Cite as: 585 U. S. ____ (2018) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

RICHARD GERALD JORDAN 

17–7153 v. 

MISSISSIPPI 

TIMOTHY NELSON EVANS, AKA TIMOTHY N. EVANS, 

AKA TIMOTHY EVANS, AKA TIM EVANS 

17–7245 v. 

MISSISSIPPI 

ON PETITIONS FOR WRITS OF CERTIORARI TO THE SUPREME 

COURT OF MISSISSIPPI
 

Nos. 17–7153 and 17–7245. Decided June 28, 2018
 

The petitions for writs of certiorari are denied.

 JUSTICE BREYER, dissenting from the denial of certiorari. 

In my dissenting opinion in Glossip v. Gross, 576 U. S. 

___ (2015), I described how the death penalty, as currently

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

the death penalty today lacks “requisite reliability.” Id., 

at ___ (slip op., at 3). 

I 

The petitioner in the first case, Richard Gerald Jordan, 

was sentenced to death nearly 42 years ago. He argues

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., 
 

 

 

2 JORDAN v. MISSISSIPPI 

BREYER, J., dissenting 

dissenting from denial of certiorari) (slip op., at 1) (“Richard 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 sentence of death”). 

More than a century ago, the Court described a prisoner’s 4-week wait prior to execution as “one of the most 

horrible feelings to which [a person] can be subjected.” In 

re Medley, 134 U. S. 160, 172 (1890). What explains the

more than 4-decade wait in this case? Between 1976 and 

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 

death sentence and remanding case in light of Skipper v. 

South Carolina, 476 U. S. 1 (1986)); see also Brief in Opposition 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 

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 Supreme Court invalidated that agreement and the prosecutor refused to reinstate it. See Jordan v. Fisher, 576 U. S. 

___ (2015) (SOTOMAYOR, J., dissenting from denial of 

certiorari).)

Jordan has lived more than half of his life on death row. 

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 
Cite as: 585 U. S. ____ (2018) 3 

BREYER, J., dissenting 

and spent “most of that time on death row living in isolated, squalid conditions.” Pet. for Cert. in No. 17–7153, 

p. 11; see also ibid. (citing Gates v. Cook, 376 F. 3d 323, 

332–335 (CA5 2004) (holding that the conditions of confinement on Mississippi State Penitentiary’s death row 

violate the Eighth Amendment)); Robles, The Marshall

Project, Condemned to Death—and Solitary Confinement

(July 23, 2017), (reporting based upon a nationwide survey 

of state corrections officials that Mississippi is 1 among 20 

States that permit death row inmates “less than four

hours of out-of-cell recreation time each day”),

https://www.themarshallproject.org/2017/07/23/condemnedto-death-and-solitary-confinement (all Internet materials

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

involves “a windowless cell no larger than a typical parking spot” for up to “23 hours a day”). This Court has repeated that such conditions bear “‘a further terror and

peculiar mark of infamy’ [that is] added to the punishment 

of death.” In re Medley, supra, at 170. Such “additional 

punishment,” the Court has said, is “of the most important 

and painful character.” Id., at 171. In my view, the conditions in which Jordan appears to have been confined over 

the past four decades reinforce the Eighth Amendment

concern raised in his petition.

Jordan, now 72 years old, is one among an aging population of death row inmates who remain on death row for 

ever longer periods of time. Over the past decade, the

percentage of death row prisoners aged 60 or older has

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

Justice Statistics, T. Snell, Capital Punishment, 2008—

Statistical Tables (rev. Jan. 2010) (Table 7), with Dept. of 

Justice, Bureau of Justice Statistics, E. Davis & T. Snell, 
 

4 JORDAN v. MISSISSIPPI 

BREYER, J., dissenting 

Capital Punishment, 2016, p. 7 (Apr. 2018) (Table 4) 

(Davis & Snell). Meanwhile, the average period of imprisonment between death sentence and execution has risen 

from a little over 6 years in 1988 to more than 11 years in

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/

execution-list-2018; DPIC, Execution List 2017, https://

deathpenaltyinfo.org/execution-list-2017; see also F. 

