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Condemned can appeal injection

The U.S. Supreme Court sides with a Florida death row inmate, and experts say the ruling could further delay many executions.

By CHRIS TISCH
Published June 13, 2006

The decision could lead to more delays in executions in Florida as other death row inmates file similar appeals. It also could set the stage for a nationwide legal battle over the constitutionality of lethal injection.

"I think it could easily result in the short-term hiatus of executions in the United States," said Robert Batey, a professor at the Stetson University College of Law in Gulfport. "Now every person on death row in a state with lethal injection can raise this particular argument."

The court ruled that Florida death row inmate Clarence Hill, condemned for murdering a Pensacola police officer, can challenge lethal injection through a federal civil rights lawsuit.

The high court's decision, written by Justice Anthony M. Kennedy, did not address the lawfulness of lethal injection. But the decision opens the door for legal challenges in lower courts, which could build a record that eventually brings lethal injection itself in front of the high court.

"I think they are waiting for some of these to work their way through if they are going to address it on the merits," said D. Todd Doss, Hill's attorney.

Hill was strapped to a gurney with intravenous tubes attached to his arm when the U.S. Supreme Court stayed his execution in January. The court also stayed the execution of a second Florida inmate, Arthur Rutherford, after his attorneys made the same argument.

Hill argues that the three-drug cocktail that Florida and most other states use to execute prisoners causes excessive pain and suffering. His complaint cites a recent study that suggests a painkiller given to the prisoner wears off by the time the third and fatal drug is injected. But the second drug in the cocktail, which leaves the inmate paralyzed, makes it seem as if they are dying peacefully, according to his argument.

Hill's stay will remain in effect for 25 days, after which Gov. Jeb Bush could reactivate Hill's death warrant, said Carolyn Snurkowski, an assistant deputy attorney general.

Doss, meanwhile, will ask a federal district court to stay Hill's execution so he can prepare his pain and suffering argument. The high court's ruling specifically says that prisoners making this argument should receive a stay only if they show a "significant possibility" of winning their argument.

Snurkowski says she doesn't believe a stay will be granted for Hill, but some legal experts think otherwise.

"Given all the questions that have been raised about lethal injection ... I would not be surprised if the district court issued a stay," said Batey, the Stetson professor. "With the legal arguments that have been raised across the country about lethal injection, there would be a significant possibility of success."

Christopher Slobogin, a University of Florida law professor, also believes the district court may issue the stay.

"I can see the 11th Circuit granting it so they can just take care of the issue," Slobogin said. "It'll take months to get this claim litigated. The 11th Circuit could put it on the fast track. They could be delayed as well."

Bush seemed to indicate he will wait for the 11th Circuit to make a decision on a stay.

"The ruling doesn't really resolve the issue," he said Monday. "So we'll wait for the appellate court now to make a decision."

That could delay all executions in Florida for months or longer as other inmates follow Hill's path.

"Gov. Bush to his credit has indicated that until this issue was resolved, he wasn't going to sign any more warrants," Doss said.

As he has often in the past, Bush expressed frustration with a court ruling that delayed an execution. Though Florida's death row has swelled to 371 people, the state has executed just nine inmates in the last five years - none in the last 14 months.

"A series of court rulings have created so many chances for appeal that whether we have the death penalty or not is almost becoming moot when people are spending all of their natural lives on death row rather than having the sentence be complete," Bush said.

Hill's victory, along with another high court decision Monday that gives death row inmates greater ability to get DNA evidence before the courts, further stalls a capital punishment system bemoaned by many as sluggish and wheezing - and irretrievably broken - despite efforts by lawmakers in the last decade to speed up the process.

"It's another way in which litigants can put a wrench in the works and slow down the process," Slobogin said. "So every time it looks like the courts and the government have put a finger in the dam, another leak springs."

Some observers suggested that Kennedy, a centrist and sometimes swing vote, worked hard to win unanimous backing from a right-leaning court for a death row inmate.

"He probably did quite a bit to get that consensus,'' said Deborah Denno, a professor who specializes in the death penalty at Fordham Law School in New York. "Anytime the court has a unanimous opinion that supports a death row inmate, I consider that a landmark. It's rare.''

It was a slap to the Bush administration and 25 states, which supported Florida in arguing that allowing new appeals would jeopardize finality and justice for victims' families.

At the same time, if Hill's challenge to lethal injection fails, it may leave condemned inmates legally cornered.

"The lethal injection issue is one of the last remaining possible fundamental challenges to the administration of the death penalty," Slobogin said. "If this one loses, the anti-death-penalty folks don't really have much left."

Lawmakers also could tinker with the drug cocktail to address the issues raised by Hill, though any change would almost certainly prompt another round of appeals from capital defense attorneys, leading to more delays.

[Last modified June 13, 2006, 05:59:08]