SUPREME COURT OF THE UNITED STATES
THOMAS KNIGHT, AKA ASKARI ABDULLAH
MUHAMMAD
98-9741   v.
FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
CAREY DEAN MOORE
99-5291   v.
NEBRASKA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF NEBRASKA
Nos. 98-9741 and 99-5291. Decided November 8, 1999
   The petitions for writs of certiorari are denied.
   Opinion of JUSTICE STEVENS, respecting the denial of 
the petitions for writ of certiorari.
   It seems appropriate to emphasize that the denial of 
these petitions for certiorari does not constitute a ruling 
on the merits.  See, e.g., Barber v. Tennessee, 513 U. S. 
1184 (1995).
   JUSTICE THOMAS, concurring in denial of certiorari.
   I write only to point out that I am unaware of any sup-
port in the American constitutional tradition or in this 
Court's precedent for the proposition that a defendant can 
avail himself of the panoply of appellate and collateral 
procedures and then complain when his execution is de-
layed. Indeed, were there any such support in our own 
jurisprudence, it would be unnecessary for proponents of 
the claim to rely on the European Court of Human Rights, 
the Supreme Court of Zimbabwe, the Supreme Court of 
India, or the Privy Council.#1 
   It is worth noting, in addition, that, in most cases rais-
ing this novel claim, the delay in carrying out the pris-
oner's execution stems from this Court's Byzantine death 
penalty jurisprudence, e.g., Graham v. Collins, 506 U. S. 
461, 478 (1993) (THOMAS, J., concurring) (criticizing the 
Court's holding in Penry v. Lynaugh, 492 U. S. 302 (1989), 
that Texas special issues violated the Eighth Amendment 
by preventing the jury from giving effect to mitigating 
evidence); Ohio Adult Parole Authority v. Woodard, 523 
U. S. 272, 279 (1998) (opinion of REHNQUIST, C. J.) (dis-
agreeing with the view of five Members of this Court#2  
that procedural due process principles govern a clemency 
hearing in which the clemency decision is entrusted to 
executive discretion); Simmons v. South Carolina, 512 U. S. 
154, 178 (1994) (SCALIA, J., dissenting) (disputing Court's 
holding that due process compels a State to inform a 
sentencing jury of a capital defendant's ineligibility for 
parole); Morgan v. Illinois, 504 U. S. 719, 739 (1992) 
(SCALIA, J., dissenting) (disagreeing with the Court's 
holding that the Sixth Amendment requires exclusion of a 
sentencing juror who would always impose the death 
penalty upon proof of the defendant's guilt of a capital 
offense).#3   In that sense, JUSTICE BREYER is unmistakably 
correct when he notes that one cannot "justify lengthy 
delays [between conviction and sentence] by reference to 
[our] constitutional tradition."  Post, at 3.   Consistency 
would seem to demand that those who accept our death 
penalty jurisprudence as a given also accept the lengthy 
delay between sentencing and execution as a necessary 
consequence.  See Coleman v. Balkcom, 451 U. S. 949, 952 
(1981) (STEVENS, J., concurring in denial of certiorari) 
("However critical one may be of . . . protracted post-trial 
procedures, it seems inevitable that there must be a sig-
nificant period of incarceration on death row during the 
interval between sentencing and execution").  It is incon-
gruous to arm capital defendants with an arsenal of "con-
stitutional" claims with which they may delay their execu-
tions, and simultaneously to complain when executions 
are inevitably delayed.  See Turner v. Jabe, 58 F. 3d 924, 
933 (CA4) (Luttig, J., concurring), cert. denied, 514 U. S. 
1136 (1995); Kozinski & Gallagher, Death: The Ultimate 
Run-On Sentence, 46 Case W. Res. L. Rev. 1, 25 (1995). 
