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`1
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` Cite as: 585 U. S. ____ (2018)
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`BREYER, J., dissenting
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`SUPREME COURT OF THE UNITED STATES
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` RICHARD GERALD JORDAN
`
` v.
`MISSISSIPPI
`
`17–7153
`
`
`
`
`TIMOTHY NELSON EVANS, AKA TIMOTHY N. EVANS,
`
`
`AKA TIMOTHY EVANS, AKA TIM EVANS
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`17–7245
`
`v.
`MISSISSIPPI
`ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME
`
`
`COURT OF MISSISSIPPI
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`Nos. 17–7153 and 17–7245. Decided June 28, 2018
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`The petitions for writs of certiorari are denied.
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` JUSTICE BREYER, dissenting from the denial of certiorari.
`
`In my dissenting opinion in Glossip v. Gross, 576 U. S.
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`
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`___ (2015), I described how the death penalty, as currently
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`
`administered, suffers from unconscionably long delays,
`arbitrary application, and serious unreliability. Id., at ___
`(slip op., at 2). I write to underline the ways in which the
`two cases currently before us illustrate the first two of
`these problems and to highlight additional evidence that
`has accumulated over the past three years suggesting that
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`the death penalty today lacks “requisite reliability.” Id.,
`at ___ (slip op., at 3).
`
`I
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`The petitioner in the first case, Richard Gerald Jordan,
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`was sentenced to death nearly 42 years ago. He argues
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`that his execution after such a lengthy delay violates the
`Eighth Amendment’s prohibition on “cruel and unusual
`punishments.” I continue to believe this question merits
`the Court’s attention. See id., at ___–___ (slip op., at 17–
`
`
`33); Boyer v. Davis, 578 U. S. ___ (2016) (BREYER, J.,
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`

`

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` JORDAN v. MISSISSIPPI
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`BREYER, J., dissenting
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`dissenting from denial of certiorari) (slip op., at 1) (“Rich-
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`ard Boyer was initially sentenced to death 32 years ago”);
`Ruiz v. Texas, 580 U. S. ___ (2017) (BREYER, J., dissenting)
`(slip op., at 1) (“Petitioner Rolando Ruiz has been on death
`row for 22 years, most of which he has spent in solitary
`
`confinement”); Lackey v. Texas, 514 U. S. 1045, 1046
`
`
`(1995) (Stevens, J., memorandum respecting denial of
`certiorari) (discussing petitioner’s “17 years under a sen-
`tence of death”).
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`More than a century ago, the Court described a prison-
`er’s 4-week wait prior to execution as “one of the most
`horrible feelings to which [a person] can be subjected.” In
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`re Medley, 134 U. S. 160, 172 (1890). What explains the
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`more than 4-decade wait in this case? Between 1976 and
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`1986, each of Jordan’s first three death sentences was
`vacated on constitutional grounds, including by this Court.
`See Jordan v. Mississippi, 476 U. S. 1101 (1986) (vacating
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`death sentence and remanding case in light of Skipper v.
`South Carolina, 476 U. S. 1 (1986)); see also Brief in Op-
`position in No. 17–7153, p. 4–5 (“Jordan was originally
`convicted and automatically sentenced to death” in July
`1976—the same month that this Court held mandatory
`death sentences unconstitutional in Woodson v. North
`
`
`Carolina, 428 U. S. 280 (1976) (emphasis added)). In
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`1998, Jordan was sentenced to death for the fourth time.
`(He had entered into a plea agreement providing for a
`sentence of life without parole, but the Mississippi Su-
`preme Court invalidated that agreement and the prosecu-
`tor refused to reinstate it. See Jordan v. Fisher, 576 U. S.
`___ (2015) (SOTOMAYOR, J., dissenting from denial of
`certiorari).)
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`Jordan has lived more than half of his life on death row.
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`He has been under a death sentence “longer than any
`other Mississippi inmate.” 224 So. 3d 1252, 1253 (Miss.
