How Long Must They Wait? Lackey Claims, Excessive Delay, and Evolving Standards of Decency

• Published date: 01 August 2015
• DOI: 10.1177/0887403414528002
• Author: Corey D. Burton,John D. Burrow
• Date: 01 August 2015
• Subject Matter: Articles

Criminal Justice Policy Review

2015, Vol. 26(6) 620 –638

© 2014 SAGE Publications

Reprints and permissions:

sagepub.com/journalsPermissions.nav

DOI: 10.1177/0887403414528002

cjp.sagepub.com

Article

How Long Must They Wait?

Lackey Claims, Excessive

Delay, and Evolving Standards

of Decency

Corey D. Burton1 and John D. Burrow1

Abstract

An almost inherent characteristic of American death penalty jurisprudence is the long

period of time that passes between the sentencing of a death-eligible defendant and

the defendant’s execution. Although defendants who are sentenced to death row

have a clear interest in exhausting all appeals, in many cases, the entire process may

take 20 to 30 years or more, possibly exposing these individuals to undue physical

and psychological harm. Such harm, when combined with the execution itself, may

violate the Eighth Amendment to the U.S. Constitution. The current piece examines

the concept of Lackey claims and examines such claims within the framework of

“evolving standards of decency.” Recommendations for policy are also discussed.

Keywords

death penalty, Lackey claims, Eighth Amendment

In Lackey v. Texas (514 U.S. 1045, 1995), the U.S. Supreme Court denied certiorari

for a petition asserting that an Eighth Amendment violation occurs when an inordinate

amount of time has been spent on death row. The main thrust of the petition asserted

that 17 years spent on death row not only frustrates the aims of the death penalty

(deterrence), but it also violates the cruel and unusual provision of the Eighth

Amendment. Although the Court recognized the novelty of Lackey’s claim, it

1University of South Carolina, Columbia, USA

Corresponding Author:

Corey D. Burton, University of South Carolina, 1305 Greene St., Columbia, SC 29208, USA.

Email: burtoncd@email.sc.edu

528002CJPXXX10.1177/0887403414528002Criminal Justice Policy ReviewCriminal Justice Policy ReviewBurton and Burrow

research-article2014

Burton and Burrow

Burton and Burrow 621

nevertheless declined to grant certiorari until the lower courts had an opportunity to

address the issue. Notably, Justice Stevens issued a memorandum in which he agreed

that Lackey’s claims raised a number of constitutional issues that could have far-

reaching implications for both state and federal courts (514 U.S. at 1045-46). Of spe-

cial note, Justice Stevens asserted that the amount of delay in Lackey’s case was of a

special character given the tremendous amount of “uncertainty” (mental stress and

deterioration or “death row phenomenon”) that he (Lackey) would have been exposed

to while on death row. Although this memorandum did not have the effect of prevent-

ing Lackey’s execution, it did provide a legal framework from which courts and other

scholars could begin to evaluate the merits of Lackey’s claims.

Notwithstanding this early stance, plaintiffs who are sentenced to death have tried

to circumvent this judicial roadblock by arguing that constitutional violations occur

when states allow them to “languish” on death row. One early attempt to make the

connection between mental anguish and deterioration and time spent on death row

occurred in In re Anderson (69 Cal.2d 613). Here, Robert Page Anderson alleged that

spending 1,000 days on death row and the mental deterioration that accompanies such

an extended period of time constitutes cruel and unusual punishment (69 Cal.2d at

632). In resolving this issue, the California Supreme Court acknowledged that mental

suffering likely occurs during any prolonged period of detention. However, without

evidence that the state was responsible for the delay of execution then there can be no

constitutional violation. This judicial outcome was actually dictated by the decision in

People v. Chessman (52 Cal.2d 467) in which a defendant claimed that 11 years on

death row violated the Eighth Amendment. Again, the court recognized that “mental

anguish” is a likely consequence when such a prolonged period of time elapses

between sentencing and the actual execution of the death sentence. However, the court

did not decide the merits of this issue but instead focused on the cause of the delay.

Scholars who support the argument that the mental anguish and deterioration atten-

dant to lengthy stays on death row argue that the courts may be incorrectly framing the

issue. That is, they argue that the mental deterioration is real, and it is analogous to

psychological torture. Surprisingly, many criminologists have largely ignored this

issue. Given the field’s interest with issues related to the death penalty as well as time

and efficiency,1 it would seem that some attention would be given to whether certain

constitutional principles are offended by delays that in some instances exceed 20

years. Such long delays call into question one of the underlying rationales for the death

penalty itself, deterrence. Although the Supreme Court has at various times acknowl-

edged that deterrence is an appropriate goal of punishment (Gregg v. Georgia, 428

U.S. 153, 1976), it has not yet addressed whether this rationale is diminished with the

passage of time.

Given this view of deterrence, the nexus between a death sentence and the subse-

quent execution should be closely bound together. However, there remains the ques-

tion of whether the passage of time erases this nexus? Where this nexus is nonexistent,

should the courts, especially the Supreme Court, reconsider the validity of a death

sentence? These questions provide fertile ground for research from criminologists and

legal scholars alike. With this in mind, this article has two primary aims: (1) evaluate

the merits of Lackey claims from the standpoint of evolving standards of decency and