Petition for Writ of Certiorari — Richard Gerald Jordan, Petitioner v. Mississippi

No. ________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________________________

RICHARD GERALD JORDAN, Petitioner,

v.

STATE OF MISSISSIPPI, Respondent.

__________________________________________________

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF MISSISSIPPI

__________________________________________________

PETITION FOR A WRIT OF CERTIORARI

CAPITAL CASE

*+JAMES W. CRAIG, MSB #7798

EMILY M. WASHINGTON

The Roderick & Solange MacArthur Justice

Center

4400 South Carrollton Ave.

New Orleans, LA 70119

(504) 620-2259 (p)

(504) 208-3133 (f)

jim.craig@macarthurjustice.org

DAVID P. VOISIN, MSB #100210

P.O. Box 13984

Jackson, MS 39236-3984

(601) 949-9486

david@dvoisinlaw.com

*Counsel of Record

+Member of Supreme Court Bar

1

THIS IS A CAPITAL CASE

QUESTIONS PRESENTED

Richard Jordan was first convicted and sentenced to death for capital murder

in 1976. He has thus spent over 41 years incarcerated for the same crime. The

initial judgment against him was vacated because Mississippi followed the type of

unitary proceeding held invalid in Woodson v. North Carolina. He was convicted

and sentenced to death again in 1977. The Fifth Circuit vacated his sentence due to

improper instructions on aggravating circumstances. He was sentenced to death

again in 1983, but once again the State prevented him from having a constitutional

proceeding because it refused to permit him to present evidence of his adaptability

to prison. In 1991, a Special Prosecutor agreed that Richard Jordan should receive

a sentence of life without possibility of parole, citing Jordan’s exemplary prison

behavior, military service, expressions of remorse, and efforts to contribute to

society despite his incarceration. The Mississippi Supreme Court subsequently

determined that such sentence agreements were void ab initio because life without

parole was not an available sentencing option under then-existing law. Jordan

sought to modify his sentence to one with parole, but the Mississippi Supreme Court

simply vacated the sentence and returned Jordan to his pre-agreement status, thus

freeing the State to seek the death penalty again. Jordan was again sentenced to

death in 1998.

These circumstances raise the following questions:

1. Whether incarcerating a prisoner over four decades awaiting

execution, even after the State found at one point that a life without

parole sentence was appropriate, violates the Eighth Amendment

because it fails to serve any legitimate penological purpose?

2. Whether incarcerating a prisoner over four decades awaiting

execution, with over half that time attributable to repeated

constitutional violations in a succession of sentencing hearings,

violates the Eighth Amendment because it fails to serve any legitimate

penological purpose?

i

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Table of Contents ........................................................................................................... ii

Table of Authorities ...................................................................................................... iii

Petition For Writ Of Certiorari ..................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Relevant Constitutional and Statutory Provisions ...................................................... 1

Statement of the Case ................................................................................................... 2

A.

Three Unconstitutional Death Sentences (1976, 1977, 1983) ........................ 2

B.

Fourth Sentencing: the Attempted LWOP Agreement ................................... 4

C.

Fifth Sentencing Proceeding ............................................................................ 6

D.

Successive State Court Petition ....................................................................... 9

Reasons For Granting The Writ .................................................................................. 10

A.

Despite having to endure miserable conditions for over forty years, Jordan

has remained an exemplary prisoner. ..................................................................... 11

B.

The Federal Constitution prohibits excessive punishment. ......................... 11

C.

This Court should grant certiorari to consider whether the exceptional

length of time since Jordan’s initial death sentence and other extraordinary

circumstances violate the Eighth Amendment. ...................................................... 13

D.

International standards support a finding that the unprecedented delay in

Jordan’s case renders his death sentence invalid. .................................................. 18

E. Conclusion. ........................................................................................................... 21

Prayer for Relief ........................................................................................................... 23

ii

TABLE OF AUTHORITIES

Cases

Accord De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385 (5th Cir. 1985). 26

Atkins v. Virginia, 536 U.S. 304 (2002) ...................................................................... 12

Babar Ahmad and Others v. United Kingdom, Eur. Ct. H.R. App. Nos. 24027/07 et

al., ¶ 210, 52 I.L.M. 443, 2013 WL 5785362 (Apr. 10, 2012) .................................. 26

Caldwell v. Mississippi, 472 U.S. 320 (1985) .............................................................. 14

California v. Ramos, 463 U.S. 992 (1983) ................................................................... 14

Catholic Comm’n for Justice & Peace in Zimbabwe v. Attorney General, 14 Hum.

Rts. L. J. 323 (Zimb. June 24, 1993) ........................................................................ 22

Davis v. Ayala, 135 S. Ct. 2187 (2015) ........................................................................ 19

Elledge v. Florida, 525 U.S. 944 (1998) ...................................................................... 17

Ford v. Wainwright, 477 U.S. 399 (1986) ............................................................. 13, 14

Foster v. Florida, 537 U.S. 990 (2002) .................................................................. 17, 19

Furman v. Georgia, 408 U.S. 238 (1972) .................................................................... 14

Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) ............................................................... 12

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................ 13

Hood ex rel State Tobacco Litigation, 958 So. 2d 790 (Miss. 2007) ............................. 6

In re Jordan, 390 So. 2d 584 (Miss. 1980) .................................................................... 3

In re Medley, 134 U.S. 160 (1890) ............................................................................... 20

Jackson v. State, 337 So. 2d 1242 (Miss. 1976) ............................................................ 3

