Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment
The Supreme Court has repeatedly declined to address the validity of the unconstitutional delay claim raised by Valle and other death row inmates before him. The issue first came to the Court’s attention over fifteen years ago, in Lackey v. Texas. Justice Stevens issued a memorandum respecting the Court’s denial of certiorari in which he acknowledged that although “the importance and novelty of the question . . . are sufficient to warrant review by this Court, those factors also provide a principled basis for postponing consideration of the issue until after it has been addressed by other courts.” Justice Stevens emphasized that denial of certiorari provided an important opportunity for state and lower federal courts to “serve as laboratories in which the issue receives further study before it is addressed by this Court.” Since Lackey, the Supreme Court has denied certiorari to every petitioner asserting this argument (hereinafter referred to as a “Lackey claim”), including Manuel Valle, and thus has not ruled on whether—or when—executions after inordinate delays on death row constitute cruel and unusual punishment.
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Notwithstanding the benefits of the highest court’s resolution of the issue, the Supreme Court is unlikely to take a Lackey case in the near future. Since Justice Stevens issued the Lackey memorandum over fifteen years ago, procedural roadblocks have emerged that have prevented lower courts from addressing the merits of Lackey claims. I argue that in certain circumstances, execution after lengthy confinement on death row does violate the Eighth Amendment and the “evolving standards of decency” by which the Amendment is measured. Therefore, states must implement workable solutions that are carefully calibrated to address both the Lackey claim and the countervailing policy considerations.
Part I of this paper summarizes the bedrock principles that guide the Court in analyzing capital sentences challenged on Eighth Amendment grounds. Part II describes the substance of the Lackey claim and focuses on the causes of delay on death row and the psychological effect of this delay, known as the “death row phenomenon.” Part III traces the ongoing debate over the Lackey claim among the Justices of the United States Supreme Court. Then, Part IV assesses the experiment taking place in the “laboratories” of lower state and federal courts, and concludes that it has been lackluster, mostly because of the procedural issues that have limited courts’ opportunities to address the merits of Lackey claims. Finally, in recognition that the Court is unlikely to grant certiorari and rule on the validity of Lackey claims, Part V focuses on alternative solutions to the problem of inordinate death row delays.
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Ethan J. Leib