Tomorrow’s Argument in Hill v. McDonough

Wednesday’s first case is Hill v. McDonough, No. 05-8794, which presents the question whether a prisoner’s action under 42 U.S.C. § 1983, challenging the constitutionality of Florida’s use of certain chemicals in its lethal injection protocol, is properly recharacterized as a successive habeas petition.

D. Todd Doss will argue on behalf of petitioner, and Carolyn M. Snurkowski, Assistant Deputy Attorney General for the State of Florida, will argue on behalf of respondents. Kannon K. Shanmugam, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of respondent.

The party briefs are available here, and the brief of the United States as amicus curiae supporting respondents is here.

(Disclosure: I worked on an amicus brief in support of petitioner in this case; Goldstein & Howe, P.C., served as counsel on the same brief).

In April 1983 petitioner Clarence Edward Hill was convicted of first-degree murder, among other offenses, and was sentenced to death. That sentence was twice vacated in state and federal postconviction proceedings but was both times reimposed. On January 10, 2000, the United States Supreme Court denied cert. on Mr. Hill’s final appeal of his first habeas petition.

On January 20, 2006, four days before his scheduled execution, Hill filed a claim for injunctive and declaratory relief under § 1983, contending that Florida’s lethal injection protocol is unconstitutional because it inflicts unnecessary pain and suffering. On January 21, the U.S. District Court for the Northern District of Florida found that the claim was the functional equivalent of a successive habeas petition and dismissed his suit. Because petitioner had not obtained permission under 28 U.S.C. § 2244 to file a second petition, the court found that it lacked jurisdiction over the claim. Three days later, the Eleventh Circuit affirmed; the Supreme Court stayed Hill’s execution and subsequently granted certiorari.

Hill raises the question left open by the Supreme Court in 2004 in Nelson v. Campbell: whether an action challenging the government’s method of execution states a cognizable claim under § 1983. In that case, the Court explained that “[a] suit seeking to enjoin a particular means of effectuating a sentence of death does not directly call into question the ‘fact’ or ‘validity’ of the sentence itself – by simply altering its method of execution, the State can go forward with the sentence.” Accordingly, means-of-execution challenges can be properly brought as § 1983 actions. Nelson also recognized limits to such actions, however: because “imposition of the death penalty presupposes a means of carrying it out,” a method-of-execution challenge that leaves the state with no alternative means of execution is effectively a challenge to the sentence itself, and is thus properly recharacterized as a habeas petition. At issue in this case is how broadly petitioner’s claim should be construed, and, accordingly, how characterized.

Petitioner first argues that this case falls squarely within the ambit of Nelson. As in that case, petitioner is not attacking lethal injection as a method of execution but rather challenging as unconstitutional the state’s specific protocol, which calls for successive administration of sodium pentothal, pancuronium bromide, and potassium chloride. Moreover, petitioner does not seek a permanent stay of his execution but merely an injunction preventing the state from executing him using that particular three-drug cocktail. If petitioner were to prevail on the merits of his claim, the state could still execute him by lethal injection simply by substituting for the unconstitutional cocktail a more humane protocol.

Petitioner argues in the alternative that, even if his claim is properly characterized as a habeas petition, it should not be viewed as a successive petition. Because Florida did not adopt lethal injection as its presumptive method of execution until January 2000 – viz., after petitioner’s first federal habeas corpus proceedings were final – petitioner’s claim was not ripe for review at the time of the first petition and thus cannot be properly recharacterized as a successive petition.

Respondents contend that Hill’s claim is the functional equivalent of a habeas petition because, in challenging the state’s usual means or method of execution, petitioner is effectively challenging the enforcement of his death sentence more broadly. The federal government echoes respondents’ argument, adding that petitioner’s failure to suggest an alternative to the protocol he challenges is further evidence of his intent to use this action to effect a permanent stay of his execution.

Respondents also warn that reversing the decision of the Eleventh Circuit in this case would open the floodgates to all manner of method-of-execution challenges. The upheaval caused by such a decision is likely to be particularly great given that almost all states that make capital punishment available rely on the same three-chemical cocktail petitioner challenges in this case.

The government also contends that petitioner’s second argument – that, if viewed as a habeas petition, his claim should be viewed as a first, rather than a successive petition – is not properly before the Court, as the question was neither included in the questions presented nor raised in the briefs or arguments below. Moreover, the government maintains that even if the question were properly before the Court, it should not succeed, because AEDPA’s one-year limitations period would have begun to run no later than February 14, 2000 – the date on which the Florida Supreme Court decided Sims v. State, which by discussing at length the details of the state’s lethal injection protocol made the facts of the protocol discoverable.

Finally, the government asserts that, even if petitioner’s claim is cognizable as a § 1983 action, the Court should not grant relief for two reasons. First, the government cites Nelson for the proposition that “there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Additionally, the government contends that petitioner’s claim should be denied because he failed to exhaust the administrative remedies available to him within the Florida prison system, as the Prison Litigation Reform Act of 1995 requires.