                 Cite as: 581 U. S. ____ (2017)            1

                     BREYER, J.,ofconcurring
                    Statement      BREYER, J.

SUPREME COURT OF THE UNITED STATES
    JOE CLARENCE SMITH v. CHARLES L. RYAN, 

          DIRECTOR, DEPARTMENT OF 

             CORRECTIONS, ET AL. 

   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

              No. 16–8071. Decided April 24, 2017


   The petition for a writ of certiorari is denied.
   Statement of JUSTICE BREYER respecting the denial of
certiorari.
   The petitioner, Joe Clarence Smith, was sentenced to
death nearly 40 years ago. Primarily because of constitu-
tional defects in his sentencing, his execution has been
long delayed. He has spent the last 40 years in prison
under threat of execution. And for most of that time
Smith has been held in solitary confinement. Pet. for
Cert. 9.
   Members of this Court have recognized that “[y]ears on
end of near-total isolation exact a terrible price.” Davis v.
Ayala, 576 U. S. ___, ___ (2015) (KENNEDY, J., concurring)
(slip op., at 4). Long ago we observed that solitary con-
finement was “considered as an additional punishment of
such a severe kind that it is spoken of . . . as ‘a further
terror and peculiar mark of infamy.’ ” In re Medley, 134
U. S. 160, 170 (1890). And, as I have previously pointed
out, we have written that the uncertainty a person experi-
ences during just four weeks of confinement under threat
of execution is “one of the most horrible feelings to which
[a person] can be subjected.” Id., at 172.
   What legitimate purpose does it serve to hold any hu-
man being in solitary confinement for 40 years awaiting
execution? What does this case tell us about a capital
punishment system that, in my view, works in random,
2                      SMITH v. RYAN

                    Statement of BREYER, J.

virtually arbitrary ways? I have previously explored these
matters more systematically, coming to the conclusion
that this Court should hear argument as to whether capi-
tal punishment as currently practiced is consistent with
the Constitution’s prohibition of “cruel and unusual pun-
ishment.” Amdt. 8. See Glossip v. Gross, 576 U. S. ___,
___ (2015) (BREYER, J., dissenting). The facts and circum-
stances of Smith’s case reinforce that conclusion.
  I recognize the procedural obstacles that make it diffi-
cult for this Court now to grant certiorari in this particu-
lar case. See 28 U. S. C. §2254. Those problems would not
have prevented the Court from granting certiorari 10
years ago when Smith asked us to do so (after spending 30
years on death row). See Smith v. Arizona, 552 U. S. 985
(2007) (BREYER, J., dissenting from denial of certiorari).
Regardless, Smith’s confinement reinforces the need for
this Court, or other courts, to consider in an appropriate
case the underlying constitutional question.
