                   Cite as: 564 U. S. ____ (2011)             1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
              MANUEL VALLE v. FLORIDA
   ON APPLICATION FOR STAY AND PETITION FOR WRIT OF 

     CERTIORARI TO THE SUPREME COURT OF FLORIDA 

        No. 11–6029. (11A229) (Decided September 28, 2011)


  The application for stay of execution of sentence of death
presented to JUSTICE THOMAS and by him referred to the
Court is denied. The motion of Bar Human Rights Com-
mittee of England and Wales, et al. for leave to file a brief
as amicus curiae is granted. The petition for a writ of
certiorari is denied.

  JUSTICE BREYER, dissenting from denial of stay.
  The State of Florida seeks to execute Manuel Valle for a
crime for which he was initially sentenced to death more
than 33 years ago. Valle asks us to consider whether that
execution following decades of incarceration on death row
violates the Constitution’s prohibition of “cruel and unu-
sual punishments.” U. S. Const., Amdt. 8. I would consid-
er the claim. See Lackey v. Texas, 514 U. S. 1045 (1995)
(Stevens, J., respecting denial of certiorari); Knight v.
Florida, 528 U. S. 990, 993 (1989) (BREYER, J., dissenting
from denial of certiorari).
  I have little doubt about the cruelty of so long a period of
incarceration under sentence of death. In Lackey and in
Knight Justice Stevens and I referred to the legal sources,
in addition to studies of attempted suicides, that buttress
the commonsense conclusion that 33 years in prison under
threat of execution is cruel. See In re Medley, 134 U. S.
160, 172 (1890) (describing as “horrible” the “feelings” that
accompany uncertainty about whether, or when, the exe-
cution will take place); Solesbee v. Balkcom, 339 U. S. 9,
14 (1950) (Frankfurter, J., dissenting) (“In the history of
murder, the onset of insanity while awaiting execution of a
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                    BREYER, J., dissenting

death sentence is not a rare phenomenon”); Strafer, Vol-
unteering for Execution, 74 J. Crim. L. & C. 860, 872,
n. 44 (1983) (a study of Florida inmates showed that 35%
of those confined on death row attempted suicide; 42%
seriously considered suicide); id., at 869–871, (“Recent
studies and law suits document both the barbaric condi-
tions pervading death rows and the debilitating and life-
negating effects of these conditions”).
   So long a confinement followed by execution would also
seem unusual. The average period of time that an indi-
vidual sentenced to death spends on death row is almost
15 years. Thirty three years is more than twice as long.
And, such delays are uncommon. See Dept. of Justice,
Bureau of Justice Statistics, T. Snell, Statiscal Tables,
Capital Punishment, 2009, p. 19 (Dec. 2010) (Table 18)
(approximately 113 prisoners have been under a sentence
of death for more than 29 years out of 3,173 death row
prisoners in total; 33 of those 113 are in Florida). Cf.
Knight, 528 U. S., at 993–994 (BREYER, J., dissenting from
denial of certiorari) (noting that 24 prisoners had been on
death row for more than 20 years). See also id., at 995 (“A
growing number of courts outside the United States—
courts that accept or assume the lawfulness of the death
penalty— have held that lengthy delay in administering a
lawful death penalty renders the ultimate execution in-
human, degrading, or unusually cruel”).
   The commonly accepted justifications for the death
penalty are close to nonexistent in a case such as this one.
It is difficult to imagine how an execution following so long
a period of incarceration could add significantly to that
punishment’s deterrent value. It seems yet more unlikely
that the execution, coming after what is close to a lifetime
of imprisonment, matters in respect to incapacitation.
Thus, I would focus upon the “moral sensibility” of a com-
munity that finds in the death sentence an appropriate
public reaction to a terrible crime. See Spaziano v. Flori-
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                    BREYER, J., dissenting

da, 468 U. S. 447, 481 (1984) (Stevens, J., concurring in
part and dissenting in part). And, I would ask how often
that community’s sense of retribution would forcefully
insist upon a death that comes only several decades after
the crime was committed.
   It might be argued that Valle, not the State, is responsi-
ble for the long delay. But Valle replies that more than
two decades of delay reflect the State’s failure to provide
the kind of trial and penalty procedures that the law
requires. Regardless, one cannot realistically expect a
defendant condemned to death to refrain from fighting for
his life by seeking to use whatever procedures the law
allows.
   It might also be argued that it is not so much the State
as it is the numerous procedures that the law demands
that produce decades of delay. But this kind of an argu-
ment does not automatically justify execution in this case.
Rather, the argument may point instead to a more basic
difficulty, namely the difficulty of reconciling the imposi-
tion of the death penalty as currently administered with
procedures necessary to assure that the wrong person is
not executed.
   Because this case may well raise these questions and
because I believe the Court should consider them, I vote to
grant the application for stay.