`2017). The petition states that since 1977, Jordan has
`been incarcerated in the Mississippi State Penitentiary
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`2
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`3
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` Cite as: 585 U. S. ____ (2018)
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`BREYER, J., dissenting
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`and spent “most of that time on death row living in iso-
`lated, squalid conditions.” Pet. for Cert. in No. 17–7153,
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`p. 11; see also ibid. (citing Gates v. Cook, 376 F. 3d 323,
`332–335 (CA5 2004) (holding that the conditions of con-
`finement on Mississippi State Penitentiary’s death row
`violate the Eighth Amendment)); Robles, The Marshall
`Project, Condemned to Death—and Solitary Confinement
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`(July 23, 2017), (reporting based upon a nationwide survey
`of state corrections officials that Mississippi is 1 among 20
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`States that permit death row inmates “less than four
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`hours of out-of-cell
`recreation
`time each day”),
`https://www.themarshallproject.org/2017/07/23/condemned-
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`to-death-and-solitary-confinement (all Internet materials
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`as last visited June 27, 2018); cf. Davis v. Ayala, 576 U. S.
`___, ___ (2015) (KENNEDY, J., concurring) (slip op., at 1)
`(noting that “the usual pattern” of solitary confinement
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`involves “a windowless cell no larger than a typical park-
`ing spot” for up to “23 hours a day”). This Court has re-
`peated that such conditions bear “‘a further terror and
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`peculiar mark of infamy’ [that is] added to the punishment
`of death.” In re Medley, supra, at 170. Such “additional
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`punishment,” the Court has said, is “of the most important
`and painful character.” Id., at 171. In my view, the condi-
`tions in which Jordan appears to have been confined over
`the past four decades reinforce the Eighth Amendment
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`concern raised in his petition.
`Jordan, now 72 years old, is one among an aging popula-
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`tion of death row inmates who remain on death row for
`ever longer periods of time. Over the past decade, the
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`percentage of death row prisoners aged 60 or older has
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`increased more than twofold from around 7% in 2008 to
`more than 16% of the death row population by the most
`recent estimate. Compare Dept. of Justice, Bureau of
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`Justice Statistics, T. Snell, Capital Punishment, 2008—
`Statistical Tables (rev. Jan. 2010) (Table 7), with Dept. of
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`Justice, Bureau of Justice Statistics, E. Davis & T. Snell,
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`4
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` JORDAN v. MISSISSIPPI
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`BREYER, J., dissenting
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`Capital Punishment, 2016, p. 7 (Apr. 2018) (Table 4)
`(Davis & Snell). Meanwhile, the average period of impris-
`onment between death sentence and execution has risen
`from a little over 6 years in 1988 to more than 11 years in
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`2008 to more than 19 years over the past year. See Dept.
`
`of Justice, Bureau of Justice Statistics, T. Snell, Capital
`Punishment, 2013—Statistical Tables, p. 14 (rev. Dec. 19,
`2014) (Table 10); Death Penalty Information Center
`(DPIC), Execution List 2018, https://deathpenaltyinfo.org/
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`execution-list-2018; DPIC, Execution List 2017, https://
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`see also F.
`deathpenaltyinfo.org/execution-list-2017;
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`Baumgartner et al., Deadly Justice: A Statistical Portrait
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`of the Death Penalty 161, 168, Fig. 8.1 (2018) (analyzing
`recent data showing that “nationally, each passing year is
`associated with approximately 125 additional days of
`delay from crime to execution”).
`
`II
`
`
`In addition, both Richard Jordan’s case and that of
`Timothy Nelson Evans, the second petitioner here, illus-
`
`trate the problem of arbitrariness. To begin with, both
`were sentenced to death in the Second Circuit Court Dis-
`
`trict of Mississippi. Evans says that district accounts for
`“the largest number of death sentences” of any of the
`State’s 22 districts since 1976. Pet. for Cert. in No. 17–
`7245, pp. 5–6; see also App. D to Pet. for Cert. (citing
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`death sentencing data maintained by Mississippi’s Office
`of the State Public Defender).
