Court to hear Florida death penalty case
The Supreme Court on Wednesday agreed to hear an appeal by Clarence Edward. Hill, a Florida death row inmate who is challenging the method that the state uses to carry out executions. The Court will consider whether Hill was entitled to file his challenge, and whether his challenge may be pursued under federal civil rights law (Section 1983).
Both issues before the Court appear to be procedural disputes, and thus the Court’s answers are not likely to settle whether the execution method Florida uses is unconstitutional under the Eighth Amendment’s ban on “cruel and unusual punishment.”. If Hill wins, that presumably would clear the way for him to go forward with that issue in lower courts first, with a future appeal to the Supreme Court available. (Doug Berman at Sentencing Law and Policy blog discusses some of the implications of the Court’s action, here.)
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The Court apparently will hear the case and decide it during the current Term, since it set a briefing schedule with the final papers due on April 17. The Court’s final arguments of the Term will be in the week of April 24. (The Court’s April calendar is now full, unless the Court were to agree to grant new cases and schedule them for afternoon hearings in that month.)
Here is the full text of the Court’s order:
“The application for stay of executive of sentence of death presented to Justice Kennedy and by him referred to the Court is granted. The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m. Monday, March 6, 2006. The brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, April 3, 2006. The reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, April 17, 2006. The stay shall terminate upon the sending down of the judgment of this Court.”
The case is Hill v. Crosby, docket 05-8794.
Here are the two questions the Court agreed to hear:
“1. Whether a complaint brought under 42 USC Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 USC Sec. 2254?
“2. Whether, under this Court’s decision in Nelson, a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 USC Sec. 1983?”
The reference is to Nelson v. Alabama, a case the Supreme Court decided May 24, 2004. By a unanimous vote, the Court ruled that an inmate challenging an Alabama procedure for preparing an inimate for death by lethal injection could pursue an Eighth Amendment claim under Section 1983.
However, the Court. in an opinion by Justice Sandra Day O’Connor, said its ruling was “extremely limited,” and stressed that it left open “the question of how to treat method-of-execution claims generally.” It rejected the state’s argument there that the decision in favor of the death row inmate would open the floodgates to all sorts of challenges to execution methods.
In the new case now to be reviewed, the 11th Circuit Court ruled on Tuesday that Hill could not pursue his claim, because it treated his claim as a multiple habeas challenge, and he had not obtained a court’s permission to file it.
Hill was scheduled to die at 6 p.m. Tuesday, but his life was spared by an interim order by Justice Anthony M. Kennedy, delaying execution until the Court could consider the appeal it granted on Wednesday. Kennedy referred the case to the full Court, resulting in the new grant. The temporary bar to his execution will remain in effect until the Court decides his case.
Here is the Eleventh Circuit opinion.
Comment by Kent Scheidegger — January 25, 2006 @ 2:01 pm
I am a bit confused. From reading media reports, it seems that the court will be deciding whether or not lethal injection is considered a “cruel and unusual punishment”. But from the questions considered, it seems the focus is narrower and only deals with this defendant’s particular case. Can someone, in layman’s terms, lay out exactly what the Supreme Court is looking at in this case.
Comment by Philosopher — January 25, 2006 @ 2:16 pm
No matter what the merits of Hill’s claim, the Supreme Court’s action here is wrong. Florida has had a lethal injection procedure in place for a number of years. So, instead of waiting for a case where the death row inmate challenged the method of execution in an orderly manner (i.e., by bringing his challenge well before his execution), the Supreme Court has decided to reward a last-minute filing. Our federal system demands more as does common decency to the victims who have waited 23 years for this man to get the justice he richly deserves.
The Supreme Court has thousands of cases from which to choose, and it chooses to bail out a death-row inmate who started litigating an issue late in the process.
Comment by federalist — January 25, 2006 @ 4:53 pm
Philosopher:
The question here is whether a challenge to the manner of execution is properly brought in a habeas corpus challenge or a challenge under sec. 1983. Specifically, whether a challenge to a state’s general practice, rather than that in a particular case, can be subject to a section 1983 suit or whether it must be brought in a habeas corpus petition. I think as even Kent would agree, this is a very confusing, technical and nuanced area of the law. Here the Eleventh Circuit simply appears to have misunderstood the Court’s nuance in Nelson, which is completely understandable seeing how they had very little time to decide the issue because they didn’t want to issue a stay.
You are also correct in noting that the Court is not addressing the ultimate issue of whether lethal injection in and of itself violates the Eighth Amendment. The Court in Hill is just looking to the procedures to determine whether or not lethal injection violates the Eighth Amendment. The reason there is a spate of lethal injection suits of late is that there is some evidence lethal injection is not as “humane” as we once thought, with some evidence in many cases it may actually feel like one is burning allive or being dissolved in acid.
Comment by All Writs — January 25, 2006 @ 5:10 pm
“Even Kent”? I will resist the temptation for a snide response.
Yes, this is a technical and confusing area. The Supreme Court settled back in 1992 in the Harris case that a death row inmate could not use section 1983 to get around the successive petition limits, holding back a challenge to the state’s long established method of execution only to spring it at the eleventh hour. Related shenanigans in the LaGrand case were rejected in 1999.
