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_________________ 1 Cite as: 55 8 U

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Statement of S TEVENS , J. 

## SUPREME CO URT O FTHE UNI TED STATES

No. 09–7 83 9 (09A 521)

CECIL C. J O HNSON v. PHIL B R E D ESEN, GOVE RN OR OF TE NN E SSE E, ET AL

. ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [Dec ember2, 200 9] The application for stay of ex ecution of sentence of death presented to J USTICE S TEVEN Sand by him referred to the Court is denied. The petition for a writ of certiorari is denied. Statement of J USTICE S TEVENS , with who mJ U S TICE B REYERjoi n s, respecting the denial of certiorari. Petitioner Cecil John son, Jr., h a s been confined to a solitary cell awaiting his ex ecution for nearly 29 years

. 1 Johnson bears little, if any, responsibility forthis delay. After his ex ecution date was set and on the d a y the Governor of Tennessee de nied him cl emency, Johnson brou ght this Eighth Amendment challenge under Rev. Stat. §1979
, 42 U. S. C. §1983 to en join the State from executing him after this lengthy and inhumane delay. See Lackey v. Texas , 514U. S. 1045, 1045–10 46 (1995) (S TEVE NS , J
., statement respecting denial of cert iorari); see also Thomp

son v. McNeil , 556 U. S. ___, ___ ( 2009) (same); id. , at ___ (B REYER , J. , dissenting from denial of certiorari). Because

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1 “In m ates wh o ar e u n d era sen t en c eof deathsh al l be s i n gle-c elled and housed i na max i mum sec u r i ty unit separ a te f r om the g e ner a l population.” State of Tennessee, De pt . of Correct ion, Adm i nist ra t iv e Polic ies an d Pr oc edu r es, In dex#506.14 (VI)(B)(2) (20 09), on lin e a t http://www.state.tn.us/correction/pdf/ 506- 14.pdf (as visited Dec. 1, 200 9).2 JOHNSON v. BREDES EN

Statement of S TEVENS , J.
I remain st eadfast in my view “that executing defendants after such delays is unacceptablycruel,” id. , at ___ (sli p op., at 4), I would gran t the stay application and the petition for certiorari. Johnson was tried and convicted ofthree counts of firstdegree murder in 198 1. He con t inues to maintain h i s innocence. Complaint ¶9. There was no physical eviden ce tying Johnson to the crime. See Johnsonv. Be ll , 525 F. 3 d 466, 490 ( CA6 2008) (Cole, J., dissenting). In 1992 a change in s t ate law gave Johnson access, for the first time, to substantial evidenc eundermining key eye w itness testimony against him. Id. , at 473. This eviden ce calls int o question th e persuasive force of the eyewitness’ testimony, and, consequently, whether Joh n son’s conviction wa s infected wit hconstituti onal error. See Bradyv. Marylan d
, 373 U. S. 8 3 (1963); Johnson , 525 F. 3d, at 490 (Cole, J., dissenting). The merits of Johnson’s Bradyclaim are not before us; we denied certior ari on thi s issue s e veral months ago. No. 08–7 163, 557 U. S. ___ (200 9). But th e constitutional concerns raised by Judge Cole’s dissent only underscore my strongly held vi ew that state-caused dela y in state-sponsored killi ngs can be unacceptabl y cruel. See Thompson
, 556 U. S., at ___ (slip op., at 3–4). 2 We cannot know as a definitive matter whe t her, if the State had n o t withheld exculpatory evidence, Johnson would have been convicted o f these crimes. We do know t hat Johnson would not have waited for 11 years on death row befor e the State met its disclosure obligations. In sh ort, this is as compelling a case asI have encou n tered for a ddressing the constitutional concerns that I raised in Lackey

.

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2 The possibili ty that there was consti t u tiona lerror inJ o hns on’s ca s e is fa r from uniq u e. S ee Root, Cruel a n d Unus ua l Punis h ment: A Reconsiderati o n of the La ck eyClaim, 27 N

. Y

. U. Rev

. L. & Soc

. Ch an g e 281, 3 1 2 –31 3 (200 2) (disc u s s in ger r o r r a tes inc a pita l t r ials) (c itin gJ

. Liebman, J. Fagan, & V. West, A Broken System: Error Rates in Capit a l C a ses, 1973 –1 995, p. 5 (2000)).3 Cite as: 55 8 U

. S. ____ (2009)

Statement of S TEVENS , J.
This case d e serves ourfull attention for an other reason. Johnson ha s brought his Eighth Amendment claim under 42 U. S. C. §1983. More typically, such claims have been brought in habeas corpus. See, e.g. , Thompson v. Se cre

tary for De pt. of Corre ctions, 517 F. 3d 1279, 1280 (CA11 2008) (per curiam) ; Allen v. Orno ski , 435 F. 3d 946, 956– 960 (CA9 2 006); cf. Knight v. Florida , 528 U. S. 990, 998 (1999) (B RE YE R , J., dissenting from denial of certiorari) (discussing Lackeyclai m raised after state re sentencing on successful habeas corpus petition). This case’s posture raises two important questions: whether a La ckeyclaim i s cognizable under §1983; and, if it is not, whether a secon d federal habeas petition raising a Lackeyclaim is a successive petition under 28 U. S. C. §2244(b)(2). The Sixth Circuit agr eed with th e District C o urt’s concl u sion that a standalone Lackeych allenge un der §1983 is the “functional equivalent” of a habeas corpus challenge, App. to Pet. for Cer t . B-9 (Dist r ict Court o p inion), and thus must proceed under 28 U. S. C. §2244(b )(2)’s successive petition bar, see Allen , 435 F. 3d, at 956– 960. The resolution of these ques t ions below poses a nearly insurmountable hurdle for those seeking to raise similar Eighth Amen dment challenges. In my view, these procedur al questions are in extricabl y linked to the two underlying evils of intol e rable dela y. First, the d e lay itself subje cts death row inm a tes to dec