Jordan v. Epps, 756 F.3d 395 (5th Cir. 2014) ............................................................. 10

Jordan v. Fisher, 135 S. Ct. 2727 (2015)..................................................................... 10

Jordan v. State, 224 So. 3d 1252 (Miss. 2017) ........................................................ 1, 10

Jordan v. State, 365 So. 2d 1198 (Miss. 1978) ............................................................ 11

Jordan v. State, 518 So. 2d 1186 (Miss. 1987) .............................................................. 4

Jordan v. State, 786 So. 2d 987 (Miss. 2001) ................................................................ 9

Jordan v. State, 912 So. 2d 800 (Miss. 2005) .......................................................... 9, 17

Jordan v. State, No. 95-KP-00113-SCT (July 17, 1997). .............................................. 6

Jordan v. Watkins, 681 F.2d 1067, 1082 (5th Cir. 1982), rehearing denied sub. nom.

Jordan v. Thigpen, 688 F.2d 395 (5th Cir. 1982) (internal quotes omitted). ........... 3

Kennedy v. Louisiana, 554 U.S. 407 (2008) .......................................................... 12, 13

Knight v. Florida, 528 U.S. 990 (1999) ................................................................. 17, 20

Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., dissenting from denial of

certiorari) ............................................................................................................ 13, 15

Lanier v. State, 635 So. 2d 813 (Miss. 1994) ........................................................ 5, 6, 8

Maritza Urrutia v. Guatemala, Merits, Reparations, and Costs, Judgment, InterAm. Ct. H.R. (ser. C) No. 103, ¶ 87 (Nov. 27, 2003) ................................................ 26

Miller v. Alabama, 132 S. Ct. 2455 (2012) .................................................................. 19

Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001)

................................................................................................................................... 23

Patterson v. State, 660 So. 2d 966 (Miss. 1995) ................................................... 4, 5, 8

iii

Pratt and Morgan v. The Attorney General of Jamaica, 3 SLR 995, 2 A.C. 1, 4 All

E.R. 769 (Privy Council 1993).................................................................................. 21

Richardson v. Canton Farm Equip., Inc., 608 So. 2d 1240 (Miss. 1992) ..................... 6

Roper v. Simmons, 543 U.S. 551 (2005) ...................................................................... 21

Skipper v. South Carolina, 476 U.S. 1101 (1986) ......................................................... 3

Smith v. Arizona, 552 U.S. 985 (2007) ........................................................................ 17

Soering v. United Kingdom, 11 Eur. H. R. Rep. 439 (1989)....................................... 21

Stevenson v. State, 674 So. 2d 501 (Miss. 1996) ...................................................... 4, 8

Trop v. Dulles, 356 U.S. 86 (1958) .............................................................................. 13

Valle v. Florida, 132 S. Ct. 1 (2011) ............................................................................ 16

Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348 (India 1983) ............................ 22

West v. State, 725 So. 2d 872 (Miss. 1998) ................................................................... 7

Woodson v. North Carolina, 428 U.S. 280 (1976) ....................................................... 14

Other Authorities

African Charter on Human and People’s Rights, Art. 5, adopted June 27, 1981,

O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct.21,

1986) ......................................................................................................................... 25

Article VII of the International Covenant on Civil and Political Rights................... 21

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment, Art. 16, adopted Dec.10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.

(No. 51) at 197, U.N. Doe. A/39/51 (1984) (entered into force June 26, 1987) ....... 23

Declaration of Tehran, Final Act of the International Conference on Human Rights

3, at 4, para. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968).................................. 25

European Convention for the Protection of Human Rights and Fundamental

Freedoms, Art. 3, opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered

into force Sept. 3, 1953)............................................................................................ 24

International Covenant on Civil and Political Rights, Art. 7, adopted Dec.16, 1966,

G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999

U.N.T.S. 717 (entered into force Mar. 23, 1976) ..................................................... 24

the American Convention on Human Rights, Art. 5, opened for signature Nov.22,

1969, O.A.S. T.S. No.36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50, doc. 6 at 27 (1980)

................................................................................................................................... 24

U.N. Special Rapporteur of the Human Rights Council, Interim Rep. on torture and

other cruel, inhuman or degrading treatment of punishment, ¶ 70, U.N. Doc.

A/66/268 (Aug. 5, 2011) ............................................................................................ 26

Universal Declaration of Human Rights, adopted Dec.10, 1948, G.A. Res. 217A (III),

U.N. Doc. A/810, at 71 (1948) .................................................................................. 23

Treatises

Lewis Powell, Capital Punishment, Commentary, 102 Harv. L. Rev. 1035 (1989) .. 12

Stuart Grassian, Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. &

Pol’y 325 (2006) ........................................................................................................ 17

Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 Am J.

Psychiatry 1450 (1983)............................................................................................. 17

iv

PETITION FOR WRIT OF CERTIORARI

Petitioner, Richard Gerald Jordan, a state capital inmate, respectfully

requests that the Court grant a writ of certiorari to review the decision of the

Mississippi Supreme Court.

OPINIONS BELOW

The opinion of the Mississippi Supreme Court denying a successive petition for

post-conviction relief, Jordan v. State, 224 So. 3d 1252 (Miss. 2017), is attached as

Appendix A. The order denying a motion for rehearing is unpublished and is attached

as Appendix B.

JURISDICTION

Petitioner invokes this Court’s jurisdiction to grant the Petition for a Writ of

Certiorari to the Mississippi Supreme Court on the basis of 28 U.S.C. Section 1257.

