Debunking the Court’s Latest Death-Penalty Obsession

The conservative majority complains that capital-defense lawyers are making up claims at the last minute. It’s wrong.

Reuters / Jason Reed

On March 29, 1994, the Texas lawyer Mandy Welch rose to argue before the Supreme Court on behalf of a condemned prisoner named Frank McFarland.

Justice Antonin Scalia, however, wanted to put Welch’s law firm, the Texas Resource Center, on trial. McFarland’s petition, Scalia said, had been filed late in the process, disrupting Court procedure. He was not interested in her explanation: Her firm had originally tried to recruit volunteer counsel for McFarland, and finally had to take him on itself—one of 220 death-penalty cases being handled by 18 young lawyers. “I just want you to know that I am not happy with the performance of the Texas Resource Center in the cases that come before me as circuit justice,” Scalia said.

“I wasn’t prepared” for Scalia’s wrath, Welch told me in an interview recently. “It was easy for me to respond with the feeling that if you understood what happened, you would know that we had no control over any of [the timing].” (The case concerned McFarland’s right to counsel for a habeas corpus petition; though he won on that issue, he was eventually executed anyway.)

Scalia’s ire against the capital-defense bar has survived his death. This term, members of the new conservative majority have been in high dudgeon about death appeals. The conservatives’ complaints home in on a specific point: Capital punishment in the U.S. would go off smoothly if lawyers would just stop making up claims at the last minute. Having looked at the record in these cases, I wonder whether their anger represents judicial pique more than sober legal critique.

The rumble kicked off on February 7, when the Court, in an unsigned opinion, allowed the state of Alabama to execute a Muslim inmate, Domineque Ray, without permitting his imam to join him in the death chamber. The Court argued that Ray had waited too long to raise the issue.

On March 28, the Court did grant a stay of execution to a Texas inmate who wanted a Buddhist priest in the chamber. Justices Clarence Thomas and Neil Gorsuch dissented; Justice Brett Kavanaugh suggested Texas just ban all spiritual advisers, which the state did a few days later.

In between those two seemingly contradictory decisions, on March 6, the Court, in a case called Bucklew v. Precythe, rejected, 5–4, a challenge by an inmate with an unusual medical condition. Because his oral cavity was full of fragile blood-filled tumors, Russell Bucklew argued that Missouri’s method of lethal injection would be so painful that it would violate the Eighth Amendment—not necessarily in general, but specifically as applied to him. In the majority opinion, Gorsuch suggested that Bucklew’s counsel had deliberately waited to raise the claim until a few weeks before his execution date. He urged lower courts to “protect settled state judgments … by invoking their ‘equitable powers’ to dismiss or curtail suits that are pursued in a ‘dilatory’ fashion.”

Justice Stephen Breyer tartly said in dissent, “[i]t 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.” Justice Sonia Sotomayor, in another dissent, wrote: “There are higher values than ensuring that executions run on time.”

In yet one more death-penalty case, Justice Samuel Alito angrily returned to the Texas Buddhist-prisoner issue. “This Court receives an application to stay virtually every execution,” he wrote; “in the great majority of cases, no good reason for the late filing is apparent. By countenancing the dilatory litigation in this case, the Court, I fear, will encourage this damaging practice.”

The conservative majority has made clear how this issue looks from its perch. But how does it look to the Mandy Welches of the world—those who litigate death-penalty appeals? Let’s start with Bucklew, the case of the inmate with the medical condition.

Paul Cassell, a professor at the University of Utah School of Law, argues that Bucklew could have brought this challenge years ago. Cassell is, among other things, a former federal district judge and perhaps the nation’s most prominent advocate of victim-rights legislation. He co-wrote an amicus brief in Bucklew on behalf of a crime-victims’ group and the sister of one of the murder victims. The brief alleged Bucklew had engaged in “decades-long abusive litigation, strategic posturing, and dilatory tactics” and that his lawyers had chosen to “keep an as-applied challenge (based on his benign oral tumors) in reserve, ready to use when most strategically advantageous.” Bucklew’s lawyers, Cassell told me in an interview, had been “deploying his condition for tactical advantage” by “holding his ‘as applied’ challenge” until the last minute.

