodson v. North
Carolina, 428 U.S. 280 (1976) (emphasis added)). In
1998, Jordan was sentenced to death for the fourth time. (He
had entered into a plea agreement providing for a sentence of
life without parole, but the Mississippi Supreme Court
invalidated that agreement and the prosecutor refused to
reinstate it. See Jordan v. Fisher, 576
U.S.___(2015) (SOTOMAYOR, J., dissenting from denial of
has lived more than half of his life on death row. He has
been under a death sentence "longer than any other
Mississippi inmate." 224 So.3d 1252, 1253 (Miss. 2017).
The petition states that since 1977, Jordan has been
incarcerated in the Mississippi State Penitentiary and spent
"most of that time on death row living in isolated,
squalid conditions." Pet. for Cert, in No. 17-7153, p.
11; see also ibid, (citing Gates v. Cook,
376 F.3d 323, 332-335 (CA5 2004) (holding that the conditions
of confinement on Mississippi State Penitentiary's death
row violate the Eighth Amendment)); Robles, The Marshall
Project, Condemned to Death-and Solitary Confinement (July
23, 2017), (reporting based upon a nationwide survey of state
corrections officials that Mississippi is 1 among 20 States
that permit death row inmates "less than four hours of
out-of-cell recreation time each day"),
(all Internet materials as last visited June 27, 2018); cf.
Davis v. Ayala, 576 U.S.___, ___(2015) (Kennedy, J.,
concurring) (slip op., at 1) (noting that "the usual
pattern" of solitary confinement involves "a
windowless cell no larger than a typical parking spot"
for up to "23 hours a day"). This Court has
repeated that such conditions bear "'a further
terror and peculiar mark of infamy' [that is] added to
the punishment of death." In re Medley, supra,
at 170. Such "additional punishment," the Court has
said, is "of the most important and painful
character." Id., at 171. In my view, the
conditions in which Jordan appears to have been confined over
the past four decades reinforce the Eighth Amendment concern
raised in his petition.
now 72 years old, is one among an aging population of death
row inmates who remain on death row for ever longer periods
of time. Over the past decade, the percentage of death row
prisoners aged 60 or older has increased more than twofold
from around 7% in 2008 to more than 16% of the death row
population by the most recent estimate. Compare Dept. of
Justice, Bureau of Justice Statistics, T. Snell, Capital
Punishment, 2008- Statistical Tables (rev. Jan. 2010) (Table
7), with Dept. of Justice, Bureau of Justice Statistics, E.
Davis & T. Snell, Capital Punishment, 2016, p. 7 (Apr.
2018) (Table 4) (Davis & Snell). Meanwhile, the average
period of imprisonment between death sentence and execution
has risen from a little over 6 years in 1988 to more than 11
years in 2008 to more than 19 years over the past year. See
Dept. of Justice, Bureau of Justice Statistics, T. Snell,
Capital Punishment, 2013-Statistical Tables, p. 14 (rev. Dec.
19, 2014) (Table 10); Death Penalty Information Center
(DPIC), Execution List 2018, https://deathpenaltyinfo.org/
execution-list-2018; DPIC, Execution List 2017, https://
deathpenaltyinfo.org/execution-list-2017; see also F.
Baumgartner et al., Deadly Justice: A Statistical Portrait of
the Death Penalty 161, 168, Fig. 8.1 (2018) (analyzing recent
data showing that "nationally, each passing year is
associated with approximately 125 additional days of delay
from crime to execution").
addition, both Richard Jordan's case and that of Timothy
Nelson Evans, the second petitioner here, illustrate the
problem of arbitrariness. To begin with, both were sentenced
to death in the Second Circuit Court District of Mississippi.