The decision of the Mississippi Supreme Court denying relief was entered June 13,

2017, and Petitioner’s motion for rehearing was denied on September 14, 2017.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the following constitutional provisions:

The Eighth Amendment: Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment (relevant part): No State shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

1

STATEMENT OF THE CASE

Richard Jordan has been incarcerated for a crime that occurred in January

1976. For most of that time, he has been on death row. He was sentenced to death

three times, and each time, his sentence was reversed because the State violated his

constitutional rights.

After the third time his sentence was vacated, a Special

Prosecutor representing the State agreed to a sentence of life without possibility of

parole. Finding such plea bargains to a life without parole void ab initio under thenexisting state law, the Mississippi Supreme Court vacated Jordan’s life sentence,

thereby making him eligible for the death penalty. At a fifth sentencing, when trial

counsel were disadvantaged due to the passage of time since the crime, Jordan was

again sentenced to death. During the entire course of his incarceration, Jordan has

been an exemplary prisoner.

Executing Jordan after requiring him to spend an extraordinary length of time

under harsh conditions of death row restrictive confinement due to the State’s

persistent inability to provide him a constitutionally adequate sentencing, and after

the Special Prosecutor had previously agreed that a sentence of life imprisonment

without possibility of parole protected the public’s interest, will serve no legitimate

penological purpose and will thus violate the Eighth Amendment.

A.

Three Unconstitutional Death Sentences (1976, 1977, 1983)

Richard Jordan was first tried and convicted on July 21, 1976, for the murder

of Edwina Marter. He was sentenced to death. The trial court, however, granted a

motion for a new trial based on the Mississippi Supreme Court’s decision in Jackson

2

v. State, 337 So. 2d 1242 (Miss. 1976), which was decided just after Jordan was

convicted, and which declared Mississippi’s mandatory death sentencing scheme to

be unconstitutional.

Jordan was again convicted and sentenced to death the next year. Jordan v.

State, 365 So. 2d 1198 (Miss. 1978); see also In re Jordan, 390 So. 2d 584 (Miss. 1980).

Jordan subsequently obtained federal habeas corpus relief because the sentencing

instructions in his second trial failed to “channel the sentencer’s discretion by clear

and objective standards and did not provide specific and detailed guidance.” Jordan

v. Watkins, 681 F.2d 1067, 1082 (5th Cir. 1982), rehearing denied sub. nom. Jordan

v. Thigpen, 688 F.2d 395 (5th Cir. 1982) (internal quotes omitted).

The State obtained a third unconstitutional death sentence in 1983 by

improperly limiting Jordan’s right to present mitigating evidence. Although the state

supreme court initially affirmed the sentence, this Court granted certiorari and

vacated his death sentence in light of its decision in Skipper v. South Carolina, 476

U.S. 1101 (1986), which held that the Eighth Amendment required a defendant facing

a death sentence to be allowed to present evidence of his adaptability to prison. On

remand, the Mississippi Supreme Court applied Skipper and found the third death

sentence to be unconstitutional. Jordan v. State, 518 So. 2d 1186 (Miss. 1987).

3

B.

Fourth Sentencing: the Attempted LWOP Agreement

In 1991, Jordan and the State of Mississippi 1 agreed to resolve the case with

the imposition of a sentence of life imprisonment without the possibility of parole,

even though no such sentence was authorized at that time under Mississippi law.

Prosecutors in Mississippi entered similar agreements with at least three other

capital defendants. See Lanier v. State, 635 So. 2d 813 (Miss. 1994); Stevenson v.

State, 674 So. 2d 501 (Miss. 1996); Patterson v. State, 660 So. 2d 966 (Miss. 1995).

In agreeing to the life without parole sentence, the Special Prosecutor stipulated to a

number of powerful mitigating circumstances:

1.

That Richard Gerald Jordan has expressed sorrow for this crime

in previous court testimony.

* * *

5.

That Richard Gerald Jordan has not had a discipline record

problem in the jail/prison system for the past 15 years, 11 months.

6.

That while in prison Richard Gerald Jordan has been creative and

attempted to make significant contributions to society through his ideas

for inventions to benefit businesses and society.

7.

That while in prison Richard Gerald Jordan has assisted bank

and bank security personnel in devising methods and approaches to

prevent crimes against banking personnel and their families.

8.

That members of the religious community have previously

testified and are prepared to again testify to the remorse of Richard

Gerald Jordan for his crime and to his commitment to personal

improvement.

9.

That while in prison Richard Gerald Jordan has been a positive

force and assisted other prisoners.

1 The State was represented in 1991 by Special Prosecutor Joe Sam Owen. Owen served as an Assistant

District Attorney for the 1976 and 1977 trials. By 1983, he entered private practice but was appointed

as a Special Prosecutor at the request of the victim’s family. T. 26; State Trial Exhibit 1.

4

PCR Ex. 34; R. 1094-95.

The Special Prosecutor also recognized Jordan’s record of “eight (8) years of

honorable service in the United States Army, from which he was honorably

discharged and discharged partially disabled from injuries received in combat in

Vietnam.” Id. ¶ 2.

Not long after Jordan was sentenced to life without parole, the Mississippi

Supreme Court held that LWOP plea agreements in capital cases were “void and

unenforceable on public policy grounds.” Lanier v. State, 635 So. 2d 813, 815 (Miss.

1994); see also Patterson v. State, 660 So. 2d 966 (Miss. 1995).

