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Delay in Considering the Constitutionality of Inordinate Delay: The Death Row Phenomenon and the Eighth Amendment

The Supreme Court has repeatedly declined to address the validity of
the unconstitutional delay claim raised by Valle and other death row
inmates before him. The issue first came to the Court’s attention over
fifteen years ago, in Lackey v. Texas. Justice Stevens issued a memorandum
respecting the Court’s denial of certiorari in which he acknowledged that
although “the importance and novelty of the question . . . are sufficient to
warrant review by this Court, those factors also provide a principled basis
for postponing consideration of the issue until after it has been addressed by other courts.” Justice Stevens emphasized that denial of certiorari provided
an important opportunity for state and lower federal courts to “serve as
laboratories in which the issue receives further study before it is addressed
by this Court.” Since Lackey, the Supreme Court has denied certiorari to
every petitioner asserting this argument (hereinafter referred to as a “Lackey
claim”), including Manuel Valle, and thus has not ruled on whether—or
when—executions after inordinate delays on death row constitute cruel and
unusual punishment.

. . .

Notwithstanding the benefits of the highest court’s resolution of the
issue, the Supreme Court is unlikely to take a Lackey case in the near future.
Since Justice Stevens issued the Lackey memorandum over fifteen years ago,
procedural roadblocks have emerged that have prevented lower courts from
addressing the merits of Lackey claims. I argue that in certain circumstances,
execution after lengthy confinement on death row does violate the Eighth
Amendment and the “evolving standards of decency” by which the
Amendment is measured. Therefore, states must implement workable
solutions that are carefully calibrated to address both the Lackey claim and
the countervailing policy considerations.

Part I of this paper summarizes the bedrock principles that guide the
Court in analyzing capital sentences challenged on Eighth Amendment
grounds. Part II describes the substance of the Lackey claim and focuses on
the causes of delay on death row and the psychological effect of this delay,
known as the “death row phenomenon.” Part III traces the ongoing debate
over the Lackey claim among the Justices of the United States Supreme
Court. Then, Part IV assesses the experiment taking place in the “laboratories”
of lower state and federal courts, and concludes that it has been
lackluster, mostly because of the procedural issues that have limited courts’
opportunities to address the merits of Lackey claims. Finally, in recognition
that the Court is unlikely to grant certiorari and rule on the validity of
Lackey claims, Part V focuses on alternative solutions to the problem of
inordinate death row delays.