Shortly before Cecil Johnson was executed by Tennesee authorities yesterday, the Supreme Court voted seven to two not to hear a last minute request for a stay. Justices Stevens and Breyer dissented. Stevens writing for himself and Breyer continued a theme started in his 1995 dissent to Lackey v. Texas. In both dissents he argues that the extensive period between a defendant’s conviction and his execution violates the cruel and unusual punishment ban of the Eighth Amendment.

Cecil Johnson spent nearly 29 years on death row after being convicted for the murder of three people in a convenience store robbery.

Justice Clarence Thomas wrote an opinion concurring in the denial of certiorari in opposition to Stevens. He claims that defendants should not be allowed to make Lackey claims after taking advantage of the various time-consuming tools our system gives them to appeal a conviction. Furthermore, he argued that there is no precedent in this country for a Lackey claim and that foreign precedents should not be considered.

Justice Stevens argues that this is a particularly strong case for finding an Eighth Amendment violation since much of the delay can be attributed to the state. It was not until 1992 that the Tennessee legislature granted defendants the right to obtain significant evidence impeaching eyewitness testimony against them. The state caused delay and the extreme length of the delay gave Johnson a particularly strong to an Eighth Amendment Lackey claim. But an hour after the Supreme Court rendered its decision Johnson was put to death by lethal injection.