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January 26, 2006

A cruel and too usual jurisprudence?

I remain intrigued and a bit perplexed by the Supreme Court's decision to grant cert and full argument in the Hill case concerning the procedures for challenging the constitutionality of a method of execution.  (For background on the case, see this post and media coverage collected by Howard Bashman here.)   The Washington Post piece by Charles Lane provides rich background on the issues, and these comments at SCOTUSblog are also fascinating.

I am also intrigued and a bit perplexed by the possible impact of Hill.  Karl Keyes, noting that Texas carried out an execution Wednesday night (details here), rightly reiterates here that the narrowness of the issue in Hill means that scheduled executions in other states may proceed apace.  But, in this article, DPIC executive director Richard Dieter has this quote: "If you are a lawyer you are filing something just like Clarence Hill as we speak." 

Reviewing the course of litigation in Hill, I think the best explanation for the Supreme Court's actions is that the Court was troubled by the Eleventh Circuit's cursory rejection of the defendant's attempt to bring his claim as a 1983 action.  The 11th Circuit's ruling in Hill relied on a 2004 ruling by that circuit, but the Supreme Court seemed to reach a contrary conclusion on the basic 1983 issue in its subsequent unanimous ruling in Nelson v. Campbell

But if the 11th Circuit's sloppiness is the Court's core concern, I question whether it needed to grant cert and schedule full argument.  Couldn't some form of summary order and remand, citing Nelson, ensure Hill's claim gets considered on the merits below without creating new uncertainty about the constitutionality of an execution method used nationwide?  Unless there might now be five votes to declare lethal injection unconstitutional, the decision to take up Hill seems like a troublesome allocation of resources.  If Hill's claim on the merits is sure to be rejected (as similar claims have been rejected by lower courts nationwide), why is the Supreme Court so eager to make sure his claim gets rejected in the right procedural posture?

Ultimately, I have to chalk up the Hill case as another example in the Supreme Court's troublesome "culture of death."   As I have lamented in many prior posts (here and here and here and here), the Court's limited docket is devoted excessively to capital cases.  The Court in Hill makes time to figure out how one murderer's questionable Eighth Amendment claim should be considered procedurally.  But, to the determent of the criminal justice system, the Court cannot seem to find the time to resolve the Booker plain error mess, or the status of the prior conviction exception, or whether Blakely might be retroactive, or the many other non-capital sentencing issues that impact so many more defendants than anything having to do with the death penalty.

January 26, 2006 at 01:41 AM | Permalink


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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.

Posted by: Adam Thurschwell | Jan 27, 2006 12:26:55 AM

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