How Long Must They Wait? Lackey Claims,Excessive Delay,and Evolving Standards of Decency

Lackey Claims

Arguably, a truism of American capital punishment jurisprudence is the almost inherent presence of delays between the time of sentencing and execution. Recent data from the Bureau of Justice Statistics (BJS) is supportive of this. According to the BJS, the average time lapse between the imposition of the death sentence and the execution is 152 months or 12 years and 8 months (Bureau of Justice Statistics, 2010). Although this is the average figure, many inmates spend much longer on death row, perhaps 10 years or more (Rapaport, 2012; Simmons, 2009; Snell, 2011). The issue that arises, from a constitutional standpoint, is whether such delays violate the cruel and unusual provision of the Eighth Amendment. This issue of delay, and framed around the idea that extended periods on death row cause undue physical and psychological stress, has formed the basis of what is known as a Lackey claim.

Petitions for certiorari have occasionally been filed with the U.S. Supreme Court making this very argument. In the seminal case of Lackey v. Texas (514 U.S. 1045), the Supreme Court denied petitioner Lackey certiorari when he made the argument that his 17-year stint on death row violated the cruel and unusual provision of the Eighth Amendment. While respecting the Court’s decision to deny certiorari for petitioner Lackey, Justice Stevens left the door open for the possibility that such claims could be heard in the future. First, Justice Stevens acknowledged that after 17 years, the retributive function has arguably been fulfilled given the severity of such a long stint on death row, particularly given the agony and uncertainty of death. Second, Justice Stevens argued that after such a long period of death row confinement, the death sentence is no longer a deterrent. Individuals, in weighing the costs and benefits of committing murder for instance, may not be dissuaded from doing so if they are aware that the government will not carry out the sentence for such a long period of time. Finally, Justice Stevens argued that such delays would have been rare at the time the Bill of Rights was adopted. Even those taking a strict constructionist view of the Constitution would thus have to acknowledge that the death penalty, as currently administered in the United States, may fall outside the confines of what the Eighth Amendment would have permitted at the time the Bill of Rights was adopted. This may be especially true if it is the state, and not the defendant, that is responsible for the delay. The denial of certiorari in Lackey, however, was only the first such occasion in which the Supreme Court denied certiorari on these same grounds.

In the years following the original denial of certiorari in Lackey, the Supreme Court has denied certiorari in other cases where defendants attempted to bring Lackey claims before the court: Johnson v. Bredesen (130 S. Ct. 541), Thompson v. McNeil (129 S. Ct. 1299), Foster v. Florida (537 U.S. 990), Knight v. Florida (528 U.S. 990), and Elledge v. Florida (525 U.S. 944). However, in examining the reasons for the denials, Justices Stevens and Breyer hint at the possibility that such challenges may be granted review at a later time.

In the first case following the denial of certiorari in Lackey, the Court denied certiorari in 1998 in Elledge v. Florida (525 U.S. 944). In this case, petitioner was denied certiorari even after making the argument that the state of Florida was responsible for his 23-year delay between sentencing and execution and that the delay was not the result of frivolous appeals.

The following year, the Court again denied certiorari in Knight v. Florida (528 U.S. 990). In this case, Justice Thomas’s concurrence is telling of the Court’s attitude regarding Lackey-type claims. Justice Thomas reasoned that it would be illogical to allow defendants to exhaust all of their appeals only to later argue that the delay between sentencing and execution violates the Eighth Amendment. However, such reasoning assumes that the state is not responsible for the undue delay in the process of a defendant exhausting their appeals.

In 2002, the Court denied certiorari in Foster v. Florida (537 U.S. 990). In this case, the Court reasoned that had petitioner Knight simply accepted his punishment and not exhausted years of appeals, then there would have been no delay. Thus, the Court concluded that petitioner’s argument for vacating his death sentence was baseless. However, Justice Breyer’s dissent in this case further opens the door for a future challenge to a death sentence based on delay. Justice Breyer noted that petitioner’s 27-year stint on death row went far beyond the 11- to 12-year average period on death row that was present at the time this case was denied certiorari. In addition, petitioner Knight, at the time, was the only death row inmate in the nation who had spent more than 27 years on death row. Thus, Justice Breyer argued that such a punishment may reach a constitutionally unacceptable level of unusual and that the Court would be remiss not to consider such a challenge. Justices Breyer and Stevens also noted, in their opinion the mental anxiety and uncertainty that a defendant faces on death row may rise to an unacceptable level of cruelty. However, the strength of such a case would have to rest on the petitioner’s ability to show procedural maladies in a particular state’s appellate procedures.

