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June 12, 2006

Insights on Hill from THE expert

Professor Debby Denno, whose prior work on execution methods I praised in previous posts here and here (where I also correctly predicted the outcome in Hill), this afternoon shared with me her reaction to Hill.  With her gracious permission, I am pleased to post her thoughts here:

I think Hill is a narrow decision, but I think it is more significant than you do.  First, it's unanimous (and the oral arguments gave some suggestion that it wouldn't be unanimous if it was favorably decided and even indicated that the case might not be affirmatively decided).  Second, as you know, section 1983 doesn't require inmates to jump through as many procedural hoops and has a potentially richer field of case law for them to draw upon in their arguments.  Next, the issue raised in Hill is broader than that raised in NelsonNelson concerned a 1983 challenge of a cut down procedure based in part on Nelson's own deteriorating veins.  Cut down procedures were rare in 2004 and they are even rarer now. But the use of chemicals prompting Hill's challenge is generic to every lethal injection in the country; in other words, every state uses the same three chemicals that Hill challenged and there was no mention of Hill's particular anatomical limitations (nor were they relevant). While the Court did not address head on the substantive aspects of lethal injection, it does mention the fact that Hill's challenge concerns "a foreseeable risk of gratuitous and unnecessary pain." If the Court thought the issue were totally frivolous, the case wouldn't have garnered their attention.

I think Hill validates the lethal injection issue and clarifies its importance both to attorneys and to courts.  It sends a message that departments of corrections (doc) are going to continue to be scrutinized and perhaps spotlighted more than in the past. Incrementally, the doc's are being pressured to alter their protocols or to switch to another method.  While in the grand scheme of things this movement today may not seem like a big deal, I think it's useful to remember that the Court has directed more attention to lethal injection in the last two years than it has to any other method of execution in the last 110 years.  Put in context, seemingly small steps are magnified.

Of course, everything Debby says about Hill and its aftermath is spot on.  That said, here was my reaction to Debby's insights: "All true, but the same would be true if the SCOTUS opinion in Hill just said: 'We think Hill's claim is appropriate as a 1983 action.  Reversed and remanded.'  And, had the SCOTUS said that in mid-February rather than in mid-June, the state of capital punishment in the US would be much less disorderly."

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June 12, 2006 at 04:39 PM | Permalink


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In my experience, what people want most is for the Supreme Court to clean up the death penalty in an orderly way that matches their policy preferences. On the other hand, what people want *least* is for the Supreme Court to clean up the death penalty in an orderly way that differs from their policy preferences. And that's the rub.

Posted by: Orin Kerr | Jun 13, 2006 1:59:18 AM

True enough, Orin, though I think everyone loses this way because we end up with a poorly run, unjust and costly capital system that may only be good for folks who like to litigation.

But, upon reflection, perhaps I am just describing every noteworthy area of debate in our modern legal system.

Posted by: Doug B. | Jun 14, 2006 2:25:11 PM

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