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

                    THOMAS, J., concurring

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 THOMAS, concurring in denial of certiorari.
   I remain “unaware of any support in the American
constitutional tradition or in this Court’s precedent for the
proposition that a defendant can avail himself of the
panoply of appellate and collateral procedures and then
complain when his execution is delayed.” Knight v. Flor
ida, 528 U. S. 990 (1999) (THOMAS, J., concurring in denial
of certiorari). Petitioner William Lee Thompson has
pleaded guilty to this murder—twice. Thompson v. State,
759 So. 2d 650, 654 (Fla. 2000) (per curiam). Having
confessed, petitioner could have accepted “what the people
of Florida have deemed him to deserve: execution.” Foster
v. Florida, 537 U. S. 990, 991 (2002) (THOMAS, J., concur
ring in denial of certiorari). But because petitioner chose
to challenge his death sentence, JUSTICE STEVENS and
JUSTICE BREYER suggest that the subsequent delay
caused by petitioner’s 32 years of litigation creates an
Eighth Amendment problem. Ante, at 2–4 (STEVENS, J.,
statement respecting denial of certiorari); post, at 1–3
(BREYER, J., dissenting from denial of certiorari). I dis
agree. It makes “a mockery of our system of justice . . . for
a convicted murderer, who, through his own interminable
efforts of delay . . . has secured the almost-indefinite post
ponement of his sentence, to then claim that the almost
indefinite postponement renders his sentence unconstitu
tional.” Turner v. Jabe, 58 F. 3d 924, 933 (CA4 1995)
(Luttig, J., concurring in judgment).
2                  THOMPSON v. MCNEIL

                    THOMAS, J., concurring

   JUSTICE BREYER replies that a death-row inmate’s
Eighth Amendment challenge to “a delay of more than 30
years” between sentencing and execution should not be
“automatically waive[d]” because he chooses to exercise his
appellate rights. See post, at 1. But framing the issue in
this way obscures the central question. The issue is not
whether a death-row inmate’s appeals “waive” any Eighth
Amendment right; the issue instead is whether the death
row inmate’s litigation strategy, which delays his execu
tion, provides a justification for the Court to invent a new
Eighth Amendment right. It does not. See Knight, supra,
at 992 (opinion of THOMAS, J.) (“Consistency would seem
to demand that those who accept our death penalty juris
prudence as a given also accept the lengthy delay between
sentencing and execution as a necessary consequence. . . .
It is incongruous to arm capital defendants with an arse
nal of ‘constitutional’ claims with which they may delay
their executions, and simultaneously to complain when
executions are inevitably delayed”).
   I also disagree with JUSTICE STEVENS that other aspects
of the criminal justice system in this country require the
fresh examination of the costs and benefits of retaining
the death penalty that he seeks. Ante, at 2–3. For exam
ple, JUSTICE STEVENS criticizes the “dehumanizing effects”
of the manner in which petitioner has been confined, ante,
at 2, but he never pauses to consider whether there is a
legitimate penological reason for keeping certain inmates
in restrictive confinement. See, e.g., Kocieniewski, Death
Row Inmate Said to Beat and Kick Another to Death in
New Jersey Prison, New York Times, Sept. 8, 1999, p. B5.
Indeed, the disastrous consequences of this Court’s recent
foray into prison management, Johnson v. California, 543
U. S. 499 (2005), should have suppressed any urge to
second-guess these difficult institutional decisions, Beard
v. Banks, 548 U. S. 521, 536–537 (2006) (THOMAS, J.,
concurring in judgment) (noting that after the Court in
                  Cite as: 556 U. S. ____ (2009)            3

                     THOMAS, J., concurring

validated California’s policy of racially segregating prison
ers in its reception centers, the State “subsequently ex
perienced several instances of severe race-based prison
violence, including a riot that resulted in 2 fatalities and
more than 100 injuries, and significant fighting along
racial lines between newly arrived inmates, the very
inmates that were subject to the policy invalidated by the
Court in Johnson”).
  JUSTICE STEVENS also points to the 129 death row in
mates that have been “exonerated” since 1973. Ante, at 3.
These inmates may have been freed from prison, but that
does not necessarily mean that they were declared inno
cent of the crime for which they were convicted. Kansas v.
Marsh, 548 U. S. 163, 180, and n. 7 (2006). Many were
merely the beneficiaries of “this Court’s Byzantine death
penalty jurisprudence.” Knight, supra, at 991 (opinion of
THOMAS, J.). Moreover, by citing these statistics, JUSTICE
STEVENS implies “that the death penalty can only be just
in a system that does not permit error.” Marsh, 548 U. S.,
at 181. But no criminal justice system operates without
error. There is no constitutional basis for prohibiting
Florida “from authorizing the death penalty, even in our
imperfect system.” Ibid.
  Finally, JUSTICE STEVENS altogether refuses to take into
consideration the gruesome nature of the crimes that
legitimately lead States to authorize the death penalty
and juries to impose it. The facts of this case illustrate the
point. On March 30, 1976, petitioner and his codefendant
were in a motel room with the victim and another woman.
They instructed the women to contact their families to
obtain money. The victim made the mistake of promising
that she could obtain $200 to $300; she was able to secure
only $25. Enraged, petitioner’s codefendant ordered her
into the bedroom, removed his chain belt, forced her to
undress, and began hitting her in the face while petitioner
beat her with the belt. They then rammed a chair leg into
4                       THOMPSON v. MCNEIL

                         THOMAS, J., concurring

her vagina, tearing its inner wall and causing internal
bleeding; they repeated the process with a nightstick.
Petitioner and his codefendant then tortured her with lit
cigarettes and lighters and forced her to eat her sanitary
napkin and to lick spilt beer off the floor. All the while,
they continued to beat her with the chain belt, the club,
and the chair leg. They stopped the attack once to force
the victim to again call her mother to ask for money. After
the call, petitioner and his codefendant resumed the tor
ture until the victim died. Thompson, 759 So. 2d, at 653–
654.*
   Three juries recommended that petitioner receive the
death penalty for this heinous murder, and petitioner has
received judicial review of his sentence on at least 17
occasions. The decision to sentence petitioner to death is
not “ ‘the product of habit and inattention rather than an
acceptable deliberative process.’ ” Ante, at 4 (quoting and
citing Baze v. Rees, 553 U. S. ___, ___ (2008) (slip op., at 8,
17) (STEVENS, J., concurring in judgment)). It represents
the considered judgment of the people of Florida that a
death sentence, which is expressly contemplated by the
Constitution, see Amdts. 5, 14, is warranted in this case.
It is the crime—and not the punishment imposed by the
jury or the delay in petitioner’s execution—that was “un
acceptably cruel.” Ante, at 4.
——————
   * JUSTICE BREYER suggests that petitioner “may be significantly less
culpable than his codefendant, who did not receive the death penalty”
principally because Barbara Garritz, the woman who witnessed the
murder, averred at petitioner’s third sentencing that he was dominated
by his codefendant. Post, at 2. JUSTICE BREYER ignores, however, that
petitioner “testified [at his codefendant’s retrial] and took credit for the
entire incident” and that Ms. Garritz had previously testified that
petitioner “left the bedroom and told” her that he “was so angry he ‘felt
like killing Sally [the victim].’ ” Thompson v. State, 389 So. 2d 197,
199–200 (Fla. 1980) (per curiam). In any event, JUSTICE BREYER’s
factual recitation is entirely beside the point: He concedes that the
jury’s decision to sentence petitioner to death was “[r]easonable.” Post,
at 3.
