After nearly 29 years on death row, Cecil C. Johnson, 53, was put to death by lethal injection early Wednesday in Tennessee. About an hour before he was pronounced dead at 1:34 a.m. (Tennessee time), Johnson’s case stirred up anew a running controversy within the Supreme Court over the constitutionality of long delays in carrying out executions.

“This case deserves our full attention,” wrote Justice John Paul Stevens in an opinion joined by Justice Stephen G. Breyer as the full Court refused to hear a final plea on Johnson’s behalf.  The Stevens opinion added that “this is as compelling a case as I have encountered for addressing the constitutional concerns” over holding an inmate for many years, awaiting execution.  For more than 14 years, one or both of those Justices has been calling for review of the question of whether it is “cruel and unusual punishment” to put off execution for a long time, at least when that is due to delays that are not the fault of the inmate.

Such delays as Johnson had undergone, Stevens said, subject death row inmates “to decades of especially severe, dehumanizing conditions of confinement.”  In addition, he wrote, long delays do not “further public purposes of retribution and deterrence,” but rather only “diminish whatever possible benefit society might receive” from the inmate’s ultimate death. “In other words, the penological justifications for the death penalty diminish as the delay lengthens.”

But, as has happened before, the Stevens complaint was met with a sharply worded retort from a colleague, Justice Clarence Thomas.  It has been 14 years, Thomas wrote, since Stevens first proposed finding a violation of the Eighth Amendment for years-long residence on death row.  “i was unaware of any constitutional support for the argument then…And I am unawarion e of any support for it now.”

The Stevens-Breyer opinion is here, the Thomas opinion here.  Those opinions and the Court’s order denying a postponement of the execution and denying review of Johnson’s petition were released in Washington before the execution occurred.

Whatever the intensity of the verbal debate over the issue, it is clear that there are not four Justices on the Court who are ready to hear it.  None of the other Justices has weighed in on the question.

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