Evans says that district accounts for "the largest
number of death sentences" of any of the State's 22
districts since 1976. Pet. for Cert, in No. 17-7245, pp. 5-6;
see also App. D to Pet. for Cert, (citing death sentencing
data maintained by Mississippi's Office of the State
geographic concentration reflects a nationwide trend. Death
sentences, while declining in number, have become
increasingly concentrated in an ever-smaller number of
counties. In the mid-1990's, more than 300 people were
sentenced to death in roughly 200 counties each year. B.
Garett, End of Its Rope: How Killing the Death Penalty Can
Revive Criminal Justice 138-140 (2017). By comparison, these
numbers have declined dramatically over the past three years.
A recent study finds, for example, that in 2015, all
of those who were sentenced to death nationwide (51 people in
total) were sentenced in 38 of this Nation's more than 3,
000 counties; in 2016, all death sentences (31 in
total) were imposed in just 28 counties nationwide (fewer
than 1% of counties). Id., at 139-140, Fig. 6.2; see
also Garrett, Jakubow, & Desai, The American Death
Penalty Decline, 107 J. Crim. L. & C. 561, 564, 584
(2017); Fair Punishment Project, Too Broken To Fix: Part I:
An In-Depth Look at America's Outlier Death Penalty
Counties 2 (2016) (citing data indicating there were 16
counties, or 0.5% of all counties nationwide, in which five
or more death sentences were imposed from 2010 to 2015); cf.
M. Radelet, The History of the Death Penalty in Colorado 168
(2017) (explaining that Colorado's three death row
inmates "[a]ll were prosecuted in the same judicial
district, all the cases came from Aurora, all are young black
men, and indeed all attended the same high school");
Joint State Government Commission, Capital Punishment in
Pennsylvania: The Report of the Task Force and Advisory
Committee 90 (June 2018) ("[D]ifferences among counties
in death penalty outcomes . . . were the largest and most
prominent differences found in the study. In a very real
sense, a given defendant's chance of having the death
penalty sought, retracted, or imposed depends upon where that
defendant is prosecuted and tried") (internal quotations
omitted); Glossip, 576 U.S., at___(slip op., at 12)
(BREYER, J., dissenting).
geographic arbitrariness is aggravated by the fact that
definitions of death eligibility vary depending on the State.
This Court has repeated that "[c]apital punishment must
be limited to those offenders who commit a narrow category of
the most serious crimes," Roper v. Simmons, 543
U.S. 551, 568 (2005) (internal quotation marks omitted),
since "the culpability of the average murderer is
insufficient to justify the most extreme sanction available
to the State." Atkins v. Virginia, 536 U.S.
304, 319 (2002). But the statutory criteria States enact to
distinguish a non-death-eligible murder from a particularly
heinous death-eligible murder and thus attempt to use to
identify the "worst of the worst" murderers are far
from uniform. See Baumgartner, supra, at 90-115
(reviewing data collected in a "host" of empirical
studies showing "that nearly all homicides in a
given state are death-eligible").
instance, as Evans argues, Mississippi is one of a small
number of States in which defendants may be (and, in
Mississippi's Second Circuit Court District, routinely
are) sentenced to death for, among other things, felony
robbery murder without any finding or proof of intent to
kill. Pet. for Cert, in No. 17-7245, at 4-5, and nn. 3-4; see
also id., at 8, n. 10; Miss. Code Ann.
§§97-3-19(2)(e), (f), 99-19-101(5)(d) (2017);
McCord & Harmon, Lethal Rejection: An Empirical Analysis
of the Astonishing Plunge in Death Sentences in the United
States From Their Post-Furman Peak, 81 Albany L.
Rev. 1, 32-33, and n. 155, Table 10 (2018) (citing data
indicating the general decline in robbery as an aggravating
factor and research arguing that relying upon robbery as a
sole aggravator is generally insufficient to identify the
"worst of the worst"). And the Court recently
considered a petition presenting "unrebut-ted"
evidence that "about 98% of first-degree murder
defendants in Arizona were eligible for the death
penalty" under Arizona's death penalty statute,
which allows for imposition of the death penalty ...