Baumgartner et al., Deadly Justice: A Statistical Portrait

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, illustrate the problem of arbitrariness. To begin with, both

were sentenced to death in the Second Circuit Court District 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 

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 

people were sentenced to death in roughly 200 counties

each year. B. Garett, End of Its Rope: How Killing the

Death Penalty Can Revive Criminal Justice 138–140 

(2017). By comparison, these numbers have declined 
 

 

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BREYER, J., dissenting 

dramatically over the past three years. A recent study

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; 

in 2016, all death sentences (31 in total) were imposed in

just 28 counties nationwide (fewer than 1% of counties). 

Id., at 139–140, Fig. 6.2; see also Garrett, Jakubow, & 

Desai, The American Death Penalty Decline, 107 J. Crim.

L. & C. 561, 564, 584 (2017); Fair Punishment Project, Too

Broken To Fix: Part I: An In-Depth Look at America’s 

Outlier Death Penalty Counties 2 (2016) (citing data

indicating there were 16 counties, or 0.5% of all counties

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

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 

. . . were the largest and most prominent differences found

in the study. In a very real sense, a given defendant’s 

chance of having the death penalty sought, retracted, or

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).

This geographic arbitrariness is aggravated by the fact 

that definitions of death eligibility vary depending on the 

State. This Court has repeated that “[c]apital punishment 

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 omitted), since “the culpability of the average murderer is

insufficient to justify the most extreme sanction available 
 

6 JORDAN v. MISSISSIPPI 

BREYER, J., dissenting 

to the State.” Atkins v. Virginia, 536 U. S. 304, 319 

(2002). But the statutory criteria States enact to distinguish a non-death-eligible murder from a particularly

heinous death-eligible murder and thus attempt to use to

identify the “worst of the worst” murderers are far from 

uniform. See Baumgartner, supra, at 90–115 (reviewing data collected in a “host” of empirical studies showing “that nearly all homicides in a given state are

death-eligible”).

For instance, as Evans argues, Mississippi is one of a 

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

kill. Pet. for Cert. in No. 17–7245, at 4–5, and nn. 3–4; see 

also id., at 8, n. 10; Miss. Code Ann. §§97–3–19(2)(e), (f),

99–19–101(5)(d) (2017); McCord & Harmon, Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in

Death Sentences in the United States From Their PostFurman Peak, 81 Albany L. Rev. 1, 32–33, and n. 155, 

Table 10 (2018) (citing data indicating the general decline

in robbery as an aggravating factor and research arguing 

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 “unrebutted” 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 

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., statement respecting denial of certiorari) (slip op., at 4, 7). 

I recognize that only a small fraction of the roughly

8,000 death sentences imposed since 1976 have resulted in

executions. Executions continue to decline from the mod-
 

 

 

 

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BREYER, J., dissenting 

ern peak of 98 executions occurring across 72 counties and 

20 States in 1999 to 28 executions in 22 counties across 6 

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 executions that took place in 2017. See Davis & Snell 8, 15. 

More than 700 people await execution on California’s

death row but the State, which has executed 13 people 

since 1976, has not carried out an execution since 2006. 

Id., at 3; DPIC, State by State Database: California,

https://deathpenaltyinfo.org/state_by_state. The State of 

Mississippi, which has executed a total of 21 people since 

1976, has not carried out an execution in more than six 

years. DPIC, State by State Database: Mississippi,

https://deathpenaltyinfo.org/state_by_state. This data 

suggests that the death penalty may eventually disappear.

But it also shows that capital punishment is “unusual” (as 

well as “cruel”). 

III 

Finally, I note that in the past three years, further

evidence has accumulated suggesting that the death penalty 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 

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 Crawford, Rickey Dale Newman, Gabriel Solache, and Vicente 

Benavides Figueroa, whose exonerations were based upon 
 

 

 

8 JORDAN v. MISSISSIPPI 

BREYER, J., dissenting 

evidence of actual innocence. See National Registry of

Exonerations (June 25, 2018), https://www.law.umich.edu/

special/exoneration/Pages/detaillist.aspx. 

* * * 

In my view, many of the capital cases that come before

this Court, often in the form of petitions for certiorari,

involve, like the cases of Richard Jordan and Timothy

Evans, special problems of cruelty or arbitrariness. 

Hence, I remain of the view that the Court should grant 

the petitions now before us to consider whether the death

penalty as currently administered violates the Constitution’s Eighth Amendment.