Justices Open Door For Injection Case

By Charles Lane
Washington Post Staff Writer
Tuesday, June 13, 2006

The Supreme Court gave the green light for a Florida death row inmate to challenge that state's lethal-injection procedures through a federal civil rights lawsuit, in a unanimous ruling that underscored the pivotal role of Justice Anthony M. Kennedy in the court's death-penalty jurisprudence.

Clarence E. Hill, convicted in 1982 of murdering a police officer, did not claim that lethal injection, in and of itself, is cruel and unusual punishment. Instead, he asserted that Florida's method of executing inmates -- which, like that of most other states, employs three chemicals in sequence -- could subject him to excruciating but undetected pain, in violation of his civil rights.

Earlier this year, an Atlanta-based federal appeals court threw out Hill's case, ruling that it was a disguised attack on his death sentence.

But in a 10-page opinion written by Kennedy, the court said Hill's suit was a good-faith challenge that might delay his execution without "necessarily" foreclosing it, because the state has other lethal-injection options. The court sent the case back to the lower courts to rule on the merits of Hill's claim.

The narrow ruling, which Kennedy said hinged on the circumstances of Hill's case, was something of an anticlimax to one of the most closely watched cases of the term. It did not settle the legal question that has divided the courts for years and that the justices seemingly set out to address: whether, and under what circumstances, inmates generally can use civil rights law to challenge states' methods of execution.

Still, legal analysts said the ruling would help death penalty opponents. It left open a legal option for death row inmates that states, with the apparent support of conservatives on the Supreme Court, have long been eager to shut. Opponents of method-of-execution challenges argue that inmates can pursue them indefinitely, postponing execution forever.

"It's discouraging," said Kevin C. Newsom, solicitor general of Alabama, which supported Florida in the case. "The floodgates are, to a certain extent, open."

At the same time, Kennedy warned that "federal courts can and should protect States from dilatory or speculative suits." He offered little guidance on how lower courts should evaluate Hill's claim, leaving room for conservative federal courts in the South, where the death penalty is concentrated, to continue denying stays of execution based on alleged constitutional problems with lethal injection, legal analysts said.

At oral arguments on April 26, the justices seemed deeply divided along ideological lines. The court's four liberal members emphasized the risk of pain to inmates and the need to give them a day in court to prevent it. Its four conservatives suggested that inmates would use repeated lethal-injection challenges to evade execution.

Kennedy, an appointee of President Ronald Reagan who usually votes with the conservatives but has often sided with the liberals on social issues, did not tip his hand.

Yesterday's ruling may have been unanimous because it effectively papered over these differences, offering a little something for everyone on the court. In recent weeks, Chief Justice John G. Roberts Jr. has spoken publicly of the need for the court to speak with a single voice on controversial issues, even if that means it must rule narrowly.

And the court seems unlikely to return to the issue soon. It recently turned down a lethal-injection appeal by a Tennessee death row inmate that did not pose procedural issues as Hill's did, but directly challenged lethal injection in that state as cruel and unusual punishment.

Kennedy's decisive role was more obvious in yesterday's other death penalty case, House v. Bell , No. 04-8990, in which he also wrote the majority opinion.

Voting 5 to 3, the court gave Paul Gregory House of Tennessee a new chance to challenge the fairness of his 1986 capital murder trial because DNA tests and other new evidence have created doubt that he is guilty.

Liberals Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens joined Kennedy. Roberts and fellow conservative Justices Antonin Scalia and Clarence Thomas dissented. Justice Samuel A. Alito Jr. did not vote because the court heard the case in January, before he joined the court.

If Kennedy had sided with the conservatives, the 4 to 4 tie would have affirmed a federal appeals court's ruling against House.

The court's ruling favored death penalty opponents, but not quite as much as they had hoped. House and his supporters had wanted the court to rule that death row inmates with particularly strong claims of innocence should be allowed to raise them in court even if they have no other legal claims or have exhausted their appeals.

But the court, leaving House's conviction and sentence intact, at least for now, refused to go that far. Kennedy noted that "this is not a case of conclusive exoneration" but rather a case in which House had raised new evidence that, taken together, makes it more likely than not that jurors would have reasonable doubt as to his guilt.

By meeting that standard, which the court set in a 1995 ruling, House won the right to a hearing in federal court on his claim that he was denied effective legal aid at trial.

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