                 Cite as: 556 U. S. ____ (2009)           1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
  WILLIAM LEE THOMPSON v. WALTER A. MCNEIL,

     SECRETARY, FLORIDA DEPARTMENT OF

                CORRECTIONS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
     COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
              No. 08–7369. Decided March 9, 2009

   JUSTICE BREYER, dissenting from denial of certiorari.
   This petition asks us to determine whether the Eighth
Amendment’s prohibition on “cruel and unusual punish
ments” precludes the execution of a prisoner who has
spent over 30 years on death row. JUSTICE STEVENS and I
have previously written that this is a question that merits
the Court’s attention, see, e.g., Lackey v. Texas, 514 U. S.
1045 (1995) (STEVENS, J., respecting denial of certiorari);
Foster v. Florida, 537 U. S. 990 (1999) (BREYER, J., dis
senting from denial of certiorari); Knight v. Florida, 528
U. S. 990, 993 (1999) (same), and the delay here is even
longer than the delay in those prior cases. Here, peti
tioner has been on death row for 32 years, well over half
his life. For the reasons we have set forth in the past and
for many of those added in JUSTICE STEVENS’ separate
statement, I would grant this petition.
   JUSTICE THOMAS suggests that petitioner cannot now
challenge the constitutionality of the delay because much
of that delay is his own fault—he caused it by choosing to
challenge the sentence that the people of Florida deemed
appropriate. See ante, at 1 (opinion concurring in denial of
certiorari). I do not believe that petitioner’s decision to
exercise his right to seek appellate review of his death
sentence automatically waives a claim that the Eighth
Amendment proscribes a delay of more than 30 years. See
Gregg v. Georgia, 428 U. S. 153, 198 (1976) (joint opinion
of Stewart, Powell, and STEVENS, JJ.) (automatic appeal of
2                  THOMPSON v. MCNEIL

                    BREYER, J., dissenting

all death sentences is “an important additional safeguard
against arbitrariness and caprice”). But in any event the
delay here resulted in significant part from constitution
ally defective death penalty procedures for which peti
tioner was not responsible. See Knight, supra, at 993.
   In particular, the delay was partly caused by the sen
tencing judge’s failure to allow the presentation and jury
consideration of nonstatutory mitigating circumstances,
an approach which we have unanimously held constitu
tionally forbidden, see Hitchcock v. Dugger, 481 U. S. 393,
398–399 (1987). As a result of this error, the Florida
Supreme Court remanded for resentencing. See Thomp
son v. Dugger, 515 So. 2d 173 (1987).
   At petitioner’s resentencing, he presented substantial
mitigating evidence, not previously presented, that sug
gested that he may be significantly less culpable than his
codefendant, who did not receive the death penalty. Peti
tioner, for example, introduced an affidavit of Barbara
Garritz, who witnessed the crime for which petitioner was
sentenced to death.         She described petitioner’s co
defendant Rocky Surace as “an evil man” and “the devil,
himself” and explained that he “manipulate[d] people . . .
[into] follow[ing] his orders.” Tr. 2473 (May 31, 1989). By
contrast, she described petitioner as “a big, easy-going
child who would do just about anything to please” and who
“never seemed to have an idea of his own.” Id., at 2474;
see also ibid. (“He would do just about anything he was
told”). She described the relationship between petitioner
and Rocky as follows: “Bill was completely under Rocky’s
spell. He hung on every word Rocky said and would do
and say everything Rocky did and said. He was like
Rocky’s dog. Rocky would give an order and Bill would do
it, no questions asked.” Id., at 2475. With respect to the
night in question, she explained that, “Everything Bill did,
he did at Rocky’s direction, just like he always did when I
was around the two. I saw what happened and I know
                   Cite as: 556 U. S. ____ (2009)              3

                      BREYER, J., dissenting

that Rocky started and finished the whole thing.” Ibid.
   Garritz’s testimony was consistent with the picture of
petitioner painted by other witnesses. For example, one of
petitioner’s teachers testified that while in elementary
school petitioner consistently scored in the mid-70’s on IQ
tests; those scores qualified him for classes for the educa
ble mentally retarded. Id., at 2178 (May 30, 1989). His
teachers also described him as “slow,” a “follower” who
was “always . . . eager to please.” Id., at 2185, 2186, 2185;
see also id., at 2191–2192. A psychologist and a psychia
trist who examined him both described him as showing
signs of brain damage, id., at 2510, 2513, 2516, 2523 (June
1, 1989); see also id., at 2570–2571, 2577, and a psychia
trist testified that “the kind of disorder [petitioner] has,
he’s easily led and felt very threatened by the co
defendant,” id., at 2564; see also id., at 2602 (“There is no
doubt in the world that this man basically appeared to be
a rather—rather dependent person who tends to follow the
leader. He is not a leader himself. So, whatever Mr.
Surace says, he probably goes along with it”). After hear
ing this evidence, the jury recommended a death sentence
by a vote of 7 to 5.
   I refer to the evidence only to point out that it is fair, not
unfair, to take account of the delay the State caused when
it initially refused to allow Thompson to present it at the
punishment phase of his trial. I would add that it is the
punishment, not the gruesome nature of the crime, which
is at issue. Reasonable jurors might, and did, disagree
about the appropriateness of executing Thompson for his
role in that crime. The question here, however, is whether
the Constitution permits that execution after a delay of 32
years—a delay for which the State was in significant part
responsible.
   I believe we should grant the writ to consider that ques
tion.
