Recently a number of state capital defendants have claimed that after their lengthy stay on death row their pending executions will make no measurable contribution to acceptable goals of punishment, will be nothing more than the imposition of needless pain and suffering, and therefore violate the Eighth Amendment. Elsewhere I have essentially agreed that when an inmate has been on death row for an inordinate period--that is, twice the national average of other executed inmates--the pending execution may constitute cruel and unusual punishment.(1) This Article deals with the procedural morass surrounding the inordinate delay claim.
Part II details a few of the cases in which inordinate delay was asserted. It concludes that a defendant is more likely to be on death row for an inordinate period when the case is on the margins of death eligibility and errors occur during the state's processing of the case. Part III reviews the processing of capital cases in California, Florida and Texas--the three states with the largest death row populations--and in a number of other jurisdictions. Despite a firm commitment to capital prosecutions, the states have not established effective and efficient capital case processing systems. Consequently, most of the delay that elapses between the imposition of a death sentence and the execution of a capital defendant is the responsibility of state officials.
Part IV outlines the procedural posture under which federal habeas courts will address the issue and proposes how courts should address inordinate delay claims. State capital defendants will likely rely on the procedure outlined in the Antiterrorism and Effective Death Penalty Act (AEDPA) to litigate their inordinate delay claims in federal court. Under the AEDPA, a capital defendant is entitled to a heating on the merits of his or her habeas corpus petition if the petition credibly alleges that his or her detention violates the Constitution or federal law. A capital defendant asserting inordinate delay can rely on his or her postsentencing conduct as a basis for challenging the appropriateness of his or her death sentence. Part V addresses common objections expressed against recognizing inordinate delay as a substantive limit on death eligibility. These objections do not withstand scrutiny because they do not reflect the actual dynamics of the capital litigation process. Therefore, courts should no longer continue to rely on these objections as reasons for not considering the merits of inordinate delay claims.
Finally, Part VI contains suggestions on how to avoid inordinate delay in capital cases. The issue of inordinate delay implicates how the death penalty is administered. Therefore, inordinate delay can possibly be avoided if the capital litigation process is refocused to ensure that only defendants most deserving of death are prosecuted for capital crimes. This refocusing should include reconsidering the roles of prosecutors, judges, defense attorneys, and the public at large in capital cases.
CAPITAL CASES THAT TYPICALLY LEAD TO INORDINATE DELAY
Inordinate delay between the imposition of a death sentence and the execution is most likely to occur when a serious error occurs during the prosecution of the case, and that error is discovered while the case is being processed. This Part(2) reviews--in some detail--a few of the fairly representative cases in which a capital defendant was on death row for twice as long as the national average, and asserted before a subsequent court that the state had forfeited the right to execute him.
CARYL WHITTIER CHESSMAN
In 1948, Caryl Whittier Chessman was convicted and sentenced to death for crimes committed by a man dubbed the "Red Light Bandit."(3) For the next twelve years, Chessman claimed that his conviction should be reversed because he was denied due process, based on the manner by which his trial transcript was constructed.(4) He had mixed success.(5) By 1959, Chessman was also asserting that his continued confinement subjected him to creel and unusual punishment. He persuaded neither the courts nor the governor and on May 2, 1960, California executed him.(6)
Charles Townsend was prosecuted for murder in 1955. The key issue in his case was the admissibility of a confession he gave while under the influence of drugs administered by a police physician. Over Townsend's objection, the confession was admitted and he was convicted and sentenced to death. After his conviction was affirmed in state court,(7) the United States Supreme Court, on federal habeas review, ordered the district court to hold a heating to determine the voluntariness of the confession.(8) The district judge later found that the confession was voluntary, but nonetheless ordered a retrial within four months because of "evidentiary defects" in the trial.