High Court to Hear Lethal-Injection Case

By Charles Lane
Washington Post Staff Writer
Thursday, January 26, 2006

The Supreme Court agreed yesterday to decide when death row inmates may challenge lethal injection as a method of capital punishment, in a surprise decision issued after the justices dramatically stopped the execution of a Florida prisoner who was already strapped to a gurney preparing to die.

Clarence E. Hill, 48, convicted of murdering a Pensacola police officer in 1982, had refused a final meal and needles had punctured his arm when the Supreme Court stayed his execution. The court said it would hear his claim that he should have an opportunity to argue that his civil rights would be violated because the chemicals used to execute him would cause excessive pain.

It is a claim that has been pressed with growing frequency by capital defense lawyers around the country in recent years -- but that has generally not yet succeeded, either in lower courts or at the Supreme Court.

Thirty-seven of the 38 death penalty states use lethal injection, as do the U.S. military and the federal government. Since the chemical mixtures in all jurisdictions are similar to those used in Florida, a victory for Hill at the Supreme Court could tie up the death penalty across the county in litigation, at least temporarily, legal analysts said.

"It certainly could be a mess," said Douglas A. Berman, a professor at Ohio State University who specializes in criminal law. According to the Death Penalty Information Center, an anti-death-penalty organization, at least 25 inmates are scheduled for execution between now and the end of June, when the court would probably issue a decision.

The Hill case does not ask the court to rule directly on the constitutionality of lethal injection -- which states adopted as an alternative to hanging, gas, electrocution and shooting -- even though Hill maintains that the particular mix of chemicals used in Florida would cause him an unconstitutional degree of suffering.

Rather, the case raises a procedural problem: what recourse there should be for a prisoner who finds out at or near the last minute that the method by which the state proposes to execute him might be "cruel and unusual" punishment.

Normally, death row inmates try to fight their sentences through claims that their constitutional rights were violated at trial. Congress and the Supreme Court have limited those appeals, known as petitions for habeas corpus, and once they run out, further efforts are generally not allowed.

But for years capital defense lawyers have argued that a separate federal civil rights statute creates a way to press constitutional claims between the time an inmate exhausts habeas corpus and the actual moment of execution.

Hill tried to persuade the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, to give him a day in court to argue against Florida's lethal-injection protocol, based in part on an article about lethal injection in the Lancet, a medical journal.

The article, published in 2005, said that 21 of 49 inmates executed by lethal injection in Arizona, Georgia, North Carolina and South Carolina may have been conscious and feeling pain.

The 11th Circuit dismissed Hill's appeal, and he remained scheduled to die at 6 p.m. Tuesday. But the Supreme Court intervened, setting oral argument in the case for April 26.

The court's decision was a surprise to legal analysts because the court issued a stern rebuke of a similar last-minute challenge by a California death row inmate in 1992, and avoided the issue of permitting last-minute civil rights appeal in 2004. At that time it noted that "imposition of the death penalty presupposes a means of carrying it out."

But the court's most liberal members, Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer, have indicated an interest in the question of challenges to lethal injection.

In May 2005, they dissented from a 5 to 4 ruling that denied a stay of execution for a Missouri death row inmate on a similar issue.

Whether there would be five votes on the court to support Hill's claim is another question. The case is likely to be heard by a court that includes two new conservative justices appointed by President Bush: Chief Justice John G. Roberts Jr. and Judge Samuel A. Alito Jr., whose Senate confirmation is expected this week.

The case is Hill v. Crosby , No. 05-8794.

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