As a result, Jordan asked the Harrison County Circuit Court to strike the

prohibition against seeking parole. The Circuit Court denied relief. On appeal, the

state supreme court applied Lanier and found the 1991 agreement “void as against

public policy” and restored the parties to their “pre-bargain positions” in which

Jordan had the right to a jury sentencing and the State had the right to seek the

death penalty. Jordan v. State, No. 95-KP-00113-SCT at 4 (Miss. July 17, 1997). 2

The Mississippi Supreme Court explained:

an agreement between a defendant who knowingly and voluntarily

enters into a plea agreement to life imprisonment without the possibility

of parole, during a time when the sentencing statute did not offer such

option, to avoid a possible death sentence is void ab initio on the ground

that it violates public policy.

2 This opinion was not reported.

5

The Mississippi Supreme Court added: “the circuit court had no authority to

issue such a sentence.” Id. at 4. 3 As explained in Lanier, “both parties are placed

back in the positions which they occupied prior to entering into the agreement.”

Lanier, 635 So. 2d at 817. The State once again had provided Jordan with a defective

sentencing proceeding.

C.

Fifth Sentencing Proceeding

In 1994, before Jordan’s fifth sentencing proceeding, the Mississippi

legislature amended the capital murder sentencing statute to allow for a punishment

of life without possibility of parole. Miss. Code Ann. § 97-3-21. The Mississippi

Supreme Court then held that a defendant whose crime occurred prior to the effective

date of the amendment to the statute could validly waive his ex post facto rights and

receive a life without parole sentence. See, e.g., West v. State, 725 So. 2d 872 (Miss.

1998). Thus, the exact type of agreement resulting in Jordan’s 1991 life-withoutparole sentence had become legal. Indeed, if these statutory and case-law

developments had occurred just three years earlier (that is, prior to Jordan’s 1991

plea agreement), the state courts would have enforced the agreement as originally

written.

In light of these changes in the law, Jordan informed the State that he was

willing to waive his ex post facto rights concerning the application of the recent

amendments to Miss. Code Ann. §§ 97-3-21 and 99-19-101 and again be sentenced to

ab initio “is null from the beginning if it seriously

offends law or public policy.” Hood ex rel State Tobacco Litigation, 958 So. 2d 790, 815 (Miss. 2007).

Such a contract has “no force or effect.” Richardson v. Canton Farm Equip., Inc., 608 So. 2d 1240, 1254

(Miss. 1992).

3 Under Mississippi law, an agreement that is void

6

life imprisonment without the possibility of parole. Despite finding a life without

parole sentence acceptable given Jordan’s mitigating evidence, the Special Prosecutor

refused this offer only because Jordan challenged the ultra vires agreement. As the

Mississippi Supreme Court found:

Owen declined Jordan’s offer and indicated that he would not make a

plea agreement with Jordan since Jordan had previously violated his

agreement with the State that he would not appeal his plea and sentence

of life imprisonment without the possibility of parole.

Jordan v. State, 786 So. 2d 987, 1000 (¶ 19) (Miss. 2001).

Although the State refused to agree to accept a life without parole sentence in

Jordan’s case, prosecutors in similarly situated cases agreed to the terms of the nowlegal agreement. These other inmates committed crimes at least as serious as the

crime for which Jordan was convicted. For example, Lanier assaulted, kidnapped,

and murdered a Meridian police officer. Lanier v. State, 635 So. 2d 813, 815 (Miss.

1994). Stevenson attacked and stabbed to death a deputy at a jail and escaped.

Stevenson, 674 So. 2d 501, 502 (Miss. 1996). And Patterson was convicted of

kidnapping and capital murder. Patterson v. State, 660 So. 2d 966, 967 (Miss. 1995).

In 1998, well over twenty years after the crime, and after the State failed on

four occasions either to provide a lawful sentencing proceeding or offer him a lawful

plea bargain, Jordan had to confront a jury that would, because of the deaths of family

members in the intervening years, never hear his full mitigation testimony and would

never experience the emotional force of testimony of those who loved him dearly. As

trial counsel explained, the emotional impact of the testimony of a penalty phase

witness is often as important if not more so than the substance of the testimony itself.

7

PCR Exhibit 25 (affidavit of Tom Sumrall). Here, because so many of Jordan’s

strongest witnesses were deceased, trial counsel could do little but read the prior

testimony into the record. Nothing the trial attorneys did could possibly convey the

emotion or evoke the jury’s sympathy in a way that a parent could.

Even the prosecutors recognized the emotional force of the testimony of

Jordan’s parents when they were able to testify in person at an earlier trial. As the

District Attorneys stated to the jury at the 1983 trial: “I don’t criticize those two lovely

old people [Jordan’s parents] because their son has committed a very heinous crime,

and I knew that they were going to come down and pour their hearts out to you in

behalf of their son . . . .” PCR Exhibit 45, p. 2818 (emphasis added).

In short, Jordan was denied the very type of evidence that routinely spells the

difference between life and death in capital trials in Mississippi, and the State of

Mississippi managed to reap the benefit of its prior inability to provide Jordan with

a constitutionally-sound sentencing proceeding.

The Mississippi Supreme Court affirmed Jordan’s fourth death sentence.

Jordan v. State, 786 So. 2d 987 (Miss. 2001). It later denied a petition for postconviction relief, even though it found that trial counsel had been deficient in

preparing for aspects of the resentencing. Jordan v. State, 912 So. 2d 800, 812 (¶ 27)

(Miss. 2005). In federal habeas proceedings, a divided panel of the Fifth Circuit

denied a certificate of appealability. Jordan v. Epps, 756 F.3d 395 (5th Cir. 2014).