(9) That judgment was reversed by the Seventh Circuit Court of Appeals because erroneous evidentiary rulings were not a basis for granting federal habeas corpus relief;(10) the writ can issue only when a prisoner is being held in custody in violation of federal laws or the Constitution. Townsend filed a second federal habeas petition in 1967. In 1971, by the time the district court held another hearing and addressed the merits of the second petition, Townsend was thought to be this nation's longest inhabitant of death row.(11) This time the district court ruled that the statement was involuntary and its admission violated Townsend's constitutional rights.(12) That judgment, too, was reversed by the Seventh Circuit.(13) The appellate court ruled that the district court had abused its discretion in adjudicating the merits of the second petition because there had been no change in the factual or legal background of Townsend's claim since it had been rejected by the appellate court three years earlier.(14) However, the death sentence was vacated on a different ground.(15)
WILLIE LEE RICHMOND
In 1974, Willie Lee Richmond was convicted of robbery and first degree murder. The jury was instructed on both premeditated murder and felony murder, but in returning with a general verdict, it did not indicate which theory it adopted.(16) The trial judge imposed a death sentence.(17) That sentence was later vacated after the Arizona Supreme Court, following the then-recently decided United States Supreme Court decisions in Lockett v. Ohio(18) and Bell v. Ohio,(19) held that the Arizona state law unconstitutionally restricted mitigating circumstances evidence that capital defendants could present.(20) At a subsequent sentencing hearing, Richmond was again sentenced to death. Though it disagreed over which aggravating circumstances supported the death sentence, a divided Arizona Supreme Court affirmed the sentence.(21)
Richmond later asserted that the state's twelve-year delay in executing him, coupled with the conditions of his confinement, violated his Eighth Amendment rights. The federal courts rejected his claim. The district court judge noted that Richmond had made good use of his time on death row--in no longer being exposed to drugs and undergoing a religious conversion--and that the delay was initiated by him to challenge his conviction and sentence.(22) In affirming that ruling, the Ninth Circuit Court of Appeals added that a capital defendant should not be penalized for his legitimate exercise of his right to appeal, but that the delay caused by such appeals could not itself ripen into a substantive claim.(23) In 1994, after twenty years on death row, the Arizona Supreme Court modified Richmond's death sentence to life imprisonment without parole.(24) The court based its decision on Richmond's rehabilitation on death row, the possibility of additional years of delay in the event that a new death sentence was imposed, and certain changes in Arizona's capital sentencing laws.(25)
DUNCAN PEDER MCKENZIE, JR.
In 1975, a jury convicted Duncan Peder McKenzie, Jr. of aggravated kidnapping and deliberate homicide by means of torture. The Montana Supreme Court affirmed his conviction and sentence and rejected his numerous claims on appeal, including his assertion that the jury instructions unconstitutionally shifted to him the burden of proving his state of mind.(26) The United States Supreme Court twice granted McKenzie's petitions for certiorari and each time remanded the case to the Montana Supreme Court for further consideration.(27) In 1980--its fourth review of the case on direct appeal--the Montana Supreme Court ruled that any error regarding the jury instructions was harmless beyond a reasonable doubt.(28)
McKenzie was then unsuccessful in each of his federal habeas petitions. While litigating his first federal habeas corpus petition, McKenzie discovered that a week after the jury verdict and a month before his sentencing hearing, the trial prosecutor had a forty-five minute ex parte meeting with the trial judge.(29) He alleged in his second habeas petition that this meeting violated his rights under Gardner v. Florida.(30) After holding a hearing on the claim, in 1992, the federal district court ruled that there was no credible proof that the 1975 conference could have influenced the sentencing decision, and the Ninth Circuit later affirmed that judgment.(31) In a third federal habeas petition filed on the eve of his execution, McKenzie challenged his execution after his twenty-year stay on death row. He claimed, on appeal from the district court's denial of his petition, that the state should be held responsible for the almost fifteen-year period in which no court proceeding was held to resolve the Gardner claim. Montana countered that it should be considered responsible only for five years and nine months of his twenty-year stay on death row because that was the time his case had spent on direct appeal. The appellate panel dismissed the petition on procedural grounds,(32) and McKenzie was executed two days later,(33)
Getting out of this mess: steps toward addressing and avoiding inordinate delay in capital cases.
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