PETITION FOR WRIT OF CERTIORARI TO THE SUPREME COURT OF
petition for a writ of certiorari is denied.
JUSTICE BREYER, dissenting from denial of certiorari.
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
(all Internet materials as last visited Dec. 9, 2016).
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
punishments." 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 prisoner's uncertainty before execution
is "one of the most horrible 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 98 in 1999 to 19 so far this
year, while the average period of imprisonment between death
sentence and execution 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
(updated Dec. 7, 2016); Dept. of Justice, Bureau of Justice
Statistics, T. Snell, Capital Punishment, 2013- Statistical
Tables, p. 14 (rev. Dec. 19, 2014) (Table 10); DPIC Execution
List 2016, online at http://
this case the only case during the last few months in which
the Court has received, but then rejected, a petition 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 execute 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
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 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
reprehensible as these, the[se] petitioners are among a
capriciously 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
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 dissenting 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. ...