Smith v. Shinn

1 Cite as: 596 U. S. ____ (2022)
Statement of B
REYER, J.
SUPREME COURT OF THE UNITED STATES
JOE CLARENCE SMITH, JR. v. DAVID SHINN,
DIRECTOR, ARIZONA DEPARTMENT OF
CORRECTIONS, REHABILITATION
AND REENTRY,
ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 21–1268. Decided May 23, 2022
The petition for a writ of certiorari is denied.
Statement of J
USTICE BREYER respecting the denial of
certiorari.
Joe Clarence Smith was first sentenced to death in 1977,
more than 44 years ago. Pet. for Cert. 2. The Arizona Su-
preme Court vacated that sentence as unconstitutional and
remanded for resentencing in 1979. Id., at 3; App. to Pet.
for Cert. 9. On remand, Smith was sentenced to death a
second time. Ibid. Twenty years later in 1999, the Ninth
Circuit vacated Smith’s second death sentence, again on
constitutional grounds. Smith v. Stewart, 189 F. 3d 1004.
Smith was then resentenced to death a third time in 2004.
App. to Pet. for Cert. 10.
In 2007, 30 years after Smith was first sentenced to
death, he petitioned this Court to review the constitution-
ality of his death sentence. He argued that it would be cruel
and unusual to execute him after such a lengthy delay. The
Court denied certiorari, and I dissented because I believed
that Smith could “reasonably claim that his execution at
this late date would be ‘unusual’ . . . particularly when
much of the delay at issue seems due to constitutionally de-
fective sentencing proceedings.” Smith v. Arizona, 552
U. S. 985, 986 (2007). In 2017, Smith again petitioned for
certiorari on the same issue, and the Court again denied his
petition. I wrote again to express my continued concern

2 SMITH v. SHINN
Statement of B
REYER, J.
that the length of time Smith had spent on death row raised
serious constitutional questions. But I recognized that pro-
cedural obstacles (which had not been present in his first
petition for certiorari 10 years earlier) now made it difficult
for the Court to grant certiorari on that question. Smith v.
Ryan, 581 U. S. ___, ___ (2017) (statement respecting denial
of certiorari) (slip op., at 2).
Smith’s case is now before us for the third time. By now,
more than 44 years have passed since his first death sen-
tence. Pet. for Cert. 2. And he “has spent almost all of
[that] time” in solitary confinement, “alone in a cell that . . .
measures 86.4 square feet, or roughly the size of a compact
parking space.” Id., at 3–4 (footnote omitted). Smith tells
us that only four other prisoners in all of the United States
have been on death row longer than he has. Id., at 4–5, and
n. 2.
We have said that the uncertainty of waiting in prison
under threat of execution for just four weeks is “one of the
most horrible feelings to which [a person] can be subjected.”
In re Medley, 134 U. S. 160, 172 (1890). On top of that,
“[y]ears on end of near-total isolation exact a terrible price.”
Davis v. Ayala, 576 U. S. 257, 289 (2015) (Kennedy, J., con-
curring). Smith has been subjected to those conditions, not
for four weeks, but for four decades. While I recognize, as I
did in 2017, that procedural obstacles make it difficult for
us to grant certiorari here, I continue to believe that the
excessive length of time that Smith and others have spent
on death row awaiting execution raises serious doubts
about the constitutionality of the death penalty as it is cur-
rently administered. See Glossip v. Gross, 576 U. S. 863,
908 (2015) (dissenting opinion); see also, e.g., Buntion v.
Lumpkin, 596 U. S. ___ (2022) (statement respecting denial
of application for stay); Hamm v. Dunn, 583 U. S. ___ (2018)
(statement respecting denial of application for stay and de-
nial of certiorari).