Page:Russell Bucklew v. Anne L. Precythe, Director, Missouri Department of Corrections.pdf/54

16 that these were not cruel and unusual measures in 1791.” Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 861 (1989). The question is not, as maintains, whether a punishment is deliberately inflicted to cause unnecessary pain, but rather whether we would today consider the punishment to cause excessive suffering.

Implicitly at the beginning of its opinion and explicitly at the end, the majority invokes the long delays that now typically occur between the time an offender is sentenced to death and his execution. Bucklew was arrested for the crime that led to his death sentence more than 20 years ago. And Bucklew’s case is not an anomaly. The average time between sentencing and execution approaches 18 years and in some instances rises to more than 40 years. See Glossip, 576 U. S., at ___ (, dissenting) (slip op., at 18); Reynolds v. Florida, 586 U. S. ___, ___ (2018) (, statement respecting denial of certiorari) (slip op., at 2).

I agree with the majority that these delays are excessive. Undue delays in death penalty cases frustrate the interests of the State and of surviving victims, who have “an important interest” in seeing justice done quickly. Hill, 547 U. S., at 584. Delays also exacerbate the suffering that accompanies an execution itself. Glossip, 576 U. S., at ___–___ (, dissenting) (slip op., at 19–23). Delays can “aggravate the cruelty of capital punishment” by subjecting the offender to years in solitary confinement, and delays also “undermine [capital punishment’s] jurisprudential rationale” by reducing its deterrent effect and retributive value. Id., at ___, ___ (slip op., at 28, 32).

The majority responds to these delays by curtailing the constitutional guarantees afforded to prisoners like