                  Cite as: 552 U. S. ____ (2007)           1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
          JOE CLARENCE SMITH v. ARIZONA
  ON PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 

                  COURT OF ARIZONA

             No. 07–5847. Decided October 15, 2007 


   The petition for a writ of certiorari is denied.
   JUSTICE BREYER, dissenting from denial of certiorari.
   Joe Clarence Smith, petitioner in this case, was first
sentenced to death 30 years ago. Due to constitutional
error, the Arizona courts in 1979 set this first sentencing
aside. Smith was again sentenced to death later that
year. Due to ineffective assistance of counsel, the federal
courts in 1999 set this second sentencing aside. Smith
was again sentenced to death in 2004. He now argues
that the Federal Constitution’s prohibition against cruel
and unusual punishments forbids his execution more than
30 years after he was initially convicted.
   In my view, Smith can reasonably claim that his execu
tion at this late date would be “unusual.” I am unaware of
other executions that have taken place after so long a
delay, particularly when much of the delay at issue seems
due to constitutionally defective sentencing proceedings.
And whether it is “cruel” to keep an individual for decades
on death row or otherwise under threat of imminent exe
cution raises a serious constitutional question. I have
elsewhere explained (in cases involving less lengthy de
lays) why I believe that is so. See Foster v. Florida, 537
U. S. 990, 991–993 (2002) (BREYER, J., dissenting from
denial of certiorari); Knight v. Florida, 528 U. S. 990, 993–
999 (1999) (same); Elledge v. Florida, 525 U. S. 944 (1998)
(same); see also Lackey v. Texas, 514 U. S. 1045 (1995)
(STEVENS, J., respecting denial of certiorari).
   I would grant the petition for certiorari in this case.