But Robert Hochman, who represented Bucklew at the high court, says that if in fact there is a problem with capital-defense lawyers, “Mr. Bucklew’s case could not have been a worse occasion to highlight it.” Most of the delay, Hochman argues, was not of Bucklew’s—or his lawyer’s—making.

The apparent delay arose in part because the appeals process for state death-penalty cases is so complex. The first step for a condemned prisoner is a “direct appeal” to the state’s highest court (if denied, it may be followed by petition for review to the U.S. Supreme Court). Under the Sixth Amendment, defendants are entitled to state-provided counsel during this stage. But after that, a defendant enters the world of state “post-conviction” proceedings—and there, the Constitution does not require appointed counsel. Some, but not all, states provide counsel at this stage. In states that don’t provide appointed counsel, the inmates must hope for volunteers from advocacy organizations or the private bar. And even states that do provide it do not necessarily offer the funding to pay lawyers, experts, and investigators—without whom a death-penalty case is unmanageable.

Prisoners who are unsuccessful in state post-conviction proceedings may file a federal habeas corpus petition. If denied, that may go up the ladder again to the Supreme Court. A statute provides funding for counsel at this stage. But Congress has strictly limited the timing and number of habeas petitions. A petition filed too soon, or too late, may be denied, leaving no chance to file another. A last-minute petition, however, may be filed when an issue could not have been raised earlier, and those may go to the high court as well. The process is like a maze where a wrong turn by a lawyer may spell death for a client.

So delay is almost built into a sentence of death. But there were specific reasons why Bucklew’s claim about his medical condition took so long to reach the high court.

Bucklew’s state appeal and post-conviction proceedings were complete by 2001, and his first federal habeas corpus petition ended in 2006. But only on April 9, 2014—more than eight years later—did Missouri announce an execution date: May 21, barely six weeks away.

Earlier, Bucklew had joined a case brought by a group of inmates alleging that the state’s execution protocol was “cruel and unusual punishment” when used against any inmate. That case was dismissed on May 2, three weeks after the execution date was set; only a week later, on May 9, Bucklew brought the “as applied” challenge. Even if the execution protocol was constitutional in most cases, he argued, it would violate the Eighth Amendment in his particular case because of his medical condition.

Hochman and Bucklew’s Missouri lawyer, Cheryl Pilate, both cite reasons why the “as applied” challenge wasn’t brought earlier. For one thing, Missouri did not announce its specific execution protocol until 2012—and it revised it in 2013. To win, Bucklew had the burden of showing that this specific protocol would cause him excessive suffering because of his specific condition. Until the protocol was announced, there was nothing to challenge.

Second, an “as applied” challenge like Bucklew’s can’t succeed without expert testimony on both the specific protocol and the effect it will have on the inmate’s medical condition. To mount an effective challenge, a lawyer will need investigators, experts in evidence, psychology, or “mitigation” factors in sentencing hearings. Many states don’t routinely supply such funds.

“You can’t make an argument that has any chance of winning unless you have a medical expert,” Pilate told me. The state consistently refused to grant her funding for expert testimony. “I had no money,” she said. “I had no experts. I had no resources.” Her four-lawyer law firm could not fund a complete defense; she tried cold-calling other lawyers and firms to recruit help: “These cases take you to the edge of financial catastrophe.” Bucklew’s family managed to put up a small amount of expense money to recruit experts, she said; after Sidley, Hochman’s firm, entered the case, it funded more expert evidence.

Bucklew’s disease, meanwhile, is progressive. His tumors had been steadily expanding during his years in prison, meaning that expert testimony in 2007—had there been any—would have been out of date by 2014. Bringing a federal habeas corpus petition based on out-of-date or incomplete medical information would have risked forfeiting Bucklew’s only shot at relief.

Because of the long delays and the rules limiting federal habeas corpus, lawyers defending condemned prisoners are shooting at a moving target. Execution protocols change. In many cases, a prisoner’s medical or mental condition is at issue—and that will change, and may worsen, as the years go by. The law changes also. During the eight years Bucklew was waiting for an execution date, the Supreme Court heard two major challenges to lethal injection as a method of execution. Either decision might have altered the landscape for his appeals.

