Challenging an execution after prolonged confinement on death row (Lackey revisited).

• Author: Simmons, Erin

INTRODUCTION

According to the Bureau of Justice, the average death row inmate spends nearly thirteen years on death row awaiting execution. (1) Largely attributable to the procedural safeguards implemented after the reinstatement of capital punishment in 1976, (2) the average delay between sentencing and execution has nearly doubled within the past two decades. (3)

Prolonged confinement, commonplace for today's capital defendant, potentially gives rise to a "novel ... [and] legally complex" (4) claim. The so-called Lackey claim (5) challenges the combination of an execution with a significant period of confinement under sentence of death as a violation of the Eighth Amendment prohibition against cruel and unusual punishment. (6) While the novelty of the claim may have worn off over the past decade, (7) the question, whether prolonged confinement on death row violates the Eighth Amendment, remains unanswered by the lower courts and the Supreme Court alike.

This past year, an inmate petitioned the Supreme Court for certiorari to consider whether his impending execution, alter well-over over thirty years on death row, violated the Eighth Amendment. (8) The Court denied the inmate' s request for certiorari, re-igniting an ongoing debate (9) between three of the justices about the merits of this potential Eighth Amendment claim and the legitimacy of a capital punishment system that inevitably imposes a prolonged period of confinement under sentence of death prior to the actual execution. (10)

Is it possible for prolonged confinement to go from simply an unavoidable consequence of extensive appellate procedure to a form of cruel and unusual punishment? In other words, is there a tipping point in time where the courts must step in and say "enough is enough"? With over three thousand inmates on death row nationwide, (11) the answer to this question has the "potential for far-reaching consequences." (12)

Part I of this Comment briefly describes the landscape of capital punishment in the United States. Part II summarizes the arguments supporting the claim that prolonged confinement on death row constitutes cruel and unusual punishment. Part III discusses the Supreme Court's treatment of the Lackey claim over the past decade. Part IV then analyzes the common obstacles that prevent inmates from successfully bringing Lackey claims and suggests possible arguments for overcoming those obstacles. This Comment concludes that it is necessary for the Supreme Court to conclusively resolve the Lackey issue.

1. THE CURRENT STATE OF CAPITAL PUNISHMENT IN AMERICA

   According to a recent study by the NAACP, there are currently 3,297 inmates on death row nationwide. (13) Thirty-five states and the federal government permit capital punishment. (14) In 2009, fifty-two executions occurred in the United States, (15) as compared to a high of ninety-eight executions in 1998. (16) The Death Penalty Information Center projected 106 new death sentences in 2009, (17) also down from a high of more than 300 in 1998. (18) To eliminate the death row population, the states would have to execute one inmate every single day for the next twelve years. (19)

   The Death Penalty Information Center reports that inmates awaiting execution typically spend up to twenty-three hours per day alone in their cells. (20) Prisons often exclude death row inmates from prison education and employment programs. (21) During this period of isolated confinement, inmates experience a pervasive state of uncertainty about their pending execution. (22)

   A recent summary of death row policies and conditions based on a survey of thirty-seven state and federal facilities noted:

   "...while there is some variability in policy from state to state, death row conditions nationally are characterized by 'rigid security, isolation, limited movement, and austere conditions.' Not surprisingly, there is evidence that these bleak conditions impact the psychological adjustment of death row inmates--many of whom spend years in this status." (23)

   The Supreme Court has remarked that the time spent awaiting death is generally characterized by a general state of uncertainty about when and how the execution will take place, and is "one of the most horrible feelings to which [a person] can be subjected." (24) Justice Stephen Breyer recently argued that "it is difficult to deny the suffering inherent in a prolonged wait for execution--a matter which courts and judges have long recognized." (25)

   As the number of prisoners on death row rises, the delay between sentencing and execution will likely also continue to increase. As the delay increases, so too does the potential for a constitutional violation. The following section describes the potential Eighth Amendment violation that might arise when a state attempts to execute an inmate following a period of prolonged confinement.

