The New York Times has an interesting article today on method-of-execution claims in death penalty litigation. In these cases, the defendant has been sentenced to death, and challenges the way he is scheduled to be executed. If he is executed the way the state plans, the argument goes, there is an unacceptably high chance that he will suffer too much: the way of executing him will amount to cruel and unusual punishment in violation of the 8th Amendment.
I hope experts on this will weigh in if I’m wrong, but my sense is that such claims are meant more for what they can do than for what they are. That is, lawyers who are making this argument are focused more on delaying executions rather than changing them. I gather the idea is to start with the least humane practice and get some sort of precedent established that it is unconstitutional; then turn to the next least humane practice and try to expand the earlier precedent; and keep going to see how far the courts will take the idea and perhaps whether they will place a moratorium on the death penalty altogether on such grounds. Even if no universal moratorium is imposed, the delay is critical: delay keeps clients alive, and the Supreme Court seems to be in a mood to chip away at the death penalty gradually over time, which means that clients need time. With apologies to Langston Hughes, execution delayed may mean execution denied.
To be clear, I don’t mean this by way of criticism of defense attorneys. Defense lawyers in capital cases should have strategies like this; they have an ethical obligation to be zealous advocates, and I would be annoyed if they weren’t doing everything they could on behalf of their clients. The interesting question is how the courts – and particularly the Supreme Court — will respond to such strategies.
The Supreme Court has addressed method-of-execution claims only in a preliminary way, by focusing on the legal tools needed to bring such claims. There are two basic tools to bring such claims: habeas petitions and 42 U.S.C. § 1983 actions. Roughly speaking, habeas petitions challenge the conviction or sentence; Section 1983 actions challenge the conditions of that sentence. For practical purposes, the difference is critical because habeas petitions are strictly limited under AEDPA, whereas § 1983 claims are not. But the distinction is pretty fuzzy when challenging the method of execution: Is that a challenge to the conditions of the execution, or is it just an indirect way of challenging the execution itself? Right now we know some answers to this, and should know more soon. In Nelson v. Campbell, in 2004, the Supreme Court held that the challenges to “cut down” procedures fell within § 1983, and thus could be brought without complying with AEDPA.
The next round in this debate will be Hill v. McDonough, argued later this month, in which the Supreme Court will consider whether challenges to lethal injection chemicals fall under habeas or § 1983. (The Court granted cert in Hill just minutes before he was to be executed; you can read the cert petition here.) I don’t know what the Court will do in Hill, but I was particularly interested in the amicus brief in the case filed by 24 States that have the death penalty (the Counsel of Record is Alabama SG Kevin Newsom). The States’ brief takes an unusual tack, emphasizing the tactical moves being made by defense counsel in these sorts of cases instead of the strict legal issue in the case. Of particular interest, the brief gives an update on the Nelson litigation. It points out that Nelson had conceded before the Supreme Court that he would lose on the Hill question, but that counsel for Nelson changed tactics on remand and is now litigating the Hill question below. As the brief puts it, “The tale of Nelson’s machinations and manipulations is part tragedy, part farce.” It’s not a legal argument, but I think this sort of amicus brief can be pretty effective — or at least more effective than most amicus briefs. The reception that such legal claims receive in the courts can be influenced by a broader sense of the equities, and a brief like this can influence that sense.
In any event, Hill will be argued April 26, and a decision in the case presumably will be handed down by the end of June.
Professor Kerr,
As a student who had the opportunity to work as the research assistant to a Human Rights advocate/professor, I would say that the goal is tripartite. On the one, hand the advocate is making a zealous argument on behalf of their client to prolong life for as long as possible. On the second, the advocate is, as you suggested, bringing cases to the Supreme Court on fine points in order to slowly chip away at the death penalty. Finally, I think the major point is to bring as much attention to the Death Penalty as possible in order for the political branches to eliminate the death penalty.
