WILLIAM D. ELLEDGE v. FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
The petition for a writ of certiorari is denied.
Justice Breyer, dissenting.
The petitioner in this case has spent more than 23 years in prison under sentence of death. His claimthat the Constitution forbids his execution after a delay of this lengthis a serious one.
The Eighth Amendment forbids punishments that are cruel and unusual. Twenty-three years under sentence of death is unusualwhether one takes as a measuring rod current practice or the practice in this country and in England at the time our Constitution was written. See, e.g., P. Mackay, Hanging in the Balance: The Anti-Capital Punishment Movement in New York State, 17761861, p. 17 (1982) (executions took place soon after sentencing in 18th century New York); Pratt v. Attorney Gen. of Jamaica,  2 App. Cas. 1, 17 (P. C. 1993) (same in United Kingdom); see also T. Jefferson, A Bill for Proportioning Crimes and Punishments (1779), reprinted in The Complete Jefferson 90, 95 (S. Padover ed. 1943); 2 Papers of John Marshall 207209 (C. Cullen & H. Johnson eds. 1977) (petition seeking commutation of a death sentence in part because of lengthy 5-month delay).
As Justice Stevens has previously pointed out, executions carried out after delays of this magnitude may prove particularly cruel. Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari). After such a delay, an execution may well cease to serve the legitimate penological purposes that otherwise provide a necessary constitutional justification for the death penalty. Ibid. Moreover, British jurists have suggested that the Bill of Rights of 1689, a document relevant to the interpretation of our own Constitution, may forbid, as cruel and unusual, significantly lesser delays. Riley v. Attorney Gen. of Jamaica,  1 App. Cas. 719, 734735 (P. C. 1982) (Lord Scarman, joined by Lord Brightman, dissenting). See generally Harmelin v. Michigan, 501 U.S. 957, 966967 (1991) (Scalia, J., concurring in judgment) (on the relevance of the 1689 Bill of Rights to the interpretation of our own Constitution).
Finally, a reasoned answer to the delay question could help to ease the practical anomaly created when foreign courts refuse to extradite capital defendants to America for fear of undue delay in execution. See Soering v. United Kingdom, 11 Eur. H. R. Rep. 439 (1989) (holding that the extradition of a capital defendant to America would be a violation of Article 3 of the European Convention on Human Rights, primarily because of the risk of delay before execution).
For these reasons, and for the additional reasons set forth by Justice Stevens in Lackey, supra, I would grant the petition for certiorari.