Recently, the 2009 case of Thompson v. McNeil (129 S. Ct. 1299) involved an inmate who had spent 32 years on death row. Although Justice Stevens acknowledged that delays may be necessary, particularly in death penalty cases, given the high number of death sentences that are later overturned, there may still be a constitutional issue with the physical and psychological toll that death row confinement has on the inmate. Justice Stevens also noted that delaying an execution significantly reduces whatever retributive or deterrent effects may be gleaned from imposing the death penalty, reiterating his argument in Lackey. Justice Breyer again weighed in on the issue in dissent, stating that a defendant exercising his legal appeals does not necessitate a delay of more than 30 years. Such results, Justice Breyer concludes, must be the result of faulty appellate procedures of the state. Justice Breyer further noted that the state could be at fault for a portion of the delay in this case due its refusal to allow certain pieces of mitigating evidence which pointed to the defendant being mentally retarded and thus not eligible for the death penalty.

Most recently, the Court denied certiorari in the 2009 case of Johnson v. Bredesen (130 S. Ct. 541). Although respecting the denial of certiorari, Justices Stevens and Breyer believed a compelling case could be made for the granting certiorari under 42 U.S.C. § 1983. The state in this case, involving a defendant who had been on death row for 29 years, purposely withheld exculpatory evidence that would have undermined key eyewitness testimony in petitioner Johnson’s murder trial. Such a state-created delay is substantively different from the type of delay created by the defendant exhausting his appeals. While it is unclear what precise remedy could be used to mitigate the harm identified in Johnson, 42 U.S.C. § 1983 has been used in a number of areas that involve both Fourteenth Amendment and federal statutory rights including education (Smith v. Robinson, 468 U.S. 992, 1984), property (Lugar v. Edmondson Oil Co., 457 U.S. 992, 1982), welfare (Rosado v. Wyman, 397 U.S. 397, 1970), and Title IX (Cannon v. University of Chicago, 441 U.S. 677, 1979).

To date, Lackey claims brought to the U.S. Supreme Court have been unsuccessful. However, the arguments proffered in the dissents of Justices Stevens and Breyer are telling and leave the door open for the Court to address some of these claims in the future, particularly those involving delays that are caused by the state. In examining such petitions over time, it appears as if the amount of time spent on death row for defendants making these challenges is on the rise. As the amount of time spent on death row increases, states may have far less compelling justifications for delays even if part of the delay is due to defendants exhausting their appeals. Defendants will always have an interest in appealing their death sentences to ensure that the sentence is not imposed with error. However, states also have a responsibility to ensure that such appeals are handled efficiently and effectively and without undue delay. Regardless, the U.S. Supreme Court has taken a hands-off approach to such claims.

Evolving Standards and the “Death Row Phenomenon”

Despite the continued national support for the death penalty, significant changes have taken place with regard to both its reach and application. These changes have been driven, in part, by the Court’s decision in Trop v. Dulles (356 U.S. 86, 1954). Among other things, Trop prohibited punishments that were “degrading” in character or would have the effect of erasing one’s existence as a citizen. Perhaps more importantly, Chief Justice Warren observed that while the precise contours of the “cruel and unusual” provision of the Eight Amendment had not yet been outlined by the Court, there were still significant limitations on the states’ ability to prescribe punishment (356 U.S. at 99). These constitutional limitations are rooted in “evolving standards of decency.” Time and again, “evolving standards” has been used to impose limits on the states’ ability to execute the mentally retarded (Atkins v. Virginia, 536 U.S. 304, 2002; Penry v. Lynaugh, 492 U.S. 302, 1989), juveniles (Roper v. Simmons, 543 U.S. 551, 2005), and the insane (Ford v. Wainwright, 477 U.S. 399, 1986).