Over the strenuous dissent of three justices, this Court denied a petition for a writ of

certiorari. Jordan v. Fisher, 135 S. Ct. 2727 (2015).

8

D.

Successive State Court Petition

Jordan filed a successive petition for post-conviction relief arguing that his

prolonged incarceration, mostly under horrific conditions on death row, denied him

his rights guaranteed by the Eighth Amendment. The Mississippi Supreme Court

denied relief on the merits. Jordan v. State, 224 So. 3d 1252, 1253 (Miss. 2017).

9

REASONS FOR GRANTING THE WRIT

Richard Jordan has perhaps spent more time in prison prior to being executed

than anyone in the United States. He was first convicted and sentenced to death for

capital murder in July 1976. Jordan v. State, 365 So. 2d 1198 (Miss. 1978). He has

spent approximately 34 years of this time on death row and was also in general

population serving a life sentence for approximately seven years. Altogether, about

497 months have elapsed since he was first convicted and sentence for this offense. 4

At all times, he has been an exemplary inmate. During his time in general population,

he was made a trustee and received excellent evaluations. He has not been charged

with a violation of any prison rule or regulation in over thirty (30) years.

The course of Richard Jordan’s legal challenges has also been extraordinary.

On three occasions, the State of Mississippi denied Jordan a fair and constitutionallysound trial. After the third reversal of his death sentence, even the Special Prosecutor

agreed that a sentence of life without possibility of parole was the appropriate

sentence. However, the Mississippi Supreme Court once again set aside his sentence,

this time finding that the agreement that the State had entered into was deficient.

Only after litigation involving the legality of the non-statutory life without parole

bargain did Jordan face a death sentence for the fourth time. The fourth re-sentencing

came more than twenty years after his first trial. By this time, he was prejudiced in

his ability to present a compelling case in mitigation.

4 Based on data compiled from websites maintained by the Mississippi Department of Corrections and

the Office of the State Public Defender, Jordan calculates that the average length of time between

capital sentencing and execution in Mississippi is approximately 14 years and 9 months (or 177

months). A chart detailing this data appears below in subsection D.

10

A.

Despite having to endure miserable conditions for over forty years,

Jordan has remained an exemplary prisoner.

Jordan has been incarcerated for over forty years, most of that time on death

row living in isolated, squalid conditions. Those living conditions were so horrific

that the Fifth Circuit found that they amounted to cruel and unusual punishment.

Gates v. Cook, 376 F.3d 323 (5th Cir. 2004). Despite having to endure the extremely

miserable conditions, Jordan strived to be an excellent prisoner. He has scrupulously

obeyed all rules, and when he was not on death row, worked to achieve trusty status.

At his 1998 retrial, numerous employees of the Department of Corrections attested

to his good conduct in prison, and since that time, he has not committed any rules

infractions.

B.

The Federal Constitution prohibits excessive punishment.

The Eighth Amendment prohibits the imposition of cruel and unusual

punishments. U.S. Const., amend. VIII. See also Atkins v. Virginia, 536 U.S. 304, 311

(2002) (“The Eighth Amendment succinctly prohibits ‘excessive’ sanctions.”). The

Eighth Amendment “draw[s] its meaning from the evolving standards of decency that

mark the progress of a maturing society.” Kennedy v. Louisiana, 554 U.S. 407, 419

(2008) (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality)). As this Court

explained, because the Eighth Amendment “necessarily embodies a moral judgment,”

“its applicability must change as the basic mores of society change.” Id. See also Ford

v. Wainwright, 477 U.S. 399, 406 (1986) (plurality) (“this Court takes into account

objective evidence of contemporary values before determining whether a particular

11

punishment comports with the fundamental human dignity that the Amendment

protects.”).

Capital punishment becomes “excessive” if it is either “grossly out of proportion

to the crime or it does not fulfill the two distinct social purposes served by the death

penalty: retribution and deterrence of capital crimes.” Kennedy, 554 U.S. at 441

(citing Gregg v. Georgia, 428 U.S. 153, 173, 183, 187 (1976) (plurality). “[W]hen the

death penalty ‘ceases realistically to further these purposes, . . . its imposition would

then be the pointless and needless extinction of life with only marginal contributions

to any discernible social or public purposes. A penalty with such negligible returns to

the State would be patently excessive and cruel and unusual punishment violative of

the Eighth Amendment.’” Lackey v. Texas, 514 U.S. 1045, 1046 (1995) (Stevens, J.,

dissenting from denial of certiorari) (quoting Furman v. Georgia, 408 U.S. 238, 312

(1972) (White, J., opinion concurring in judgment).

This Court has also consistently emphasized the demand for a heightened

standard of reliability in determining whether capital punishment is appropriate in

a particular case. Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality);

see also Caldwell v. Mississippi, 472 U.S. 320, 329 (1985) (“This Court has repeatedly

said that under the Eighth Amendment ‘the qualitative difference of death from all

other punishments requires a correspondingly greater degree of scrutiny of the

capital sentencing determination”) (quoting California v. Ramos, 463 U.S. 992, 99899 (1983)); Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality) (“In capital

12

proceedings generally, this Court has demanded that factfinding procedures aspire

to a heightened standard of reliability.”).

C.

This Court should grant certiorari to consider whether the

exceptional length of time since Jordan’s initial death sentence and other

extraordinary circumstances violate the Eighth Amendment.

