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U.S. Supreme Court ‘Death Caucus’ Setting Death Penalty Litigation Tone

by Kevin Bliss

The conservative majority of the U.S. Supreme Court has been taking a hard stance against last-minute filings, effectively intimidating already-scarce death penalty attorneys. This could lead state and federal judges to give “short shrift” to death penalty appeals, The Atlantic reports.

The Court has made multiple rulings in 2019 dealing with “dilatory” filings in death penalty cases. On February 7, the Court ruled that Domineque Ray had waited too long to file his motion requesting an imam to join him in the death chamber instead of the prison’s chaplain.

On March 6, the Court ruled against Russell Bucklew, who had challenged the combination of drugs used in Missouri’s lethal injection. Bucklew had a rare condition, which created blood-filled tumors in his mouth. Bucklew’s attorney, Robert Hochman, said the Missouri’s lethal injection series would cause Bucklew undue pain, making it cruel and unusual punishment. Justice Neil Gorsuch, implying Bucklew’s attorney purposefully waited for last-minute litigation, said lower courts should “protect settled state judgments … by invoking their ‘equitable powers’ to dismiss or curtail suits that are pursued in a ‘dilatory’ fashion.”

Hochman said Bucklew’s case actually showed the difficulty in preparing a timely motion in death penalty cases. Most states provide court-appointed counsel from a pool of attorneys at a fixed compensation that does not cover basic representation, let alone funds for experts, investigators, or psychologists.

Moreover, this is only for the direct appeal and possible U.S. Supreme Court review stage of the case. State postconvicton proceedings do not require appointed counsel, leaving many prisoners hoping for pro bono advocacy. Last is a habeas corpus filing and subsequent U.S. Supreme Court review. But that is a one-shot deal, and if filed too soon or too late, it could be denied on a technicality.

Bucklew’s case also had the complicating factor of addressing lethal injection protocol. States routinely withhold specific execution protocol until just prior to the execution date, and much of the information is kept under seal. This practice is counterproductive to any type of timely filing as demanded by the Court. The entire process of death penalty litigation is extremely complex where one wrong step means the death of the client.

Conversely, some Justices accept the gravity of death penalty litigation affecting the ultimate constitutional protection—life. In a dissenting opinion, Justice Sonya Sotomayor wrote, “There are higher values than ensuring that executions run on time.” Justice Stephen Breyer, in another dissenting opinion, wrote, “It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”



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