Delay in considering the constitutionality of inordinate delay: the death row phenomenon and the Eighth Amendment.

• Author: Sharkey, Kara

INTRODUCTION I. THE DEATH PENALTY AND THE EIGHTH AMENDMENT: AN OVERVIEW II. THE SUBSTANCE OF A LACKEY CLAIM III. THE COURT'S DEBATE A. In Support of Granting Certiorari and Recognizing a Valid Constitutional Claim Based on Inordinate Delay: Justices Stevens and Breyer B. Against Granting Certiorari and Recognizing a Valid Constitutional Claim Based on Inordinate Delay: Justice Thomas IV. DOES INORDINATE DELAY ON DEATH ROW VIOLATE THE EIGHTH AMENDMENT? CHECKING IN ON THE EXPERIMENT A. The Antiterrorism and Effective Death Penalty Act: Lackey Claims Are Barred If Presented in Second or Successive Habeas Petitions B. Retroactivity: Lackey Claims Are Teague-Barred V. SOLUTIONS A. Abolishing the Death Penalty B. Reforming the Capital Appeals and Habeas Processes C. Improving Death Row Conditions D. Model Lackey Legislation 1. Delay Caused by the Inmate's Abuse of the Judicial System 2. Delay Caused by the Process of Judicial Review 3. Delay Caused by the State's Misconduct or Negligence CONCLUSION INTRODUCTION

On September 28, 2011, after thirty-three years on death row, Manuel Valle, age sixty-one, was executed by the State of Florida. (1) In 1987, Valle shot and killed police officer Louis Pena during a routine traffic stop. (2) At the time, Valle was twenty-seven years old. (3)

Why did it take Florida over three decades to execute Manuel Valle? During the first thirteen years after Pena's murder, Florida prosecutors struggled to obtain a constitutionally sound conviction and sentence. The Florida Supreme Court reversed Valle's initial conviction and sentence because the trial court forced him to stand trial within twenty-four days of his arraignment, in violation of his right to effective assistance of counsel. (4) On retrial, Valle was again sentenced to death, but this second sentence was vacated because the trial court improperly excluded mitigating testimony. (5) The Florida Supreme Court upheld Valle's third death sentence on appeal in 199i, and the Supreme Court of the United States denied certiorari. (6) For the next twenty years, however, Valle continued to litigate from death row. He filed a motion for state postconviction relief and federal petitions for a writ of habeas corpus, all of which were denied. (7)

When Florida Governor Rick Scott signed Valle's death warrant in June 2011, (8) Valle sought last-minute relief from the courts. He raised a new argument--that execution after such a lengthy delay would violate the Eighth Amendment's ban on cruel and unusual punishment. (9) Specifically, Valle asserted that his execution was unconstitutional because the State "added to [his] death sentence the morbid additional sentence of being taunted with death for three decades--the greater part of his life." (10) Ultimately, however, Florida executed Valle by lethal injection after the United States Supreme Court refused his petition for stay of execution and writ of certiorari. (11)

The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The issue first came to the Court's attention over fifteen years ago, in Lackey v. Texas. (12) Justice Stevens issued a memorandum respecting the Court's denial of certiorari in which he acknowledged that although "the importance and novelty of the question ... are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts." (13) Justice Stevens emphasized that denial of certiorari provided an important opportunity for state and lower federal courts to "serve as laboratories in which the issue receives further study before it is addressed by this Court." (14) Since Lackey, the Supreme Court has denied certiorari to every petitioner asserting this argument (hereinafter referred to as a "Lackey claim"), including Manuel Valle, and thus has not ruled on whether--or when--executions after inordinate delays on death row constitute cruel and unusual punishment.

