Academic journal article Washington and Lee Law Review

Lethal Injection: A Horrendous Brutality

Academic journal article Washington and Lee Law Review

Lethal Injection: A Horrendous Brutality

Article excerpt

In 2012, I had purchased a non-refundable plane ticket to fly from Arizona to Alabama, where I was planning to witness the execution of one of my prior clients on April 12.1 But on April 9, three days before his scheduled execution, he received a stay from the Alabama Supreme Court because of pending lethal-injection litigation.2 He is still alive today because of the pending lethal-injection litigation. That is one of the reasons I love this type of litigation.

But I also hate this type of litigation. I am first and foremost a capital habeas attorney. As a capital habeas attorney, my job is to challenge the constitutionality of my client's convictions and his death sentence. In habeas proceedings, I often argue that my client was denied his Sixth Amendment right to effective assistance of trial counsel or that a prosecutor's misconduct deprived him of his right to a fair trial. I firmly believe there is ample evidence demonstrating that the death penalty is, in fact, unconstitutional and can never be carried out in constitutional manner.3 Despite this, we don't always win in federal habeas proceedings.

Therefore, once the federal courts have denied habeas relief, the state will generally move forward to carry out the now-deemed-valid death sentence. So I then have to switch hats; I am no longer challenging my client's death sentence. Instead, I must begrudgingly accept that the state is entitled to execute my client. However, although the state may be permitted to carry out his sentence, it must do so in compliance with not only the Eighth Amendment but also the First and Fourteenth Amendments. So at this stage of the process, I now seek to protect my client's civil rights.

My experience with lethal-injection litigation started in September 2007, when the Supreme Court granted certiorari in Baze v. Rees,4 a case out of Kentucky that challenged the constitutionality of the three-drug lethal-injection formula that was used by all death-penalty states at that time.5 With one exception, that grant of certiorari had the result of postponing the executions of all prisoners on death row across the country until after the merits ruling was issued in April 2008.6 The exception was Michael Richard, a Texas prisoner who was executed on the same day certiorari was granted because a court clerk refused to keep the door open past 5:00 p.m., even though Richard's lawyers had called the clerk asking if they could file a few minutes late due to computer issues.7

The Supreme Court's decision to review the Baze case resulted in a challenge to the lethal-injection procedures in Arizona, which in turn kept the state from executing several of our clients for three years.8

Did this litigation ultimately save these clients' lives? No, but a stay of execution meant that they could investigate and litigate challenges to their convictions and death sentences that may have been overlooked including pursuing a DNA issue in one of our clients' cases. The fact that a client remains alive also allows them to benefit from any change in the law that may impact the issues presented in their case. For example, one of my clients had an execution date delayed two years because of the pending lethalinjection challenge. During those two years, we were able to investigate and develop a never-presented mitigation case that resulted in the United States Supreme Court granting a stay of execution on his claim of ineffective assistance of counsel.9 While he was ultimately executed in August 2012, we were able to litigate constitutional claims for him, and he was able to celebrate his fiftieth birthday.

To be sure, this litigation has resulted in more than temporary stays of execution. Lethal-injection litigation has also helped to bring transparency to the process, make states accountable for their actions, and provide clients with access to counsel and the courts.

The Supreme Court decision in Baze was fractured, but the opinion that was adopted by all lower courts was the plurality opinion authored by Chief Justice Roberts, which said that if states had an execution protocol similar to that of Kentucky, including having safeguards in place to protect against a painful execution, then a prisoner would not be able to show an Eighth Amendment violation. …

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