In speaking of the arguments put forth by rational advocates, it seems that the goal is to convince the political branches that the death penalty should be stopped. Few of these individuals will advocate that the death penalty be ruled unconstitutional; rather, they want to bring doubt or question to the death penalty in order for the political branches to eliminate it. Of course they offer the cruel and unusual punishment argument, but this is generally pro forma.
Examples of this are NY, IL, and CA. In the NY case, the question wasn’t the method of execution; rather the question was a jury instruction. In People V. LaValle, 783 N.Y.S. 2d, 485 (2004), the court ruled the jury instruction contrary to the state constitution. The effect was to put a moratorium on the death penalty pending the state legislature’s rewrite of the instruction. The legislature has refused to do so, thus there is no death penalty in NY.
In IL, major issue was brought with who was being on death row, and whether or not they were innocent. When it became apparent that some percentage of death row inmates was innocent, the governor put a moratorium on the death penalty in order to ensure the protection of innocents on death row.
California recently faced a de facto moratorium because the Supreme Court ruled that in order to execute with the lethal injection, medical professionals must supervise. The physicians refused to do so citing professional liability for administering substances for the purpose of bringing about death. With the Court requiring the physician, and the physician’s refusal, the moratorium was necessary for the time being. Since then, the legislature has attempted once again to pass a bill for a long-term moratorium.
All of the death penalty cases are arguing one small part of the law for the purpose of convincing the legislature or governor to end the death penalty. They also hope to gain public support in these arguments. They generally do not expect the Supreme Court to rule the death penalty unconstitutional. They just seek small victories to prolong the life of their client with the hope that the politicians will kill the death penalty before the death penalty kills their client.
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We had a nice chat about this in the comments over at althouse…one thing that always perplexes me is the notion that we can properly kill people, but we can’t hurt them. How did we get this weird standard? Who would honestly say that being whipped or tortured is worse than being killed?
It seems like the greater ought to include the lesser here. If we can kill someone for their crimes, we can impose physical pain upon them. That means that states might well chose to execute people humanely, but that it is hard to see why the can be required to by the constitution.
Right now we maintain a strange dichotomy. Felony punishment consists of either boredom (punctuated by inmate on inmate violence in a way totally detached from desert) or death. Why do we exclude so many possibilities that are worse than the one, but better than the other?
Marghlar – Your greater/lesser analogy doesn’t quite work. I agree that execution a greater punishment than torture, and I would rather be tortured than executed. But this is not the situation condemned convicts face on death row – they can’t choose to be tortured or executed. What they face is simple execution, or (hypothetically) execution *and* torture. Thus, while torture itself may be a lesser punishment than execution, the combination of torture and execution is a greater punishment, and so it matters, logically, how we kill people.
The constitutional issue, of course, is cruel and unusual punishment: regardless of logical arguments that might be made for disregarding the manner of execution, the framers of the constitution did want to ensure that punishments were not unusually cruel or degrading. And supreme court jurisprudence (in the 8th Am. context) generally follows this idea. There is no requirement that executions be painless, and there is a general acceptance of the idea that killing someone will cause some pain. The 8th am jurisprudence in the death penalty area does not seek to eliminate all point from an execution, but to prohibit pain that is greater than that reasonably necessary to carry out the execution.
Peter:
I do get that — I was trying to make a larger point about the assumption that pain is an illegitimate punitive technique, but execution is not… I think our culture is a little strange in its odd binary approach to punishment — confinement ok, killing ok, but injuring short of killing impermissible. I really don’t get the theory there…
Obviously pain + execution is more than either alone…but I think that the pain is a pretty minor part of causing a death (as opposed to some scenarios involving deliberate torture prior to death). If we choose to kill someone, it seems like a pretty minor detail whether there is some amount of pain incident to the process.
My comment was directed more towards the theory of these challenges, than to the SCOUTS jurisprudence, which I think basically tracks my intuitions on this question.
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