Cite as: 580 U. S. ____ (2016) 1 

BREYER, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

HENRY PERRY SIRECI v. FLORIDA 

ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

COURT OF FLORIDA
 

No. 16–5247. Decided December 12, 2016 

The petition for a writ of certiorari is denied. 

JUSTICE BREYER, dissenting from denial of certiorari. 

Henry 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 

http://factfinder.census.gov/faces/tableservices/jsf/pages/

productview.xhtml?pid=PEP_2015_PEPAGESEX&prodType= 

table (all Internet materials as last visited Dec. 9, 2016). 

Forty 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 
 

2 SIRECI v. FLORIDA 

BREYER, J., dissenting 

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 

http://www.deathpenaltyinfo.org/documents/FactSheet.pdf

(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:// 

www.deathpenaltyinfo.org/execution-list-2016.

Nor is 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 Broom’s claim. 

As I 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 
Cite as: 580 U. S. ____ (2016) 3 

BREYER, J., dissenting 

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 

execution).

I have 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. 1045 (1995) (Stevens, J., memorandum respecting denial of certiorari). I 

would grant this petition for certiorari, as I would in 

Broom v. Ohio, No. 16–5580, and Smith, and include this 

question.