One key determination of “evolving standards” lies in whether a national consensus with regard to a particular form of punishment exists. Justice O’Connor, perhaps one of the Court’s leading advocates for the application of this standard, noted that substance can be given to these “evolving standards” by looking at objective indicators of how society views a particular punishment (492 U.S. at 330-31). One such objective indicator can be discerned from the legislature. That is, Justice O’Connor asks, have the various state legislatures spoken on the issue through the passage of particular laws (492 U.S. at 331). Although important, legislative enactments are not wholly dispositive of “evolving standards.” The Court has also said that the weight of scientific evidence is an appropriate consideration in judicial deliberations (543 U.S. at 569). For example, Justice Kennedy relied on a number of psychological and sociological studies on adolescence to inform his opinion on whether juveniles possessed the requisite mental maturity and sophistication contemplated by death penalty statutes (cf. Arnett, 1992; Steinberg & Scott, 2003). Similar scientific evidence should weigh heavily on judges who are asked to decide whether the “death row phenomenon” merits special consideration.

Finally, the Court has said that international opinion and customs are appropriate guideposts for discerning “evolving standards” (543 U.S. at 575-78). In contemplating how to resolve American penal practices with international customs, Justice Kennedy noted that “international authorities are instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel and unusual punishments’” (543 U.S. at 575). Importantly, Justice Kennedy at no time suggests that international opinion and customs are determinative of American law. Nor does he ascribe any particular weight to such authorities. However, there is some recognition that enlightenment is not confined to American shores (543 U.S. at 578).

The “Death Row Phenomenon”—Psychological Effects

The premise behind the “Death Row Phenomenon” (syndrome) is grounded in the research of Dr. Stuart Grassian (1983) and his research on inmates held in solitary confinement. Among other things, Dr. Grassian found that extreme psychological disturbance often characterized inmates who were in solitary confinement for extended periods of time with psychiatric symptoms including hallucinations, perceptual distortions, and paranoia (Grassian, 1452-1453). While he never described these inmates as insane, Dr. Grassian noted that the inmates experienced psychiatric conditions that “form a clinically distinguishable syndrome” (p. 1453). This distinction is very important given Justice O’Connor’s belief that courts should confine their inquiry into “evolving standards” to relatively homogeneous groups with little variation in terms of their attributes (492 U.S. at 338). In employing such a standard, the merits of using Dr. Grassian’s findings come into focus in that it focuses the inquiry on only inmates who have spent a substantial amount of time on death row.

Dr. Grassian’s research on prisoners who are held in solitary confinement for long periods of time also played a role in the Michael Bruce Ross death penalty case. Ross, after a lengthy appeals process that spanned 21 years, wrote a letter to the court that requested that no further appeals be made on his behalf (Blank, 2006). While some argued that Ross was effectively “volunteering for execution” because he was remorseful, others argued that he was experiencing the “death row phenomenon,” which involves a constellation of psychiatric symptoms that included an overwhelming sense of helplessness, narcissism, and suicidal ideation (Blank, 2006, pp. 746-747). According to Dr. Grassian, Ross was experiencing what could be termed the “death row phenomenon” as a result of his lengthy stay on death row, which rendered him irrational and also called his competency into question (Blank, 2006, pp. 747-748).

Despite the research of Dr. Grassian, the precise contours of the “death penalty phenomenon” have not been fully mapped. While Grassian emphasized the psychological dimension of this phenomenon, others suggest that it is a legal term that has not been given any recognition by the psychological community (Sadoff, 2008). In his work, Sadoff (2008) notes that death row inmates are subjected to a “particularized form of mental suffering” that is the result of the conditions of their confinement and their death sentence (p. 82). Notwithstanding this observation, there is a plethora of research that details the negative impact and risks associated with prolonged periods of isolation in prison (Grassian, 1983; Haney, 2003, 2012; Haney & Lynch, 1997).

The “death row phenomenon” is the confluence of both death row conditions and the psychological stresses and strains that result from prolonged exposure to these conditions (Sadoff, 2008, pp. 81-82). As Chief Justice Harrison pointed out in his dissenting opinion in People v. Simms (736 N.E.2d 1092, 2000), the dehumanizing experience of a prolonged stay on death row can likely result in mental illness. As such, it does not comport with “evolving standards of decency” (Harvard Law Review, 2000).

