The National Pulse

It's All in the Execution

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Alabama Solicitor General Kevin C. Newsom knows all about the old switcheroo.

He’s experienced it himself. And he describes it in an amicus brief for 25 states he filed this spring with the U.S. Supreme Court in the case of Florida cop-killer Clarence Hill, who won his bid to use a civil rights statute to challenge the state’s procedure for executing him by lethal injection. Hill v. McDonough, No. 05-8794 (June 12).

In his brief, Newsom presented the justices with the cautionary tale of Alabama death row inmate David Larry Nelson, whom the court handed a similar yet more limited victory in 2004. Nelson v. Campbell, 541 U.S. 637. To New­­som’s chagrin, the unanimous court that decided Hill paid little heed.

Prosecutors worry because inmates like Hill and Nelson are among scores nationwide who say they’re not objecting to their death sentences, but rather to the methods states use to go about the job. The trouble, prosecutors say, is that in neither Nelson nor Hill do the justices offer significant guidance on how trial courts can stop litigation that could continue forever by allowing inmates to refocus their complaints every time a state changes its execution protocol.

That’s precisely what Nelson did, say prosecutors.

He was convicted in a crime spree that began on New Year’s Eve 1977 with the fatal shooting of a taxi driver and ended the next day with the shooting in the back of the head of a man who had accepted Nelson’s invitation to have oral sex with his girlfriend. He received a death sentence for the second shooting. Now 61, Nelson previously had been convicted of second-degree murder in 1974. His litigation tactics have kept him alive far longer than Alabama officials had planned.

“We’ve got to figure out some sort of way of wrapping these things up in a single proceeding,” Newsom says. “The problem is that there are a billion other claims the defense bar can raise. It’s sort of a bottomless well of claims.”

Nelson, whose surface veins in his arm had collapsed from drug use, objected to a special “cut-down” procedure that would have involved a 2-inch surgical incision so prison officials could administer the deadly shot deep below the compromised vessels. Hill, like most other inmates challenging the process, says he risks agonizing pain should executioners fail to give him the proper dosage of the three-drug concoction most often used in lethal injections.

All the inmates argue the procedures violate the Eighth Amendment’s ban on cruel and unusual punishment.

Before Nelson argued his case to the Supreme Court, the state, at his suggestion, had agreed to abandon the cut-down procedure for another method in which exe­cutioners would pump the drugs into his body through a line piercing one of his major blood vessels, such as the femoral artery in the leg or the carotid in the neck.

So the issue appeared moot to Newsom, who argued Alabama’s side to the justices. Nelson’s lawyer even told the justices that the new method, called a central line procedure, was satisfactory to his client.

“By the time we reached the Supreme Court, everyone pretty much had agreed that the cut-down probably wasn’t going to happen,” Newsom recalls.

Newsom knows differently now that Nelson has won and returned to the trial court with a spanking new cause of action under section 1983, part of the Civil Rights Act of 1871.

“Nelson started challenging his own chosen procedure,” Newsom says.  


Also frustrated was U.S. District Judge Myron H. Thompson as Nelson made new demand after demand for information on the central line procedure. “Cough up now or shut up,” Thompson told defense lawyers at one point. “Now tell me what it is you want.” Nevertheless, instead of dismissing Nelson’s claim, Thompson suggested that his lawyers amend it to reflect his new objections.

“They said that they would certainly be happy to amend the complaint to challenge the central line procedure, which they subsequently did, thus formalizing their switcheroo,” Newsom wrote in the 25-state brief in Hill.

Defense lawyer Bryan A. Stevenson says the litigation will end only when the state firmly commits in advance to a constitutional procedure.

Though Nelson always has maintained that a properly performed central line procedure may be acceptable, he complains the state has stonewalled by refusing to explain ahead of time how it will be done.

“Instead, what they’ve said is we won’t make a decision until the time of execution,” says Stevenson, executive director of the Mont­gom­ery-based Equal Justice Initiative of Alabama. “Virtually everything they represented that was going on in the district court was a gross mischaracterization.”

