465 U.S. 1090

James David AUTRY
v.
Dan V. McKASKLE, Acting Director, Texas Department of Corrections

On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.

The application for stay of execution of the sentence of death presented to JUSTICE WHITE and by him referred to the Court is denied. The application for certificate of probable cause is denied. The petition for writ of certiorari is denied.

Justice BRENNAN, with whom Justice MARSHALL joins, dissenting.

As I have recently explained, see Pulley v. Harris, --- U.S. ----, ----, 104 S.Ct. 871, 884, 78 L.Ed.2d ---- (1984) (BRENNAN, J., dissenting), there has been no change over the past ten years in the manner in which capital punishment is administered in this country that has in any way shaken my conviction that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, 428 U.S. 153, 227, 96 S.Ct. 2909, 2950, 49 L.Ed.2d 859 (1976) (BRENNAN, J., dissenting). I would, therefore, grant the application for a stay of execution, grant certiorari, and vacate the death sentence.

Indeed, the particular circumstances of this case only serve to reinforce my conviction that the imposition of the death penalty in our society inevitably amounts to an inexcusable affront to "the dignity of man." Trop v. Dulles, 356 U.S. 86, 100, 78 S.Ct. 590, 597, 2 L.Ed.2d 630 (1957). Mr. Autry has already endured the profound psychological torment of lying strapped to a gurney for over an hour with an intravenous needle in his arm, waiting to be put to death. That wait was brought to an end by the grant of a last-minute stay permitting him time to vindicate his constitutional rights. Following today's decision, however, he will again have to undergo the same indignity and psychological anguish, knowing that this time will probably be the last. Faced with such circumstances, I for one refuse to accept the notion implicit in today's decision that we have kept faith with the dual promise of the Eighth Amendment that the state's power to punish is "exercised within the limits of civilized standards," and that we keep pace with the "evolving standards of decency that mark the progress of a maturing society" in carrying out criminal punishments. Id., at 100-101, 78 S.Ct. at 597-598.