Our current knowledge regarding the mental state of inmates on death row is quite sparse, though several studies and legal commentaries were produced in the 1970s (Iowa Law Review, 1972; Johnson, 1979; Panton, 1976). For example, while Panton (1976) was not specifically examining the “death row phenomenon,” he did find that a significant number of inmates on death row experienced an overwhelming sense of hopelessness and frustration. No other generalizations regarding the “death row phenomenon” could be drawn from his research because he did not examine the intersection of time on death row and psychological well-being. However, a study conducted by Johnson (1979) did find that the mental abilities and functioning of inmates deteriorated with time spent on death row. Interestingly, he found that many death row inmates analogized their existence on death row as “living death” where they lead a “zombie-like, mechanical existence of an isolated physical organism—a fragile twilight creature that emerges when men are systematically denied their humanity” (Johnson, 1979, p. 154). Perhaps one of the more interesting findings from his research was the comparison of the deterioration of mental functioning to “senility” (p. 179). These findings add substance to the argument that the “death row phenomenon” is real; however, some 40 years have passed since these studies were first published. One exception was an editorial authored by Schwartz (2005) wherein he argued that more legal and scholarly research is needed in this area. While the “death row phenomenon” does evoke ethical considerations, Schwartz encourages heightened involvement from the psychiatric community to determine its true psychiatric symptomatology.

The “Death Row Phenomenon”—Passage of Time

Given the state of scientific knowledge about the “death row phenomenon,” courts are not likely to accord it much legal significance. Accordingly, a secondary argument must be employed to bolster the credibility of the “death row phenomenon.” This argument focuses on the passage of time and its discordance with the penological justifications for the death penalty. Presently, some reports suggest that condemned inmates spend, on average, 10 years on death row (Gaydon & Miller, 2007). The Supreme Court, however, has refused to acknowledge that such lengthy delay raises a constitutional question. This refusal may have roots in the Court’s tendency to frame its death penalty decisions and the application of the cruel and unusual provision in terms of the physical body (pain and mutilation). What the Court has not done, however, is debate whether the passage of time undermines a sentence of death. Several Justices have acknowledged that the period of imprisonment between sentencing and execution can be quite lengthy and perhaps intolerably cruel (Elledge v. Florida, 1998; Foster v. Florida, 2002; Gomez v. Fierro, 1996; Johnson v. Bredesen, 2009; Knight v. Florida, 1999; Smith v. Arizona, 2007; Thompson v. McNeil, 2009). Moreover, this period of imprisonment may be comparable, on some levels, to the sentence of death itself (see Coleman v. Balkcom, 1981). While acknowledging that the delay between sentencing and execution is oftentimes the result of the appeals process, Justice Stevens has also stated that the deterrent value of actually following through with the actual execution is often lost because the prolonged period of incarceration on death row is quite substantial (Coleman v. Balkcom, 451 U.S. at 952). This “waiting period,” in his view, raises a number of “novel” questions apart from the imposition of the death sentence.

The importance of Justice Stevens’ dissenting opinion rests in part on the belief that his views, and those of other like-minded jurists, may one day compel the courts to reconsider its approach to these claims. The judicial exercise of writing dissents has been discussed on a number of occasions in both the case law and legal literature (Beth, 1955; Blomquist, 2004; Carson, 1894; Evans, 1938; McClain, 1905; Smith, 2012). For example, in Whittico (2013), Justice Hassell wrote,

Our strong adherence to the doctrine of stare decisis does not, however, compel us to perpetuate what we believe to be an incorrect application of the law; neither will we be compelled by the doctrine of stare decisis to ignore our duty to develop the orderly evolution of the common law . . . (p. 407)

Perhaps the best restatement of this principle was made by Justice Cardozo (1921), who wrote,

The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice. Every new case is an experiment; and if the accepted rule which seems applicable yields a result which seems to be unjust, the rule is reconsidered. (p. 23)

Simply put, there is an expectation that the law will change over time. New or “novel” issues will require the courts to reevaluate what was once thought to be settled law. It is this unsettled nature of the law to which Justice Stevens seemed to be alluding when he wrote that prolonged stays on death row present issues that are quite separate from the Court’s jurisprudence on the death penalty.

