The Supreme Court/The Supreme Court.iso/pc/ascii/1994/94_8262/94_8262.za

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SUPREME COURT OF THE UNITED STATES
CLARENCE ALLEN LACKEY v. TEXAS
on petition for writ of certiorari to the court
of criminal appeals of texas
No. 94-8262.  Decided March 27, 1995

  The petition for a writ of certiorari is denied.
  Memorandum of Justice Stevens respecting the
denial of certiorari.
  Petitioner raises the question whether executing a
prisoner who has already spent some 17 years on death
row violates the Eighth Amendment's prohibition against
cruel and unusual punishment.  Though the importance
and novelty of the question presented by this certiorari
petition are sufficient to warrant review by this Court,
those factors also provide a principled basis for postpon-
ing consideration of the issue until after it has been
addressed by other courts.  See, e. g., McCray v. New
York, 461 U. S. 961 (1983) (Stevens, J., respecting
denial of certiorari).
  Though novel, petitioner's claim is not without founda-
tion.  In Gregg v. Georgia, 428 U. S. 153 (1976), this
Court held that the Eighth Amendment does not prohibit
capital punishment.  Our decision rested in large part
on the grounds that (1) the death penalty was consid-
ered permissible by the Framers, see id., at 177 (opinion
of Stewart, Powell, and Stevens, JJ.), and (2) the death
penalty might serve -two principal social purposes:
retribution and deterrence,- id., at 183.
  It is arguable that neither ground retains any force for
prisoners who have spent some 17 years under a
sentence of death.  Such a delay, if it ever occurred,
certainly would have been rare in 1789, and thus the
practice of the Framers would not justify a denial of
petitioner's claim. Moreover, after such an extended
time, the acceptable state interest in retribution has
arguably been satisfied by the severe punishment
already inflicted.  Over a century ago, this Court
recognized that -when a prisoner sentenced by a court
to death is confined in the penitentiary awaiting the
execution of the sentence, one of the most horrible
feelings to which he can be subjected during that time
is the uncertainty during the whole of it.-  In re Medley,
134 U. S. 160, 172 (1890).  If the Court accurately
described the effect of uncertainty in Medley, which
involved a period of four weeks, see ibid., that descrip-
tion should apply with even greater force in the case of
delays that last for many years.  Finally, the addition-
al deterrent effect from an actual execution now, on the
one hand, as compared to 17 years on death row
followed by the prisoner's continued incarceration for
life, on the other, seems minimal.  See, e. g., Coleman
v. Balkcom, 451 U. S. 949, 952 (1981) (Stevens, J.,
respecting denial of certiorari) (-the deterrent value of
incarceration during that period of uncertainty may well
be comparable to the consequences of the ultimate step
itself-).  As Justice White noted, when the death penalty
-ceases realistically to further these purposes, . . . its
imposition would then be the pointless and needless
extinction of life with only marginal contributions to any
discernible social or public purposes.  A penalty with
such negligible returns to the State would be patently
excessive and cruel and unusual punishment violative of
the Eighth Amendment.-  Furman v. Georgia, 408 U. S.
238, 312 (1972) (opinion concurring in judgment); see
also Gregg v. Georgia, 428 U. S., at 183 (-[T]he sanction
imposed cannot be so totally without penological justifi-
cation that it results in the gratuitous infliction of
suffering-).
  Petitioner's argument draws further strength from
conclusions by English jurists that -execution after
inordinate delay would have infringed the prohibition
against cruel and unusual punishments to be found in
section 10 of the Bill of Rights 1689.-  Riley v. Attorney
General of Jamaica, [1983] 1 A. C. 719, 734, 3 All E. R.
469, 478 (P. C. 1983) (Lord Scarman, dissenting, joined
by Lord Brightman).  As we have previously recognized,
that section is undoubtedly the precursor of our own
Eighth Amendment.  See, e.g., Gregg v. Georgia, 428
U. S., at 169-170; Harmelin v. Michigan, 501 U. S. 957,
966 (1991) (Scalia, J., concurring in judgment).
  Finally, as petitioner notes, the highest courts in other
countries have found arguments such as petitioner's to
be persuasive.  See Pratt v. Attorney General of Ja-
maica, [1994] 2 A.C. 1, 4 All E. R. 769 (P. C. 1993) (en
banc); id., at 32-33, 4 All E. R., at 785-786 (collecting
cases).
  Closely related to the basic question presented by the
petition is a question concerning the portion of the 17-
year delay that should be considered in the analysis.
There may well be constitutional significance to the
reasons for the various delays that have occurred in
petitioner's case.  It may be appropriate to distinguish,
for example, among delays resulting from (a) a peti-
tioner's abuse of the judicial system by escape or
repetitive, frivolous filings; (b) a petitioner's legitimate
exercise of his right to review; and (c) negligence or
deliberate action by the State.  Thus, though English
cases indicate that the prisoner should not be held
responsible for delays occurring in the latter two
categories, see id., at 33, 4 All E. R., at 786, it is at
least arguable that some portion of the time that has
elapsed since this petitioner was first sentenced to death
in 1978 should be excluded from the calculus.
  As I have pointed out on past occasions, the Court's
denial of certiorari does not constitute a ruling on the
merits.  See, e. g., Tennessee v. Barber, 513 U. S. __
(1995); Singleton v. Commissioner, 439 U. S. 940, 942
(1978) (Stevens, J., respecting denial of certiorari).
Often, a denial of certiorari on a novel issue will permit
the state and federal courts to -serve as laboratories in
which the issue receives further study before it is
addressed by this Court.-  McCray v. New York, 461
U. S., at 963.  Petitioner's claim, with its legal complex-
ity and its potential for far-reaching consequences, seems
an ideal example of one which would benefit from such
further study.
  Justice Breyer agrees with Justice Stevens that the
issue is an important undecided one.