09/30/2011 09:21 am ET Updated Nov 30, 2011

Justice Stephen Breyer's Plea to Spare Life of Man Executed in Florida

As I've reported here, the state of Florida executed Manuel Valle, 61, two nights ago, using a new formula in its chemical cocktail for a lethal injection. He had been imprisoned for thirty-three years after being convicted of killing a cop in 1978. The U.S. Supreme Court, as expected, had denied a stay.

What I didn't know was that Justice Stephen Breyer had backed a stay, and issued an important, moving, and one hopes, influential dissent that will have a long life. For that reason, I am reprinting it below in its entirety, minus the citations. For much more on this issue see my new book Dead Reckoning.

* * *

The State of Florida seeks to execute Manuel Valle for a crime for which he was initially sentenced to death more than 33 years ago. Valle asks us to consider whether that execution following decades of incarceration on death row violates the Constitution's prohibition of "cruel and unusual punishments."

I have little doubt about the cruelty of so long a period of incarceration under sentence of death. In Lackey and in Knight Justice Stevens and I referred to the legal sources, in addition to studies of attempted suicides, that buttress the commonsense conclusion that 33 years in prison under threat of execution is cruel.

So long a confinement followed by execution would also seem unusual. The average period of time that an individual sentenced to death spends on death row is almost 15 years. Thirty-three years is more than twice as long. And, such delays are uncommon.

The commonly accepted justifications for the death penalty are close to nonexistent in a case such as this one. It is difficult to imagine how an execution following so long a period of incarceration could add significantly to that punishment's deterrent value. It seems yet more unlikely that the execution, coming after what is close to a lifetime of imprisonment, matters in respect to incapacitation. Thus, I would focus upon the "moral sensibility" of a community that finds in the death sentence an appropriate public reaction to a terrible crime. And, I would ask how often that community's sense of retribution would forcefully insist upon a death that comes only several decades after the crime was committed.

It might be argued that Valle, not the State, is responsible for the long delay. But Valle replies that more than two decades of delay reflect the State's failure to provide the kind of trial and penalty procedures that the law requires. Regardless, one cannot realistically expect a defendant condemned to death to refrain from fighting for his life by seeking to use whatever procedures the law allows.

It might also be argued that it is not so much the State as it is the numerous procedures that the law demands that produce decades of delay. But this kind of an argument does not automatically justify execution in this case. Rather, the argument may point instead to a more basic difficulty, namely the difficulty of reconciling the imposition of the death penalty as currently administered with procedures necessary to assure that the wrong person is not executed.

Because this case may well raise these questions and because I believe the Court should consider them, I vote to grant the application for stay.

Greg Mitchell's new e-book, Dead Reckoning: Executions in America, traces the fight over the death penalty in the USA right down to the events of the past week.