   Ironically, the neoteric Eighth Amendment claim pro-
posed by JUSTICE BREYER would further prolong collateral 
review by giving virtually every capital prisoner yet an-
other ground on which to challenge and delay his execu-
tion.  See U. S. Dept. of Justice, Bureau of Justice Statis-
tics Bulletin, Capital Punishment 1997, p. 12 (Dec. 1998) 
(for prisoners executed between 1977 and 1997, the aver-
age elapsed time on death row was 111 months from the 
last sentencing date).  The claim might, in addition, pro-
vide reviewing courts a perverse incentive to give short 
shrift to a capital defendant's legitimate claims so as to 
avoid violating the Eighth Amendment right suggested by 
JUSTICE BREYER.  Cf. United States v. Tateo, 377 U. S. 463, 
466 (1964) ("From the standpoint of a defendant, it is at 
least doubtful that appellate courts would be as zealous as 
they now are in protecting against the effects of improprie-
ties at the trial or pretrial stage if they knew that reversal 
of a conviction would put the accused irrevocably beyond 
the reach of further prosecution.  In reality, therefore, the 
practice of retrial serves defendants' rights as well as 
society's interest").  
   Five years ago, JUSTICE STEVENS issued an invitation to 
state and lower courts to serve as "laboratories" in which 
the viability of this claim could receive further study. 
Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum 
respecting denial of certiorari).  These courts have re-
soundingly rejected the claim as meritless.  See, e.g., 
People v. Frye, 18 Cal. 4th 894, 1030-1031, 959 P. 2d 183, 
262 (1998); People v. Massie, 19 Cal. 4th 550, 574, 967 
P. 2d 29, 44-45 (1998); Ex Parte Bush, 695 So. 2d 138, 140 
(Ala. 1997); State v. Schackart, 190 Ariz. 238, 259, 947 P. 
2d 315, 336 (1997), cert. denied, 525 U. S. 862 (1998); Bell 
v. State, 938 S. W. 2d 35, 53 (Tex. Crim. App. 1996), cert. 
denied, 522 U. S. 827 (1997); State v. Smith, 280 Mont. 
158, 183-184, 931 P. 2d 1272, 1287-1288 (1996); White v. 
Johnson, 79 F. 3d 432, 439-440 (CA5), cert. denied, 519 
U. S. 911 (1996); Stafford v. Ward, 59 F. 3d 1025, 1028 
(CA10 1995).#4   I submit that the Court should consider the 
experiment concluded.

 Footnotes
 1 In support of his claim, petitioner Knight cites Blackstone, who 
remarked that "a delayed execution 'affects the minds of the spectators 
rather as a terrible sight, than as the necessary consequence of trans-
gression.' "  Pet. for Cert. in No. 98-9741, p. 15 (quoting 4 W. Black-
stone, Commentaries *397)). Blackstone was speaking of the effect 
speedy execution would have on deterring crime:  "[P]unishment should 
follow the crime as early as possible; that the prospect of gratification 
or advantage, which tempts a man to commit the crime, should in-
stantly awake the attendant idea of punishment."  Ibid.  In this regard, 
Blackstone observed that "throughout the kingdom, by statute 25 Geo. 
II. c. 37. it is enacted that, in case of murder, the judge shall in his 
sentence direct execution to be performed on the next day but one after 
sentence passed."  Ibid.  I have no doubt that such a system, if reen-
acted, would have the deterrent effect that JUSTICE BREYER finds 
lacking in the current system, but I am equally confident that such a 
procedure would find little support from this Court.
 2 See 523 U. S., at 288 (O'CONNOR, J., concurring in part and concur-
ring in judgment); id., at 290 (STEVENS, J., concurring in part and 
dissenting in part). 
 3 Furthermore, I observed prior to Congress' adoption of the 
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. 
L. 104-132, Tit. IV-B, S413(f), 110 Stat. 1269, that this Court has 
radically expanded federal habeas corpus review for state prisoners, 
which until AEDPA had been delineated in scope by an unchanged 
statutory formulation.  See Wright v. West, 505 U. S. 277, 285-287 (1992) 
(opinion of THOMAS, J.) (tracing the expansion of federal habeas corpus 
relief from its original conception as a mechanism for prisoners
to challenge the jurisdiction of the state court that had rendered 
judgment).