ades of especially severe, dehumanizing conditions of confinemen t. See Tho m pson , 556 U. S., at __ _ (slip op., at 2) (S TEVE N S , J., respecting denial of certiorari); Lackey
, 514 U. S., a t1046–1047 (same); see also Fur m anv. Geor

gia , 408 U. S. 238, 28 8 (1972) (Brennan, J., concurrin g) (“[T]he prospect of pending execution exacts a frightful to ll during the inevitable l o ng wait between the imposition o f sentence and the actual infliction of death”). Second, “delaying an execution does not further public purposes of retribution and deterre nce but only diminishes whatever4 JOHNSON v. BREDES EN

Statement of S TEVENS , J. possible benefit society might re ceive from petitioner’s death.” Thompson , 556 U. S., at ___ (sl i p op., at 2) (S TEVENS , J ., respecting denial of certiorari). In other words, the penological justific ations for the death penalty diminish asthe delay l e ngthens. Id. , at ___ (slip op., at 2); Lackey , 51 4 U. S., a t 1046–1047. Thus, I find constitutionally significant both the conditions of con f inement a n d the nature of the penal ty itself. In light of these co extensive con c erns, I fin dit quite difficult to conclude, as the courts below did
, that Johnson’s §1983 action is th e functional equivalent of a habeas petition. B o th the gra v amen of p e titioner’s complaint and one of the central concerns animating Lack eyis that the “method” of the State’s exec ution of a death sentence—a lengthy delay due in n osmallpart to the State’s malfeasance in th is case—isitself unconstitutional. We have held that “method” of exec ution claims are cognizable under §1983. Hillv. McDonough , 547 U. S. 573, 58 0 (2006); see also Nelsonv. Campb e ll , 541 U. S. 637, 645– 647 (2004). But a successful Lackeyclaim would have th e effect of rendering invalid a particular death sentence, suggesting that Johnson’s Lackeyclaim “directly call[s] into question the ‘fact’ or ‘validity’ of the sent ence itself,” Nelson , 541 U. S., at 644. Were p e titioner to prevail, it is true that the State wi ll not be ab le to go forward in thi s case “by simply altering its method of execution,” ibid

. On the other h and, it is e qually true that, had the State no t carried out his sentenc ein this in tolerably cruel manner
, the Sta t e would have been quite free, as a constitutional matter, to “ g o forward with the sentence,” ibid. Although the Court of Appeals’ treatment of Johnson’s claim as a h abeas challenge is a close question, its decisio n to apply §2244(b)(2)’s successive habeas bar is not. The Sixth Circu it’s decision has the curious effect of forcing Johnson to bring a Lackeyclaim prematurely, possibly at a5 Cite as: 55 8 U

. S. ____ (2009)

Statement of S TEVENS , J. time before it is ripe. 3Moreover, construing this claim as the functional equivalent of a habeas action also has the unfortunate effect of inviting further delay: A petitioner would be compelled to return to state court to exhaust his Lackeyclai m in the first instance under 28 U. S. C. §2254(b)(1). For thes e reasons, I am persu a ded that a Lackeyclai m, like a claim that one is ment ally incompetent to be executed, should, at the very least, not accr ue until an execution date is set. See Ceja v. Stewart
, 1 34 F. 3d 1368, 1371–1372 (CA9 1998) (Fletcher, J., dissent

ing); cf. Pan e ttiv. Qu arterm an, 551 U. S. 930, 945 (2007). When I f i rst expressed my views in Lackey , I did not envision s u ch procedural obstacles to the cons ideration of a claim that nearly three decades of delay on death row, much of it caused by the State, has deprived a person o f his Eighth Amendment righ t to a v oid cruel and unusual punishment. One doesnot need to accept the propositio n “that the imposition of the death penalty represents ‘t he pointless an d needless extinction of life with only marginal contributions to any discernible social or public purposes,’” Bazev. Rees , 553 U. S. 35, ___, (2008) (slip op., at 17) (S TEVENS , J., concurring in judgment) (quoting Furma n , 408 U. S., at 312 (White, J., concurring)), in order to agree that the imposition of the death penalty on these extre me facts is without constitutional justification. Most regrettably, a m a jority of t h is Court continues to find these issues not of sufficient weight to m e rit our att e ntion.

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3 Th e State ar gu es, an d th e c o u r ts below ag r eed, th at Joh n sonsh ou ld have b r ough t his Eighth Amendm ent c l aim in the f e der a l habea s pr oc eedin g h e c o mmen c ed in 1999. At th a tpoin t intime , Joh n s on h a d beenondeath r o w for18 year s. Th is was on e y e arl o n g er th anthe petitioner in Lack ey

. Of c o u r se, by1999, th e Cou r t h a d den i ed c e r t iora ri in Lack eyan d in Knight v. Florida , 528 U.S. 9 90, w h ic hinv o lv ed a 19-y e ardelay

. Th er efor e, wh enJoh n s onfiled h i s feder a lh abeas ac t i on , h eh a d r e ason to believ eth at an18-y e ardelaywas n o t lon gen ou ghto tr ig g e rEigh th Amendment c o nc er ns and that any Lackey -based c l ai m was premature.