There’s another problem faced by inmates like Bucklew. Aaron Katz of the Boston-based mega-firm Ropes & Gray argues that “on these method of execution claims … the states are pretty routinely playing hide the ball—they change drugs, change the amount of drugs,” and change the methods by which they will be administered.

Katz represented Christopher Price, an Alabama inmate who wanted the Court to forbid his execution by Alabama’s lethal-injection protocol, and instead order the state to use nitrogen gas, which is a state-approved method of execution. Price’s request was denied because of a missed filing deadline, and he was executed on May 30, after yet another round of emergency appeals—appeals that underline Katz’s point about secrecy. At Alabama’s request, the briefs and exhibits were kept “under seal,” meaning no one could read them in their entirety. The purpose of the seal was apparently to keep secret information about the state’s execution protocols. If that information were on the public record, prisoners bringing future challenges could proceed more quickly. This situation isn’t an anomaly: Since the beginning of 2011, according to the Death Penalty Information Center, “legislatures in thirteen states have enacted new secrecy statutes that conceal vital information about the execution process.”

Katz rejects the idea that inmate appeals should or could be brought well before an execution date is set. “Are we supposed to be filing shotgun litigation at random times and jamming up the federal courts?” he asks. “You’re going to have hundreds of inmates filing at all times. I don’t see why that would be better.”

Everyone agrees that a major reason for late-stage appeals is that, in many states, defendants facing a death sentence do not get the best court-appointed counsel at trial. As Brandon Garrett points out in his book End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, many states over the past 30 years have moved to a statewide system of full-time state-paid capital defenders and away from trial counsel appointed for a small fee by the trial judge. For all its Atticus Finch romance, that system too often produced abysmal defense at trial. “By 2013,” he writes, “almost all death penalty states provided state-level capital representation at trial … and only a few holdouts, most notably Alabama, Florida, and Nevada,” do not. Death sentences have dropped dramatically in the states that have these systems. “States with shoddy lawyers for the defense,” Garrett writes, “represent what remains of the American death penalty.” That means fewer new death sentences, which, in time, will mean fewer late nights for the justices.

But that reduction will take time. More than 2,700 prisoners remain on death row across the nation. And many states, particularly in the “death belt” that stretches from Florida to Texas, are determined to keep the gurneys running.

Supporters of the death penalty regard the long delays as miscarriages of justice. “We focus a lot on defendants, and defendants have rights that should be safeguarded throughout the process,” Cassell, the former judge turned victim-rights scholar, told me. “But there is another side and that is victims, who have to put their lives on hold each time there’s a motion or a hearing.” He added, “If you look at the national statistics, you can see increasing periods of delay that cannot be explained by lack of counsel.”

There’s no doubt that death sentences usually lead to long delays. Are death-penalty lawyers really the reason for them? From my own reporting about capital punishment, the problem seems more diffuse. At very best, the recent spleen emanating from the Court’s right wing is bad manners. (The Court’s death caucus is, after all, winning most of the votes that seem to embitter them so.) But the threat goes beyond politesse: The Court’s angry pronouncements could intimidate private lawyers who would usually consider helping with death appeals, and send a message to state and federal judges that death appeals are to be given short shrift.

Capital-defense lawyers do try to halt what Justice Harry Blackmun once called “the machinery of death.” To me, that seems no different from what other lawyers do, in great cases and small. The Exxon Valdez oil tanker spilled more than 10 million gallons of crude oil into Alaska’s Prince William Sound in 1989; the company, represented by the best lawyers in America, delayed final judgment in a tort suit for 20 years. Prison-rights groups sued the state of California in 1990 over flaws in its prison mental-health system; five years later, a federal court concluded that system violated the Eighth Amendment. The state missed court-ordered deadlines to improve it for the next 15 years, before the Supreme Court called it to heel. When private and public money inspires such legal solicitude, are we surprised that capital-defense lawyers fight to preserve their clients’ lives?

“I say that you want to do everything in your client’s interest,” says Chris Adams, an experienced capital-defense lawyer in Charleston, South Carolina. “If I’m his lawyer, I’m going to litigate every legitimate issue that we have.” Aaron Katz, the lawyer who represented Christopher Price in the Alabama method-of-execution case, puts it more simply: “I genuinely don’t want our client to suffer in his last few minutes. That takes priority.”