Sireci v. Florida

Cite as: 580 U. S. ____ (2016) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
HENRY PERRY SIRECI v. FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
No. 16–5247. Decided December 12, 2016
The petition for a writ of certiorari is denied.
JUSTICE BREYER, dissenting from denial of certiorari.
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. See
Dept. of Commerce, Bureau of Census, Annual Estimates
of the Resident Population for Selected Age Groups by
Sex: April 1, 2010 to July 1, 2015 (June 2016), online at
http: / / factfinder.census.gov/ faces /tableservices / jsf/ pages /
productview.xhtml?pid=PEP_2015_PEPAGESEX&prodType=
table (all Internet materials as last visited Dec. 9, 2016).
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 punish-
ments.” Amdt. 8; see 5 Dictionary of American History
104 (S. Kutler ed., 3d ed. 2003). This Court, speaking of a
period of four weeks, not 40 years, once said that a prison-
er’s uncertainty before execution is “one of the most horri-
ble feelings to which he can be subjected.” In re Medley,
134 U. S. 160, 172 (1890). 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
2 SIRECI v. FLORIDA
BREYER, J., dissenting
98 in 1999 to 19 so far this year, while the average
period of imprisonment between death sentence and exe-
cution has risen from 12 years to over 18 years in that
same period. See Death Penalty Information Center
(DPIC), Facts about the Death Penalty, online at
http://www.deathpenaltyinfo.org/documents/FactSheet.pdf
(updated Dec. 7, 2016); Dept. of Justice, Bureau of Jus-
tice Statistics, T. Snell, Capital Punishment, 2013—
Statistical Tables, p. 14 (rev. Dec. 19, 2014) (Table
10); DPIC Execution List 2016, online at http://
www.deathpenaltyinfo.org/execution-list-2016.
Nor is this case the only case during the last few months
in which the Court has received, but then rejected, a peti-
tion 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 exe-
cute Romell Broom by lethal injection. State v. Broom, 146
Ohio St. 3d 60, 61–62, 2016-Ohio-1028, 51 N. E. 3d 620,
623. 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.” Id., at 62, 51 N. E. 2d, at 624. 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? See In re Kemmler, 136 U. S. 436,
447 (1890) (“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.
See Glossip v. Gross, 576 U. S., ___, ___–___ (2015)
(BREYER, J., joined by GINSBURG, J., dissenting) (slip op.,
at 9–17); Furman v. Georgia, 408 U. S. 238, 309–310
(1972) (Stewart, J., concurring) (“These death sentences
Cite as: 580 U. S. ____ (2016) 3
BREYER, J., dissenting
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 repre-
hensible as these, the[se] petitioners are among a capri-
ciously selected random handful upon who the sentence
of death has in fact been imposed.” (footnote omitted)).
Cf. Smith v. Alabama, 580 U. S. ___, (Dec. 8, 2016)
( 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. Glossip, supra, at ___ (dissenting opinion); see
also Knight v. Florida, 528 U. S. 990, 993 (1999) (opinion
dissenting from denial of certiorari); Valle v. Florida, 564
U. S. 1067 (2011) (opinion dissenting from denial of stay);
Boyer v. Davis, 578 U. S. ___, ___ (2016) (opinion dissent-
ing from denial of certiorari); Conner v. Sellers, 579 U. S.
___ (2016) (opinion dissenting from denial of certiorari and
denial of stay). Cases such as the ones discussed here
provide additional evidence that it is important for us to
do so. See Lackey v. Texas, 514 U. S. 1045 (1995) (Ste-
vens, J., memorandum respecting denial of certiorari). I
would grant this petition for certiorari, as I would in
Broom v. Ohio, No. 16–5580, and Smith, and include this
question.