 4 Each of these cases rejected the claim on the merits.  I am not aware 
of a single American court that has accepted such an Eighth Amend-
ment claim.  Some judges have dismissed the claim in the strongest of 
terms.  See, e.g., Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995) (Luttig, 
J., concurring) (describing a similar claim as a "mockery of our system 
of justice, and an affront to lawabiding citizens").



SUPREME COURT OF THE UNITED STATES
THOMAS KNIGHT, AKA ASKARI ABDULLAH
MUHAMMAD
98-9741   v.
FLORIDA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF FLORIDA
CAREY DEAN MOORE
99-5291   v.
NEBRASKA
ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME
COURT OF NEBRASKA
Nos. 98-9741 and 99-5291. Decided November 8, 1999
   JUSTICE BREYER, dissenting from the denial of
certiorari.
   These petitions ask us to consider whether the Eighth 
Amendment prohibits as "cruel and unusual punish-
men[t]" the execution of prisoners who have spent nearly 
20 years or more on death row.  Both of these cases involve 
astonishingly long delays flowing in significant part from 
constitutionally defective death penalty procedures.  
Where a delay, measured in decades, reflects the State's 
own failure to comply with the Constitution's demands, 
the claim that time has rendered the execution inhuman is 
a particularly strong one.  I believe this Court should 
consider that claim now.  See Lackey v. Texas, 514 U. S. 
1045 (1995) (STEVENS, J., respecting denial of certiorari); 
Elledge v. Florida, 525 U. S. 944 (1998) (BREYER, J., dis-
senting from denial of certiorari).

   The petitioner in Moore v. Nebraska was sentenced to 
death on June 20, 1980, more than 19 years ago.  By mid-
1982, Moore had invoked all his direct appellate remedies 
and lost.  By mid-1984, he had invoked all state collateral 
remedies and lost.  But in 1988 a Federal District Court 
agreed with Moore that Nebraska's death sentence proce-
dures violated the Constitution because its standards were 
too vague, permitting the death penalty's arbitrary appli-
cation. See Furman v. Georgia, 408 U. S. 238 (1972) (per 
curiam).  The District Court issued a writ of habeas cor-
pus.  The Eighth Circuit affirmed.  And in May 1992, this 
Court denied the State's petition for certiorari, making 
final the lower federal court decision in Moore's favor.
   In April 1995, after modifying its death sentence proce-
dures and 15 years after Moore's first sentencing pro-
ceeding, the State held a new sentencing proceeding; 
Moore was again sentenced to death.  By April 1997, 
Moore had invoked all direct appellate remedies and lost. 
He then invoked state collateral review and lost in the 
lower courts.  See 210 Neb. 457, 316 N. W. 2d 33  (1982).  
He now seeks certiorari, asking us to review his claim of 
inordinate delay (among others)-19 years and 4 months 
after he was first sentenced to death.
   The petitioner in Knight v. Florida was sentenced to 
death on April 21, 1975, nearly 25 years ago.  By mid-
1976, Knight had invoked all his direct appellate remedies 
and lost.  By mid-1983, he had invoked all state collateral 
remedies and lost.  But Knight had also filed a petition for 
habeas corpus in federal court; and in December 1988, the 
Federal Court of Appeals for the Eleventh Circuit found 
that Florida's death penalty sentencing procedure was 
constitutionally defective because it did not require the 
jury to take account of an unusually traumatic and abu-
sive childhood as a potentially mitigating factor.  See 
Lockett v. Ohio, 438 U. S. 586 (1978).  The Court of Appeals 
ordered a new sentencing proceeding.
   In February 1996, the State held a new proceeding, and 
Knight was again sentenced to death.  In November 1998, 
the Florida Supreme Court affirmed.  721 So. 2d 287 
(1998).  Knight now seeks certiorari, asking us to review 
his claim of inordinate delay (among others)-24 years 
and 6 months after he was first sentenced to death.