The idea that the passage of time on death row presents novel constitutional questions has been presented in a number of state and federal courts since Justice Stevens’ dissenting opinion in 1981. In one dissenting opinion, a Justice indicated that the significance of this issue is “debatable among jurists of reason” (McKenzie v. Day, 57 F.3d 1461, 1995). Of central importance was whether the utility of the death penalty could be sustained after 20 years had passed since the sentence of death was first imposed. Judge Norris, relying on the views expressed by Justice Stevens in the Lackey petition, indicated his agreement that the two principles justifying the death penalty are undercut by the passage of time since the imposition of the death sentence (57 F.3d at 86-87). Importantly, Judge Norris noted that courts should reassess how they apportion fault for prolonged delays in executions. In his view, the appellate system itself is designed to promote and encourage delay. Thus, fault should lay with the state rather than the condemned. Finally, Judge Norris took issue with the “wild” accusation that granting the Lackey claim would virtually end the death penalty (57 F.3d at 97; see also State v. Moore, 256 Neb. 553, 1999). Judge Norris indicated that the court’s reasoning was unwise and logically unsound in view that no federal judge ever hears a large enough sample of death penalty cases to make a reliable assessment of the impact of such a ruling. ²

Prior to 1981, these “novel” constitutional questions also were presented to several courts. For example, in Chessman v. Dickson (275 F.2d 604, 1960), the Ninth Circuit rejected a claim that 11 years spent on death constituted cruel and unusual punishment. Judge Chambers, writing for the Court, believed that the defendant and others who are similarly situated would be effectively rewarded for manipulating and thwarting the process. Moreover, he believed that no objective indicia existed that would be useful for making such determinations.

Many courts acknowledge that lengthy delay between imposing a sentence of death and the actual execution is problematic on a number of levels. However, they refuse to take affirmative steps to actually address the problem. Rather, they cite precedent or use other procedural rules/tools to dismiss the claims. Among other things, these claims are dismissed as “an abuse of writ” notwithstanding clear evidence that many of these defendants have been languishing on death row for more than 15 ³ or even 20 or more years. ⁴

Yet another procedural bar involves the application of AEDPA (Anti-Terrorism and Effective Death Penalty Act). Enacted in 1996, AEDPA modified the federal habeas statute to end what some considered abusive practices by prisoners who sought to delay the finality of state judgments (Tushnet & Yackle, 1997). Among other things, AEDPA established a 1 year filing deadline (applicable to newly recognized rights or newly discovered evidence) and it also crafted a procedural default rule for successive federal petitions (Tushnet & Yackle, 1997, pp. 34-35). As a result, a number of claims that raise constitutional questions about the length of stay on death row are rejected. For example, in Ceja v. Stewart (134 F.3d 1368), the Ninth Circuit, citing AEDPA, denied a petition for review despite the defendant having spent some 23 years on death row. Notwithstanding the court’s opinion, Judge Fletcher authored a long dissenting opinion in which she laid out the contours of AEDPA and its non-applicability to Ceja’s petition. Importantly, Judge Fletcher discussed the “ripeness” issue, which she believed should not serve as a barrier to a full airing of questions related to the penological interests of executing a defendant 23 years after the death sentence has been imposed (134 F.3d at 1372). In her view, reliance on AEDPA in this instance would produce absurd results because the “factual predicate” underlying the claim would not have yet materialized (see also Hedges, 2001; Myers, 2002).

The current legal atmosphere seems rather unfavorable to defendants who seek redress in the courts for claims premised on Lackey and the “death row phenomenon.” Although some jurists seem receptive to these claims, their arguments have not yet garnered sufficient support to command a majority on any court. Only time will tell if Justice Cardozo was right with regard to the reconsideration of unjust rules.

State Recognition of the “Death Row Phenomenon”

In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court held that the Eighth Amendment forbids states from imposing the death penalty on defendants who were mentally retarded. Resting its decision on “evolving standards of decency,” the Court found that a consensus had emerged with regard to the public’s acceptance of the death penalty, as measured by state legislative enactments, for this group of offenders. Justice Stevens, writing for the Court, found that the states were clearly moving away from imposing the death penalty on mentally retarded offenders. In noting this consensus among the states, he wrote,

[T]he large number of States prohibiting the execution of mentally retarded persons (and the complete absence of States passing legislation reinstating the power to conduct such executions) provides powerful evidence that our society views mentally retarded offenders as categorically less culpable than the average criminal. (536 U.S. at 315-16)

Thus, a consensus can be determined where a number of states pass legislation that prohibits a particular punishment or practice. Moreover, a consensus can also be found where states elect not to reinstate certain types of punishments for particular offenders. Importantly, Justice Stevens believed that it was important to leave to the states the ability to determine whether these offenders met certain threshold criteria (536 U.S. at 317).

