On Monday, the Supreme Court rejected Richard Boyer’s petition for review of a federal appeals court ruling that, in turn, rejected his argument that California’s long (and continuing) delay in carrying out his death sentence amounts to cruel and unusual punishment. Dissenting from that denial in Boyer v. Davis, Justice Stephen Breyer strongly suggested that he would find a constitutional violation in the 32 years that Boyer has been on death row.

To Court watchers, the Breyer dissent was hardly surprising. Last year, in a dissent from a decision upholding Oklahoma’s lethal injection protocol, Justice Breyer called on his colleagues to reconsider the constitutionality of the death penalty. Justice Breyer offered long delay as one of the chief reasons for concluding that the death penalty is unconstitutional. He cited statistics showing an average delay of 18 years between sentence and execution. He calculated that at current rates, “the average person on death row would spend an additional 37.5 years there before being executed.” Thus, Boyer’s case is hardly an outlier.

But why is delay problematic? Don’t death row prisoners benefit from execution delays? Would a death row prisoner be better off being swiftly executed?

According to Justice Breyer, long delays are problematic for two reasons. First, life on death row is miserable. Quoting an earlier dissenting opinion by Justice John Paul Stevens, Breyer wrote that delay “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement,” aggravated by the anxiety caused by uncertainty about whether and when execution will occur. Second, Breyer argued that long delay undermines the retributive interest served by, and any deterrent value of, the death penalty.

Unsurprisingly, Justice Breyer’s call for re-examination of the validity of the death penalty did not go unanswered. In particular, the late Justice Antonin Scalia wrote a characteristically spirited response. At one point he even said that Justice Breyer’s dissent was full of “gobbledy-gook.”

Without attempting a point-by-point rebuttal of Scalia’s concurrence in the Oklahoma case, I want to respond to what may strike readers as his best argument: execution delays are chiefly the result of the extensive procedures that the Court’s liberals have required for carrying out an execution; those same liberals should not be permitted to bootstrap those delays to invalidate the death penalty.

What Causes Delay?

The premise of the anti-bootstrapping objection may be wrong. It is not obvious that all or even most of the delay between a death sentence and the execution of the condemned results from legal requirements imposed by the Supreme Court.

For example, Justice Breyer notes in his Boyer dissent that Boyer’s first jury could not reach a verdict, that a second trial resulted in a conviction that was ultimately reversed by the California Supreme Court based on police misconduct, and that the time between the commencement of Boyer’s third trial and the final state court disposition of his appeal was 14 years. Justice Breyer quotes a California commission that found that the state’s own system for administering the death penalty was “dysfunctional.” Most of that dysfunction is not attributable to requirements imposed by federal judges or justices.

Indeed, in recent decades, Congress and the Supreme Court have reduced the procedural obstacles to imposing and carrying out the death penalty, chiefly by cutting back on the scope of federal habeas corpus. The most important cutbacks were contained in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). Among other things, AEDPA places a one-year statute of limitations on the filing of habeas petitions—which can be shortened to six months if a state complies with certain optional procedures. The same provision that requires petitions to be filed within a year of the conclusion of state court proceedings also disallows a second or successive petition, absent extraordinary circumstances.

To be sure, Supreme Court case law may also lead to delays in state court proceedings. For example, a state cannot impose a mandatory death sentence. Thus, the so-called penalty phase of a capital trial will typically take longer than the post-conviction sentencing that occurs in most non-capital cases. And although states frequently devote woefully inadequate resources to state-appointed counsel to conduct factual investigations, where resources are adequate, such investigation can take time. In order to be able to make the best available argument for her client, a capital defender will want to interview family members and other people who can help establish that the mitigating circumstances outweigh the aggravating ones. Ensuring that these added steps were carried out adequately can add time to the back end of a capital case by complicating the ensuing state court appellate proceedings.

Necessary Delay

Would it be possible to streamline capital proceedings? Sure. China and Iran carry out executions swiftly, with the entire period from arrest to execution taking much less time than the amount of time a typical American prisoner spends on death row. But these countries also hold trials in secret without what we would regard as even minimal due process.

If one thinks that particular procedural requirements for the death penalty are unnecessary or not properly connected to the Constitution, then one can make that argument. But it should not count as an objection to a procedure necessary to ensure fairness in the application of the death penalty that the procedure causes delay.

By the same token, however, didn’t Justice Scalia have a fair point when he said that his liberal colleagues should not then turn around and invoke the very delay that they think is necessary for procedural fairness as a ground for invalidating the death penalty? That objection has a superficial appeal, but it is ultimately mistaken.

Consider an analogy. Suppose that I invent a jetpack that allows users to fly. The Consumer Product Safety Commission conducts extensive testing and concludes that it should not be sold except with safety equipment that, when deployed, would add so much weight to the jetpack as to make it useless. Does that mean that I should be able to sell the jetpack without the safety equipment?

Of course not. If the only way to make the jetpack reasonably safe is to make it inoperable, then the jetpack should effectively be banned.

Likewise with respect to the death penalty. If the only way to make the death penalty minimally fair is to impose substantive and procedural safeguards that add delay—and if that added delay would itself violate constitutional norms—then the death penalty must be banned.

To be clear, I have not argued here that Justice Breyer is right in his suggestion that undue delay renders the death penalty unconstitutional. But if he is wrong, it is not because fairness requires special death penalty rules and standards that lead to delay. Proponents of the death penalty will need to look elsewhere for persuasive arguments that the punishment is permissible even for people who spend decades on death row.