Retiring Justice Breyer Asks, In A Dissent -- "How Long Awaiting Death, In Solitary Confinement Would Violate The Eighth Amendment?" How About... FOUR DECADES?!

As he leaves the highest court, Justice Breyer perhaps tilted at a formidable windmill this morning, as no other Justice signed on to his opinion in Smith v. Shinn. Maybe so. But. He. Is. Not. Wrong.

These various US courts have a fascination with barbarians' power -- of putting men to death. He will die alone -- just as he has lived, alone. Effectively, with the noose ever present, around his neck -- for 44 years.

Yes, Smith absolutely committed the underlying murder. But in the 44 years he's been on death row, he twice saw the upper courts vacate his death sentence, saying the process was flawed -- once in 1999; and once in 2007. But for essentially all of those four decades plus, Arizona has kept him in solitary -- alone, in a concrete box the size of a single car parking space. Prior precedents hold four weeks is too long to live alone, on / under a pending death order. Here is his attempt to topple the windmill:

. . .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., concurring).

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 currently 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 denial of certiorari). . . .

We are a nation of savages. Yes, he absolutely is guilty. And he certainly -- even guilty -- was entitled not to be tortured for four decades, if we were not. . . a nation of savages. But there can be little argument tonight, that with eight "justices" saying kill him anyway, and 18 school children dead, by an automatic weapon-weilding 18 year old US citizen / whyte kid -- in rural Texas. . . we are. . . truly becoming savages. Out -- I'm. . . out.

नमस्ते