Executioners rarely use the cut-down procedure at issue in Nelson, and the court’s decision to allow the section 1983 challenge probably only would have affected a hand­ful of inmates. But when the justices in June opened civil rights claims to inmates like Hill, who contest “routine” procedures, they effectively invited nearly all the nation’s 3,370 condemned prisoners to take another crack at the system.

Of 38 states with the death penalty, 37 use lethal injection, as do the federal government and the military. In challenges such as Hill’s, death-sentenced inmates claim they risk excruciating pain from asphyxiation should they receive insufficient doses of anesthesia that is supposed to knock them out before more powerful drugs that kill them take effect.

The question of endless litigation also had arisen in Nel­son, when Ohio prosecutors, arguing as amicus for 30 states, warned that “it is reasonable to assume that virtually all death-sentenced prisoners will be citing the ‘Nel­son exception’ as grounds for eleventh-hour stays.”

Indeed, Hill’s Supreme Court brief states that his section 1983 com­plaint was “modeled on the one this court approved” in Nelson. The conundrum also showed up at oral arguments in both cases.

Writing for the court in Hill, Justice Anthony M. Kennedy recognized the potential for abusive or repetitive litigation designed only to stall executions. In response, Kennedy simply told trial courts to employ “a strong equitable presumption” against staying executions to hear claims that could have been brought earlier or are filed just to manipulate the process. But Nelson filed his complaint three days before his scheduled execution, and Hill filed his only four days before he was supposed to die, leaving prosecutors to wonder how late is too late.

Though Hill initially was received as merely a procedural blip that would have little effect on the larger debate over the death penalty itself, section 1983 litigation may hold other traps for prosecutors.

Before the court decided Nelson and Hill, Congress in 1996 had tried to speed up the execution machinery with the Antiterrorism and Effective Death Penalty Act, which with few exceptions limits federal postconviction relief to a single petition for a writ of ha­beas corpus.

The Atlan­ta-based 11th U.S. Circuit Court of Appeals initially turned away both Nelson and Hill, holding that their civil rights actions really amounted to successive ha­be­as petitions barred by the 1996 law.

Though prosecutors call it a distinction without a difference, the high court in both cases said the com­plaints properly fell under section 1983 because they merely challenged execution protocols and not lethal injection or the death penalty per se, which would have required inmates to use habeas and deal with the 1996 act’s formidable restrictions.

“There’s rather rich case law under section 1983,” says Fordham University law professor Deborah W. Denno, who has written extensively on execution protocols. “It’s a richer vehicle for scrutinizing execution procedures.”

In a 1997 law review article, Denno suggests a line of Su­preme Court cases decided under section 1983 that address prison officials’ “deliberate indifference” in disregarding substantial risks of serious harm to inmates. Pointing to reports of botched executions, including one in which flames shot from a Florida inmate’s head when he was electrocuted, Denno hints that defense lawyers in some states may be able to establish patterns in the lethal injection process that could qualify as deliberate indifference.


Thus, though defense lawyers insist that today’s lethal injection challenges aim to do nothing more than prevent their clients from being tortured, section 1983 does hold some hope for turning the civil rights actions on their heads and taking direct aim at the death penalty.

Looking at section 1983 in that light and considering that the justices never before had scrutinized any means of execution, Denno says even the baby procedural step the court took in Hill may foreshadow more than meets the eye.

“In that kind of context, this movement is unique and it validates all these challenges that have been going on,” she says. “The fact that the court is extending Nelson is huge. It’s an issue that pertains to every lethal injection in this country.”

That may be why Alabama solicitor Newsom holds out more hope for a legislative solution than a judicial one. By giving inmates a section 1983 cause of action, he says, the justices thwarted congressional intent in trying to accelerate executions with the 1996 habeas crackdown.

In the meantime, Newsom and other prosecutors expect they’ll just have to deal with the new cases.

“What the states need to do is prepare for a completely new level of review: direct appeal, habeas and, now, section 1983,” Newsom says.

“We’ll assume we’ll be facing a section 1983 challenge to every execution.”

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