`
`
`This geographic concentration reflects a nationwide
`trend. Death sentences, while declining in number, have
`become increasingly concentrated in an ever-smaller
`number of counties. In the mid-1990’s, more than 300
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`people were sentenced to death in roughly 200 counties
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`each year. B. Garett, End of Its Rope: How Killing the
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`Death Penalty Can Revive Criminal Justice 138–140
`(2017). By comparison, these numbers have declined
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`5
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`BREYER, J., dissenting
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`dramatically over the past three years. A recent study
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` finds, for example, that in 2015, all of those who were
`sentenced to death nationwide (51 people in total) were
`sentenced in 38 of this Nation’s more than 3,000 counties;
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`in 2016, all death sentences (31 in total) were imposed in
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`just 28 counties nationwide (fewer than 1% of counties).
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`Id., at 139–140, Fig. 6.2; see also Garrett, Jakubow, &
`Desai, The American Death Penalty Decline, 107 J. Crim.
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`L. & C. 561, 564, 584 (2017); Fair Punishment Project, Too
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`Broken To Fix: Part I: An In-Depth Look at America’s
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`Outlier Death Penalty Counties 2 (2016) (citing data
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`indicating there were 16 counties, or 0.5% of all counties
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`nationwide, in which five or more death sentences were
`imposed from 2010 to 2015); cf. M. Radelet, The History of
`the Death Penalty in Colorado 168 (2017) (explaining that
`Colorado’s three death row inmates “[a]ll were prosecuted
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`in the same judicial district, all the cases came from Aurora,
`all are young black men, and indeed all attended the
`same high school”); Joint State Government Commission,
`Capital Punishment in Pennsylvania: The Report of the
`Task Force and Advisory Committee 90 (June 2018)
`(“[D]ifferences among counties in death penalty outcomes
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`. . . were the largest and most prominent differences found
`in the study. In a very real sense, a given defendant’s
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`chance of having the death penalty sought, retracted, or
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`imposed depends upon where that defendant is prosecuted
`and tried”) (internal quotations omitted); Glossip, 576
`U. S., at ___ (slip op., at 12) (BREYER, J., dissenting).
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`This geographic arbitrariness is aggravated by the fact
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`that definitions of death eligibility vary depending on the
`State. This Court has repeated that “[c]apital punishment
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`must be limited to those offenders who commit a narrow
`category of the most serious crimes,” Roper v. Simmons,
`543 U. S. 551, 568 (2005) (internal quotation marks omit-
`
`ted), since “the culpability of the average murderer is
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`insufficient to justify the most extreme sanction available
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` JORDAN v. MISSISSIPPI
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`BREYER, J., dissenting
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` to the State.” Atkins v. Virginia, 536 U. S. 304, 319
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`(2002). But the statutory criteria States enact to distin-
`guish a non-death-eligible murder from a particularly
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`heinous death-eligible murder and thus attempt to use to
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`identify the “worst of the worst” murderers are far from
`uniform. See Baumgartner, supra, at 90–115 (review-
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`ing data collected in a “host” of empirical studies show-
`ing “that nearly all homicides in a given state are
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`death-eligible”).
