WASHINGTON (CN) – Speaking out about the constitutionality of isolating prisoners before killing them, Justice Stephen Breyer said Monday that the high court must soon step in.
“What legitimate purpose does it serve to hold any human being in solitary confinement for 40 years awaiting execution?” Breyer asked.
The justice’s question concerns Arizona inmate Joe Clarence Smith, whose petition for certiorari the Supreme Court included in a list of dozens of rejected cases Monday.
Though the order against Smith does not indicate any dissents, Breyer noted in a brief opinion concerning the denial that the inmate’s case touches on an issue of grave importance.
“I recognize the procedural obstacles that make it difficult for this court now to grant certiorari in this particular case,” Breyer wrote. “Those problems would not have prevented the court from granting certiorari 10 years ago when Smith asked us to do so (after spending 30 years on death row). Regardless, Smith’s confinement reinforces the need for this court, or other courts, to consider in an appropriate case the underlying constitutional question.” (Parentheses in original.)
Breyer did dissent when the Supreme Court rejected Smith v. Arizona in 2007.
Monday’s opinion quotes Justice Anthony Kennedy’s concurring opinion in the 2015 case Davis v. Ayala.
“Years on end of near-total isolation exact a terrible price,” Kennedy said.
But knowledge of these wrongs goes back much further, Breyer noted, pointing to the 1890 case In re Medley.
“Long ago,” Breyer wrote, “we observed that solitary confinement was ‘considered as an additional punishment of such a severe kind that it is spoken of … as “a further terror and peculiar mark of infamy.”’
“And, as I have previously pointed out,” he continued, “we have written that the uncertainty a person experiences during just four weeks of confinement under threat of execution is ‘one of the most horrible feelings to which [a person] can be subjected.’”
Breyer noted that Smith’s execution “has been long delayed.”
“What does this case tell us about a capital punishment system that, in my view, works in random, virtually arbitrary ways?” he asked. “I have previously explored these matters more systematically, coming to the conclusion that this court should hear argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of ‘cruel and unusual punishment.’ The facts and circumstances of Smith’s case reinforce that conclusion.”