The importance of Atkins is not lost on those who believe that Lackey claims merit serious constitutional scrutiny by the courts. However, there is no evidence that neither the public nor state legislatures support measures that would provide constitutional protections to defendants who bring Lackey claims. To date, no state legislature has recognized the legitimacy of the “death row phenomenon.” Interestingly, four states since 2010 have altered their statutory provisions regarding the death penalty but none have addressed the issue of the extraordinary delay between the sentence and execution. ⁵ Perhaps most unsettling, between 1996 and 2010, the amount of time between the sentence of death and the actual execution increased from 125 months to 178 months (Snell, 2011). ⁶ Thus, there are no laboratories of experimentation from which the higher courts can draw inspiration. Notwithstanding the inaction at the state level, Justice Brennan reminds us that the efficacy of a particular punishment should not be measured solely in terms of legislative pronouncements (Furman v. Georgia, 408 U.S. at 279).

It would seem that the states have truly taken a “hands-off approach” with regard to Lackey claims. In a number of cases, the delay between the sentence and execution is truly exceptional. For example, Georgia currently has 94 inmates under a sentence of death as of 2012 (Office of Planning and Analysis: Inmates Under Death Sentence). Of this number, approximately 22% have been waiting on death row between 16 and 20 years. Another 16% have been waiting between 21 and 25 years. Finally, 14% have been waiting for more than 25 years (Georgia Department of Corrections, 2013). Similar proportions can be found in other states across the South. In yet another state, Mississippi, there are approximately 50 inmates currently (as of 2013) on death row. Approximately 18% have been on death row between 16 and 20 years while another 16% have been on death row between 21 and 25 years. Finally, 6% have been on death row for more than 25 years.

Since 1995, more than 35 Lackey claims have been brought before state and federal courts. Several states are largely responsible for the bulk of these cases—Mississippi, California, Illinois, Texas, and Florida. The increasing number of Lackey claims arising in these states is troubling on a number of levels, and they may raise issues akin to those which prompted Supreme Court intervention with regard to the conditions of confinement of prisoners. To paraphrase Barry Bell (1986), the “hands-off” or deferential approach that the courts have traditionally used to dispense with Lackey claims is “analytically inadequate” given the complexity of the Eighth Amendment issues that they raise. Arguably, we may be in a period akin to that which existed prior to the 1970s when courts routinely dismissed prisoner complaints about the conditions of their confinement. Despite the advances that were ushered in by the Wolff v. McDonnell (418 U.S. 539, 1974) decision, states still retained enormous discretion with regard to matters of prison discipline (418 U.S. at 556, 563). Tellingly, Justice Douglas raises the issue of who should be entrusted with the power to decide whether one’s constitutional rights have been violated. In his dissent, Justice Douglas wrote that “we should no more place an inmate’s constitutional rights in the hands of prison administrator’s discretion than we should place the defendant’s rights in the hands of the prosecutor” (418 U.S. at 601). The root of Lackey claims, in essence, turns on the same distrust of state power exhibited here. The states in which excessive delay is at its worst all have the same inflexible rules which prevent the merits of Lackey claims from ever being decided. This constitutional “straightjacket” is also the product of decisions handed down by the Supreme Court, which have consistently described these claims as meritless (Foster v. Florida, 537 U.S. 990, 2002; Knight v. Florida, 528 U.S. 990, 1999).

A survey of the legislative landscape suggests that the states have not been the laboratories for experimentation or innovation that many would presume. As such, a compelling argument can be made that the states themselves pose an enormous roadblock for redress due to their own inaction (Heinzerling, 1986). As such, the need for the Supreme Court to address the constitutional issues raised by Lackey claims is quite significant especially given the special relationship that exists between death row inmates and the state (Heinzerling, 1986, p. 1062).

The “Death Row Phenomenon” and International Opinion

Although the various courts in the United States are not bound by foreign decisions, they have occasionally drawn inspiration from international opinions and conventions. In Roper v. Simmons (543 U.S. 551, 2005), Justice Kennedy used a number of international sources to bolster his opinion regarding the efficacy of executing juveniles. This practice of drawing on international opinions, according to Justice Kennedy, is as old as Trop v. Dulles (543 U.S. at 575) itself. In doing so, the Court attempts to situate its opinions within the “civilized nations” of the world. Importantly, Justice Kennedy indicated that

it does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom. (543 U.S. at 578)

It is against this decisional backdrop that defendants who bring Lackey claims direct the attention of state and federal courts.