2. THE LACKEY-STYLE ARGUMENT

   Inmates asserting a Lackey claim argue that execution following prolonged confinement on death row violates the Eighth Amendment prohibition against cruel and unusual punishment. (26) Simply stated, the claim challenges the combination of an execution with a period of prolonged confinement on death row (generally not the execution or the period of confinement alone). Even if capital punishment and prolonged confinement are both constitutionally permissible, the combination of the two may nonetheless be unconstitutional. Inmates typically assert four basic arguments in support of their Lackey claim: (1) an execution after prolonged confinement is contrary to society's evolving standards of decency; (2) an execution after prolonged confinement is contrary to the Framers' intent; (3) an execution after prolonged confinement does not further the penological goals of deterrence and retribution; and (4) an execution after prolonged confinement is inconsistent with international norms.

   1. Contrary to Society's Evolving Standards of Decency

      The Eighth Amendment explicitly prohibits the infliction of "cruel and unusual punishments." (27) The phrase "cruel and unusual," however, is not subject to a specific definition. In Trop v. Dulles, the Court stated:

      The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.... [T]he words of the Amendment are not precise, and ... their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society. (28) Whether a particular punishment violates the Eighth Amendment must be judged by the standards that "currently prevail," (29) not those of the past. In recent years, the Court has referenced society's "evolving standards of decency" when assessing whether a punishment violates the Eighth Amendment. (30) In two recent Death Penalty cases, Atkins v. Virginia (31) and Roper v. Simmons, (32) the Supreme Court evaluated the propriety of executing mentally retarded and juvenile offenders respectively by determining whether a national consensus existed against executing these types of offenders. (33)

      If a federal court considered a Lackey claim on its merits, it would likely consider society's "evolving standards of decency" (34) to resolve the question. While the analysis would not be as straight forward as the analysis in Atkins or Roper, a court could still engage in a similar inquiry to assess whether execution after prolonged confinement under sentence of death violates the Eighth Amendment. While society's increasing reluctance to impose and carry out capital punishment might generally suggest evolution away from the use of capital punishment, there is little evidence to suggest that a national consensus exists against executing persons who spend a prolonged period of time on death row specifically.

      To date, no state prohibits the execution of an inmate after a period of prolonged confinement. In fact, few states have actually considered the Lackey claim. Since the Lackey claim depends on a prolonged period of incarceration on death row, only a small handful encounter the claim in the first place. In practice, the claims predominately come from California, Florida, and Texas, states with the largest death row populations. (35) Likewise, no federal court has found a violation of the Eighth Amendment to execute an inmate after a prolonged period of time on death row.

      The more persuasive argument may be that society's acceptance of the death penalty seems to be waning. In 2009, only fifty-two executions occurred in the United States, (36) down from a high in 1998 of ninety-eight executions. (37) Fifteen states have abolished the death penalty entirely. (38) Of the states that still permit the use of the death penalty, the vast majority employ the practice infrequently. (39) Even the number of death sentences issued has dropped dramatically since 1999. (40) If for no other reason than the enormous costs that capital punishment imposes on cash-strapped states, the push for a blanket abolition of the death penalty appears to be gaining strength. (41)

      Since a litigant could not effectively establish a national consensus against executing persons who have spent a prolonged period of time on death row, he or she would likely have to rely on this argument in combination with the arguments that follow.

   2. Framers' Intent

      The Framers based the Eighth Amendment upon the Virginia Declaration of Rights of 1776, which was itself derived directly from the English Bill of Rights of 1689. (42) Reference to the English Bills of Rights provides insight into the Framers' intention when enacting the Eighth Amendment.

      Evidence suggests that the English Bills of Rights would have prevented execution after a prolonged period of confinement. (43) The English courts would not permit the government to hold a condemned prisoner for years prior to his or her execution. (44)

      Early American courts also prohibited prolonged death row incarceration, instead advocating for the "swift infliction...