Regards,
Gary Mace

California’s on-deck murderer has applied for a stay on the same grounds. I wouldn’t be surprised to see another stay and an application to vacate, as in Indiana. Justice Alito should be on board by then.

The other case, Donahue v. Bieghler, involved a 1983 challenge to the procedure that was first filed Thursday morning. Unlike in Hill, the State defenants did not argue that the 1983 action was properly construed as a habeas claim. Instead, the defendants argued that a TRO or PI was improper due to the plaintiff’s obvious delay (he only brought suit after Hill, plus the 10+ years the claim could have been brought as Kent observed). The district court denied injunctive relief on that ground, relying on Nelson and Gomez (Harris).

In the early evening, the 7th Circuit granted a stay (2-1), although it was explicit in saying one was warranted only because of uncertainity about the meaning of the Hill grant. All other equities weighed favorably to the defendants.

The defendants then asked the Court to vacate the stay because the purely procedural questions in Hill had no implications for the Bieghler case given the State’s position. (Incidentially, this was the point made by the dissenting judge below.) At just after midnight, the Court vacated the stay with Justices Stevens, Ginsburg, and Breyer voting to deny.

It seems to me that the most telling meaning of this is that Hill should not mean an automatic moratorium on executions where the lethal injection claim is made.

I will answer you by email regarding your individual situation.

These are different questions, and frankly, the court’s disposition in the Indiana case does not bode well for Hill’s chances of winning his case once the procedural questions in the current case are resolved.

I agree that the most confusing thing about this is why they didn’t simply summarily reverse and remand if the concern was inconsistency with Nelson. One possibility is that Hill is a case in which the four (or more) votes for cert. may have been drawn from both sides of the aisle — in this case, those who want to smack down the 11th Cir. for missing the Nelson issue and those who want to limit Nelson to narrow (and unusual) claims about the execution procedure that do not challenge the fact of execution itself. Sheer speculation, of course, but I can even imagine this starting out in conference as a reverse-and-remand but then those with other agendas — especially the “limit Nelson to its facts” contingent (which I strongly suspect includes the new Chief Justice) — realized that it was an opportunity to move the law. Nelson itself was, strikingly, a unanimous decision (authored by O’Connor), and even if they felt compelled to vote to join the majority opinion because of its logic (the Nelson claim was very carefully framed to be a genuine 1983 claim and not fall into the Preiser v. Rodriguez “fact or length of sentence” trap), it couldn’t have made Scalia or Thomas (and maybe Kennedy also) too happy. That someone on the Court was worried about the consequences of the decision is signalled by the opinion’s final section, which goes out of its way to allay the fear that the opinion will “open the floodgates to all manner of method-of-execution challenges, as well as last minute stay requests.” I haven’t seen any reports (statistical or anecdotal) about an up-tick in 1983 claims in these situations since Nelson, but I’d be surprised if it wasn’t on the conservatives’ minds.

So my guess is that the issue that Scalia, Thomas and Roberts (at a minimum) want to decide is the one left open in Nelson, i.e., “the question whether a request to enjoin the execution, rather than merely to enjoin an allegedly unnecessary precursor medical procedure, properly sounds in habeas [rather than sec. 1983].” At least according to the underlying 11th Cir. opinion, “enjoining the execution” is precisely the relief requested by Hill. A holding that limited Nelson to its unusual type of claim would presumably put a significant crimp in these pre-execution sec. 1983 filings. My guess is that’s exactly what the Court will do with Hill — even more certainly if/when Alito is on the Court, of course.

In Nelson v. Campbell, the Supreme Court allowed a 1983 challenge to proceed, but the Court was careful to note that the “cutdown” procedure that the inmate was attacking was unnecessary and severable from the execution itself. And the inmate filed as soon as he was informed that the State planned to use the cutdown procedure during his execution. The Supreme Court expressly left unanswered the broader question of whether claims against lethal injection can also be maintained under 1983.

Since Nelson, inmates all over the country have been losing these general lethal injection claims in the final days before their execution because they cannot meet the criteria for a stay / injunction. And many of the lower courts simply say that whether it is a 1983 action or a habeas petition the inmate waited too long to file it and he failed to show a likelihood of success on the merits. And in every one of those cases the Supreme Court has turned back the inmate (even vacating circuit court stays to do so).

The Hill case gives the Supreme Court the cleanest opportunity to address the question that they left open in Nelson. And there is a circuit split, with at least the 5th and the 11th finding these challenges to be habeas claims (the 11th was more definitive than the 5th), and at least the 9th Circuit saying that they are proper 1983 actions.

I can be reach at the following email.

Regards,
Gary Mace
garymace@bellsouth.net

Also, if the case is coming from the state supreme court it is probably not a § 1983 action, and it does not raise the specific procedural questions involved in Hill.