Hill, Clarence v. McDonough, James (interim secy, FL Dept. of Corrections), et al. (06/12/2006)

Questions presented: (1) Whether a complaint brought under 42 U.S.C. sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. sec. 2254? (2) Whether, under the Supreme Court's decision in Nelson v. Campbell, 541 U.S. 637 (2004), a challenge to a particular protocol the state plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. sec. 1983?

BY EMILY WITHROW, MEDILL NEWS SERVICE

On Jan. 24, 2006, around 5:40 p.m., Clarence E. Hill was strapped to a gurney, needles in his arm, waiting to die. He had been sentenced to death for killing a Pensacola, Fl., police officer in 1982, but his own time of death, 6 p.m., came and went without the lethal injection.

U.S. Supreme Court Justice Anthony Kennedy had temporary stopped the execution, and the following day, the full court agreed to hear arguments in Hill's case.

His case, though, doesn't challenge the death penalty or its constitutionality. Hill comes before the Supreme Court on a procedural matter — what legal options in federal court are available to anyone who feels the execution method chosen by the state constitutes cruel and unusual punishment?

The trial court had denied Hill a hearing to determine whether lethal injection in Florida violates the Constitution's 8th Amendment. The Florida Supreme Court agreed after hearing oral arguments in the case.

In its 6-1 decision, the court referred to a similar case, Sims v. State, in which it concluded in 2000 that "the procedures for administering the lethal injection [in Florida] do not violate the Eighth Amendment's prohibition against cruel and unusual punishment."

But Hill argues that new evidence should at least allow for an evidentiary hearing to take place. He intends to use a 2005 study as evidence that lethal injections are anything but a humane means of execution.

The study first appeared in The Lancet, a well-respected medical journal, and found that some prisoners probably experienced the pain of a massive heart attack when they were killed by lethal injection.

"Correctional facilities are administering anesthetic agents, and having people with no training whatsoever do this," said University of Miami's Dr. David Lubarsky, who conducted the study. "The problem is that there have been reports of botched executions which take an inordinate amount of time and this suggested there are errors in the administration."

The lethal injection is a three-part concoction designed to bring an end to a prisoner's life without causing great pain. First, anesthesia puts the prisoner into a deep sleep so that the prisoner feels nothing. Then, a paralyzing drug is administered to prevent any muscle movement. Finally, a third chemical, potassium chloride, stops the heart from beating.

The study, though, found that not all three of the drugs were administered properly. Lubarsky studied 49 prisoners who died from lethal injection. The autopsies of 21 of those studied showed that the anesthesia had worn off by the time they experienced a heart attack.

"This suggests one of two options," Lubarsky said. "One, that they were paralyzed, awake, and experiencing a slow agonizing suffocation or, two, able to feel the horrendous whole body burning pain following a large injection of the [potassium chloride]."

But no one would be able to tell because the paralyzing drug would prevent a prisoner from physically expressing any pain he was experiencing.

"Anyone's going to look serene," said Dr. Jonathan I. Groner of Ohio State University. "They can't move a muscle, but they could be suffering on the inside.

Groner compared the administering of the lethal injections by correctional facility workers to him flying a plane. He could get in the plane and probably make it fly, but with no degree of expertise that would help him if things went wrong.

"The problem with lethal injection is that it's a medical charade," he said. "It's set up to look like a medical procedure, but it's not."

Groner believes the Lubarsky study is inconclusive. If anything, he says, it just calls for more research. Groner says that Lubarsky's data come from autopsies which were performed at differing times after death. Since the body continues to process chemicals after death, depending on what time the autopsy was conducted, the levels left in the body could vary greatly.

But Justice Harry Anstead on the Florida Supreme Court wrote in a partial dissent that the evidence presented by Lubarsky "creates a foreseeable risk of the gratuitous and unnecessary infliction of pain."

"An evidentiary hearing would present a win-win situation for all," Anstead wrote, because the state would have the opportunity to tout the merits of its protocol for lethal injections and to argue against the conclusions of the study. Conversely, if the study withstood the scrutiny of an evidentiary hearing, the state would have the opportunity to modify its standard procedures.

One week after the Florida Supreme Court issued its opinion, as Hill was to be executed, the 11th Circuit Court of Appeals denied his emergency appeal to stay his execution. It had been framed as a civil rights action. The 11th Circuit recharacterized it as a habeas corpus petiton, and based its denial of a stay on it being a second and therefore inappropriate attempt at habeas relief.

Within hours, Hill was given from Justice Kennedy the temporary reprieve he'd been seeking.

After the Supreme Court agreed to hear Hill's case on the procedural matter, Hill's lawyer, Todd Doss, observed that the death penalty would be like the proverbial elephant in the room. Maybe the justices would talk about it, maybe they wouldn't. But in any case, he said, he'd be ready for their questions.

"We're not challenging lethal injection, just the method that Florida has chosen," Doss said. But when Hill was asked what method he'd prefer, he said he hadn't a clue.

"I don't think it's my place to tell them how to execute my client."

On June 12, 2006, the Court responded, siding unanimously with Hill. Justice Kennedy, who had been the justice who stayed Hill's execution so the Court could review the case, wrote the Court opinion.

In it, Kennedy allowed Hill to use section 1983 to challenge Florida's three-drug lethal injection process.

Kennedy noted that even if Hill were to succeed with his 1983 action, it "would not necessarily prevent [Florida] from executing him by lethal injection" because the challenge isn't to the death sentence or even to death by lethal injection but to the manner Florida intended to use administering the lethal injection.

That said, Kennedy also cautioned against inmates using section 1983 as a way for death row inmates to forestall their executions, and said that "courts should not tolerate abusive litigation tactics."

In remanding the case, the Court did not directly extend Hill's stay of execution, and left that too to the lower courts.

On Wed., Sept. 20, 2006, with less than two weeks to go before the U.S. Supreme Court's 2006-07 term, the Court denied an application for a stay of execution by Florida death row inmate Clarence Hill. Though most such applications are denied without distribution to the Court, the Court noted that in this case four justices --Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- would have granted the stay.