Lackey claims are grounded, in part, in the decision handed down by the European Court of Human Rights in Soering v. United Kingdom (11 EHRR 439, 1989) and Pratt v. Attorney General for Jamaica (4 All E.R. 769, 1993). Unlike the claims filed by plaintiffs challenging the constitutionality of the long delay between their death sentence and execution, Soering’s argument was more “nuanced” in nature. While he was not presently on death row in a U.S. prison, he believed that the manner in which death sentences were handed down, coupled with the appeals process, would result in exceptional delay, thereby exposing him to a condition known as the “death row phenomenon” (Lillich, 1991). As an initial matter, the European Commission on Human Rights noted that whenever there existed a “serious risk” that inhuman or degrading punishment could occur then, defendants must be accorded special protections not inconsistent with Article 3 of the European Convention (Lillich, 1991, pp. 132-133). Importantly, the Commission did not believe that the conditions on death row were such that they would violate the tenets Article 3. Rather, the Commission acknowledged that the conditions on death row were a consequence of the additional security measures that are necessary to manage this population of offenders. Notwithstanding the cramped spaces or the mental stress endured by the prisoners, the conditions attendant to death row were not so extreme as to warrant a finding that Article 3 had been violated (Lillich, 1991, p. 136).

The Commission’s findings substantially informed the decision that was rendered by the European Court of Human Rights. In substantial part, the Court found that there was a very real risk that Soering would be subjected to inhuman and degrading treatment given the cumulative and reinforcing effect of death row conditions in the United States (Lillich, p. 140). In its view, the “death row phenomenon” is real and arguments to the contrary are undercut by the reality that mental acuity and functioning are tremendously impacted by prolonged periods of time on death row. As such, the Court believed that Soering’s Article 3 claim had merit.

The Pratt decision (4 All E.R. 769) also undercuts the rationale used by many courts to reject Lackey claims. Pratt, who spent more than 14 years under a sentence of death, argued that his prolonged stay on death row subjected him to “inhuman or degrading punishment.” Importantly, the Privy Council held that prolonged delay amounted to “inhumane treatment” (4 All E.R. at 783). Moreover, in its view, there was something “instinctually revolting” regarding long delays between the death sentence and the execution. Even more, the Privy Council believed that inordinate delays were not sheltered from constitutional attack unless one of the two exceptions were met—escape from custody or abuse of the process through frivolous appeals (Schabas, 1994).

The Privy Council’s reasoning lay, in part, on its recognition that it is degrading to one’s “humanity” to spend such a prolonged period of time anticipating his death (Schabas, 1994, p. 920). Respect for one’s basic “humanity” and dignity form the foundation of the U.S. Supreme Court’s death penalty jurisprudence (Furman v. Georgia, 1972; Trop v. Dulles, 1954). Given the Court’s prior decisions, and paraphrasing Justice Marshall’s opinion, the issue that it confronts should be framed thusly: The Court is not called upon to condone the penalized conduct; [rather] it is called upon to examine whether the [inordinate delay in execution] violates the Eighth Amendment (408 U.S. at 315).

The rationale used in these cases lends some credibility to the belief that the “death row phenomenon” violates the Eighth Amendment. To be clear, the “death row phenomenon” is premised on two factors—length of delay and conditions on death row that precipitate or contribute to one’s mental decline. Thus, defendants would probably be better positioned before courts if they did not use the “death row phenomenon” as a free-standing claim. Instead, it should be grafted onto the much sturdier framework of “evolving standards of decency.” Such a framework would give courts the occasion to engage in much broader discussions of its Eighth Amendment jurisprudence and the efficacy of the death penalty.

Conclusion

State and federal courts are increasingly facing a dilemma with regard to the problems posed by excessive delay between sentencing and execution. It is becoming more and more common for defendants to wait 20 years or more on death row before they are actually executed. Such prolonged delays raise a number of constitutional questions related to the Eighth Amendment and the prohibition against cruel and unusual punishment. What is particularly vexing though is that neither state nor federal courts have characterized these delays in terms of the Eighth Amendment. Perhaps to do so would legitimate the constitutional concerns that a number of scholars and advocates have raised premised on “evolving standards of decency.”