Then in Nelson, in 2004, the Court allowed a 1983 action not to challenge the state’s method of execution generally but only an ad hoc procedure for Nelson’s unique circumstances.
Hill’s case lies in between Harris and Nelson. Florida was still using the electric chair when his first federal habeas petition was litigated, so he couldn’t have challenged the protocol then. On the other hand, it is a procedure that has been around for five or six years.
This will require some study.
Comment by Kent Scheidegger — January 25, 2006 @ 8:05 pm
federalist:
While I generally favor swift executions and more of them, I think the procedural points that the Court will need to address — ably laid out by other commenters — adequately explain why the Court took this case as its vehicle.
Comment by unconfirmable — January 25, 2006 @ 8:39 pm
This will be an interesting case to watch, both during these procedings, and even more so, later if it goes forward. In my view, the death penalty is not unconstitutional, but there are clearly methods of executing the condemned which do rise to the level of “cruel and unusual punishment.” I think the electric chair may well have been unconstitutional, because while (like the lethal injection) it didn’t exist in 1791, I have read in several reputable sources that the physical mechanism of death in that procedure can best be analogized to punishments such as being burnt at the stake or boiled in oil; because (to my knowledge) neither of these punishments were in use in the colonies before, during or after independence, one can make the case that electrocution is therefore cruel and unusual. Obviously a similar case cannot be made for lethal injection, but I would certainly follow this case with a mind ready to be pursuaded by the appellant’s brief.
Isn’t there also a case out of Missouri challenging the constitutionality of the currently-used lethal injection formula? Did the court refuse cert on it, or was it simply not appealed?
Comment by Simon — January 25, 2006 @ 9:31 pm
Not sure if the moderator will accept my question below, but it’s worth a try. Thank you in advance if you do post my question.
Would like to understand the decision by the court to stay this last minute execution. It was my understanding that the question of whether or not lethal injection is not humane method of execution has been brought to this court some four times in the past. In each case the court, as I understand it, ruled it was not and the executions occured.
Please help me, one of the family members of slain Police Officer Steve Taylor, understand why this time as we sat in the death row viewing room for an hour and a half, the courts now choose to grant a court ordered stay in this case?
Comment by Bistro1 — January 25, 2006 @ 9:35 pm
Bistro1,
I’m sorry for your loss. I’m afraid I don’t have a good answer for you, but to my understanding (which may well be wrong), the Court hasn’t yet ruled on the issue in a previous case; it has denied cert, that is to say, refused to look at the issue in the cases presented. It may have rejected those petitition for any number of reasons which are inapplicable to this case, and it may yet refuse to look at the underlying merits of the claim in this case.
Comment by Simon — January 26, 2006 @ 10:07 am
Unconfirmable:
The Court explained why it took the case in its cert. petition. But it didn’t have to. The bottom line is that this issue could have been raised much earlier. It wasn’t. So, who’s problem should the late filing be, a state, whose interest in the orderly carrying out of lawful punishments is a strong interest under our federal system, or the the murderer, who was not diligent. The question answers itself.
Comment by federalist — January 26, 2006 @ 12:57 pm
Bistro1, you were indeed treated badly, and I have no explanation for why the Court acted in this manner or chose this particular 11th-hour petition to resolve these procedural questions. Only people inside the Supreme Court know, and they won’t say.
Previous murderers have asked the Supreme Court to review claims, rejected by lower courts, that similar injection protocols are unconstitutional. The Supreme Court’s refusal to hear these claims is not a ruling on the merits and not a Supreme Court precedent.
My name at the bottom of this message is a link to our Web site. Please feel free to contact us if we can be of any assistance.
Comment by Kent Scheidegger — January 26, 2006 @ 1:13 pm
I am doing a term paper on this case, and from what I have gathered, this could be a ploy by the petioner to put off his execution. However, the question of “why now?” could also be answered by the following:
The Lancet, a British medical journal, published a study by an American doctor (who incidentally is a conservative) in 2004 regarding the effectiveness of anesthesia in lethal execution. I might be quoting this inaccurately, but I believe 43 out of 49 prisoner autopsies showed that there was not enough anethesia present at the time of death to preclude the possibility of the prisoners suffering torturous pain. It can not be known at the time of execution whether the prisoner is feeling pain because of the second injection of the paralysis drug. So, there is new evidence not available previously to back up Hill’s 8th amendment claim. I think that is why scotus decided to take his case up now. If they actually grant his right to a hearing, he actually has a leg to stand on.
I don’t think Hill is arguing that he shouldn’t be put to death at all, but that the anesthetic and protocol used by FL should be changed.
I am not an opponent of the death penalty, but I do believe that the state should use whatever method proven to be most humane; 37 states have chosen lethal injection for that very assumption. Thomas Edison invented the electric chair because he was a death penalty opponent, and wanted the state to use the most humane procedure if it had to execute, and touted it as such in light of hanging or the gas chamber(ironic, no?) So with the development of science and technology, lethal injection may prove to be more torturous than we realize.
Comment by Ash — April 8, 2006 @ 4:07 pm