Page:Glossip v. Gross.pdf/79

 Cite as: 576 U. S. ____ (2015)

29

BREYER, J., dissenting

concerns about delays in capital cases, the Ad Hoc Com­ mittee on Federal Habeas Corpus in Capital Cases (Com­ mittee). The Committee presented a report to Congress, and Justice Powell testified that “[d]elay robs the penalty of much of its deterrent value.” Habeas Corpus Reform, Hearings before the Senate Committee on the Judiciary, 100th Cong., 1st and 2d Sess., 35 (1989 and 1990). Justice Powell, according to his official biographer, ultimately concluded that capital punishment: “ ‘serves no useful purpose.’ The United States was ‘unique among the industrialized nations of the West in maintaining the death penalty,’ and it was enforced so rarely that it could not deter. More important, the haggling and delay and seemingly endless litigation in every capital case brought the law itself into disre­ pute.” Jeffries, supra, at 452. In short, the problem of excessive delays led Justice Pow­ ell, at least in part, to conclude that the death penalty was unconstitutional. As I have said, today delays are much worse. When Chief Justice Rehnquist appointed Justice Powell to the Committee, the average delay between sentencing and execution was 7 years and 11 months, compared with 17 years and 7 months today. Compare BJS, L. Greenfeld, Capital Punishment, 1990, p. 11 (Table 12) (Sept. 1991) with supra, at 18–19. C One might ask, why can Congress or the States not deal directly with the delay problem? Why can they not take steps to shorten the time between sentence and execution, and thereby mitigate the problems just raised? The an­ swer is that shortening delay is much more difficult than one might think. And that is in part because efforts to do so risk causing procedural harms that also undermine the