Buntion v. Lumpkin

1 Cite as: 595 U. S. ____ (2021)
Statement of B
REYER, J.
SUPREME COURT OF THE UNITED STATES
CARL WAYNE BUNTION v. BOBBY LUMPKIN,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 20–8043. Decided October 4, 2021
The petition for a writ of certiorari is denied.
Statement of J
USTICE BREYER respecting the denial of
certiorari.
Carl Wayne Buntion was convicted of capital murder in
Texas and sentenced to death in 1991. App. to Pet. for Cert.
18. Because his original sentencing was unconstitutional,
he was granted a resentencing and again sentenced to
death in 2012. Id., at 18–21. He has now been on death
row under threat of execution for 30 years. He tells us that
he has spent the last 20 of those years in solitary confine-
ment, isolated in his cell for 23 hours a day. Pet. for Cert.
1. He further tells us that, at age 77, he is now the oldest
prisoner on Texas’ death row. Ibid. Texas does not dispute
these facts. Buntion now asks the Court to consider
whether execution after such an extended delay is cruel and
unusual in violation of the Eighth Amendment.
I recognize the procedural obstacles that make it difficult
for the Court to grant certiorari in Buntion’s case. I write,
however, to underscore how this case illustrates the prob-
lems with the death penalty that I identified in my dissent-
ing opinion in Glossip v. Gross, 576 U. S. 863, 908 (2015),
and in a number of other cases since then, see, e.g., Hamm
v. Dunn, 583 U. S. ___ (2018) (statement respecting denial
of application for stay and denial of certiorari); Smith v.
Ryan, 581 U. S. ___ (2017) (statement respecting denial of
certiorari). I continue to believe that excessive delay both

2 BUNTION v. LUMPKIN
Statement of B
REYER, J.
“undermines the death penalty’s penological rationale” and
is “in and of itself . . . especially cruel because it ‘subjects
death row inmates to decades of especially severe, dehu-
manizing conditions of confinement.’” Glossip, supra, at
925. The Court has previously recognized that the uncer-
tainty of waiting in prison under the threat of execution,
even for a span of just four weeks, is “one of the most horri-
ble feelings to which [a person] can be subjected.” In re
Medley, 134 U. S. 160, 172 (1890). On top of that, solitary
confinement bears “‘a further terror and peculiar mark of
infamy.’” Id., at 170; see also Davis v. Ayala, 576 U. S. 257,
289 (2015) (Kennedy, J., concurring) (“Years on end of near-
total isolation exact a terrible price”). Buntion has now
been subjected to those conditions for decades. His lengthy
confinement, and the confinement of others like him, calls
into question the constitutionality of the death penalty
and reinforces the need for this Court, or other courts, to
consider that question in an appropriate case.