Can section 1983 help to prevent the execution of mentally retarded prisoners?

• Author: Lieb, Doug
• Position: COMMENT

Texas death-row inmate Henry Skinner, having long maintained his innocence, asked federal courts to order new DNA testing of preserved crime-scene evidence. In March 2011, the U.S. Supreme Court held that Skinner need not seek DNA testing through a petition for habeas corpus, and could assert his claim in a civil action under 42 U.S.C. [section] 1983 instead. (1)

Habeas corpus is the federal statutory remedy for unlawful detention pursuant to a state court judgment. (2) State prisoners seeking release on constitutional grounds typically petition for habeas relief. The federal habeas statute requires prisoners to exhaust all available state remedies first, (3) and it bars federal courts from granting relief unless state courts acted unreasonably when they previously heard the claim. (4) But a state prisoner's unlawful detention is also a "deprivation" of his rights under color of state law, for which 42 U.S.C. [section] 1983 would seem to authorize remedies. (5) Section 1983 has no requirements of exhaustion and deference. (6) Thus, to prevent prisoners from using the civil rights statute as an end run around the habeas statute, the Court has established a boundary between the two.

In Skinner, the Court relied on precedent holding that a claim must be brought exclusively in habeas if "judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence." (7) Actions that would not necessarily imply the invalidity of the conviction or sentence, even if they succeeded, are "allowed to proceed" under [section] 1983 instead. (8) The majority reasoned that Skinner would only obtain DNA testing if he prevailed and that DNA testing could just as easily incriminate as exonerate him. (9) Thus, because granting Skinner the remedy he sought would not necessarily invalidate his sentence or conviction, the Court held that his claim was cognizable under 1983 and did not need to be raised in a habeas petition. (10)

But Skinner had previously sought DNA testing in state court and lost. (11) And if testing yielded his desired result, his conviction would surely rest on shaky ground. Thus, the dissent feared that Skinner could have far-reaching consequences, positioning 42 U.S.C. [section] 1983 as an alternative avenue to federal post-conviction relief-without the habeas statute's "proper respect for state functions." (12) Justice Thomas complained that the Court had provided a "roadmap for any unsuccessful state habeas prisoner to relitigate his claim under [section] a983." (13) Envisioning a flood of litigation, he asked, "What prisoner would not avail himself of this additional bite at the apple?" (14)

This Comment identifies a new role for [section] 1983 in post-conviction litigation. Many prisoners may try to use [section] 1983, and it may prove generally valuable in imposing greater fairness and uniformity in state post-conviction proceedings. (15) But it is a particularly good fit for a group that desperately needs a new pathway to relief: mentally retarded death-row inmates. (16)

In theory, under Atkins v. Virginia, (17) persons with mental retardation may not be executed. In practice, they can be. Ineffective trial counsel may fail to recognize mental retardation or properly develop a claim. State-law definitions of mental retardation may be confusing or inconsistent with clinical science. A meritorious claim asserted in habeas may be dismissed because it is procedurally defective. (18) Indeed, these obstacles may be mutually reinforcing. The consequence is that mentally retarded persons can rather easily end up being executed even though the Constitution forbids it. The failure of habeas to prevent the deaths of death-ineligible offenders is a serious moral and constitutional problem that demands a solution.

I argue that Skinner invites [section] 1983 challenges to deficient state procedures for adjudicating mental retardation. Such actions could bring meritorious Atkins claims into federal court outside the deferential habeas framework. I focus on Texas, not only because it is by far America's most active death penalty jurisdiction. (19) but also because its state-law standard for mental retardation is unusually arbitrary and clinically unsound. (20) I will (1) analyze Skinner's importance; (2) describe how Texas wrongly evaluates Atkins claims and why meritorious claims often fail; and (3) explain how a civil rights action might work and might help.

1. SKINNER

   There were two holdings in Skinner, which together make clear that state procedural rules in capital cases are susceptible to [section] 1983 challenges.

   First, Skinner's claim was not jurisdictionally barred by the Rooker-Feldman doctrine. (21) By federal statute, only the U.S. Supreme Court has appellate jurisdiction over state court judgments. (22) Thus, federal district courts have no jurisdiction to review state court judgments. (23) Rooker and Feldman bar actions in which "[t]he losing party in state court filed suit in a U.S. District Court after the state proceedings ended, complaining of an injury caused by the state court judgment and seeking federal-court review and rejection of that judgment." (24)

   Skinner moved for post-conviction DNA testing under a Texas statute authorizing it if the prisoner met certain conditions. (25) He lost when the Texas Court of Criminal Appeals found that he failed to meet those conditions. (26) He then filed his [section] 1983 action against the district attorney who had custody of the evidence he wanted to test, alleging a due process violation. Thus, Skinner appeared to be challenging an adverse decision of Texas's highest criminal court in federal district court-precisely what Rooker-Feldman disallows. His attorneys clarified, however, that he was challenging Texas's "post-conviction statute 'as construed' by the Texas courts," rather than the adverse judgment itself. (27) Thanks to this maneuver, Skinner cleared the Rooker-Feldman bar. (28)

   Rooker-Feldman is surely relevant to post-conviction litigation under [section] 1983, for there is only a reason for a federal suit if the state court judgment is adverse. But Skinner shows how to steer clear of it: challenge the rule that governs the decision, not the decision itself.

   The second holding was that Skinner need not petition for the writ of habeas corpus and could instead seek remedies under 42 U.S.C. [section] 1983. Its simple logic was discussed above. A habeas petition is the proper way to challenge the fact or duration of one's confinement, (29) or to advance collateral claims that "necessarily imply the invalidity of [one's] conviction or sentence." (30) An action seeking DNA testing, if successful, simply yields testing, which does not "necessarily" invalidate a conviction because its results are uncertain. (31)

   Technically, then, Skinner straightforwardly applied existing precedent. (32) But Skinner's suit differed from other post-conviction claims that the Court has previously found cognizable under [section] 1983. Those actions have challenged state parole proceedings, (33) prison disciplinary proceedings that result in the loss of good-time credits, (34) and the particular drug cocktail used in a lethal injection. (35) If successful, those [section] 1983 actions would yield new administrative proceedings or execution protocols, which might, in turn, result in a prisoner being released earlier or killed by a different method. Either way, their ultimate outcome would be consistent with the initial sentence. Skinner's [section] 1983 action, however, falls just one step short of challenging the original judgment itself. If Skinner is ultimately successful in his [section] 1983 action, he only gets DNA testing. But if the DNA testing "succeeds," his conviction and sentence will be effectively invalidated. (36)

   Even if it merely applied precedent, therefore, Skinner brought 42 U.S.C. 1983 one step closer to the goal that capital post-conviction litigants usually seek to achieve through habeas: overturning the death sentence.

2. ACTUALIZING ATKINS

   In Atkins litigation, Texas death-row inmates with plausible claims of mental retardation have an exceedingly difficult task. Atkins left it to the states to...