`For instance, as Evans argues, Mississippi is one of a
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`small number of States in which defendants may be (and,
`in Mississippi’s Second Circuit Court District, routinely
`are) sentenced to death for, among other things, felony
`robbery murder without any finding or proof of intent to
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`kill. Pet. for Cert. in No. 17–7245, at 4–5, and nn. 3–4; see
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`also id., at 8, n. 10; Miss. Code Ann. §§97–3–19(2)(e), (f),
`99–19–101(5)(d) (2017); McCord & Harmon, Lethal Rejec-
`tion: An Empirical Analysis of the Astonishing Plunge in
`Death Sentences in the United States From Their Post-
`Furman Peak, 81 Albany L. Rev. 1, 32–33, and n. 155,
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`Table 10 (2018) (citing data indicating the general decline
`in robbery as an aggravating factor and research arguing
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`that relying upon robbery as a sole aggravator is generally
`insufficient to identify the “worst of the worst”). And the
`Court recently considered a petition presenting “unrebut-
`
`ted” evidence that “about 98% of first-degree murder
`defendants in Arizona were eligible for the death penalty”
`under Arizona’s death penalty statute, which allows for
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`imposition of the death penalty for “felony murder based
`on 22 possible predicate felony offenses . . . including, for
`example, transporting marijuana for sale.” Hidalgo v.
`Arizona, 583 U. S. ___, ___, ___ (2018) (BREYER, J., state-
`ment respecting denial of certiorari) (slip op., at 4, 7).
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`I recognize that only a small fraction of the roughly
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`8,000 death sentences imposed since 1976 have resulted in
`executions. Executions continue to decline from the mod-
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`7
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` Cite as: 585 U. S. ____ (2018)
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`BREYER, J., dissenting
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`ern peak of 98 executions occurring across 72 counties and
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`20 States in 1999 to 28 executions in 22 counties across 6
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`States in 2015. Baumgartner, supra, at 328. In 2016, 20
`people were executed. That number remains the fewest
`executions in more than a century, just below the 23 exe-
`cutions that took place in 2017. See Davis & Snell 8, 15.
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`More than 700 people await execution on California’s
`death row but the State, which has executed 13 people
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`since 1976, has not carried out an execution since 2006.
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`Id., at 3; DPIC, State by State Database: California,
`https://deathpenaltyinfo.org/state_by_state. The State of
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`Mississippi, which has executed a total of 21 people since
`1976, has not carried out an execution in more than six
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`years. DPIC, State by State Database: Mississippi,
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`
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`This data
`https://deathpenaltyinfo.org/state_by_state.
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`suggests that the death penalty may eventually disappear.
`But it also shows that capital punishment is “unusual” (as
`well as “cruel”).
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`
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`
`
`III
`
`Finally, I note that in the past three years, further
`evidence has accumulated suggesting that the death pen-
`
`alty as it is applied today lacks “requisite reliability.”
`Glossip, 576 U. S., at ___ (BREYER, J., dissenting) (slip op.,
`at 3). Four hours before Willie Manning was slated to die
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`by lethal injection, the Mississippi Supreme Court stayed
`his execution and on April 21, 2015, he became the fourth
`person on Mississippi’s death row to be exonerated. Id., at
`___ (slip op., at 21); National Registry of Exonerations
`(June 25, 2018), https://www.law.umich.edu/special/
`exoneration/Pages/detaillist.aspx. Since January 2017, six
`death row inmates have been exonerated. See DPIC,
`Description of Innocence, https://deathpenaltyinfo.org/
`innocence-cases#157. Among them are Rodricus Craw-
`ford, Rickey Dale Newman, Gabriel Solache, and Vicente
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`Benavides Figueroa, whose exonerations were based upon
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`8
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` JORDAN v. MISSISSIPPI
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`BREYER, J., dissenting
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` evidence of actual innocence. See National Registry of
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`Exonerations (June 25, 2018), https://www.law.umich.edu/
`special/exoneration/Pages/detaillist.aspx.
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`
`*
`*
`*
`In my view, many of the capital cases that come before
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`
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` this Court, often in the form of petitions for certiorari,
`involve, like the cases of Richard Jordan and Timothy
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`Evans, special problems of cruelty or arbitrariness.
`Hence, I remain of the view that the Court should grant
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`the petitions now before us to consider whether the death
`penalty as currently administered violates the Constitu-
`tion’s Eighth Amendment.
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