ABSTRACT
To date, the American courts have still refused to adopt the theory of death row phenomenon. The closest that the courts have come was the abolition of the death penalty in California in 1972.34 in the case of People v. Anderson , the court held that “the cruelty of capital punishm ent lies not only in the execution itself and the pain incident thereto, but also in the dehumanizing effects of the lengthy imprisonment prior to execution during which the judicial and administrative procedures essential to due process of law are carried out.”35 Further, the court supported its argument by stating that “penologists and medical experts agree that the process of carrying out a verdict of death is often so degrading and brutalizing to the human spirit as to constitute psychological torture.”36 In recent years, Supreme Court Justices Breyer and Stevens have held fast to the possibility of the phenomenon in several opinions. In the dissenting opinion of Foster v. Florida, Justice Breyer stated, “the combination of uncertainty of execution and long delays is arguably cruel.”37 Further, Justice Breyer referenced the 1890 decision of In Re M edley, in which the court held that long delays “inflict horrible feelings” and “in immense mental anxiety amounting to a great increase of the offender’s punishm ent.”38 In effect, Breyer argued that the prisoner is facing two punishments: “punishment by death and also by more than a generation spent in death row’s twilight.”39 Justice Stevens pushed lower courts to inquire into the idea that there was a possibility that the growing delay between sentencing and execution of inmates is a violation of the cruel and unusual punishment clause of the Eighth Amendment^ 0 Dissenting in Knight v. Florida, Justice Breyer wrote about the “delays in administration of the death penalty in the United States,’^ 1 and how he believed it was “difficult to deny the suffering inherent in a prolonged wait for execution.”42 Even further, in their dissent, Justice Breyer and Justice Marshall stated, “the death penalty is in all circumstances cruel and unusual punishm ent prohibited by the Eighth and Fourteenth Amendments.”43