   It is difficult to deny the suffering inherent in a pro-
longed wait for execution-a matter which courts and 
individual judges have long recognized.  See Lackey, 
supra, at 1045-1047.  More than a century ago, this Court 
described as "horrible" the "feelings" that accompany 
uncertainty about whether, or when, the execution will 
take place.  In re Medley, 134 U. S. 160, 172 (1890).  The 
California Supreme Court has referred to the "dehuman-
izing effects of . . . lengthy imprisonment prior to execu-
tion."  People v. Anderson, 6 Cal. 3d 628, 649, 493 P. 2d 
880, 894 (1972).  In Furman v. Georgia, supra, at 288-289 
(concurring opinion), Justice Brennan wrote of the "in-
evitable long wait" that exacts "a frightful toll."  Justice 
Frankfurter noted that the "onset of insanity while await-
ing execution of a death sentence is not a rare phenome-
non."  Solesbee v. Balkcom, 339 U. S. 9, 14 (1950) (dissent-
ing opinion).  See Strafer, Volunteering for Execution, 74 
J. Crim. L. & C. 860, 872, n. 44 (1983) (a study of Florida 
inmates showed that 35% of those confined on death row 
attempted suicide; 42% seriously considered suicide).  And 
death row conditions of special isolation may well aggra-
vate that suffering.  See Connolly, Better Never Than 
Late, 23 New Eng. J. on Crim. & Civ. Confinement 101, 
121 (1997); Strafer, supra, at 870-871, n. 37.
   At the same time, the longer the delay, the weaker the 
justification for imposing the death penalty in terms of 
punishment's basic retributive or deterrent purposes. 
Lackey, supra, at 1046.  Nor can one justify lengthy delays 
by reference to constitutional tradition, for our Constitu-
tion was written at a time when delay between sentencing 
and execution could be measured in days or weeks, not 
decades.  See Pratt v. Attorney General of Jamaica, [1994] 2 
A. C. 1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) (Great 
Britain's "Murder Act" of 1751 prescribed that execution 
take place on the next day but one after sentence).

   A growing number of courts outside the United States-
courts that accept or assume the lawfulness of the death 
penalty-have held that lengthy delay in administering a 
lawful death penalty renders ultimate execution inhuman, 
degrading, or unusually cruel.  In Pratt v. Attorney General 
of Jamaica, supra, for example, the Privy Council consid-
ered whether Jamaica lawfully could execute two prison-
ers held for 14 years after sentencing.  The Council noted 
that Jamaican law authorized the death penalty and that 
the United Nations Committee on Human Rights has 
written that " 'capital punishment is not per se unlawful 
under the [Human Rights] Covenant.' "  Id., at 26, 4 All 
E. R., at 780.  But the Privy Council concluded that it was 
an "inhuman act to keep a man facing the agony of execu-
tion over a long extended period of time," id., at 29, 4 All 
E. R., at 783, and the delay of 14 years was "shocking," id., 
at 33, 4 All E. R., at 786.  It held that the delay (and pre-
sumptively any delay of more than five years) was " 'in-
human or degrading punishment or other treatment' " for-
bidden by Jamaica's Constitution unless "due entirely to 
the fault of the accused."  Id., at 29, 4 All E. R., at 783.
   The Supreme Court of India has held that an appellate 
court, which itself has authority to sentence, must take 
account of delay when deciding whether to impose a death 
penalty.  Sher Singh v. State of Punjab, A. I. R.  1983 S. C. 
465.  A condemned prisoner may ask whether it is "just 
and fair" to permit execution in instances of "[p]rolonged 
delay."  Id., at 470-471.  The Supreme Court of Zimbabwe, 
after surveying holdings of many foreign courts, concluded 
that delays of five and six years were "inordinate" and 
constituted " 'torture or . . . inhuman or degrading pun-
ishment or other such treatment.' "  Catholic Commission 
for Justice and Peace in Zimbabwe v. Attorney-General, 
[1993] 1 Zimb. L. R. 239, 240, 269 (S) (Aug. 4, 1999), 
http://www.law.wits.ac.za/salr/catholic.html.  And the 
European Court of Human Rights, interpreting the Euro-
pean Convention on Human Rights, noted the convention 
did not forbid capital punishment.  But, in the Court's 
view, the convention nonetheless prohibited the United 
Kingdom from extraditing a potential defendant to the 
Commonwealth of Virginia-in large part because the 
6- to 8-year delay that typically accompanied a death 
sentence amounts to "cruel, inhuman, [or] degrading 
treatment or punishment" forbidden by the convention.  