In light of the principles and facts reviewed above, Jordan’s death sentence

should not stand. He has endured forty years of brutal punishment while the State

repeatedly failed to provide a constitutionally-sound sentencing proceeding until the

passage of time made it impossible for Jordan to prepare an adequate defense.

Although he was sentenced to death, he has also had to endure what amounts to a

life sentence while awaiting the executioner.

After more than 40 years of incarceration, there is little reason to believe that

either of the constitutionally acceptable goals of capital punishment will be fulfilled

by Jordan’s execution. Such an unprecedented delay between incarceration and

execution will have no deterrent value.

As former Justice Powell noted, “[t]he

retributive value of the death penalty is diminished as imposition of sentence

becomes ever farther removed from the time of the offense,” Lewis Powell, Capital

Punishment, Commentary, 102 Harv. L. Rev. 1035, 1041 (1989) (“.

Members of the Court have questioned whether either deterrence or

retribution retains any force after the passage of time. In Lackey, supra, Justice

Stevens questioned whether the passage of seventeen years reduced the justification

for a death sentence. As Justice Stevens observed, “the additional deterrent effect

from an actual execution now, on the one hand, as compared to 17 years on death row

13

followed by the prisoner’s continued incarceration for life, on the other, seems

minimal.” Lackey, 514 U.S. at 1046. Likewise, he pointed out that “after such an

extended time, the acceptable state interest in retribution has arguably been satisfied

by the severe punishment already inflicted.” Id. at 1045. Of course, Jordan has spent

far more than twice as long in prison as Lackey did.

Since Lackey, Justice Breyer has questioned the constitutionality of lengthy

pre-execution incarceration, and has encouraged judicial examination of sentences in

light of this aspect of the Eighth Amendment. In Valle v. Florida, 132 S. Ct. 1 (2011),

he affirmed his position that carrying out an execution after lengthy confinement (33

years in Valle’s case) amounted to cruel and unusual punishment:

I have little doubt about the cruelty of so long a period of

incarceration under sentence of death. In Lackey and in

Knight Justice Stevens and I referred to the legal sources,

in addition to studies of attempted suicides, that buttress

the commonsense conclusion that 33 years in prison under

threat of execution is cruel. See In re Medley, 134 U. S. 160,

172, 10 S. Ct. 384, 33 L. Ed. 835 (1890) (describing as

“horrible” the “feelings” that accompany uncertainty about

whether, or when, the execution will take place); Solesbee

v. Balkcom, 339 U. S. 9, 14, 70 S. Ct. 457, 94 L. Ed. 604

(1950) (Frankfurter, J., dissenting) (“In the history of

murder, the onset of insanity while awaiting execution of a

death sentence is not a rare phenomenon”); Strafer,

Volunteering for Execution, 74 J. Crim. L. & C. 860, 872,

n. 44 (1983) (a study of Florida inmates showed that 35%

of those confined on death row attempted suicide; 42%

seriously considered suicide); id., at 869-871, (“Recent

studies and law suits document both the barbaric

conditions pervading death rows and the debilitating and

life-negating effects of these conditions”).

So long a confinement followed by execution would also

seem unusual. The average period of time that an

individual sentenced to death spends on death row is

14

almost 15 years. Thirty three years is more than twice as

long.

Valle v. Florida, 132 S. Ct. at 1-2) (Breyer, J. dissenting from denial of stay and

certiorari); see also Smith v. Arizona, 552 U.S. 985 (2007) (Breyer, J. dissenting from

denial of certiorari) (thirty year delay due to constitutionally defective proceedings

amounts to cruel and unusual punishment); Foster v. Florida, 537 U.S. 990 (2002)

(Breyer, J. dissenting from denial of certiorari); Knight v. Florida, 528 U.S. 990 (1999)

(Breyer, J. dissenting from denial of certiorari); Elledge v. Florida, 525 U.S. 944

(1998) (Breyer, J., dissenting from denial of certiorari).

The result of Jordan’s most recent sentencing proceeding is unreliable due to

the passage of time. Many witnesses who could have provided compelling mitigating

evidence were no longer available and trial counsel had to read their prior testimony

to the jury. 5

No other prisoner sentenced to death in Mississippi, especially those sentenced

when Mississippi had a mandatory death penalty, has had to face an execution, much

less face one after being incarcerated for so long. Jordan’s sentence is therefore

“unusual.” As shown in the chart below, the average length of time between

imposition of a death sentence and execution in Mississippi is 14 years and 9 months.

5 The reliability of Jordan’s death sentence is further undermined by instances of trial counsel’s

deficient conduct. Even though the Mississippi Supreme Court found insufficient prejudice, it found

that trial counsel failed to correct a reported provided to a court-appointed psychiatrist that

erroneously stated Jordan had been dishonorably discharged from the army and that trial counsel

failed to prepare to challenge the State’s blood spatter expert. Jordan v. State, 912 So. 2d 800, 812,

816 (Miss. 2005).

15

It has been approximately 497 months or over 41 years years since Jordan was first

sentenced to death.