Rooted in Trop v. Dulles, “evolving standards of decency” suggests that courts must look to a number of factors including history, evidence of change, the weight of empirical or scientific evidence, and even international opinion. One cornerstone of “evolving standards” looks for evidence of change with regard to a particular policy. Evidence of such change can be gleaned in one of the two ways—the pace of change (Atkins v. Virginia, 536 U.S. 304, 2002) and the direction of change (Roper v. Simons, 543 U.S. 551, 2005). Although no such evidence of change is readily available from the states, it nevertheless begs the question of how courts and criminologists should gauge the readiness of states to change. An argument premised on “paralysis through uncertainty” as noted in Coker v. Georgia (433 U.S. 584, 1977) cannot explain inaction at the state level in a very satisfying manner. However, it is precisely the inaction at the state level that should be particularly troubling for the courts. For example, state inaction was at the crux of the debate with regard to the Violence Against Women Act. Taking the position that many states had demonstrated an unwillingness to protect women from violence or afford them equal protection from violence, some federal courts have said held that legitimate remedies needed to be fashioned that would secure them this right (Timm v. Delong, 59 F. Supp.2d 944, 1998). Analogously, it could be argued that by failing to respond to the claims of excessive delay, a constitutionally protected right, the states are denying some death row inmates equal protection under the Fourteenth Amendment. Because the state laws are biased against them, a federal remedy of some kind is needed to forestall future violations (also see United States v. Hall, 26 F. Cas. 79, 1871). ⁷

Another component of “evolving standards” involves an evaluation of the empirical or scientific evidence. As noted earlier, our knowledge regarding the mental state of inmates on death row is sparse but compelling. Several studies have found that prolonged time on death row can lead to a number of psychological problems including depression, suicidal ideation, and chronic psychosis (Cunningham & Vigen, 2002). Even more, there are a number of studies that have found that as much as 60% of death row inmates may suffer from psychosis (Lewis, Pincus, Feldman, Jackson, & Bard, 1986). More criminological research is needed in this area to help supplement the empirical record and to help facilitate a change in how courts see this issue.

An additional dimension of this issue concerns the consequences of long-term confinement on death row (solitary confinement). Studies have variously described the effects of solitary confinement as punitive, pernicious, and destructive (Johnson, 1980). A significant proportion of death row inmates spend the vast majority of time in isolation such that their movement and stimulation is highly restricted (Cunningham, Reidy, & Sorenson, 2005; Johnson, 1979). In addition, many inmates on death row spend as little as an hour outside of their cells each day (Hammer et al., 2002; Lyon & Cunningham, 2005). Presumably, death row inmates represent a continuing and imminent threat to both society and the institution thus necessitating the need to keep them under close supervision; however, this thesis has now been questioned (Cunningham et al., 2005; Lombardi, Sluder, & Wallace, 1997; Lyon & Cunningham, 2005). Given the current state of knowledge, an argument could be made that the states have engaged in a long-standing policy of deliberate indifference in contravention of numerous court holdings (Clark v. Beard, 2006; Farmer v. Brennan, 1994; Shalev, 2008). More research by both criminologists and the psychological community can greatly enhance our knowledge of this issue.

Questions regarding how to best address issues related to excessive delay and the “death row phenomenon” remain largely unanswered. Although a few solutions have been proffered by scholars (Feldman, 1999), there still seems to be no legal or political will to address the constitutional issues raised by excessive delay or the death row phenomenon. As Feldman (1999) notes, many courts presume that defendants are trying to have it both ways to the extent that they use the appeals process to induce the very delay that they now condemn. However, courts should not penalize defendants for constitutionally availing themselves of a process that is cumbersome and by definition consumes an enormous amount of time.

Perhaps to alleviate some of these concerns, courts could use a “tolling mechanism” that is akin to a statute of limitations. Such a mechanism has already been proposed by Robbins (1990) as one method that may speed up the appeals process in death penalty cases. In effect, a “statute of limitations” for excessive delay claims would work much like the time constraints that courts now impose on defendants facing death sentences. Just as there is a “clock” which begins the start date for petitions to the court (Sessions, 1997), a similar mechanism should be used to trigger a “clock” for the state which is sufficient to allow the appeals process to run its course. Although deciding what the duration of the clock should be is perhaps arbitrary, 10 years should provide an adequate amount of time for the state to respond to all claims and challenge adverse decisions (Feldman, 1999). Should the “clock” expire, the state Supreme Court should issue an order requiring that the defendant’s death sentence be reduced to life without parole. Such authority lies within the court’s rule-making and administrative powers. Given that lives are at stake, courts should reconsider their position on Lackey claims and embrace the meaning of “evolving standards of decency.”