Legal injection: the Supreme Court enters the lethal injection debate: Hill v. McDonough.

• Author: Greer, Megan

The end of the 2005-2006 Supreme Court term brought a flurry of death penalty opinions. (1) The media lavished attention on the fiery concurring and dissenting opinions of Justices Scalia and Souter in Kansas v. Marsh; in addition to upholding Kansas' capital sentencing protocol, the Marsh court engaged in a rare theoretical and pragmatic debate over the death penalty. (2) In contrast, Hill v. McDonough was brushed aside by many as involving a mere "procedural issue." (3) With the spotlight now focused on lethal injection challenges, (4) however, it is the Hill decision that packs enough punch to drastically alter death penalty litigation.

In Hill, the Court held that condemned inmates can challenge a state's method of execution under 42 U.S.C. [section] 1983 in addition to seeking habeas corpus relief. Although the decision has been interpreted as a resolution to "a narrow procedural question," (5) some commentators have read Hill to signify that the Court is now ready to entertain arguments over the substantive merits of lethal injection, (6) the country's most prevalent method of execution. (7) The Hill decision, handed down in the midst of rising national conflict over the use of lethal injection, not only reinvigorated the debate but also made the Court an active participant.

In doing so, the Hill decision has unnecessarily complicated Eighth Amendment lethal injection challenges by inviting a flood of litigation on a single, narrow issue. Even if the Court eventually resolves the issue, the constitutionality of lethal injections will remain uncertain until such a resolution. With multiple states and federal courts already deeply fractured over the lethal injection question, the Court's Hill decision makes it likely that the situation will worsen before it improves.

On October 19, 1982 in Mobile, Alabama, Clarence Hill and an accomplice, Cliff Jackson, stole a pistol and an automobile. (8) That same day, Hill and Jackson drove to Pensacola, Florida, where they robbed a savings and loan association at gunpoint. (9) During the robbery, Hill "demanded money and threatened that he would 'blow some brains out." (10) Hill also kicked a bank teller and pulled him by the hair while he lay on the floor. (11) When the police arrived, they apprehended Jackson while Hill fled through a back door. (12) As the police attempted to handcuff Jackson, Hill approached the two police officers from behind and shot them both. (13) One officer was killed and the other was wounded. (14)

In 1983, Hill was convicted of first-degree murder. (15) The jury, by an 11-1 vote, recommended that Hill be sentenced to death. (16) The judge, in imposing the death sentence, found five applicable aggravating factors and only one applicable mitigating factor. (17) At the time that Hill's conviction and sentence became final, Florida law prescribed electrocution as the state's method of execution. (18) When Florida amended its statute in 2000 to replace electrocution with lethal injection as the state's method of execution, (19) Hill had already completed a full round of unsuccessful federal habeas corpus litigation. (20) Although Florida law specifies the method of execution, the implementation of lethal injection is under the purview of the Florida Department of Corrections, which had not established a specific protocol. (21) On November 29, 2005, the Governor of Florida signed Hill's death warrant and set Hill's execution date for January 24, 2006. (22) At this point, Hill requested information about Florida's lethal injection protocol, but the Department of Corrections did not provide him such information. (23)

On December 15, 2005, less than six weeks before his scheduled execution, Hill for the first time challenged Florida's lethal injection procedure by filing a successive post-conviction petition in state court. (24) The trial court denied Hill's request for an evidentiary hearing, and the Florida Supreme Court affirmed. (25)

On January 20, 2006, Hill brought an action in federal district court under 42 U.S.C. [section] 1983 to "[bar the State] from executing [Hill] in the manner they currently intend." (26) The district court held that Hill's [section] 1983 claim was the "functional equivalent" of a petition for writ of habeas corpus and denied the claim. (27) The Court of Appeals for the Eleventh Circuit affirmed, finding that Hill's [section] 1983 action was a successive petition barred by 28 U.S.C. [section] 2244(b)(3)(A). (28)

The Supreme Court reversed and remanded. (29) Writing for a unanimous Court, Justice Kennedy held that inmates can challenge the constitutionality of a state's method of execution not only through a petition for a writ of habeas corpus but also under [section] 1983. (30) The Court first began with an overview of post-conviction appeals in capital cases. It observed that "[c]hallenges to the lawfulness of confinement or to particulars affecting its duration are the province of habeas corpus," while [section] 1983 suits allow inmates to challenge "the circumstances of his confinement." (31)

The Court then assessed the applicability of precedent. In Nelson v. Campbell, the Court first considered whether a challenge to a lethal injection procedure must proceed as a habeas corpus action. (32) In Nelson, the inmate challenged only the constitutionality of one aspect of lethal injection: Alabama's "cut-down" procedure to access the condemned inmate's veins, which were severely compromised due to past drug use. (33) Although the Court held that Nelson's claim could proceed as a [section] 1983 action, the Court noted that it "[n]eed not reach here the difficult question of how to categorize method-of-execution claims generally." (34) Although the Hill Court found that Nelson "did not decide th[e] question" of whether an inmate's [section] 1983 action could proceed to challenge lethal injection as a method of execution in general, it nonetheless found Nelson's holding to be controlling. (35)

Although Nelson involved the narrower issue of the cut-down procedure, the Court distinguished both challenges from earlier precedent that barred prisoners' [section] 1983 suits from proceeding when a judgment in the inmate's favor would invalidate the sentence; in those instances, challenges must be brought via habeas corpus. (36) Beccause Hill's challenge to Florida's lethal injection protocol would not necessarily prevent the state from carrying out Hill's death sentence under a different protocol, the Court concluded that any potential success of Hill's [section] 1983 suit would not necessarily invalidate his death sentence. (37)

Next, the Court dismissed two arguments advanced by amici. First, the United States argued that a capital litigant's [section] 1983 may proceed only if the prisoner identifies an alternative, authorized method of execution. (38) In addition, the state of Alabama argued that [section] 1983 relief is inappropriate if, as a practical matter, the suit would frustrate the execution. (39) In both Hill and Nelson, the inmates conceded that other methods of execution would be constitutional. (40) The Hill Court, however, refused to require such a concession; it held that inmates need not affirmatively identify a constitutional method of execution to advance a [section] 1983 challenge to the intended method. (41) Nonetheless, the Court indicated that if the relief sought by an inmate would in fact foreclose execution, the Court might re-characterize the challenge as an action for habeas relief. (42)

Finally, the Court iterated that filing a [section] 1983 suit does...