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.