Soering v. United Kingdom, 11 Eur. Ct. H. R. (ser. A), 
pp. 439, 478, 111 (1989).
   Not all foreign authority reaches the same conclusion.  
The Supreme Court of Canada, for example, held that 
Canadian constitutional standards, though roughly simi-
lar to those of the European Convention on Human 
Rights, did not bar extradition to the United States of a 
defendant facing the death penalty.  Kindler v. Minister of 
Justice, [1991] 2 S. C. R. 779, 838 (joint opinion).  And the 
United Nations Human Rights Committee has written 
that a delay of 10 years does not necessarily violate 
roughly similar standards set forth in the Universal Dec-
laration of Human Rights.  Views adopted by the United 
Nations Human Rights Committee, 44th Sess., Mar. 30, 
1992, In re: Barrett v. Jamaica (Nos. 270/1988 and 
271/1988) S8.4.  Given the closeness of the Canadian 
Court's decision (4 to 3) and language that the United 
Nations Human Rights Committee used to describe the 
ten-year delay ("disturbingly long"), one cannot be certain 
what position those bodies would take in respect to delays 
of 19 and 24 years.
   Obviously this foreign authority does not bind us.  After 
all, we are interpreting a "Constitution for the United 
States of America."  Thompson v. Oklahoma, 487 U. S. 815, 
868, n. 4 (1988) (SCALIA, J., dissenting).  And indeed, after 
Soering, the United States Senate insisted on reservations 
to language imposing similar standards in various human 
rights treaties, specifying, for example, that the language 
in question did not "restrict or prohibit the United States 
from applying the death penalty consistent with the . . . 
Constitution, including any constitutional period of con-
finement prior to the imposition of the death penalty."  
136 Cong. Rec. 36192-36199 (Oct. 27, 1990) (U. S. Senate 
Resolution of Advice and Consent to Ratification of the 
Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment).
   Nonetheless, the treaty reservations say nothing about 
whether a particular "period of confinement" is "constitu-
tional."  And this Court has long considered as relevant 
and informative the way in which foreign courts have 
applied standards roughly comparable to our own consti-
tutional standards in roughly comparable circumstances.  
In doing so, the Court has found particularly instructive 
opinions of former Commonwealth nations insofar as those 
opinions reflect a legal tradition that also underlies our 
own Eighth Amendment.  Thompson v. Oklahoma, supra, 
at 830-831 (opinion of STEVENS, J.) (considering practices of 
Anglo-American nations regarding executing juveniles); 
Enmund v. Florida, 458 U. S. 782, 796-797, n. 22 (1982) 
(noting that the doctrine of felony murder has been elimi-
nated or restricted in England, India, Canada, and a "num-
ber of other Commonwealth countries"); Coker v. Georgia, 
433 U. S. 584, 596, n. 10 (1977) (observing that only 3 of 60 
nations surveyed in 1965 retained the death penalty for 
rape); Trop v. Dulles, 356 U. S. 86, 102-103 (1958) (noting 
that only 2 of 84 countries surveyed imposed denationaliza-
tion as a penalty for desertion).  See also Washington v. 
Glucksberg, 521 U. S. 702, 710, n. 8, and 718-719, n. 16 
(1997) (surveying other nations' laws regarding assisted 
suicide); Culombe v. Connecticut, 367 U. S. 568, 583-584, 
n. 25, and 588 (1961) (considering English practice con-
cerning police interrogation of suspects); Kilbourn v. 
Thompson, 103 U. S. 168, 183-189 (1881) (referring to the 
practices of Parliament in determining whether the House 
of Representatives has the power to hold a witness in con-
tempt).  Willingness to consider foreign judicial views in 
comparable cases is not surprising in a Nation that from 
its birth has given a "decent respect to the opinions of 
mankind."
