Academic journal article The Yale Law Journal

Can Section 1983 Help to Prevent the Execution of Mentally Retarded Prisoners?

Academic journal article The Yale Law Journal

Can Section 1983 Help to Prevent the Execution of Mentally Retarded Prisoners?

Article excerpt

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. …

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