Court Weighs Procedural Issue in Death Row Lawsuit

By Charles Lane
Washington Post Staff Writer
Thursday, April 27, 2006

Few issues test the Supreme Court's unity more than the death penalty, and the justices' deep disagreements were evident yesterday during oral argument on the rights of death row inmates to challenge lethal injection as a cruel and unusual punishment.

With questions and comments from the justices revealing an even split along liberal-conservative lines, the outcome could depend on Justice Anthony M. Kennedy, the centrist who is the court's swing voter now that Sandra Day O'Connor has retired.

Kennedy was in no mood for joking as he weighed Florida death row inmate Clarence E. Hill's contention that the three-drug injection used by Florida, 36 other states and the federal system risks harsh but undetectable pain.

When his colleagues engaged in some light banter, as they often do during oral arguments, Kennedy interrupted: "This is a death case. It's not that amusing."

The case comes at a time when the three-drug lethal injection is under renewed legal attack. Death row inmates' attorneys have won stays of execution based on what they say is new medical information showing a risk of great pain if poorly trained personnel mishandle the anesthetic that is supposed to render inmates unconscious.

The anesthetic precedes a dose of a paralyzing agent; then comes potassium chloride, which burns the lining of the veins on its way to the heart. But if a prisoner is still conscious when the potassium chloride arrives, he will feel excruciating pain; paralyzed, he will be unable to show it, the lawyers note.

But the precise issue before the court is not whether lethal injection is unconstitutional. Rather, it is a related procedural question: Should courts treat a prisoner's assertion that a particular method of execution is unconstitutional as a federal civil rights lawsuit, as Hill argues, or as a petition for habeas corpus, as Florida says?

The question is critical, because Congress has put strict limits on habeas corpus claims but not on civil rights suits.

If the court agrees with Hill, death row inmates could engage states in time-consuming litigation over the particulars of their lethal-injection protocols, even if the prisoners, like Hill, have already used up their habeas corpus petitions.

But if the court accepts Florida's position that Hill's true purpose is to evade a death sentence through protracted litigation, then it will bar his claim as the equivalent of a belated habeas corpus suit -- thus affirming the states' wide discretion in execution methods.

D. Todd Doss, Hill's attorney, insisted that a victory for his client "would not leave open a total series of challenges." He accepted Justice David H. Souter's proposal to amend Hill's lawsuit "so everything can be resolved in this one case."

Kennedy did not seem entirely satisfied, noting that, if Hill wins, a state might risk a new lawsuit each time it changes its protocol, even if its goal is a less painful death. That might create "a disincentive for states to try to make the process less painful," Kennedy said.

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