Troy Davis had already eaten his last meal Wednesday night as 7 p.m.--his scheduled execution time--came and went. A few minutes later, Georgia prison officials announced they would delay his execution so that the U.S. Supreme Court could consider the prisoner's last-minute request for an appeal.
Over the next four hours, Davis' supporters in Georgia celebrated and prayed, hoping that the delay meant Davis would stave off death one more time. Davis was no stranger to 11th-hour appeals: Wednesday was his fourth execution date. He had also faced execution on July 2007, September 2008, and October 2008. Each of these earlier appointments with execution produced additional stays so that his case could come under fresh judicial review.
In September 2008, the Supreme Court granted Davis a stay just an hour and a half before he was set to be put to death. Indeed, Davis reportedly declined to request a special last meal because he believed another 11th-hour reprieve was in the offing. He ate the same cheeseburger fare as all the other Georgia inmates did.
But shortly after 10 p.m., the Supreme Court announced it had decided not to hear Davis' appeal, and Davis was then strapped to a gurney and put to death at 11:08 pm.
Davis' execution has rallied death penalty opponents who believe that Georgia had executed an innocent man. But another issue raised by Davis' roller-coaster ride through state-mandated life and death over the past 20 years is whether Death Row itself constitutes cruel and unusual punishment.
Convicts in less high-profile cases have also experienced the same 11th-hour stays. Last week, Texas Death Row prisoner Duane Buck was granted a Supreme Court execution stay two hours into the six-hour window Texas prison officials had set for his execution.
Anti-death penalty activists, including the human-rights group Amnesty International, have compared the dramatic and protracted appeals process to "mock executions"--a practice widely recognized as torture. As of 2008, American Death Row prisoners spent an average of 13 years waiting for their executions. In some countries, waits of more than three years are outlawed as inhumane.
The Supreme Court in the past has tried to prevent the last-minute decisions that come after a prisoner has already been scheduled to die. "Justice [Sandra Day] O'Connor asked the states to change the time of execution to day time so that when the inevitable last-minute appeals come in the justices are at least at work instead of all over, at home or you know around the world," Richard Dieter, executive director of the Death Penalty Information Center, told The Lookout. "A lot of states did do that, but it really doesn't solve the problem. Whatever decisions are made before, lawyers are going to file something new the day of the execution--that's their job." This time, the court hasn't explained what took so long.
In past Supreme Court rulings on the issue, Justice Stephen Breyer led the charge--together with now-retired Justice John Paul Stevens--in arguing that the Supreme Court should consider whether Death Row itself constitutes cruel and unusual punishment. Such measures are barred under the Eighth Amendment to the Constitution.
In 1995, Stevens argued that leaving criminals on Death Row for long periods of time may be unconstitutional. He cited a comment in a Supreme Court decision from 1890: "When a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it." In 1890, the execution waiting period was no more than four weeks.
Stevens also wrote that the court ruled the death penalty legal because the Framers considered it permissible and because it serves as retribution and as a deterrent to crime. Stevens argued that the Framers would never have countenanced decades-long Death Rows in their time, since people were executed promptly after sentencing. Stevens also argued that the longer a prisoner awaits execution, the less likely it is that the sentence will produce a deterrent or retributive effect.
Stevens contended that the lengthy appeals process is necessary, however, since more than 30 percent of death penalty verdicts between 1973 and 2000 were overturned. Stevens argued in a 2009 case that the death penalty should be outlawed altogether in order to resolve the issue of whether the extended appeals of capital cases he saw as constitutionally mandated were nevertheless in violation of the Constitution's Eighth Amendment.
Justice Clarence Thomas disagreed. Convicted murderer William Thompson argued that his 30 years on Death Row were cruel and unusual punishment. But Thomas wrote that it was the prisoner's own fault for appealing his sentence again and again. Thomas also said that the severity of Thompson's crime merited the death penalty. Thompson was convicted of torturing and murdering a woman while trying to extort several hundred dollars from her family.
Death penalty opponents have made the same argument in international courts. Is it cruel to keep a person on Death Row, in perpetual doubt about whether he will live or die? Or is it the prisoner's fault for appealing his sentence in the first place? Most of the decisions have sided with the former argument, reasoning that it's only natural that a condemned prisoner would cling to life by mounting extended and repeated appeals.
In some other countries that still use capital punishment--including Kenya, Malawi and Uganda--a death sentence is commuted to life in prison if execution is delayed by more than three years, according to Reprieve, a London-based anti-death penalty nonprofit. The European Court of Human Rights held in 1989 that forcing a condemned prisoner to endure "the conditions on death row and the anguish and mounting tension of living in the ever-present shadow of death" is inhumane. The UK Privy Council, which is the highest court for former Commonwealth countries, also says long periods on Death Row are inhumane because they add the "additional torture of a long period of alternating hope and despair."
