Execution nears as issue remains
Some say Clarence Hill was denied a right the Supreme Court granted him to fight lethal injection.
By CHRIS TISCH
Published September 19, 2006
Eight months ago, the U.S. Supreme Court stunned legal scholars by delaying the execution of Florida death row inmate Clarence Hill with just minutes to spare.
The court ruled that Hill should be able to challenge his execution through a civil rights lawsuit, a move that some scholars believed would tie up executions for months or years.
But lower courts quickly dismissed Hill's claims that lethal injection amounted to cruel and unusual punishment, prompting Gov. Jeb Bush to reschedule Hill's execution for Wednesday evening.
Legal experts say it's unlikely that Hill will win another eleventh-hour reprieve. Still, the case has left a lasting impression on death penalty law and gives other condemned inmates more standing to challenge lethal injection.
"The Hill case brought the lethal injection issue to the forefront," said Hill's attorney, D. Todd Doss. "It surely opened the door to lethal injection litigation in Florida."
Hill, 48, is on death row for the 1982 murder of Pensacola police Officer Stephen Taylor. A jury convicted Hill of shooting Taylor during a bank robbery.
Hill claims that the three-drug cocktail used in Florida executions is cruel because it causes excruciating pain because a painkiller wears off before the process is complete.
On Jan. 24, Hill reportedly was strapped to a gurney, with lines attached to his arm, when Justice Anthony M. Kennedy stayed his execution. The court then agreed to hear the argument that Hill could challenge lethal injection through a civil rights lawsuit - something the federal district court had not allowed.
The justices unanimously agreed that Hill could pursue that lawsuit, but gave no direction, however, as to how the lower courts should rule on the suit.
The U.S. District Court in Tallahassee turned Hill down, accusing him of using delaying tactics and filing his challenge too late.
On Friday, the 11th U.S. Circuit Court of Appeals in Atlanta also denied Hill. The clock continued to tick toward execution.
"All the U.S. Supreme Court said was that he had the ability to file the action," said Carolyn Snurkowski, an assistant Florida attorney general who handles death penalty appeals. "We've always maintained that he's too late in bringing this claim."
But veteran death penalty defense lawyer Martin McClain said that doesn't make sense. If the federal district court for years didn't allow the civil rights lawsuit and only accepted it after the U.S. Supreme Court ruling made them, how could they then accuse Hill of taking too long to file it?
"It's sort of like circular logic," said McClain. "They said you can't do it, but now that you've done it, even though we said you couldn't do it, you took too long to do it.
"The odds are always against getting the U.S. Supreme Court to intervene in one individual case," McClain added. "I don't know if they'll be troubled enough by the illogic in the 11th Circuit's ruling to take it or not."
Doss said it's unlikely the U.S. Supreme Court agreed to hear this case simply so a lower court could quickly deny the claim without so much as a hearing on whether lethal injection is unconstitutionally cruel.
"It's pretty hard to believe that when the Supreme Court remanded this case, that they did so with the thought that it would be summarily denied with nothing," he said.
Robert Batey, a professor at the Stetson University College of Law, said it makes the legal system look bad to execute someone before all the issues are resolved.
"I'm one who believes you should keep the defendant alive until you can resolve it, but the courts have become so frustrated with the delaying tactics of death row defendants that they simply refuse to grant stays any longer," he said.
Bush said Monday that it was his duty to set a date for Hill's execution.
"Mr. Hill has had ample time to go through the process to the point where ... there is a mockery made of the judicial system," Bush said.
Hill's dramatic story has unfolded as the death penalty has been under attack on several fronts in Florida and nationwide.
Lethal injection challenges have stalled executions in several states and botched executions have drawn negative publicity. Public support for the punishment has sagged.
In Florida, the state Supreme Court challenged lawmakers to make it harder for juries to impose the death penalty. Currently, it is easier for a jury to send someone to death row in Florida than in any other state, the opinion said.
And just this week, the American Bar Association issued a 400-page report that found a series of problems with the state's death penalty.