Lethal Injection—SCOTUS Opens Procedural Doors for Challenge

Yesterday, the United States Supreme Court announced two decisions regarding death by lethal injection.^[1] The first, Hill v. Donough (05-8794), was a unanimous decision made solely on a procedural basis.^[2] The second, House v. Bell (04-8990), was a more narrow 5-3 decision relying heavily on the specific facts of the case.^[3] Both decisions are being hailed as good news for criminal defendants.

Hill v. Donough
When we previewed Hill last January, it was not clear whether the Supreme Court would favor the procedural aspects of this case above its 8th Amendment challenge to the legality of lethal injection as a method for carrying out the sentence. In fact, the Court’s decision in Hill presents a procedural roadmap for entering a civil rights claim against a capital sentence. One advantage of bringing a civil rights claim is that it is not subject to the same “successive petition” bar that limits the number of habeas claims that an individual may bring.

The opinion, Justice Kennedy writing for the Court, affirmed and interpreted the precedent set in Nelson v. Campbell. The 2004 decision permits an individual to lodge a civil rights claim against the means, but not the end, of a capital sentence.^[4] In Hill, the Supreme Court disagreed with the 11th Circuit Court of Appeals assessment that, in objecting to the use of a particular 3‑chemical cocktail for causing death by lethal injection, Mr. Hill was challenging the conditions or duration of his confinement a la a habeas corpus challenge. Instead, the Court held that his claim was “comparable in its essentials to the action under 42 U.S.C. §1983 the Civil Rights Act of 1871.”^[5]

After Hill, an individual has the right to challenge the legality of the method of execution under the Civil Rights Act of 1871, no matter how late in the game, when:

1. A grant of injunctive relief would not bar the execution of the sentence;
2. The claim does not seek to collaterally prevent the execution of the sentence (e.g., by endless appeals); and
3. Requirements for pleading and acquiring a stay in the execution of the sentence are otherwise met.

The Court addressed a concern voiced by Justice Roberts, and promoted by the respondents during oral argument last April, that a defendant must identify an alternative form of execution in order to warrant a civil rights‑based claim before an appeals court to avoid the risk of challenging the finality of the judgment itself (and potentially voiding the appeal).

Justice Kennedy pointed out that Mr. Hill’s relief in this case does not require the appeals court to relieve him of his sentence, but merely to consider whether his civil rights are infringed by a method that presents a foreseeable “risk of pain the State can avoid while still being able to enforce his sentence.”^[6]

The decision grants Mr. Hill the right to have his constitutional challenge against lethal injection as a “cruel and unusual” form of punishment to be heard in state court.

House v. Bell
At trial, Paul Gregory House was convicted of first-degree murder based on largely circumstantial evidence and was sentenced to death. In a habeas corpus petition, Mr. House presented a compelling amount of forensic evidence pointing to his lack of culpability, coupled with an allegation of ineffective assistance of counsel. The District Court, with the 6th Circuit Court of Appeals affirming, held that the allegations were insufficient to establish his “actual innocence.”

In a case that turned very heavily on the facts, the Supreme Court affirmed the ruling in Schlup v. Delo that newly discovered evidence can provide a proper “gateway” to a federal review of a judgment, in spite of a state procedural default. It also affirmed that the extraordinary standard for evidence that would undermine the findings of “reasonable jurors” announced in Herrera v. Collins presents the proper threshold for making a “freestanding” innocence claim apart from procedural error.^[7]

Again writing for the majority (Justice Samuel Alito abstaining), Justice Kennedy agreed that Mr. House had met the due process standard for consideration of his petition under the precedent set in Schlup, but disagreed that the evidence he presented to support his claim of innocence was enough to render his judgment unconstitutional under the precedent of Herrera.^[8]

Mr. House now has the right to have his actual innocence arguments reheard by the appeals court.

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[1] David G. Savage, Supreme Court Eases Process for Death Row Appeals, Los Angeles Times, June 13, 2006.
[2] Hill v. McDonough, No. 05-8734, June 12, 2006.
[3] House v. Bell, No. 04-8990, June 12, 2006.
[4] Nelson v. Campbell, 541 U. S. 637 (2004)
[5] Hill at 2.
[6] Hill at 7.
[7] House at 35-36.
[8] Schup v. Delo, 513 U. S. 298 (1995). See also Herrera v. Collins, 506 U. S.
390 (1993).