Several Justices, however, have spoken out both in favor of and against recognizing an Eighth Amendment claim based on inordinate delay on death row. Justice Breyer and Justice Stevens have long urged the Court to address a Lackey claim, which, they suggest, has merit. Indeed, Justice Breyer has dissented from every one of the Court's refusals to grant certiorari to an inmate raising a Lackey claim. (15) In Valle v. Florida, Breyer noted that he had "little doubt about the cruelty of so long a period of incarceration under sentence of death" and further observed that three decades of "confinement followed by execution would also seem unusual." (16) Similarly, since issuing the Lackey memorandum, Justice Stevens has opined that execution after decades-long delays on death row is "without constitutional justification." (17) In contrast, Justice Thomas has repeatedly rejected Lackey claims by refuting "the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed." (18) He has consistently maintained that the Lackey claim lacks a basis in the Court's Eighth Amendment jurisprudence. (19)

Despite the considerable amount of time it takes to develop a Lackey claim, the issue continues to present itself, particularly as the length of time prisoners spend on death row increases. According to a 2010 Bureau of Justice Statistics report, from 1984 to 2010, the average elapsed time between sentence and execution for all death row inmates more than doubled, increasing from 74 months in 1984 to 178 months in 2010. (20) With the Lackey issue still unresolved, and with over 3100 people currently on death row in the United States, (21) courts can anticipate an increasing number of claims that execution after inordinate delay on death row violates the Eighth Amendment. Therefore, it is time for the Court to confront the issue and definitively determine the constitutionality of inordinate death row delays.

Notwithstanding the benefits of the highest court's resolution of the issue, the Supreme Court is unlikely to take a Lackey case in the near future. Since Justice Stevens issued the Lackey memorandum over fifteen years ago, procedural roadblocks have emerged that have prevented lower courts from addressing the merits of Lackey claims. (22) I argue that in certain circumstances, execution after lengthy confinement on death row does violate the Eighth Amendment and the "evolving standards of decency" (23) by which the Amendment is measured. Therefore, states must implement workable solutions that are carefully calibrated to address both the Lackey claim and the countervailing policy considerations.

Part I of this paper summarizes the bedrock principles that guide the Court in analyzing capital sentences challenged on Eighth Amendment grounds. Part II describes the substance of the Lackey claim and focuses on the causes of delay on death row and the psychological effect of this delay, known as the "death row phenomenon." (24) Part III traces the ongoing debate over the Lackey claim among the Justices of the United States Supreme Court. Then, Part IV assesses the experiment taking place in the "laboratories" of lower state and federal courts, and concludes that it has been lackluster, mostly because of the procedural issues that have limited courts' opportunities to address the merits of Lackey claims. Finally, in recognition that the Court is unlikely to grant certiorari and rule on the validity of Lackey claims, Part V focuses on alternative solutions to the problem of inordinate death row delays.

1. THE DEATH PENALTY AND THE EIGHTH AMENDMENT: AN OVERVIEW

   The Eighth Amendment of the United States Constitution states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." (25) In 1958, the Court observed in Trop v. Dulles that "[t]he exact scope of the constitutional phrase 'cruel and unusual' has not been detailed by this Court." (26) Despite the vague contours of the Eighth Amendment, from the time of the Framers until the 1970s, courts accepted the death penalty as constitutional. (27)

   In 1972, however, the longstanding approach to the death penalty began to shift. First, in a brief per curiam opinion in Furman v. Georgia, the Court declared that that the "imposition and carrying out of the death penalty [pursuant to Georgia's and Texas's capital punishment statutes] constitute[d] cruel and unusual punishment." (28) Concurring, Justice Brennan articulated four principles inherent in the Eighth Amendment's ban on cruel and unusual punishment: first, a punishment must not be "degrading to human dignity"; second, it must not be arbitrarily inflicted; third, a "punishment must not be unacceptable to contemporary society"; and finally, the "punishment must not be excessive." (29)

   Although Justices Brennan and Marshall each opined in Furman that the death penalty was per se unconstitutional, (30) the other concurring opinions cited narrower reasons for striking it down. Specifically, several of the Justices found that the Georgia statute facilitated this most severe punishment in an unconstitutionally arbitrary manner. (31) For those Justices, it was not capital punishment itself that violated the constitution in Furman, but the unpredictability of its imposition under the Georgia statute. (32) According to Justice Douglas, the law gave sentencers "practically untrammeled discretion to let an accused live or insist that he die." (33) Similarly, Justice Stewart concluded that because "this unique penalty [was] so wantonly and so freakishly imposed," particularly on minority groups, its use was cruel and unusual. (34)

   Furman effectively put a halt to the death penalty in the United States while legislatures revised their capital punishment statutes to meet the newly...