NAME

SENTENCED

EXECUTED

LENGTH OF TIME

Gary Simmons

Jan Brawner

Henry Jackson

William Mitchell

Larry Puckett

Edwin Turner

Rodney Gray

Benny Stevens

Joseph Burns

Gerald Holland

Paul Woodward

Dale Bishop

Earl Berry

Bobby Wilcher

John Nixon

Jessie Williams

Tracy Hansen

Leo Edwards

August 1997

April 2002

September 1991

July 1998

August 1996

February 1997

January 1996

December 4, 1999

September 1996

December 11, 1987

April 1987

February 4, 2000

April 22, 1988

July 1982

March 26, 1986

December, 1983

October 30, 1987

July 1981

June 20, 2012

June 12, 2012

June 5, 2012

March 22, 2012

March 20, 2012

February 8, 2012

May 17, 2011

May 10, 2011

July 21, 2010

May 20, 2010

May 19, 2010

July 23, 2008

May 21, 2008

October 18, 2006

December 14, 2005

December 11, 2002

July 17, 2002

June 21, 1989

14 years 10 months

10 years 2 months

20 years 9 months

13 years 8 months

15 years 7 months

15 years

15 years 4 months

11 years 5 months

13 years 10 months

22 years 5 months

23 years 1 month

8 years 5 months

20 years 1 month

24 years 3 months

19 years 9 months

19 years

14 years 9 months

7 years 11 months

Connie Evans

Edward Johnson

Jimmy Gray

AVERAGE TIME

October 1981

August 1980

December 1976

July 8, 1987

May 20, 1987

September 2, 1983

5 years 9 months

6 years 9 months

6 years 9 months

14 years 9 months

Besides being “unusual,” Jordan’s experience is also “cruel.” He has already

served the equivalent of a life sentence, and still faces the prospect of being executed.

Essentially, rather than receiving either a sentence of life imprisonment or a death

sentence, he received both. See Foster v. Florida, 537 U.S. 990, 993 (2002) (Breyer, J.

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dissenting from denial of certiorari) (execution after incarceration of 27 years cruel

because prisoner “will have been punished both by death and also by more than a

generation spent in death row’s twilight”). Moreover, Jordan has had to endure most

of his lengthy incarceration under the harsh confinement of death row. Unlike other

prisoners who are eligible to work and participate in other programs, Jordan, like

other death row prisoners, is confined to a small cell.

The Eighth Amendment prohibition against cruel and unusual punishment

“guarantees individuals the right not to be subjected to excessive sanctions.” Miller

v. Alabama, 132 S. Ct. 2455, 2463 (2012) (quotes and citation omitted). Long-term

placement in solitary confinement violates this prohibition. As Justice Kennedy

observed, “[t]he human toll wrought by extended terms of isolation has been

understood, and questioned, by writers and commentators.” Davis v. Ayala, 135 S.

Ct. 2187, 2209 (2015) (Kennedy, J., concurring); see also id. at 2210 (“research still

confirms what this Court suggested over a century ago: Years on end of near-total

isolation exact a terrible price”); In re Medley, 134 U.S. 160, 170 (1890) (solitary

confinement carries “a further terror and peculiar mark of infamy”). 6

Despite his excellent prison record, Jordan has had to endure a harsh

punishment like no other prisoner in Mississippi, only to have the State execute him.

These

extraordinary

circumstances

make

his

execution

excessive

and

disproportionate to the crime and thus in violation of the federal constitution.

Psychological studies confirm the debilitating effects of isolation. See, e.g., Stuart Grassian,

Psychiatric Effects of Solitary Confinement, 22 Wash. U. J. L. & Pol’y 325, 354 (2006); Stuart Grassian,

Psychopathological Effects of Solitary Confinement, 140 Am J. Psychiatry 1450 (1983).

6

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D.

International standards support a finding that the unprecedented

delay in Jordan’s case renders his death sentence invalid.

International standards of decency have evolved to the point that many foreign

jurisdictions that accept the lawfulness of the death penalty now hold that “lengthy

delay in administering a lawful death penalty renders ultimate execution inhuman,

degrading, or unusually cruel.” See Knight, 528 U.S. at 995-96 (Breyer, J., dissenting

from denial of certiorari) (discussing holdings of foreign courts in Jamaica, India,

Zimbabwe, Europe, and Canada). Because of the long delays between sentencing and

execution, and the conditions in which the condemned are kept, execution of the death

penalty in Jordan’s case constitutes “cruel, inhuman or degrading treatment or

punishment” in violation of Article VII of the International Covenant on Civil and

Political Rights. (“ICCPR”). Article 7 of the ICCPR provides that “[n]o one shall be

subjected to torture or to cruel, inhuman, or degrading treatment or punishment.”

When the U.S. Senate ratified the ICCPR, it declared that this phrase meant “the

cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and

Fourteenth Amendments to the Constitution of the United States.” What constitutes

cruel and unusual punishment is informed by international norms. See Roper v.

Simmons, 543 U.S. 551, 576-78 (2005).

The British Privy Council’s decision in Pratt and Morgan v. The Attorney

General of Jamaica, 3 SLR 995, 2 A.C. 1, 4 All E.R. 769 (Privy Council 1993)(en banc),

and the decision of the European Court on Human Rights in Soering v. United

Kingdom, 11 Eur. H. R. Rep. 439 (1989) (European Court of Human Rights refused

18

to extradite a German national to face capital murder charges because of anticipated

time that he would have to spend on death row if sentenced to death) exemplify the

norms.

In Pratt and Morgan, the Privy Council held that a delay of fourteen years

between the time of conviction and the carrying out of a death sentence in the case of

a Jamaican prisoner was “inhuman punishment.” 2 A.C. at 33. In Soering, the

European Court found that prisoners in Virginia spend an average of six to eight

years on death row prior to execution. The court determined that “[h]owever wellintentioned and even potentially beneficial is the provision of the complex postsentence procedures in Virginia, the consequence is that the condemned prisoner has

to endure for many years the conditions on death row and the anguish and mounting

tension of living in the ever-present shadow of death.” 161 Eur. Ct. H.R. at 42. See

also Vatheeswaran v. State of Tamil Nadu, 2 S.C.R. 348, 353 (India 1983)(criticizing

the “dehumanizing character of the delay” in carrying out the death penalty); Catholic

Comm’n for Justice & Peace in Zimbabwe v. Attorney General, 14 Hum. Rts. L. J. 323

(Zimb. June 24, 1993).