   In these cases, the foreign courts I have mentioned have 
considered roughly comparable questions under roughly 
comparable legal standards.  Each court has held or as-
sumed that those standards permit application of the 
death penalty itself.  Consequently, I believe their views 
are useful even though not binding.

   Further, the force of the major countervailing argument 
is diminished in these two cases.  That argument (as set 
out by the Human Rights Commission) recognizes that 
there must be an "element of delay between the lawful 
imposition of a sentence of death and the exhaustion of 
available remedies."  Barrett, supra, S8.4.  It claims that 
"even prolonged periods of detention under a severe custo-
dial regime on death row cannot generally be considered to 
constitute cruel, inhuman or degrading treatment if the 
convicted person is merely availing himself of appellate 
remedies."  Ibid.  As the Canadian Supreme Court noted, 
"a defendant is never forced to undergo the full appeal 
procedure, but the vast majority choose to do so.  It would 
be ironic if delay caused by the appellant's taking advan-
tage of the full and generous avenue of the appeals avail-
able to him should be viewed as a violation of fundamental 
justice."  Kindler, supra, at 838; see also Richmond v. 
Lewis, 948 F. 2d 1473, 1491-1492 (CA9 1990).
   The cases before us, however, involve delays which 
resulted in large part from the States' failure to apply 
constitutionally sufficient procedures at the time of initial 
sentencing.  They also involve extensive delays of close to 
two decades or more.  The petitioners argue that the state-
induced portion of the delay, perhaps up to 12 years in 
Moore's case, up to 15 years in Knight's, should not be 
charged against them in any constitutional calculus.  Cf. 
Pratt, 2 A. C., at 29, 4 All E. R., at 783 (counting against 
the prisoner only that portion of the delay caused by "es-
cape . . . or frivolous and time wasting resort to legal 
procedures").  Twenty years or more could not be neces-
sary to provide a "reasonable time for appeal and consid-
eration of reprieve."  Id., at 33, 4 All E. R., at 786.  For 
these reasons, I think petitioners' argument cannot be 
rejected out of hand.
   Nor do I agree with JUSTICE THOMAS that the lower 
courts have "resoundingly rejected" petitioner's claim. 
Ante, at 4.  I have found about two dozen post-1995 lower 
court cases in which prisoners have raised Lackey claims.  
Most involve procedural failings that in part or in whole 
determined the outcome of the case. Of the eight cases 
(other than the two cases below) that decided Lackey 
claims solely on the merits, only four involve lengthy 
delays for which the State arguably bears responsibility. 
See Bell v. State, 938 S. W. 2d 35 (Tex. Crim. App. 1996) 
(20 years; conviction overturned once); Ex parte Bush, 695 
So. 2d 138 (Ala. 1997) (16 years; conviction overturned 
twice); State v. Smith, 280 Mont. 158, 931 P. 2d 1272 
(1996) (13 years; sentence overturned once); People v. 
Massie, 19 Cal. 4th 550, 967 P. 2d 29 (1998) (16 years; 
sentence overturned once).  Neither the opinions in these 
four cases, nor those in any other of the lower court cases 
that I have found, discuss the potential significance of that 
state responsibility at any length.  Thus, although the ex-
periment may have begun, it is hardly evident that we 
"should consider the experiment concluded."  Ante, at 4-5.

   Finally, the constitutional issue, even if limited to de-
lays of close to 20 years or more, has considerable practical 
importance.  Available statistics indicate that as of two 
years ago, December 1997, 24 prisoners sentenced to 
death had been on death row for more than 20 years.  At 
that time 125 prisoners on death row had been sentenced 
in or before 1980 and therefore may now fall within the 
relevant category.  U. S. Dept. of Justice, Bureau of Jus-
tice Statistics Bulletin, Capital Punishment 1997, p. 13 
(Dec. 1998).  Given these figures and the nature of the 
question, despite the absence of a division among the 
lower federal courts, this Court should consider the issue.
   I would grant the petitions for certiorari in these two 
cases.