Foster v. Florida
The Supreme Court declined to hear a death-row inmate's claim that executing him after more than 27 years under sentence of death would be unconstitutionally cruel, leaving the underlying constitutional question unresolved.
The denial produced a sharp exchange among the justices, with one dissenting justice arguing the extreme delay itself may be cruel, another rejecting that view, and a third reminding everyone that turning down a case says nothing about who is right.
How it got here: Florida courts repeatedly resentenced Foster to death after vacating earlier sentences; he asked the Supreme Court to review whether executing him now would be unconstitutional, and the Court denied review.
The Case in Depth
What happened
Charles Foster was sentenced to death in Florida in 1975 for killing Julian Lanier. Florida courts twice threw out his death sentence because trial courts failed to properly weigh factors that might argue against execution, leading to repeated resentencing proceedings, the latest in 1993. By the time he asked the Supreme Court to step in, Foster had spent more than 27 years under sentence of death.
The question before the Court
Could keeping a man on death row for 27 years before execution amount to cruel and unusual punishment?
The Court's answer
The Court did not answer this question — it denied certiorari, meaning it chose not to hear Foster's case at all. As Justice Stevens noted, a denial of certiorari is not a ruling on the merits, so no majority position on whether lengthy death-row delays are unconstitutional was established.
Instead, individual justices expressed conflicting views in separate writings. Justice Thomas argued the claim was meritless because the delay came from courts fixing errors in Foster's favor, while Justice Breyer dissented, arguing that 27 years of uncertainty and repeated death warrants could itself amount to cruel punishment and that the Court should have taken up the issue.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Death-row inmates who spend decades awaiting execution still have no Supreme Court ruling on whether such long delays make execution unconstitutional. Because the Court simply declined review, Foster's death sentence stands, and lower courts and future prisoners raising similar claims are left without clear guidance from the nation's highest court.
What changes now
Because the Court denied review, Foster's death sentence remains in place and the constitutional question about long delays before execution stays unresolved. His execution can proceed unless other litigation intervenes. The disagreement among the justices signals that similar delay-based claims from other death-row inmates could return to the Court in future cases.
What this does not decide
This is not a ruling on whether long delays before execution violate the Constitution. The Court simply declined to hear the case; the justices' separate statements reflect their individual views on the issue, not a decision resolving it.
Concurrences and dissents
How the Justices voted
Separate writings (1). Justice Thomas (author of a concurrence).
Dissent (1). Justice Breyer (author).
Concurrence — Justice Stevens
Justice Stevens wrote separately, responding directly to Justice Thomas, to reiterate that denying a certiorari petition is not a decision on the merits of the underlying claim. He cited his own prior statements in similar cases to make the same point, without taking a position on whether Foster's long delay was itself unconstitutional.
Concurrence — Justice Thomas
“This Court’s vacatur of a death sentence because of constitutional error does not bar new sentencing proceedings resulting in a reimposition of the death penalty.”Thomas explains why correcting a sentencing error does not later bar a renewed death sentence.
Justice Thomas argued that Foster's own claim was meritless because the delay resulted from courts fixing sentencing errors in his favor, not from any wrongdoing that should now bar execution. He rejected reliance on foreign courts' views about execution delays, saying American Eighth Amendment law should not follow foreign moods or fashions. Read the full concurrence →
Dissent — Justice Breyer
“the combination of uncertainty of execution and long delay is arguably “cruel.””Breyer's central claim that decades of uncertain waiting for execution may itself be unconstitutional.
Justice Breyer argued the Court should have granted review because Foster's 27 years on death row, combined with repeated death warrants and reprieves, created uncertainty and anxiety that past precedent recognized as a form of added punishment. He pointed to foreign and international rulings finding similar or shorter delays cruel, arguing they could help guide the Court's own Eighth Amendment analysis, and would have granted certiorari. Read the full dissent →
How the Court got there
The legal reasoning, step by step
- Justice Stevens, responding to Justice Thomas, emphasized that turning down a petition for review is a discretionary choice not to hear a case, and does not amount to a decision on whether the underlying constitutional claim has merit.
- Justice Thomas reasoned that the years Foster spent litigating stemmed from courts correcting sentencing errors in his favor, and that barring execution after such corrections would effectively reward defendants for the appellate process working as intended.
- Justice Thomas argued that the Eighth Amendment's ban on cruel and unusual punishment should be interpreted using American legal history and tradition, not the views of foreign or international courts on capital punishment delays.
- Justice Breyer, dissenting from the denial, argued that combining a long wait for execution with continued uncertainty about when it will happen can itself inflict a distinct, recognized form of mental suffering beyond the punishment of death itself.
- Justice Breyer pointed to rulings from foreign and international tribunals finding that delays shorter than Foster's made execution degrading or cruel, and argued such reasoning could inform how the Court reads the Eighth Amendment.
- Because a majority of the Court did not vote to hear the case, the constitutional question about lengthy pre-execution delays was left undecided rather than resolved one way or the other.