The Supreme Court of Canada considered evidence that death-sentenced

inmates in Washington took, on average, 11.2 years to complete state and federal

post-conviction review, in weighing the legality of extraditing two men to the United

States to face capital charges. The Court acknowledged a “widening acceptance” that

“the finality of the death penalty, combined with the determination of the criminal

justice system to satisfy itself fully that the conviction is not wrongful, seems

19

inevitably to provide lengthy delays, and the associated psychological trauma.”

Minister of Justice v. Burns and Rafay, 2001 SCC 7 (S.C. Canada, 22 March 2001)(at

para. 122). Relying in part on this evidence, the court held that the Canadian Charter

of Rights and Freedoms precluded the defendants’ extradition, absent assurances the

United States would not seek the death penalty.

The norm against cruel, inhuman, or degrading treatment is now universally

recognized as a violation of international law. The Universal Declaration of Human

Rights, article 5, provides: “No one shall be subjected to torture or to cruel, inhuman,

or degrading treatment or punishment.” Universal Declaration of Human Rights,

adopted Dec.10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948). See also

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment, Art. 16, adopted Dec.10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.

(No. 51) at 197, U.N. Doe. A/39/51 (1984) (entered into force June 26, 1987); European

Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3,

opened for signature Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953);

the American Convention on Human Rights, Art. 5, opened for signature Nov.22,

1969, O.A.S. T.S. No.36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50, doc. 6 at 27 (1980)

(entered into force July 18, 1978); the International Covenant on Civil and Political

Rights, Art. 7, adopted Dec.16, 1966, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16)

at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 (entered into force Mar. 23, 1976);

African Charter on Human and People’s Rights, Art. 5, adopted June 27, 1981, O.A.U.

Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982) (entered into force Oct.21, 1986).

20

The prohibition against cruel, inhuman, or degrading treatment has attained

binding force as customary international law. See Declaration of Tehran, Final Act of

the International Conference on Human Rights 3, at 4, para. 2, 23 GAOR, U.N. Doc.

A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights,

including prohibition against cruel, inhuman or degrading treatment, as customary

international law). Accord De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385,

1397 (5th Cir. 1985) (noting that the right not to be subjected to cruel, inhuman, and

degrading treatment constitutes universally accepted international law). 7 Jordan’s

death sentence after such delays, not attributable to him, due to errors by the trial

court violates norms of international law.

E. Conclusion.

By any standard, Richard Jordan’s case is an outlier. The State repeatedly

denied him a constitutional sentencing proceeding, forcing him to defend himself time

and again even though his ability to marshal a case in support of a death sentence

grew weaker with the passage of time. Incredibly, there was a time when the State

determined that life without parole was an appropriate sentence. During that

relatively brief window when he was off death row, Jordan did everything expected

7 International human rights organizations have also condemned the practice of solitary confinement

for extended periods of time. See, e.g., U.N. Special Rapporteur of the Human Rights Council, Interim

Rep. on torture and other cruel, inhuman or degrading treatment of punishment, ¶ 70, U.N. Doc.

A/66/268 (Aug. 5, 2011). Similarly, international courts have found that prolonged isolation breaches

violate international prohibitions against torture. See, e.g., Maritza Urrutia v. Guatemala, Merits,

Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 103, ¶ 87 (Nov. 27, 2003) (restating

the finding of International American Court of Human Rights that “prolonged isolation and

deprivation and communication are in themselves cruel and inhuman treatment”); Babar Ahmad and

Others v. United Kingdom, Eur. Ct. H.R. App. Nos. 24027/07 et al., ¶ 210, 52 I.L.M. 443, 2013 WL

5785362 (Apr. 10, 2012).

21

of a prisoner and more. He ultimately became a trustee. Despite his excellent conduct

and the State’s recognition of a wealth of other compelling mitigating circumstances,

Jordan was thrown back on death row for no other reason than he was swept up in

the legal uncertainties surrounding life without parole arrangements in the early

1990s. But for the timing of the negotiations of that bargain, Jordan unquestionably

would be serving a life without parole sentence that all felt appropriate.

Richard Jordan has now served the equivalent of a life sentence in wretched

conditions while coping with the extreme stress and anxiety of living on death row

awaiting his execution. Given these extraordinary circumstances, especially the 40

years that Jordan has already served, this Court should grant certiorari.

22

PRAYER FOR RELIEF

Wherefore, for the foregoing reasons, this Court should grant certiorari to

review the decision of the Mississippi Supreme Court.

Respectfully Submitted,

/s/James W. Craig

*+James W. Craig, MSB # 7798

Emily Washington

The Roderick & Solange MacArthur Justice

Center

4400 South Carrollton Ave.

New Orleans, LA 70119

(504) 620-2259 (p)

(504) 208-3133 (f)

jim.craig@macarthurjustice.org

+David P. Voisin (MSB #100210)

P.O. Box 13984

Jackson, MS 39236-3984

(601) 949-9486

david@dvoisinlaw.com

ATTORNEYS FOR PETITIONER

*Counsel of Record;

+Member of Supreme Court Bar

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