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Seizing on Orlando Murder Case, Justice Breyer Asks Court to “Reconsider Constitutionality of Death Penalty”

| December 13, 2016

justice stephen breyer death penalty unconstitutional

Death penalty opponents outside the Florida state prison grounds at Starke the evening inmate Larry Eugene Mann was killed in April 2013. (© FlaglerLive)

Henry Sireci is 68. He’s been on Death Row in Florida for 40 years following the robbery and stabbing to death of used-car dealer Howard Poteet in Orlando on Dec. 3, 1975. Sireci attacked Poteet in the sales office, stabbed him 55 times, cut his throat, then stole his wallet, according to court papers. He was sentenced on Nov. 15, 1976, and again on May 4, 1990, after an appeal led to a new sentencing hearing following the issuance of a death warrant in 1986. Sireci was again sentenced to death, and again went through a series of appeals.


On Monday, the United States Supreme Court refused to take up what would be his final appeal. That would normally clear the way for Gov. Rick Scott to sign his death warrant again, and for the execution to be scheduled at Starke prison. But no executions have taken place in Florida since January because the state’s death-penalty law has been mired in uncertainty since the Florida Supreme Court declared the state’s death penalty trial methods unconstitutional.

Henry Sireci

Henry Sireci.

The U.S. Supreme Court does not have to explain why it rejects death-penalty appeals. But Associate Justice Stephen Breyer took the unusual step Monday to issue an opinion stating that he would have both granted the stay of execution, and that it is time for the U.S. Supreme Court “to reconsider the constitutionality of the death penalty.” The language Breyer used was reminiscent of the late Justice Harry Blackmun’s decision in 1994 to reverse course and declare that, “From this day forward, I no longer shall tinker with the machinery of death.” Blackmun declared that the “the death penalty experiment has failed” and that the Supreme Court should abandon the “delusion” that the death penalty was consistent with the Constitution.

Breyer’s opinion is reproduced below, without the legal citations usually interspersed in the text, so as to make the reading smoother. But the citations have been hyperlinked in most case, and the original opinion, with citations, is here or below.

Henry Sireci, the petitioner, was tried, convicted of murder, and first sentenced to death in 1976. He has lived in prison under threat of execution for 40 years. When he was first sentenced to death, the Berlin Wall stood firmly in place. Saigon had just fallen. Few Americans knew of the personal computer or the Internet. And over half of all Americans now alive had not yet been born.

Forty years is more time than an average person could expect to live his entire life when America constitutionally forbade the “inflict[ion]” of “cruel and unusual punishments.” This Court, speaking of a period of four weeks, not 40 years, once said that a prisoner’s uncertainty before execution is “one of the most horrible feelings to which he can be subjected.” I should hope that this kind of delay would arise only on the rarest of occasions. But in the ever diminishing universe of actual executions, I fear that delays of this kind have become more common. The number of yearly executions has fallen from its peak of 98 in 1999 to 19 so far this year, while the average period of imprisonment between death sentence and execution has risen from 12 years to over 18 years in that same period.

justice stephen breyer

Associate Justice Stephen Breyer.

Nor is this case the only case during the last few months in which the Court has received, but then rejected, a petition to review an execution taking place in what I would consider especially cruel and unusual circumstances. On September 15, 2009, the State of Ohio attempted to execute Romell Broom by lethal injection. Medical team members tried for over two hours to find a useable vein, repeatedly injecting him with needles and striking bone in the process, all causing “a great deal of pain.” The State now wishes to try to execute Broom once again. Given its first failure, does its second attempt amount to a “cruel and unusual” punishment? (“Punishments are cruel when they involve . . . a lingering death”). I would have heard Broom’s claim.

As I and other Justices have previously pointed out, individuals who are executed are not the “worst of the worst,” but, rather, are individuals chosen at random, on the basis, perhaps of geography, perhaps of the views of individual prosecutors, or still worse on the basis of race. (“These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of [death-eligible crimes], many just as reprehensible as these, the[se] petitioners are among a capriciously selected random handful upon who the sentence of death has in fact been imposed.” (See Smith v. Alabama, judge overrode jury’s recommendation of a life sentence, this Court, by an equally divided vote, denied a stay of execution).

I have elsewhere described these matters at greater length, and I have explained why the time has come for this Court to reconsider the constitutionality of the death penalty. Cases such as the ones discussed here provide additional evidence that it is important for us to do so. I would grant this petition for certiorari, as I would in Broom v. Ohio, and Smith, and include this question.

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