Hill seeks delay of execution
Clarence E. Hill, a Florida death row inmate who won a Supreme Court decision in June allowing him to pursue a challenge to the protocol used to carry out executions by lethal injection, on Monday asked the Supreme Court to delay his scheduled execution so that he can get a chance to make that very challenge. His attorney argued in the stay application: “By arbitrarily setting an execution date while this case was awaiting remand, the State has attempted to manipulate the process and deny Mr. Hill his right to have this unconstitutional method of execution reviewed on the merits.” The attorneys accused the state of using tactics to prevent “any meaningful scrutiny” of its lethal injection procedure.
Hill’s application ((06-A-301) sought a stay of the scheduled execution Wednesday evening, until the SCt acts on a new petition for review (06-6545), in the case of Hill v. McDonough. In that petition, Hill’s lawyers are seeking to delay the execution so that his constitutional claim can go forward. The stay application can be found here. The petition for certiorari can be found here. The cert petition raises three somewhat complex questions; the second of these implies that the Circuit Court wrongly failed to issue the mandate in the case and only sent it back to the District Court after the Florida goveroer had re-set the execution date, “citing the lack of judicial activity.” The questions are articulated in the front of the linked petition.
The Eleventh Circuit Court on Friday refused to stay Hill’s execution; it did so without ruling on his challenge to Florida’s lethal injection protocol. It said that his lawyers had been engaging in delaying tactics, and that it would not allow itself to be drawn into a “protracted, and ultimately futile,” review of his case. It said it was “denying his request for an injunction based upon our independent analysis of the equities.”
The Circuit Court said that, in the Supreme Court’s June 12 decision sending Hill’s case back to lower courts, the Supreme Court had said that federal courts should protect states from “dilatory or speculative suits” seeking to delay the enforcement of criminal sentences.
On the last page of its Hill opinion, the Supreme Court cites Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam), indicating it is still good law. Given that precedent, the Eleventh Circuit and the District Court are clearly correct. The cases are not distinguishable. A method-of-execution claim raising objections that have been known for years is raised at the eleventh hour to stop the execution. In Gomez, the Court lifted a stay issued by a lower court. I don’t see the Court turning around and doing the opposite here.
Comment by Kent Scheidegger — September 18, 2006 @ 3:18 pm
Kudos to Jeb Bush for resetting the date. It’s good to see states willing to test federal stays.
Comment by federalist — September 18, 2006 @ 3:43 pm
Kent, the two cases are distinguishable. Mr. Gomez argued “execution by lethal gas” was always unconstitutional, while Mr. Hill argues that the particulars of Florida’s method of execution by lethal injection are unnecessary and cause pain. Mr. Gomez should have tried to invalidate his sentence, which is what his claim amounted to, in his previous four habeas applations. Mr. Hill does not seek to preclude enforcement of the sentence, only to enjoin a particularly faulty method of application of that sentence, and so need not have brought the claim in prior habeas petitions. The 11th Cir. disagrees, apparently, with the latter statement.
federalist, there was no stay. Bush and the federal courts colluded to kill the case, and Mr. Hill.
Comment by txjeansguy — September 18, 2006 @ 10:25 pm
txjeansguy: a couple of things
First, my point was that, unlike Delaware and the feds, Governor Bush was not content to simply let the murderer get rewarded for his last-minute stall tactic
Second, the underlying point that you miss is that states have a right to have executions be carried out in an orderly process. If prisoners have valid claims about lethal injection, then they need to bring them early in the process, not wait until 5 days before an execution. What Gomez and Hill stand for is the proposition that states should not be jerked around by these last minute claims.
Comment by federalist — September 19, 2006 @ 12:33 pm
It appears from the SCOTUS opinion that Hill filed his first petition 16 days after the death warrant was issued, after unsuccessfully trying to learn the procedure for his execution. That was more than a month before his scheduled execution. Only when his claim ultimately failed in the Florida Supreme Court did he file his federal petition.
That’s not to say he doesn’t want to stall the execution — obviously, he does. But his claim is peculiar to the method of execution that he expects Florida to use, even though as of the filing of his petition, Florida did not inform him what that method would be. If it were a challenge to lethal injection itself, he could have filed (and probably would have been required to) well before.
Comment by Jeff — September 19, 2006 @ 1:04 pm
txjeansguy,
Nope. Mr. Gomez, the California Director of Corrections, argued that the execution of Robert Alton Harris should go forward. Did you actually read the opinion, or is your comment based on what you read about it elsewhere?
Not a single word in the opinion indicates that it is based on the distinction you claim. The sole reason given is the raising of the claim at the eleventh hour for no good reason. The cases are not distinguishable on the basis of any fact given by the Court as a basis for its decision.
Comment by Kent Scheidegger — September 19, 2006 @ 1:18 pm
The lethal injection protocol issue has been particularly controversial of late. The general concern might have been “known for years” but this is not necessarily conclusive.
I’m not sure where the previous commenter disputed that “the California Director of Corrections, argued that the execution of Robert Alton Harris should go forward.” Snideness is always a dangerous game.
If this issue was there for years, the Supremes also very easily could have taken up a similar case that would not have resulted in this particular result. This “remedyless” result (in practice) was a bit ridiculous, if technically reasonable.
Use some other case to deal with the injection issue. btw I also recall the Gomez case was particularly messy, involving repeated last minute reversals, finally resulting in a slamdown on the 9th Cir. Again, on that pt, this case is not exactly the same.
Comment by Joe — September 20, 2006 @ 7:09 pm
It might be said the four who wanted cert. are to blame. Maybe. The five could have summarily disposed it some way all the same.
Comment by Joe — September 20, 2006 @ 7:20 pm
Well … the Hill opinion suggests my last comment is dubious. It reads as if it invites the denial handed down while doing so w/o closing all possible suits deemed not abusive. To that degree, it was well chosen.
IOW, sends an ugly message, but not necessarily an unjust one. I think it does, but reasonable minds will differ.
Comment by Joe — September 20, 2006 @ 7:28 pm
Kent, I did list Mr. Gomez, incorrectly, as one of his charges. Thanks for the correction.
Words in the Harris opinion that distinguish the case include the ones I quoted from the first line of the opinion. Whether brought in habeas or S. 1983, the claim that “execution by lethal gas” is unconstitutional in every situation “could have been brought more than a decade ago.” Of course, your amicus in Hill attempts to conflate the claim that a certain LI protocol is flawed with the claim that LI is always inhumane, but the Court ruled 9-0 against that view. See also Nelson. The Court cited Gomez to show this difference.
federalist (and Jeff) just to clarify, when I say there was no stay, I mean that there was no unexpired warrant, and thus nothing to stay, after the Hill Supreme Court decision. The appellate court waited two months for Bush to issue a warrant.
Comment by txjeansguy — September 20, 2006 @ 7:30 pm
Here’s the NYT story of September 21 by Abby Goodnough, “Court Refuses Second Delay; Inmate Dies”
http://www.nytimes.com/2006/09/21/us/21death.html
“…the court stayed his execution…and told the federal district court in Tallahassee to reconsider his argument that lethal injection was unconstitutionally cruel.”
“The district court rejected the argument again this month without holding a hearing, a decision upheld by the United States Court of Appeals for the 11th Circuit, in Atlanta.”
One wonders how the members voting against this stay can issue an order that is ignored, grant and appeal in June and still allow the execution to go forward.
Comment by Beth Wellington — September 22, 2006 @ 3:38 pm