Roper and Atkins tell capital defense litigators to delay their cases for as many years as possible. Drag out the appeals for a long, long time. During that period, have activists try to encourage legislators in a few select states to enact new legislative restrictions on the death penalty. It doesn't matter if those restrictions have any actual effect on how cases are charged; bans in states that do not actually bring any death penalty cases are fine, as the real audience is the Supreme Court. Years down the road, you can then use the new legislative restrictions in a few states as "objective indicia of consensus" that the practice of using the death penalty in such cases is impermissible. In effect, the changing practice in a handful of states can be bootstrapped by the courts into a constitutional ban that applies to all states.
Mr. Justice Breyer wrote [in 2002] that he would have granted review to a Florida petition arguing that keeping an inmate on death row for 27 years is cruel and unusual under the Eighth Amendment. “Courts of other nations have found that delays of 15 years or less can render capital punishment degrading, shocking, or cruel,” he said. “Consistent with these determinations, the Supreme Court of Canada recently held that the potential for lengthy incarceration before execution is ‘a relevant consideration’ when determining whether extradition to the United States violates principles of ‘fundamental justice.’”
In that the Court seems to be having trouble figuring out what the Supreme Court of the United States was getting at in decisions rendered 13 and 17 years previously, I am not very comfortable with a citation of Supreme Court of Canada precedent.
Kennedy is telling counsel to delay as long as possible, while Breyer is signaling that too long a delay might be cruel and unusual. Why don't they get it over with and declare the whole practice of capital punishment unconstitutional, unjust and icky?
: