Delay in considering the constitutionality of inordinate delay: the death row phenomenon and the Eighth Amendment. (2024)

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INTRODUCTIONI. THE DEATH PENALTY AND THE EIGHTH AMENDMENT: AN OVERVIEWII. THE SUBSTANCE OF A LACKEY CLAIMIII. THE COURT'S DEBATE A. In Support of Granting Certiorari and Recognizing a Valid Constitutional Claim Based on Inordinate Delay: Justices Stevens and Breyer B. Against Granting Certiorari and Recognizing a Valid Constitutional Claim Based on Inordinate Delay: Justice ThomasIV. DOES INORDINATE DELAY ON DEATH ROW VIOLATE THE EIGHTH AMENDMENT? CHECKING IN ON THE EXPERIMENT A. The Antiterrorism and Effective Death Penalty Act: Lackey Claims Are Barred If Presented in Second or Successive Habeas Petitions B. Retroactivity: Lackey Claims Are Teague-BarredV. SOLUTIONS A. Abolishing the Death Penalty B. Reforming the Capital Appeals and Habeas Processes C. Improving Death Row Conditions D. Model Lackey Legislation 1. Delay Caused by the Inmate's Abuse of the Judicial System 2. Delay Caused by the Process of Judicial Review 3. Delay Caused by the State's Misconduct or NegligenceCONCLUSION

INTRODUCTION

On September 28, 2011, after thirty-three years on death row,Manuel Valle, age sixty-one, was executed by the State of Florida. (1)In 1987, Valle shot and killed police officer Louis Pena during aroutine traffic stop. (2) At the time, Valle was twenty-seven years old.(3)

Why did it take Florida over three decades to execute Manuel Valle?During the first thirteen years after Pena's murder, Floridaprosecutors struggled to obtain a constitutionally sound conviction andsentence. The Florida Supreme Court reversed Valle's initialconviction and sentence because the trial court forced him to standtrial within twenty-four days of his arraignment, in violation of hisright to effective assistance of counsel. (4) On retrial, Valle wasagain sentenced to death, but this second sentence was vacated becausethe trial court improperly excluded mitigating testimony. (5) TheFlorida Supreme Court upheld Valle's third death sentence on appealin 199i, and the Supreme Court of the United States denied certiorari.(6) For the next twenty years, however, Valle continued to litigate fromdeath row. He filed a motion for state postconviction relief and federalpetitions for a writ of habeas corpus, all of which were denied. (7)

When Florida Governor Rick Scott signed Valle's death warrantin June 2011, (8) Valle sought last-minute relief from the courts. Heraised a new argument--that execution after such a lengthy delay wouldviolate the Eighth Amendment's ban on cruel and unusual punishment.(9) Specifically, Valle asserted that his execution was unconstitutionalbecause the State "added to [his] death sentence the morbidadditional sentence of being taunted with death for three decades--thegreater part of his life." (10) Ultimately, however, Floridaexecuted Valle by lethal injection after the United States Supreme Courtrefused his petition for stay of execution and writ of certiorari. (11)

The Supreme Court has repeatedly declined to address the validityof the unconstitutional delay claim raised by Valle and other death rowinmates before him. The issue first came to the Court's attentionover fifteen years ago, in Lackey v. Texas. (12) Justice Stevens issueda memorandum respecting the Court's denial of certiorari in whichhe acknowledged that although "the importance and novelty of thequestion ... are sufficient to warrant review by this Court, thosefactors also provide a principled basis for postponing consideration ofthe issue until after it has been addressed by other courts." (13)Justice Stevens emphasized that denial of certiorari provided animportant opportunity for state and lower federal courts to "serveas laboratories in which the issue receives further study before it isaddressed by this Court." (14) Since Lackey, the Supreme Court hasdenied certiorari to every petitioner asserting this argument(hereinafter referred to as a "Lackey claim"), includingManuel Valle, and thus has not ruled on whether--or when--executionsafter inordinate delays on death row constitute cruel and unusualpunishment.

Several Justices, however, have spoken out both in favor of andagainst recognizing an Eighth Amendment claim based on inordinate delayon death row. Justice Breyer and Justice Stevens have long urged theCourt to address a Lackey claim, which, they suggest, has merit. Indeed,Justice Breyer has dissented from every one of the Court's refusalsto grant certiorari to an inmate raising a Lackey claim. (15) In Vallev. Florida, Breyer noted that he had "little doubt about thecruelty of so long a period of incarceration under sentence ofdeath" and further observed that three decades of "confinementfollowed by execution would also seem unusual." (16) Similarly,since issuing the Lackey memorandum, Justice Stevens has opined thatexecution after decades-long delays on death row is "withoutconstitutional justification." (17) In contrast, Justice Thomas hasrepeatedly rejected Lackey claims by refuting "the proposition thata defendant can avail himself of the panoply of appellate and collateralprocedures and then complain when his execution is delayed." (18)He has consistently maintained that the Lackey claim lacks a basis inthe Court's Eighth Amendment jurisprudence. (19)

Despite the considerable amount of time it takes to develop aLackey claim, the issue continues to present itself, particularly as thelength of time prisoners spend on death row increases. According to a2010 Bureau of Justice Statistics report, from 1984 to 2010, the averageelapsed time between sentence and execution for all death row inmatesmore than doubled, increasing from 74 months in 1984 to 178 months in2010. (20) With the Lackey issue still unresolved, and with over 3100people currently on death row in the United States, (21) courts cananticipate an increasing number of claims that execution afterinordinate delay on death row violates the Eighth Amendment. Therefore,it is time for the Court to confront the issue and definitivelydetermine the constitutionality of inordinate death row delays.

Notwithstanding the benefits of the highest court's resolutionof the issue, the Supreme Court is unlikely to take a Lackey case in thenear future. Since Justice Stevens issued the Lackey memorandum overfifteen years ago, procedural roadblocks have emerged that haveprevented lower courts from addressing the merits of Lackey claims. (22)I argue that in certain circumstances, execution after lengthyconfinement on death row does violate the Eighth Amendment and the"evolving standards of decency" (23) by which the Amendment ismeasured. Therefore, states must implement workable solutions that arecarefully calibrated to address both the Lackey claim and thecountervailing policy considerations.

Part I of this paper summarizes the bedrock principles that guidethe Court in analyzing capital sentences challenged on Eighth Amendmentgrounds. Part II describes the substance of the Lackey claim and focuseson the causes of delay on death row and the psychological effect of thisdelay, known as the "death row phenomenon." (24) Part IIItraces the ongoing debate over the Lackey claim among the Justices ofthe United States Supreme Court. Then, Part IV assesses the experimenttaking place in the "laboratories" of lower state and federalcourts, and concludes that it has been lackluster, mostly because of theprocedural issues that have limited courts' opportunities toaddress the merits of Lackey claims. Finally, in recognition that theCourt is unlikely to grant certiorari and rule on the validity of Lackeyclaims, Part V focuses on alternative solutions to the problem ofinordinate death row delays.

I. THE DEATH PENALTY AND THE EIGHTH AMENDMENT: AN OVERVIEW

The Eighth Amendment of the United States Constitution states:"Excessive bail shall not be required, nor excessive fines imposed,nor cruel and unusual punishments inflicted." (25) In 1958, theCourt observed in Trop v. Dulles that "[t]he exact scope of theconstitutional phrase 'cruel and unusual' has not beendetailed by this Court." (26) Despite the vague contours of theEighth Amendment, from the time of the Framers until the 1970s, courtsaccepted the death penalty as constitutional. (27)

In 1972, however, the longstanding approach to the death penaltybegan to shift. First, in a brief per curiam opinion in Furman v.Georgia, the Court declared that that the "imposition and carryingout of the death penalty [pursuant to Georgia's and Texas'scapital punishment statutes] constitute[d] cruel and unusualpunishment." (28) Concurring, Justice Brennan articulated fourprinciples inherent in the Eighth Amendment's ban on cruel andunusual punishment: first, a punishment must not be "degrading tohuman dignity"; second, it must not be arbitrarily inflicted;third, a "punishment must not be unacceptable to contemporarysociety"; and finally, the "punishment must not beexcessive." (29)

Although Justices Brennan and Marshall each opined in Furman thatthe death penalty was per se unconstitutional, (30) the other concurringopinions cited narrower reasons for striking it down. Specifically,several of the Justices found that the Georgia statute facilitated thismost severe punishment in an unconstitutionally arbitrary manner. (31)For those Justices, it was not capital punishment itself that violatedthe constitution in Furman, but the unpredictability of its impositionunder the Georgia statute. (32) According to Justice Douglas, the lawgave sentencers "practically untrammeled discretion to let anaccused live or insist that he die." (33) Similarly, JusticeStewart concluded that because "this unique penalty [was] sowantonly and so freakishly imposed," particularly on minoritygroups, its use was cruel and unusual. (34)

Furman effectively put a halt to the death penalty in the UnitedStates while legislatures revised their capital punishment statutes tomeet the newly articulated constitutional requirements. (35) Four yearslater, the Court lifted its implied moratorium when it upheldGeorgia's, Florida's, and Texas's revised sentencingstatutes. (36) These cases, along with two others decided the same day,are referred to as the "July 2 cases." (37)

The July 2 cases outline the basic requirements a capitalpunishment scheme must satisfy to comport with the Constitution.Although the July 2 cases ended Furman's effective ban on capitalpunishment, the four principles inherent in the Eighth Amendment,articulated by Justice Brennan in Furman, played an important role inthe Court's analysis. In the leading July 2 case, Gregg v. Georgia,Justices Stewart, Powell, and Stevens declared that Georgia couldconstitutionally execute the defendant because its revised capitalpunishment statute remedied the deficiencies identified in Furman. (38)Rather than providing the jury with unguided discretion, the new Georgialaw required that the sentencer find and specifically articulate atleast one statutory aggravating circumstance to justify imposing thedeath penalty. (39) The Georgia statute also mandated that the juryconsider during sentencing any mitigating circumstances presented by thedefense. (40) This revised statute satisfied the Court because it bothlimited the types of crimes that made an offender eligible for the deathpenalty and provided broad latitude, upon consideration of mitigatingevidence, for the sentencer to recommend life imprisonment rather thandeath. (41) Thus the imposition of the death penalty was consistent withthe principle that "the State must not arbitrarily inflict a severepunishment." (42)

The Gregg Court was also satisfied that capital punishment was not,to use Justice Brennan's words in his concurrence in Furman,"unacceptable to contemporary society." (43) In Trop v.Dulles, the Court had declared that "[t]he Amendment must draw itsmeaning from the evolving standards of decency that mark the progress ofa maturing society." (44) Since then, the Court has measuredsociety's acceptance of a particular punishment based on"objective indicators," such as legislative determinations,jury sentences, public opinion, and even international practices. (45)In Gregg, the plurality found not only that capital punishment was along-accepted practice in this country, but also that "[t]he mostmarked indication of society's endorsement of the death penalty formurder is the legislative response to Furman"--over thirty-fivestates responded to the opinion in Furman not by abolishing the deathpenalty but by revising their statutes to make their schemesconstitutional. (46)

Another core component of the Eighth Amendment is the mandate thatthe punishment not be excessive. (47) To meet this requirement, thesanction imposed cannot be disproportionate to the crime. Additionally,"[i]f there is a significantly less severe punishment adequate toachieve the purposes for which the punishment is inflicted, thepunishment inflicted is unnecessary and therefore excessive." (48)The Court therefore must assess the purposes for which the death penaltyis inflicted and determine whether this punishment serves the goals ofdeterrence or retribution. As Justice White noted in Furman:

 At the moment that [a proposed execution] ceases realistically to further these purposes, however, the emerging question is whether its imposition in such circumstances would violate the Eighth Amendment. It is my view that it would, for its imposition would then be the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State would be patently excessive and cruel and unusual punishment violative of the Eighth Amendment. (49)

In upholding the capital punishment statute in Gregg, the pluralitydeferred to the judgment of Georgia's legislature that theexecution of certain offenders did serve these social purposes. (50)

Since these landmark decisions, the Court has continued to furtherdefine the constitutional limits of the death penalty. One way in whichit has done so is by categorically banning the execution of certainclasses of defendants. (51) In Coker v. Georgia, the Court declared thatthose convicted only of rape of an adult could not be executed, (52) andin Enmund v. Florida, the Court prohibited the execution of minorparticipants in felony murder who were not present for the killing andwho did not "intend[] or contemplate[] that life would betaken." (53) And most recently, the Court has declared theexecution of insane, (54) mentally retarded, (55) and juvenile offenders(56) to be cruel and unusual punishment.

II. THE SUBSTANCE OF A LACKEY CLAIM

How does a delay in execution fail to meet the Court's EighthAmendment standards, particularly given that the procedural safeguardsthat prolong the process are intended to benefit inmates by ensuringthat only those deserving of execution will face this punishment? Beforeassessing the treatment of Lackey claims over the past fifteen years, Ilay out the substantive argument asserted by the prisoners who havespent a good portion of their lives on death row.

A Justice of the Supreme Court first addressed the issue of whetherinordinate delays on death row violate the Eighth Amendment whenClarence Allen Lackey, who spent seventeen years on death row prior tohis execution, filed a petition for certiorari in 1995. (57) Lackeyargued that the State of Texas had forfeited the right to execute him asa result of his protracted stay on death row. (58) He asserted that hisexecution would be cruel and unusual punishment because: (1) imposingthe death penalty after an inordinate delay on death row would have beenunacceptable to the Framers; (59) (2) execution after such a delay didnot comport with "evolving standards of decency" and wascontrary to international opinion; (60) and (3) Lackey's delay ondeath row resulted in the infliction of unnecessary and gratuitous painin the form of intense psychological suffering. (61)

Lackey claims exists because of the numerous delays ingrained incapital cases, and which result in the incarceration of prisoners formany years before their death sentences are carried out. As previouslymentioned, the average death row inmate suffers in detention for nearlyfifteen years before execution. (62) Some inmates whose petitions forcertiorari have reached the Court since Lackey have spent nearly thirtyyears waiting for death. (63) Beyond the delays that accompany a capitaltrial, the appellate process is fraught with additional interruptions.

There are common causes for delay in capital appeals. The assemblyof a complete record for appellate review, the wait for the delivery ofan opinion by appellate courts, and the further procedures provided bymost states for inmates to petition for postconviction relief accountfor much of the delay in the appeals process. (64) State postconvictionrelief statutes often provide petitioners with the opportunity topresent claims after the direct appeal process to a trial and anappellate court, and then to the state supreme court. (65) In fact, therequirement that a petitioner exhaust his claim in the state'shighest court in order to file a petition for federal habeas corpusrelief is another factor contributing to lengthy delays on death row.(66) Delays are further exacerbated by "the quest for [competent]counsel" (67) and by other factors such as frivolous filings by thepetitioner and the setting of execution dates, which have the effect of"catalyz[ing] the litigation process into motion." (68)

A Lackey claim's concern extends beyond the fact of delay--theheart of the argument relates to the conditions of confinement on deathrow that inmates endure for so long as a result of the delays describedabove. Death row is characterized by isolation. Justice Stevenshighlighted that one inmate who unsuccessfully asserted a Lackey claim"endured especially severe conditions" by "spending up to23 hours per day in isolation in a 6-by 9-foot cell." (69) Althoughthe administration of prisons varies by state, conditions areconsistently bleak for death row inmates. (70) Many spend almost all oftheir time alone in small cells separated from the rest of the prisonpopulation and leave only for medical reasons, consultation withlawyers, media interviews, or limited opportunities to see visitors.(71) As one justice of the Florida Supreme Court noted, "Thesefacilities and procedures were not designed and should not be used tomaintain prisoners for years and years." (72)

The uncertainty of death that looms over prisoners for years priorto execution compounds the problem. Today, a number of death row inmatesawaiting execution die instead from natural causes. (73) The prospect ofwinning on appeal provides many inmates with a "false sense ofhope" that they will not be put to death. (74) One justice of theMassachusetts Supreme Judicial Court noted that "[l]engthy delays,especially if punctuated by a series of last minute reprieves, intensifythe prisoner's suffering." (75) Additionally, a study ofinmates on Florida's death row--where Valle spent three decades ofhis life--found that 42% of inmates had "seriously considered"suicide and 35% had attempted suicide. (76) Rather than commit suicide,some death row inmates instead have volunteered for execution by waivingappeals of their sentence. (77)

Unsurprisingly, then, Clarence Lackey described death row as"one of the loneliest, most miserable places on the earth."(78) Willie Lloyd Turner, a death row inmate who was executed in 1995,described his experience in equally bleak terms:

 It's the unending, uninterrupted immersion in death that wears on you so much. It's the parade of friends and acquaintances who leave for the death house and never come back, while your own desperate and lonely time drains away. It's the boring routine of claustrophobic confinement, punctuated by eye-opening dates with death that you helplessly hope will be averted. (79)

Scholars agree with this depiction of death row. Professor WilliamSchabas likened the "horror" of death row to a combination of"a hospital ward for the terminally ill, an institution for thecriminally insane, and an ultramaximum security wing in apenitentiary." (80)

Many courts, including the United States Supreme Court, have longrecognized--even before Lackey--that the conditions on death row are atbest difficult to endure and at worst what the California Supreme Courthas called "dehumanizing." (81) As far back as 1890 theSupreme Court acknowledged, in reference to just a four-week delay ondeath row, that the uncertainty of living under a sentence of death is"one of the most horrible feelings" a person can experience.(82) Eighty years later, the California Supreme Court similarly notedthat "the process of carrying out a verdict of death is often sodegrading and brutalizing to the human spirit as to constitutepsychological torture." (83)

The mental anguish and psychological torture that takes place whileawaiting execution is often referred to as the "death rowphenomenon" or "death row syndrome." (84) This termtraces back to Soering v. United Kingdom, a case decided by the EuropeanCourt of Human Rights in 1989. (85) In Soering, the defendant, who fledto the United Kingdom after committing a double murder in Virginia,argued that his extradition to the United States, which would result inincarceration on death row, would be tantamount to subjecting him topsychological torture. (86) The court agreed. (87)

Since the term was coined, inmates and advocates have used it todescribe the suffering that occurs on death row. And, as previouslymentioned, judges, scholars, mental health experts, and prison officialsagree that "a condemned prisoner's mental ordeal approachesthe limit of human endurance." (88) However, despite the notion ofmedical legitimacy this terminology invokes, death row syndrome has notbeen formally recognized by mental health professionals. (89) Similarly,although the suffering on death row is widely recognized as problematic,inmates have not succeeded in obtaining relief from the courts whenraising death row syndrome in a Lackey claim.

III. THE COURT'S DEBATE

Although the Court has never granted certiorari in a case raising aLackey claim, several Justices have engaged in a lively debate regardingthe merits of the inordinate delay argument. Justice Breyer and JusticeStevens have consistently urged the Court to confront this issue, which,they claim, finds support in the Court's Eighth Amendmentjurisprudence. (90) Justice Thomas, however, has concurred on multipleoccasions in the denial of certiorari and has vehemently rejected Lackeyclaims. (91)

A. In Support of Granting Certiorari and Recognizing a ValidConstitutional Claim Based on Inordinate Delay: Justices Stevens andBreyer

Justices Stevens and Breyer contend that executing inmates who havelong been incarcerated on death row can constitute cruel and unusualpunishment for several reasons. They assert that the amount of timeLackey petitioners spend awaiting execution--usually between twenty andthirty years--is undoubtedly unusual when viewed in light of the averagelength of death row confinement. (92) Justices Stevens and Breyer alsorely on the Court's previous acknowledgement of the horrors of thedeath row experience to support their conclusion that the combination ofuncertainty of execution and lengthy delay is cruel. (93)

Although Justice Stevens, in his Lackey memorandum, found it properto provide lower courts with an opportunity to consider the merits ofthe inordinate-delay claim, he also expressed his opinion that theexecution of Clarence Lackey might fail to comport with establishedEighth Amendment principles. (94) While the death penalty can bejustified on the bases that it was considered an acceptable punishmentby the Framers and that it serves retributive and deterrent purposes.(95) Justice Stevens suspected that "neither ground retains anyforce for prisoners who have spent some 17 years under a sentence ofdeath." (96)

In a later case, Justice Breyer echoed Justice Stevens's doubtas to whether the penological goals served by the death penalty retaintheir force after an inordinate delay. "[T]he longer thedelay," he noted, "the weaker the justifications for imposingthe death penalty in terms of punishment's basic retributive ordeterrent purposes." (97) Justices Stevens and Breyer havesuggested that the punishment already inflicted on the inmates duringtheir lengthy imprisonment on death row sufficiently serves states'interest in retribution. (98) Additionally, they agree that there isminimal incremental deterrent value in executing an inmate after a longdelay on death row as opposed to simply continuing to incarcerate theprisoner for life. (99)

Three years after Lackey, petitioner William D. Elledge presentedthe same constitutional question to the Court, this time after atwenty-three year term on death row. (100) Justice Breyer, the soledissenter from the denial of certiorari, declared, "[P]etitionerargues forcefully that his execution would be especially'cruel.' Not only has he, in prison, faced the threat of deathfor nearly a generation, but he has experienced that delay because ofthe State's own faulty procedures and not because of frivolousappeals on his own part." (101) Justices Breyer and Stevens haveacknowledged in several cases that identifying the actor responsible forthe inmate's delayed execution--be it either the State or thepetitioner himself--is important in determining the validity of apetitioner's Lackey claim. In his Lackey memorandum, JusticeStevens suggested that "[lit may be appropriate to distinguish, forexample, among delays resulting from (a) a petitioner's abuse ofthe judicial system by escape or repetitive, frivolous filings; (b) apetitioner's legitimate exercise of his right to review; and (c)negligence or deliberate action by the State." (102) Where most ofthe delay is attributable to the State, Justice Stevens suggests andJustice Breyer contends that the prisoner should not be heldresponsible, thereby giving greater force to the argument that deathafter inordinate delay is cruel and unusual. (103)

Justice Breyer has used international precedent to support hiscontention that execution after inordinate delay is inconsistent withthe Eighth Amendment. In Knight v. Florida, he highlighted the fact that"[a] growing number of courts outside the United States--courtsthat accept or assume the lawfulness of the death penalty--have heldthat lengthy delay in administering a lawful death penalty rendersultimate execution inhuman, degrading, or unusually cruel." (104)For support, Justice Breyer cited decisions from the U.K.'s PrivyCouncil, (105) India, (106) Zimbabwe, (107) as well as the decision ofthe European Court of Human Rights in Soering. (108) Justice Breyermaintained that international opinion is "useful even though notbinding" in determining the constitutionality of such a punishment.(109)

In 2009, in Thompson v. McNeil, the Court again refused to hear aLackey claim, this time raised by a petitioner who had spent thirty-twoyears on death row. (110) Justice Stevens acknowledged the inherenttension underlying the claim that execution after a lengthyincarceration on death row violates the Eighth Amendment. He noted thatthe due process requirements that must be observed before an executionmay take place render "delays in state-sponsored killings..,inescapable," (111) but nevertheless concluded that

 executing defendants after such delays is unacceptably cruel. This inevitable cruelty, coupled with the diminished justification for carrying out an execution after the lapse of so much time, reinforces my opinion that contemporary decisions "to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process." (112)

Since Justice Stevens left the Court, Justice Breyer has continuedto advocate, although unsuccessfully, that the Court grant certiorari toconsider a Lackey claim. (113)

B. Against Granting Certiorari and Recognizing a ValidConstitutional Claim Based on Inordinate Delay: Justice Thomas

Justice Thomas entered the debate over the merits of theinordinate-delay claim in 1999. (114) In Knight v. Florida, the Courtdenied certiorari in two consolidated cases in which defendantschallenged the constitutionality of their executions after spendingnineteen and twenty-five years, respectively, on death row. (115) Inthis and every case since in which Justice Thomas has concurred in thedenial of certiorari to petitioners raising a Lackey claim, he hasemphasized his lack of awareness "of any support in the Americanconstitutional tradition or in this Court's precedent for theproposition that a defendant can avail himself of the panoply ofappellate and collateral procedures and then complain when his executionis delayed." (116)

Unconvinced that the delay between sentencing and execution createsan Eighth Amendment problem--particularly when this delay is due to theinmate's exercise of his right to appeal--Justice Thomas has arguedthat "[t]he issue is not whether a death-row inmate's appeals'waive' any Eighth Amendment right" but instead whetherhis "litigation strategy, which delays his execution, provides ajustification for the Court to invent a new Eighth Amendment right. Itdoes not." (117) Justice Thomas has refused to accept the argumentthat a delay in execution can justify the commutation of a deathsentence to life imprisonment. He has noted that the "Court'svacatur of a death sentence because of constitutional error does not barnew sentencing proceedings resulting in a reimposition of the deathpenalty": the Court would not grant such a remedy even "to adeath-row inmate who had suffered the most egregious of constitutionalerrors in his sentencing proceedings." (118)

Further, Justice Thomas views Justices Breyer and Stevens'sreliance on the international consensus regarding the unusual cruelty ofinordinate delay as evidence underscoring the absence of support inAmerican constitutional jurisprudence. (119) In response to the argumentthat the conditions of confinement on death row are"dehumanizing," Justice Thomas cautions againstsecond-guessing decisions regarding prison management. (120) He alsoemphasizes that there could be "legitimate penologicalreasons" for the conditions of death row confinement. (121) JusticeThomas stresses in Thompson the "gruesome nature" of theunderlying crime for which the defendant was sentenced to death by threedifferent juries. (122) He argues that the only cruel element in thesecases is the defendant's crime, not the resulting punishment orinevitable delay prior to execution. (123)

Justice Thomas also advances several arguments against recognizinga valid Eighth Amendment claim based on inordinate delay. First, hecontends that delays in execution are an inherent consequence of theCourt's death penalty jurisprudence, which provides inmates with an"arsenal" of constitutional claims. (124) Providing death rowinmates with another constitutional claim based on delay in executionwould only lead to further delays, and would run the risk of creatingperverse incentives for reviewing courts. (125) Despite JusticeStevens's repeated assertion that the denial of a petition for awrit of certiorari is not a ruling on the merits, (126) the Court'sconsistent refusal to consider a Lackey claim suggests that a majorityof the Court is not persuaded that execution after lengthy incarcerationon death row violates Eighth Amendment principles. (127)

IV. DOES INORDINATE DELAY ON DEATH ROW VIOLATE THE EIGHTHAMENDMENT? CHECKING IN ON THE EXPERIMENT

Five years after Lackey invited the "state and lower courts toserve as 'laboratories'" to test the"viability" of the Lackey claim, the Supreme Court deniedcertiorari in Knight. Concurring in that denial, Justice Thomas boldlyasserted that "[t]hese courts have resoundingly rejected the claimas meritless ... [and therefore that] the Court should consider theexperiment concluded." (128) But is this really the case? In anopinion dissenting from the denial of certiorari, Justice Breyervehemently disagreed. He argued that only eight of over twenty casesaddressing the issue of inordinate delays in execution since 1995 weredecided solely on the merits of the Lackey claim, and that most cases"involve[d] procedural failings that in part or in whole determinedthe outcome of the case." (129) Further, Justice Breyer pointed outthat the few cases that did address Lackey claims on its merits failedto consider that much of the delay is attributable to failings of theState rather than the petitioner. (130)

A survey of cases in which lower courts confront Lackey claimsdemonstrates that, in a sense, Justice Thomas is correct. Courts haveoverwhelmingly rejected Lackey claims over the past sixteen years.However, Justice Breyer is also correct that the reason for theserejections is mostly procedural. Lower courts have not considered themerits of this important issue enough to warrant the conclusion that theexperiment is over.

In 2009, Justice Stevens remarked in Johnson v. Bredesen--anothercase in which the Court denied certiorari--that when he first discussedthe claim of inordinate delay in Lackey, he did not foresee thatprocedure would prevent an individual from arguing that "nearlythree decades of delay on death row, much of it caused by the State,[would] deprive[] a person of his Eighth Amendment right to avoid crueland unusual punishment." (131) And indeed, there have been numerousprocedural obstacles barring lower courts from

contemplating the merits of a Lackey claim. This Part willhighlight two of the most common procedural issues encountered bypetitioners.

A. The Antiterrorism and Effective Death Penalty Act: Lackey ClaimsAre Barred If Presented in Second or Successive Habeas Petitions

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)(132) presents procedural obstacles to death row inmates seeking tochallenge their execution after long delays on death row."[D]esigned to limit the role of the federal courts in what isessentially a state proceeding," AEDPA dramatically reformed theprocess of federal habeas corpus. (133)

One component of AEDPA--a "gatekeeping"provision--restricts second or successive petitions for habeas corpusrelief. (134) The Act provides that "a claim presented in a secondor successive habeas corpus application ... that was not presented in aprior application shall be dismissed." (135) The Supreme Courtnoted in Williams v. Taylor that AEDPA was passed "to further theprinciples of finality, comity, and federalism." (136) Lackeyclaims implicate AEDPA by their very nature. A petitioner's Lackeyclaim is not ripe until the inmate has been confined on death row formany years. Thus, by the time the petitioner is able to assert a claimbased on inordinate delay, he will have typically already filed hisfirst habeas petition. He will therefore be forced to make his requestfor relief in a second or successive petition. (137)

Many states have similar prohibitions on second or successivehabeas petitions. A similar gatekeeping provision in Utah'spostconviction-relief statute precluded a petitioner from raising aLackey claim in state court in his third petition for postconvictionrelief.138 In Gardner v. State, the Utah Supreme Court concluded thatthe petitioner's claims could have been raised in his previoushabeas petition and did not become ripe only upon the defendant'smost recent death warrant. (139) Therefore, the court did not considerthe merits of the claim. (140)

However, AEDPA and similar state provisions contain exceptions tothe second-and-successive-petition rule and therefore do not constitutea complete bar to review of a Lackey claim. Scholars have suggested waysthat courts can still consider the merits of a Lackey claim despiteAEDPA. One has suggested applying the logic of Panetti v. Quarterman, acase involving claim of incompetency to be executed, (141) to a Lackeyclaim. (142) The Panetti Court stated that because a claim ofincompetency does not become ripe until execution is imminent, AEDPAdoes not bar such a claim. (143) Similarly:

 Since a federal court could not resolve an unripe Lackey claim when the first habeas petition would be filed, allowing this particular class of petitioners (those who have experienced a prolonged period of confinement prior to their proposed execution) to file second or successive habeas petitions would simply not implicate AEDPA's concern for finality. (144)

However, the Panetti approach has not been applied to a Lackeyclaim, and as a result AEDPA has prevented the consideration of theconstitutionality of inordinate delay.

B. Retroactivity: Lackey Claims Are Teague-Barred

In Teague v. Lane, the Supreme Court announced that the law at thetime a petitioner's judgment became final is the law that shouldapply to the adjudication of his constitutional claims in habeasproceedings. (145) Writing for the Court in a part of the opinion joinedby three other Justices in

+++ Teague, Justice O'Connor articulated two narrow exceptionsto this rule. A new rule of law should be retroactively applied if sucha rule "places 'certain kinds of primary, private individualconduct beyond the power of the criminal law-making authority toproscribe." (146) Additionally, "a new rule should be appliedretroactively if it requires the observance of 'those proceduresthat ... "are implicit in the concept of orderedliberty.'"" (147)

In determining whether a petitioner's claim is Teague-barred,courts must first ascertain when the defendant's conviction andsentence became final. (148) Next, the court must assess whether a statecourt considering the defendant's claim at the time "wouldhave felt compelled by existing precedent to conclude that the rule[defendant] seeks was required by the Constitution." (149) Finally,the court must determine whether the new rule falls within one of thenarrow exceptions articulated in Teague. (150)

Teague appears to preclude Lackey claims automatically. It isalmost inconceivable that a claim of inordinate delay could developbefore an inmate's conviction and sentence becomes final, and thereis no binding precedent for holding that an inordinate delay inexecution violates the Eighth Amendment. A petitioner asserting a Lackeyargument would require a new rule of constitutional law to besuccessful. (151)

Indeed, federal courts have read Teague to bar them fromconsidering Lackey claims. For example, the Ninth Circuit dismissed aLackey claim of a petitioner who spent twenty-five years on death row inMontana because "at the time his conviction became final [a court]would not have felt compelled by existing precedent to conclude that therule [he] sought was required by the Constitution." (152)

But Teague need not serve as a bar to Lackey claims. One authorsuggests that the procedural hurdle posed in Teague does not apply ifthe petitioner characterizes his Lackey claim as a "demand forrelief for a post-conviction constitutional violation" as opposedto a collateral attack on the petitioner's final judgment. (153) Ifa court agrees with this argument, then Teague does not apply. (154)Alternatively, a petitioner could clear the Teague hurdle by claimingthat one of Teague's two exceptions applies. The new rule requiredby a Lackey claim arguably satisfies either exception. (155) A Lackeyclaim could satisfy the first Teague exception because it is supportedby substantive constitutional law and "does not propose a new ruleof criminal procedure." (156) Further, a Lackey claim falls withinthe first exception to Teague given that it places a class ofindividuals--death row prisoners with lengthy delays--beyond thestate's power to execute. (157) In Penry v. Lynaugh, the Courtdetermined that Teague did not prevent it from considering the merits ofthe defendant's argument that his execution would violate theEighth Amendment given that he had the "reasoning capacity of a7-year-old." (158) Writing for a unanimous Court, (159) JusticeO'Connor explained that the defendant's claim fell within thefirst Teague exception because "a new rule placing a certain classof individuals beyond the State's power to punish by death isanalogous to a new rule placing certain conduct beyond the State'spower to punish at all." (160) Alternatively, the Lackey claimmight satisfy the second Teague exception because the claim rests on thefundamental constitutional principles underlying the EighthAmendment's ban on cruel and unusual punishment. (161) Acourt's acceptance of either of these arguments would provide anopportunity to consider the substantive merits of the Lackey claim.

Thus, although Teague has prevented some courts from reaching themerits of a Lackey claim, it is possible for a court to review a Lackeyclaim by construing Teague's limits as inapplicable.

Thus, although Teague has prevented some courts from reaching themerits of a Lackey claim, it is possible for a court to review a Lackeyclaim by construing Teague's limits as inapplicable.

Overall, procedural issues dispose of a number of Lackey claimswithout consideration of the claim's substantive arguments. Theprocedural issues have been compounded by Justice Thomas'sdeclaration in Knight that the experiment in the lower courts had"concluded" (162)--an assertion that has further discouragedlower court judges from considering petitioners' arguments insupport of their Lackey claims. (163) Justice Thomas's assertionhas become somewhat of a self-fulfilling prophecy--not because courtshave agreed with his assessment of the Lackey claim after carefulconsideration, but because procedure has stood in the way of a carefulreview of the claim by state and lower federal courts.

In lieu of lower courts, academics have stepped in to undertake anin-depth analysis of the Lackey claim. Several authors have persuasivelyargued that despite the limited treatment of the Lackey claim in thelower courts, an inordinate delay between death sentences and executiondoes violate established Eighth Amendment principles. (164) Many haveurged the Supreme Court to declare such delays unconstitutional, andtheir arguments closely track those raised by Justice Stevens andJustice Breyer. (165) Execution after long delays on death row violatesthe Eighth Amendment and fails to meet the standard set forth in Furmanand Gregg, because execution under these circumstances would have beenunacceptable to the Framers and lacks a robust retributive or deterrentjustification. (166)

V. SOLUTIONS

As Justice Stevens and Justice Breyer suggest, inordinate delay ondeath row can run afoul of the Eighth Amendment's ban on cruel andunusual punishment. (167) However, numerous procedural obstacles havestunted the "experiment" which began in the lower courts overfifteen years ago. As a result, the Supreme Court has been hesitant toconsider the arguments raised by death row inmates challenging delayedexecutions.

Scholars have proposed solutions to facilitate courts'consideration of the merits of a Lackey claim. For example, one authorrecommended that courts treat the Lackey claim as a matter of firstimpression, because so few courts have actually substantively opined onthe constitutionality of inordinate delay. (168)

While litigants should continue to seek validation of Lackey claimsin the courts, legislative solutions are also available. This Partbriefly discusses three broad solutions that, although not whollyresponsive to the Lackey problem, could provide relief to inmates orprevent future inordinate delays. It then outlines more narrowlytailored measures that legislatures should adopt to solve the Lackeyproblem.

A. Abolishing the Death Penalty

One obvious way to dispose of the inordinate delay problem is toeliminate capital punishment altogether. As scholars Carol Steiker andJordan Steiker observe, "[T]he significance of the [issue raised bythe Lackey claim] is the way in which it highlights the 'Americancapital punishment phenomenon'--the prevailing fragility of thedeath penalty in this country given the ongoing, pronounced inability ofstates to consummate death sentences with executions." (169)

Opponents of state-sanctioned killing have long advocated abolitionof capital punishment for reasons beyond those behind the Lackeyproblem. Several Supreme Court Justices--including Marshall, Brennan,and Stevens--have concluded that capital punishment is per seunconstitutional. (170) Additionally, popular support for the deathpenalty has waned in recent years; in 2011, it dropped to its lowestlevel since 1972, the year that Georgia's capital punishment schemewas declared unconstitutional in Furman. (171)

Recently, several states have initiated legislation to repeal thedeath penalty. In 2011, Illinois Governor Pat Quinn signed legislationabolishing the death penalty and commuted fifteen death sentences tolife without parole following a decade-long moratorium on executions.(172) Following on the heels of states like New Jersey and New Mexico,Illinois became the sixteenth state to eliminate capital punishment.(173) Quinn's belief is that "[i]t is impossible to create aperfect system, free of all mistakes ... [and that] it's the rightand just thing to abolish the death penalty and punish those who commitheinous crimes--evil people--with life in prison without parole or anychance of release." (174)

In 2012, legislators introduced abolition bills in eleven states,including Connecticut, Georgia, Nebraska, Missouri, Maryland, Kentucky,and Kansas, although only one successfully passed: (175) On April 25,2012, Connecticut became the seventeenth state to abolish the deathpenalty. (176) Governor Dannel P. Malloy signed into law legislationthat repealed capital punishment for future crimes--although this lawdoes not apply to the eleven men currently imprisoned on death row inthe state. (177) Malloy stated that he "came to believe that doingaway with the death penalty was the only way to ensure it would not beunfairly imposed." (178) Malloy cited the fact that the eleven mencurrently on death row in Connecticut "are far more likely to dieof old age than be put to death" to underscore the unworkability ofthe state's death penalty law. (179) Abolition bills have also beenproposed in Maryland and Texas for 2013, and legislators in severalother states plan to introduce similar bills this session. (180)

While this trend is gaining momentum, it is extremely unlikely thatthe thirty-three states that still impose the death penalty will allabolish the practice. (181) Even still, the repeal of capital punishmentand commutation of death sentences to life sentences could providerelief to prisoners who have suffered as a result of their lengthyconfinement on death row.

B. Reforming the Capital Appeals and Habeas Processes

There are numerous countervailing policy considerations thatcaution courts and legislatures against adopting bright-line rules orquick fixes to solve the problems associated with inordinate delays ondeath row. (182) Unlike those who advocate abolishing the death penalty,other scholars who favor capital punishment propose reforms tostreamline the capital appeals and habeas process out of the recognitionthat this part of the litigation cycle accounts for much of the delay ondeath row.

Some scholars have proposed alternatives that could prevent futureLackey violations by making the system more efficient. Statelegislatures should consider implementing some of these suggestions inorder to help avoid future Lackey claims. For example, a provisionproviding funding, training, and resources for those who representindigent defendants could reduce the likelihood of ineffectiveassistance. However, Professor Eve Brensike Primus argues that suchreforms are unlikely to occur--or if they were to occur, that they wouldbe unlikely to wholly solve the problem. (183)

Instead, Professor Primus suggests a structural reform that wouldhelp alleviate the problems associated with ineffectiveness of counsel,an issue which many inmates raise in collateral challenges to theirconviction and sentences. (184) Specifically, she recommends allowingthe issue of ineffective assistance to be raised by attorneys on directappeal, rather than requiring defendants to make this claim only onpostconviction review. (185) Although this change could ensure thatfuture prisoners do not spend the staggering amount of time on death rowthat many do now, these suggestions will not help those currentlyraising Lackey claims find recognition of their constitutional challengeor relief from their suffering.

C. Improving Death Row Conditions

Although it is not a complete solution, another way to partiallyresolve the problems underlying the Lackey claim is to improve theconditions of confinement on death row. Around the time that JusticeStevens issued his Lackey memorandum, scholars Robert Johnson and JohnL. Carroll observed that "the treatment of death-row prisoners hasnot kept pace with the development of their rights on appeal.... Whatformerly was a brief but debilitating experience has now become aseemingly endless and agonizing one." (186) Conditions areuniformly stark on death rows across the country. (187) In addition tothe emotional stress that stems from awaiting execution, death rowinmates further suffer in "a prison within a prison, physically andsocially isolated from the prison community and the outsideworld."t88 Professor Melvin Urofsky posited that "[i]f one isgoing to argue that even condemned murderers retain some spark ofhumanity, some rights of individual autonomy, then something must bedone to either improve death row conditions, or permit those who wish toterminate that existence through execution of sentence the right to doso." (189)

Despite the political unpopularity of providing additionalresources and funding to death row inmates, some states have initiatedsuccessful reforms to improve conditions on death row. An example ofearly reform took place in Tucker, Arkansas, in 1968, prior to theFurman decision. (190) Death row inmates were provided with theopportunity to integrate with the rest of the prison population duringmeals and other activities, and were also given extended recreational,visitation, and other privileges.19t In the mid-1980s, the TexasDepartment of Corrections began classifying death row inmates as either"death row work-capable" or "death row segregation,"and members of the former category were permitted to work in a factoryor as janitors or orderlies during their period of incarceration. (192)And the Missouri Department of Corrections reformed its management ofdeath row inmates following a class action suit alleging constitutionaldeprivations. After entering into a consent decree, the department beganclassifying death row inmates into one of three custody levels withcorresponding levels of privileges: regular custody, close custody, orno-contact custody. (193)

In determining appropriate legislative responses to this problem,policy-makers should balance considerations of institutional safety andsecurity, the penological purposes that underlie the current structureof death row, and the fundamental needs of prisoners. Policymakersshould also engage in an evaluation of the appropriate conditions ondeath row in light of the statistical data about the length of timeinmates currently spend awaiting execution. Implementing even minorchanges could provide significant benefits to death row inmates andalleviate some of the concerns that lie at the heart of the Lackeyclaim. However, such reforms provide only limited relief of the problemposed by inordinate delay, because "the mental suffering andanxiety caused by uncertainty of the final disposition of the sentenceis an inherent characteristic of death row." (194)

D. Model Lackey Legislation

With the exception of eliminating the death penalty altogether, theother alternatives presented here provide only limited help to currentinmates or serve to prevent inordinate delays in the future. Althoughthese reforms and proposals merit careful consideration by statelegislatures, I propose a more narrowly tailored solution that preciselyidentifies which inmates are eligible for relief based on inordinatedelay on death row and provides relief by commuting their deathsentences to sentences of life without parole in certain circumstances.

Professor Dwight Aarons proposes setting a date--twice the nationalaverage amount of time spent on death row--at which point aninmate's Lackey claim becomes ripe, and his execution may run afoulof the Eighth Amendment. (195) I propose adopting Aarons'stimeframe, but for a slightly different purpose. Incarceration for twicethe national average, which today would be around twenty-nine years,(196) should trigger an automatic review of the inmate's time ondeath row by the state supreme court. The court should then determine ifcontinued incarceration and execution would violate the EighthAmendment. The court would be tasked with creating a report that breaksdown the procedural history of the prisoner's case and details theinmate's time on death row. (197) This review should not burden thecourt, as the

relevant information is readily available in court dockets andfilings and requires minimal independent investigation.

This analysis is critical to my further proposal operationalizingJustice Stevens's recommendation in Lackey that the court considerthe meaningful differences among delays caused by the inmate'sfrivolous filings, the legitimate exercise of an inmate's rights,and negligence or error by the state. (198) The leading cause of theinmate's delay should be the determinative factor in consideringwhether a constitutional violation has occurred, (199)

1. Delay Caused by the Inmate's Abuse of the Judicial System

If the leading cause of a prisoner's delay is, to use JusticeStevens's language, "a petitioner's abuse of the judicialsystem by escape or repetitive, frivolous filings," (200) then noEighth Amendment violation has occurred. This inquiry will focus on thepetitioner's abuse of the legal system by escape or repetitivefilings, as it is unlikely that a court would characterize a claim, evena claim that may ordinarily be considered far-fetched, as frivolous.(201) This is due to the fact that a lawyer's ethical obligationsto her client in a capital case require her to assert a claim based on"any conceivable error." (202) Further, while this provisionserves as an important safeguard, frivolous filings are unlikely to bethe leading cause for many inmates who have experienced delays oftwenty-nine years. "[F]rivolous petitions account for aninfinitesimal fraction" of delays in comparison to other causes ofdelay in the criminal justice system. (203) The system has mechanisms inplace to prevent frivolous claims from being filed, including proceduralrules and sanctions. (204) In any case, the filing of a frivolouspetition is unlikely to cause a delay of any significant length. Oneauthor notes that "[w]hen petitions that appear to be frivolous arefiled, they are either dismissed without comment ... or they areresoundingly condemned." (205)

Ensuring that an Eighth Amendment claim is not available to aninmate who caused his own delay would address Justice Thomas's fearthat recognizing a Lackey claim would incentivize inmates to abuse thesystem so that they could later raise a claim based on the resultingdelay. Indeed, it is critically important to distinguish between delayscaused by the inmate and delays caused by other factors in order toensure that relief granted to Lackey petitioners goes only to those whoare deserving. A rigorous inquiry to this effect will prevent capitaldefense lawyers from purposefully dragging out the postconvictionlitigation process. (206)

2. Delay Caused by the Process of Judicial Review

If the leading cause of a prisoner's delay is theprisoner's "legitimate exercise of his right to review,"(207) then no constitutional violation has occurred. This measure alsoaccounts for the inherent delays that result from the Court's deathpenalty jurisprudence and the modern capital appeals process. Itreflects the fact that thorough and sometimes repeated review of aprisoner's claims is an integral part of the system which servesthe compelling interest of ensuring accuracy. This time is essentially"neutral"--while death row inmates should not be"punished" by delays if they pursue appeals to which they areentitled, neither should this time be counted against the state by acourt assessing a Lackey claim. Additionally, this proposition furtheralleviates concerns that recognizing a Lackey claim would incentivizethe judiciary to hastily review a prisoner's claim lest the delaycause a constitutional violation. (208)

3. Delay Caused by the State's Misconduct or Negligence

If the leading cause of a prisoner's delay is the state's"negligence or deliberate action," (209) then theprisoner's sentence should be commuted to life without parole.Undoubtedly, the most compelling case for relief based on a Lackey claimarises when the State has protracted a prisoner's stay on deathrow. (210) For example, a Lackey claim would be recognized in cases withfacts similar to those of Johnson v. Bredesen. In Johnson, a change instate taw gave the petitioner access to evidence undermining eyewitnesstestimony against him eleven years after his conviction. (211) JusticeStevens, dissenting from the denial of certiorari, explained that"[t]his evidence calls into question the persuasive force of theeyewitness' testimony, and, consequently, whether Johnson'sconviction was infected with constitutional error." (212) Heobserved that "[w]e cannot know as a definitive matter whether, ifthe State had not withheld exculpatory evidence, Johnson would have beenconvicted of these crimes. We do know that Johnson would not have waitedfor 11 years on death row before the State met its disclosureobligations." (213)

But what players or institutions constitute "the State"?This term would incorporate those directly involved with the prosecutionof the case, such as the district attorneys. Additionally, it wouldinclude the executive branch. (214) Therefore, moratoria imposed bygovernors would count against the state in the assessment of a Lackeyclaim, as they usually reflect a state's inability--albeit atemporary one--to execute inmates constitutionally. In California, forexample, state officials requested more time before judicial review of anew lethal injection procedure, so the state was unable to seek anyexecutions in 2011. (215)

Finally, as one last safeguard to assure relief to inmatesdeserving a commutation to a life sentence, I propose including a safetyvalve that enables courts to grant relief to a petitioner whose leadingcause of delay is not negligence or deliberate action by the state. Thisprocedure would be used, for example, in a circumstance where thepetitioner's legitimate exercise of his right to review is theleading cause of delay, but state misconduct also played a substantialrole or was particularly egregious. This very narrow carve-out wouldpermit courts to grant relief based on equitable principles, and--inkeeping with the Court's consideration of equitableprinciples--would only be used sparingly. (216)

CONCLUSION

Just as the process of consummating a death sentence is fraughtwith complicated issues that lead to numerous delays, so the Lackeyclaim itself is inextricably bound up with difficult procedural andpolicy questions. Because the Court remains unwilling to confront thisissue head on, it is critical that states seek alternative solutions tothe problems posed by inordinate death row delays. States must takeaction to address the concerns related to the Lackey claim. But theyhave many options for doing so, whether by reforming the prison systemor their postconviction-relief processes, or even by eliminating capitalpunishment altogether. By using Justice Stevens's framework as amodel for crafting legislation to address the growing problem of deathrow delays, it is possible, at long last, to balance the competingconcerns surrounding the Lackey claim and to provide a workable solutionfor both states and inmates.

(1) See Adam Liptak, Lifelong Death Sentences, N.Y. TIMES, Nov. 1,2011, at A16 (discussing Valle's crime and the delay prior to hisexecution); see also Patricia Mazzei, Florida Executes Cop Ka'llerManuel Valle, 61, by Lethal Injection, TAMPA BAY TIMES (Oct. 9, 2011),http://www.tampabay. com/news/publiesafety/crime/articlen94149.ece(describing Valle's final moments).

(2) See Valle v. State, 474 So. 2d 796, 798 (Fla. 1985) (describingthe testimony of a police officer who witnessed the murder and testifiedthat he saw Valle approach Officer Pena and fire a single shot at him),vacated, 476 U.S. 1102 (1986); see also Patricia Mazzei, Manuel Valle toBe Executed Wednesday for Killing Officer Louis Pena, TAMPA BAY TIMES(Sept. 27, 2011), http://www.tampabay.com/news/publicsafety/crime/article1193954.ece ("Pena wasabout to let Vatle go when Valle, standing next to the patrol car, askedif he could walk back to [his] Camaro to get a cigarette. Pena said yes.Valle returned with a hidden 380-caliber automatic pistol.").

(3) See Liptak, supra note 1.

(4) Valle v. State, 394 So. 2d 1004, 1005 (Fla. 1981).

(5) See Valle v. Florida, 476 U.S. 1102, 1102 (1986) (vacatingValle's sentence pursuant to Skipper v. South Carolina, 476 U.S. 1(1986)); Skipper, 476 U.S. at 8 (holding that mitigating testimonyproffered by disinterested witnesses regarding the defendant's goodbehavior in prison could not be excluded).

(6) See Valle v. State, 581 So. 2d 40, 49 (Fla.), cert. denied, 502U.S. 986 (1991).

(7) See Initial Brief of Appellant at 5-8, Valle v. State, 70 So.3d 530 (Fla. 2011) (No. SC111387), 2011 WL 3319905 (detailing theprocedural history of Valle's case). After his death sentence wasupheld, Valle filed a motion for postconviction relief in 1997. Id. at6. The Florida Supreme Court remanded for an evidentiary hearing onValle's assertion that his counsel during his 1988 resentencinghearing was ineffective for deciding to present model prisoner evidence,which allowed for the State, in turn, to produce damaging rebuttalevidence; his claim was eventually rejected. See Valle v. State, 778 So.2d 960, 967 (Fla. 2001) (per curiam). Valle then filed a state habeaspetition raising four claims of ineffective assistance of counsel, whichthe Florida Supreme Court denied in 2002. Valle v. Moore, 837 So. 2d905, 907, 911 (Fla. 2002) (per curiam). Following the United StatesSupreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002),Valle filed a second state habeas petition in 2003, which was alsorejected. Valle v. Crosby, 859 So. 2d 516 (Fla. 2003) (unpublished tableopinion). Valle then filed a habeas petition in federal court in 2003,raising a total of fourteen different claims, all of which were denied.See Valle v. Crosby, No. 0320387, 2005 WL 3273754, at *2, *77 (S.D. Fla.Sept. 13, 2005). In 2006, the Eleventh Circuit affirmed the denial ofValle's federal habeas petition, and the Supreme Court subsequentlydenied certiorari. See Valle v. Sec'y for the Dep't of Corr.,459 F.3d 1206, 1209 (nth Cir. 2006), cert. denied, 552 U.S. 920 (2007).

(8) See Mark Caputo & David Ovalle, Scott Signs First DeathWarrant as Florida Governor, TAMPA BAY TIMES (June 30, 2011),"http://www.tampabay.com/incoming/scott-signs-first-deathwarrant-as-florida-governor/1178173"; see also Initial Brief of Appellant,supra note 7, at 69 (describing how "[f]or three years and ninemonths, the Governor of Florida exercised his standardless discretion todecline to sign Mr. Valle's death warrant," before changinghis mind in June 2011).

(9) See Initial Brief of Appellant, supra note 7, at 9.

(10) Id. at 64-65.

(11) See Valle v. Florida, 132 S. Ct. 1, 1 (2011); Mazzei, supranote 1 (detailing Valle's final words and the moments leading up tohis execution).

(12) See 514 U.S. 1045, 1045 (1995) (memorandum Of Stevens, J.,respecting the denial of certiorari) ("Petitioner raises thequestion whether executing a prisoner who has already spent some 17years on death row violates the Eighth Amendment's prohibitionagainst cruel and unusual punishment.").

(13) Id. at 1045.

(14) Id. at 1047 (quoting McCray v. New York, 461 U.S. 961, 963(1983) (opinion of Stevens, J., respecting the denial of certiorari)).

(15) See Valle, 132 S. Ct. at 2 (Breyer, J., dissenting from thedenial of stay of execution). For a discussion of the arguments thatJustices Breyer and Stevens have raised in support of the Lackey claim,see also infra Section III.A.

(16) 132 S. Ct. at 1 (Breyer, J., dissenting from the denial ofstay of execution).

(17) Johnson v. Bredesen, 130 S. Ct. 541, 544 (2009) (memorandum ofStevens, J., respecting the denial of stay of execution and certiorari).

(18) Knight v. Florida, 528 U.S. 990, 990 (1999) (Thomas, J.,concurring in the denial of certiorari).

(19) See id. (asserting that there is no "support in theAmerican constitutional tradition or in this Court'sprecedent" for the Lackey claim); see also, e.g., Johnson, 130 S.Ct. at 544 (Thomas, J., concurring in the denial of stay of executionand certiorari) (citing Knight, 528 U.S. at 990 (Thomas, J., concurringin the denial of certiorari)); Thompson v. McNeil, 129 S. Ct. 129% 1301(2009) (Thomas, J., concurring in the denial of certiorari) (quotingKnight, 528 U.S. at 990).

(20) See TRACY L. SNELL, BUREAU OF JUSTICE STATISTICS, U.S.DEP'T OF JUSTICE, CAPITAL PUNISHMENT, 2010--STATISTICAL TABLES 12tbl.8 (2011), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cplost.pdf.

(21) See NAACP LEGAL DEF. & EDUC. FUND, INC., DEATH ROW U.S.A.1 (Fall 2012) (stating that, as of October l, 2012, there were estimatedto be 3146 death row inmates in the United States).

(22) For a discussion of two of the most common procedural issuesencountered when inmates raise Lackey claims, see infra Part IV.

(23) Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion).

(24) See infi'a text accompanying note 84.

(25) U.S. CONST. amend. VIII. The Eighth Amendment's ban oncruel and unusual punishment applies to the states by incorporationthrough the Fourteenth Amendment. See Robinson v. California, 370 U.S.660, 667 (1962).

(26) 356 U.S. at 99.

(27) See Gregg v. Georgia, 428 U.S. 153, 177-78 (1976) (pluralityopinion) ("For nearly two centuries, this Court, repeatedly andoften expressly, has recognized that capital punishment is not invalidper se."). The Gregg Court referenced early cases in which theCourt had upheld execution by public shooting and electrocution. See id.at 718 (citing Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878), and In reKemmler, 136 U.S. 436, 447 (1890), respectively).

(28) 408 U.S. 238, 239-40 (1972) (per curiam). Furman consolidatedthree separate cases, two from Georgia and one from Texas. Id. at 239.All nine Justices wrote separate opinions in Furman. Id. at 240. Each ofthe five concurring opinions, written by Justice Douglas, Brennan,Stewart, White, or Marshall, was issued by a single Justice with noothers joining. Id. at 240-375.

(29) See id. at 270-81 (Brennan, J., concurring).

(30) See id. at 286 ("[D]eath is today a 'cruel andunusual' punishment."); id. at 358-59, 369-71 (Marshall, J.,concurring) (concluding that capital punishment both is excessive andhas become unacceptable to the American people).

(31) See, e.g., id. at 249 (Douglas, J., concurring) ("Whatthe legislature may not do for all classes uniformly and systematically,a judge or jury may not do for a class that prejudice sets apart fromthe community); id. at 309-10 (Stewart, J., concurring) ("Thesedeath sentences are cruel and unusual in the same way that being struckby lightning is cruel and unusual. For, of all the people convicted ofrapes and murders in 1967 and 1968, many just as reprehensible as these,the petitioners are among a capriciously selected random handful uponwhom the sentence of death has in fact been imposed." (footnoteomitted)).

(32) See Michael P. Connolly, Note, Better Never Than Late:Prolonged Stays on Death Row Violate the Eighth Amendment, 23 NEW ENG.J. ON CRIM. & CIV. CONFINEMENT 101, 103-04 (1997) (arguing that theCourt held the death penalty unconstitutional because "there lackedstatutory guarantees ... to protect against the arbitrary imposition ofthe punishment").

(33) Furman, 408 U.S. at 248 (Douglas, J., concurring).

(34) Id. at 310 (Stewart, J., concurring).

(35) Dwight Aarons, Can Inordinate Delay Between a Death Sentenceand Execution Constitute Cruel and Unusual Punishment?, 29 SETON HALL L.REV. 147, 152-53 (1998).

(36) Gregg v. Georgia, 428 U.S. 153 (1976) (leading case); Proffittv. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 428 U.S. 262 (1976).

(37) See James S. Liebman, Slow Dancing With Death: The SupremeCourt and Capital Punishment, 1963-2006, 107 COLUM. L. REV. 1, 28-37& nn.119-60 (2007). In the two other July 2 cases, Woodson v. NorthCarolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325(1976), the Court invalidated the challenged state laws.

(38) See Gregg, 428 U.S. at 197 (plurality opinion) ("Nolonger can a Georgia jury do as Furman's jury did: reach a findingof the defendant's guilt and then, without guidance or direction,decide whether he should live or die.").

(39) Id. at 165-66.

(40) See id. at 164 (explaining that the judge must instruct thejury to consider mitigating circumstances as well as aggravatingcircumstances); see also Lockett v. Ohio, 438 U.S. 586, 604 (1978)(opinion of Burger, C.J.) ("[W]e conclude that the Eighth andFourteenth Amendments require that the sentencer, in all but the rarestkind of capital case, not be precluded from considering, as a mitigatingfactor, any aspect of a defendant's character or record and any ofthe circumstances of the offense that the defendant proffers as a basisfor a sentence less than death." (footnote omitted)).

(41) See Gregg, 428 U.S. at 196-97 (plurality opinion). Theplurality in Gregg also highlighted the additional safeguard ofexpedited review by the state supreme court of all death sentences toensure that the punishment was appropriate. Id. at 166.

Although the statute in Gregg is demonstrative of aconstitutionally valid capital punishment statute, it is not the onlypermissible scheme. For example, Texas's capital sentencingstructure, upheld by the Court in Jurek, differed from the system upheldin Gregg in that it did not involve consideration of statutoryaggravating factors. Instead, it required that the jury answer threequestions affirmatively before the death penalty could be imposed. SeeJurek, 428 U.S. at 269 (plurality opinion) ("If the jury finds thatthe State has proved beyond a reasonable doubt that the answer to eachof the three questions is yes, then the death sentence is imposed. Ifthe jury finds that the answer to any question is no, then a sentence oflife imprisonment results.").

(42) Furman v. Georgia, 408 U.S. 238,274 (1972) (Brennan, J.,concurring).

(43) Id. at 277; see Gregg, 248 U.S. at 182 (plurality opinion).

(44) 356 U.S. 86, 101 (1958) (plurality opinion).

(45) See Roper v. Simmons, 543 U.S. 551, 564 (2005) ("Thebeginning point is a review of objective indicia of consensus, asexpressed in particular by the enactments of legislatures that haveaddressed the question."); cf Gregg, 428 U.S. at 173 (pluralityopinion) ("[A]n assessment of contemporary values concerning theinfliction of a challenged sanction is relevant to the application ofthe Eighth Amendment.");.

(46) Gregg, 428 U.S. at 179-80 (plurality opinion).

(47) Furman, 408 U.S. at 271-72 (Brennan, J., concurring); see alsoid. (noting that this command prohibits a punishment from inflictingsevere physical or mental suffering, but that "[m]ore than thepresence of pain, however, is comprehended in the judgment that theextreme severity of a punishment makes it degrading to the dignity ofhuman beings").

(48) Id. at 279 (citations omitted).

(49) Id. at 312 (White, j., concurring).

(50) See Gregg, 428 U.S. at 186 (plurality opinion) ("[W]ecannot say that the judgment of the Georgia Legislature that capitalpunishment may be necessary in some cases is clearly wrong.").

The fourth principle inherent in the Eighth Amendment, according toJustice Brennan, is that a punishment not be "degrading to humandignity." Furman, 408 U.S. at 291. He described this purpose as the"primary principle," id. at 271, "which... supplies theessential predicate for the application of the others," id. at 28t;see also id. at 286 ("It is a denial of human dignity for the stateto arbitrarily subject a person to an unusually severe punishment thatsociety has indicated it does not regard as acceptable, and that cannotbe shown to serve any penal purpose more effectively than asignificantly less drastic punishment."). Consideration of thisprinciple therefore takes place through consideration of the other threeprinciples.

(51) See Aarons, supra note 35, at 157-60 (explaining how, sincethe July 2 cases, the Court has "revisited the question of whetherexecuting a particular class of defendants is consistent with the EighthAmendment").

(52) See 433 U.S. 584, 592 (1977) (plurality opinion) ("Wehave concluded that a sentence of death is grossly disproportionate andexcessive punishment for the crime of rape and is therefore forbidden bythe Eighth Amendment as cruel and unusual punishment.").

(53) See 458 U.S. 782, 801 (1982).

(54) See Ford v. Wainwright, 477 U.S. 399,409-10 (1986).

(55) See Atkins v. Virginia, 536 U.S. 304, 321 (2002).

(56) See Roper v. Simmons, 543 U.S 551, 575 (2005).

(57) See Petition for Writ of Certiorari, Lackey v. Texas, 514 U.S.1045 (1995) (No. 94-8262), 1995 WL 17904041. In a published memorandum,Justice Stevens noted the "importance and novelty" of thisissue. Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (memorandum ofStevens, J., respecting the denial of certiorari). However, the argumenthad been raised by inmates long before Lackey. See, e.g., In re Medley,134 U.S. 160, 172-74 (1890) (discussing a four-week delay on death row,but then granting the writ of habeas corpus on grounds that theconviction violated the Ex Post Facto Clause); Chessman v. Dickson, 275F.2d 604, 607 (9th Cir. 1960) (rejecting the defendant's argumentthat he was subjected to cruel and unusual punishment because of hisimprisonment on death row for over eleven years).

(58) See Petition for Writ of Certiorari, supra note 57, at 8("This forfeiture has resulted both from the inordinate amount oftime that Mr. Lackey has spent on Texas' death row and theStates' [sic] unnecessary setting of repeated execution dates inthis case.").

(59) See id. at 18-19 (arguing that "if the Framers considereda punishment cruel and unusual in 1789, then a fortiori it is cruel andunusual today," and quoting then-recent Supreme Court case lawlooking to whether, in the Court's words, his death sentence wasone of "those modes or acts of punishment that had been consideredcruel and unusual at the time that the Bill of Rights was adopted"(quoting Stanford v. Kentucky, 492 U.S. 361, 368 (1989) (quoting Ford,477 U.S. at 405))).

(60) See id. at 20-21.

(61) See id. at 22-23. In addition to making the arguments listedabove, inmates raising a Lackey claim also typically argue that theirexecution is cruel and unusual because it "does not further thepenological goals of deterrence and retribution." Erin Simmons,Comment, Challenging an Execution after Prolonged Confinement on DeathRow/Lackey Revisited], 59 CASE W. RES. L. REV. 1249, 1252 (2009).

(62) See SNELL, supra note 20, at 12 tbl.8 (depicting the increasein delays in executions over the past several decades).

(63) In addition to Manuel Valle, who was on death row forthirty-three years, the petitioner in Thompson v. McNeil for thirty-twoyears, 129 S. Ct. 1299, 1299 (2009) (Breyer, J., dissenting from thedenial of certiorari); the petitioner in Smith v. Arizona for thirtyyears, 552 U.S. 985, 985 (2007) (Breyer, J., dissenting from the denialof certiorari); and the petitioner in Foster v. Florida for twenty-sevenyears, 537 U.S. 990, 991 (2002) (Breyer, J., dissenting from the denialof certiorari).

(64) See Jeremy Root, Comment, Cruel and Unusual Punishment: AReconsideration of the Lackey Claim, 27 N.Y.U. REV. L. & SOC. CHANGE281, 294-96 (2001) (noting that state postconviction procedures vary,with some sending petitions directly to the state's highest courtand others providing numerous rounds of review).

(65) See id. at 295-96 (describing different postconvictionschemes).

(66) 28 U.S.C. [section] 2254(b)(1) (2006). Federal law providestwo exceptions to this requirement: for applicants to whom "thereis an absence of available State corrective process," and incircumstances where "such process [would be] ineffective to protectthe rights of the applicant." Id. [section] 2254(b)(1)(B).

(67) Root, supra note 64, at 294; see id. at 298-99.

(68) Id. at 299-301; see also Alex Kozinski & Scan Gallagher,Death: The Ultimate Run-On Sentence, 46 CASE W. RES. L. REV 1, 10 (1995)("It should come as no surprise that death penalty cases take along time to work through the system. It takes several minutes just towalk through the steps of a streamlined case, without even discussingthe many ways in which the process can be deliberatelyprolonged.").

(69) Thompson v. McNeil, 129 S. Ct. 1299, 1299 (2009) (statement ofStevens, J., respecting the denial of certiorari).

(70) See infra notes 186-92 and accompanying text.

(71) See Swafford v. State, 679 So. 2d 736, 742 n.8 (Fla. 1996)(Wells, J., concurring in part and dissenting in part).

(72) Id.

(73) See SNELL, supra note 20, at 8 tbl.1 & n.a (listing thenumber of prisoners removed from death row in each state in 2009 and2010 and noting that fifteen death row inmates died of natural causes in2010).

(74) Dan Crocker, Note, Extended Stays: Does Lengthy Imprisonmenton Death Row Undermine the Goals of Capital Punishment?, 1 J. GENDERRACE & JUST. 555, 563 (1998) (describing how appeals or temporarystays of execution often lead prisoners to believe that they will not beexecuted).

(75) Dist. Att'y v. Watson, 411 N.E.2d 1274, 1291 n.5 (Mass.1980) (Liacos, J., concurring), superseded by constitutional amendment,MASS. CONST. pt. I, art. XXVI, amended by amend. CXVI, as recognized inCommonwealth v. Colon-Cruz, 470 N.E.2d 116 (Mass. 1984).

(76) Kate McMahon, Dead Man Waiting: Death Row Delays, the EighthAmendment, and What Courts and Legislatures Can Do, 25 BUFF. PUB. INT.L.J. 43, 51-52 (2007).

(77) See State v. Ross, 873 A.2d 131, 133 (Conn. 2005) (findingthat the defendant was competent and made a "knowing, intelligentand voluntary" waiver of his right to further appeal his deathsentence); see also McMahon, supra note 76, at 50-55 (describing Ross asa powerful illustration of the psychological impact of death rowconfinement on inmates).

(78) Petition for Writ of Certiorari, supra note 57, at 6.

(79) Kathleen M. Flynn, Note, The "Agony of Suspense':How Protracted Death Row Confinement Gives Rise to an Eighth AmendmentClaim of Cruel and Unusual Punishment, 54 WASH. & LEE L. REV. 291,296 n.30 (1997) (citation omitted).

(80) William A. Schabas, Developments in Criminal Law and CriminalJustice: Execution Delayed, Execution Denied, 5 CRIM. L.F. 180, 184(1994).

(81) See People v. Anderson, 493 P.2d 880, 894 (Cal. 1972) (inbank), superseded by constitutional amendment, CAL. CONST. art. I,[section] 27, as recognized in Strauss v. Horton, 207 P.3d 48 (Cal.2009).

(82) In re Medley, 134 U.S. 160, 172 (1890).

(83) Anderson, 493 P.2d at 894; see also Solesbee v. Balkeom, 339U.S. 9, 14 (1950) (Frankfurter, J., dissenting) ("IT]he onset ofinsanity while awaiting execution of a death sentence is not a rarephenomenon."), abrogated by Ford v. Wainwright, 477 U.S. 399(1986).

(84) Amy Smith, Not "Waiving" but Drowning: The Anatomyof Death Row Syndrome and Volunteering for Execution, 17 B.U. PUB. INT.L.J. 237, 238 (2008). Although the terms are often used interchangeably,Smith distinguishes between "death row phenomenon" and"death row syndrome." See id. at 242. She defines "deathrow phenomenon" as a term used to describe "the experience ofliving in the harsh conditions of death row for a long period of timeunder the sentence of death." Id. at 238. "Death rowsyndrome," on the other hand, is a term "used recently in thelegal arena to describe the psychological effects of death rowphenomenon on individuals." Id.

(85) 161 Eur. Ct. H.R. (set. A) (1989).

(86) See id. at 11, 41 (describing the murders and Soering'sfears of psychological trauma on death row).

(87) See id. at 44-45 ("[T]he legitimate purpose ofextradition could be achieved by another means which would not involvesuffering of such exceptional intensity or duration.").

(88) Flynn, supra note 79, at 298; see id. at 298 n.36 (quoting aformer warden at San Quentin prison who said, "[T]he length of timespent [on death row] by [some inmates] constitutes cruelty that defiesthe imagination" (second alteration in original) (quoting CLINTONT. DUFFY, EIGHTYEIGHT MEN AND TWO WOMEN 254 (1988))); see also supranote 61 and accompanying text.

(89) See Smith, supra note 84, at 243 (noting that, as of 2008, theterms "death row syndrome" and "death rowphenomenon" had not been accepted by the American Psychiatric orPsychological Associations).

(90) See Lackey v. Texas, 514 U.S. 1045, 1045 (1995) (memorandum ofStevens, J., respecting the denial of certiorari) (explaining that,"[t]hough novel, petitioner's claim is not withoutfoundation," because the rationale for the Court's holdingthat the Eighth Amendment does not prohibit capital punishment arguablyloses force when a prisoner is forced to spend so many years on deathrow).

(91) See, e.g., Johnson v. Bredesen, 130 S. Ct. 541, 544 (2009)(Thomas, J., concurring in the denial of stay of execution andcertiorari) (stating that he is "unaware of any constitutionalsupport for the [Lackey] argument"); Thompson v. McNeil, 129 S. Ct.1299, 1301 (2009) (Thomas, J., concurring in the denial of certiorari)("It makes 'a mockery of our system of justice.., for aconvicted murderer, who, through his own interminable efforts ofdelay.., has secured the almost-indefinite postponement of his sentence,to then claim that the almost-indefinite postponement renders hissentence unconstitutional." (ellipses in original) (quoting Turnerv. Jabe, 58 F.3d 924, 933 (4th Cir. 1995) (Luttig, J., concurring in thejudgment))); Foster v. Florida, 537 U.S. 990, 990-91 (2002) (Thomas, J.,concurring in the denial of certiorari) ("In the three years sincewe last debated this meritless claim.., nothing has changed in ourconstitutional jurisprudence."); Knight v. Florida, 528 U.S. 990,990 (1999) (Thomas, J., concurring in the denial of certiorari) ("Iam unaware of any support in the American constitutional tradition or inthis Court's precedent for the proposition that a defendant canavail himself of the panoply of appellate and collateral procedures andthen complain when his execution is delayed.").

(92) See Foster, 537 U.S. at 992 (2002) (Breyer, J., dissentingfrom the denial of certiorari) ("[Twenty-seven] years awaitingexecution is unusual by any standard, even that of current practice inthe United States, where the average executed prisoner spends between 11and 12 years under sentence of death.").

(93) See id. ("This Court has recognized that such acombination can inflict 'horrible feelings' and 'animmense mental anxiety amounting to a great increase of theoffender's punishment.'" (quoting In re Medley, 134 U.S.160, 172 (1890)) (citing Furman v. Georgia, 408 U.S. 238, 288-89 (1972)(Brennan, J., concurring))); see also supra Part II.

(94) See Lackey, 514 U.S. at 1045-47 (memorandum of Stevens, J.,respecting the denial of certiorari).

(95) See Gregg v. Georgia, 428 U.S. 153, 176-84 (1976) (pluralityopinion) (canvassing the factors that militate in favor of finding thedeath penalty constitutional).

(96) Lackey, 514 U.S. at 1045 (memorandum of Stevens, J.,respecting the denial of certiorari); see also id. ("Such a delay,if it ever occurred, certainly would have been rare in 1789, and thusthe practice of the Framers would not justify a denial ofpetitioner's claim. Moreover, after such an extended time, theacceptable state interest in retribution has arguably been satisfied bythe severe punishment already inflicted.").

(97) Knight v. Florida, 528 U.S. 990, 995 (1999) (Breyer, J.,dissenting from the denial of certiorari).

(98) See id.; Lackey, 514 U.S. at 1045 (memorandum of Stevens, J.,respecting denial of certiorari).

(99) Lackey, 514 U.S. at 1046 (memorandum of Stevens, J.,respecting denial of certiorari).

(100) Elledge v. Florida, 525 U.S. 944, 944 (1998) (Breyer, j.,dissenting from the denial of certiorari).

(101) Id. at 945.

(102) 514 U.S. at 1047 (memorandum of Stevens, J., respecting thedenial of certiorari).

(103) See id.; Elledge, 525 U.S. at 945 (Breyer, J., dissentingfrom the denial of certiorari). In Elledge, Justice Breyer recognizedthat the petitioner's execution would be especially cruel becausethe greater part of the prisoner's twenty-three-year term on deathrow was attributable to the State. Id. Justice Breyer calculated thatthe petitioner's three successful appeals of his sentence resultedin eighteen of the total twenty-three years of delay. See id.; see alsoKnight v. Florida, 528 U.S. 990, 993 (1999) (Breyer, J., dissenting fromthe denial of certiorari) ("Where a delay, measured in decades,reflects the State's own failure to comply with theConstitution's demands, the claim that time has rendered theexecution inhuman is a particularly strong one."); infra SectionV.D.

(104) 528 U.S. at 995 (Breyer, J., dissenting from the denial ofcertiorari).

(105) Pratt v. Att'y Gen., [1994] 2 A.C. 1 (P.C.) (appealtaken from Jam.).

(106) Singh v. State of Punjab, A.I.R. 1983 S.C. 465 (India).

(107) Catholic Comm'n for Justice & Peace in Zimb. v.Att'y-Gen., [1993] 1 Zimb. L.R. 239, reprinted in 14 HUM. RTS. L.J.323 (1993).

(108) Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser. A) (1989).

(109) Knight, 528 U.S. at 998 (Breyer, J., dissenting from thedenial of certiorari); see id. at 997 (noting that the Supreme Court hasoften "found particularly instructive opinions of formerCommonwealth nations insofar as those opinions reflect a legal traditionthat also underlies our own Eighth Amendment"). Justice Breyer alsoobserved that international opinion on this issue varies and citedcountries, such as Canada, that do not necessarily condemn the practiceof execution after inordinate delay. Id. at 996.

(110) 129 S. Ct. 1299, 1299 (2009) (statement of Stevens, J.,respecting the denial of certiorari).

(111) Id. at 1300.

(112) Id. (quoting Baze v. Rees, 553 U.S. 35, 78 (2008) (Stevens,J., concurring in the judgment)).

(113) See Valle v. Florida, 132 S. Ct. 1,2 (2011) (Breyer, J.,dissenting from the denial of stay) (voting to grant the application forstay of execution and to grant certiorari to petitioner).

(114) 528 u.s. at 990 (Thomas, J., concurring in the denial ofcertiorari).

(115) Id. at 993-94 (Breyer, J., dissenting from the denial ofcertiorari).

(116) Id. at 990 (Thomas, J., concurring in the denial ofcertiorari).

(117) Thompson, 129 S. Ct. at 1301 (Thomas, J., concurring in thedenial of certiorari).

(118) Foster v. Florida, 537 U.S. 990, 991 (2002) (Thomas, J.,concurring in the denial of certiorari).

(119) See Knight, 528 U.S. at 990 (Thomas, J., concurring in thedenial of certiorari) ("[W]ere there any such support in our ownjurisprudence, it would be unnecessary for proponents of the claim torely on the European Court of Human Rights, the Supreme Court ofZimbabwe, the Supreme Court of India, or the Privy Council.");infra note 91.

(120) See Thompson, 129 S. Ct. at 1301 (Thomas, J., concurring inthe denial of certiorari) (contemplating the "disastrousconsequences of th[e] Court's recent foray into prisonmanagement" in Johnson v. California, 543 U.S. 499 (2005)).

(121) Id.

(122) Id. at 1302 (Thomas, J., concurring in the denial ofcertiorari); see also id. (admonishing Justice Stevens for"altogether refus[ing] to take into consideration the gruesomenature of the crimes that legitimately lead States to authorize thedeath penalty and juries to impose it"); Foster, 537 U.S. at 991(Thomas, J., concurring in the denial of certiorari) (describing thepetitioner's crime in graphic detail).

(123) See Thompson, 129 S. Ct. at 1303 (Thomas, J., concurring inthe denial of certiorari) ("It is the crime--and not the punishmentimposed by the jury or the delay in petitioner's execution-that was'unacceptably cruel.'" (quoting id. at 1300 (statement ofStevens, J., respecting the denial of certiorari))).

(124) See Knight, 528 U.S. at 992 (Thomas, J., concurring in thedenial of certiorari) (arguing that it would be incongruous to permitinmates to complain of delay, given that their numerous opportunities tolitigate their claims invariably result in that very delay).

(125) See id. (positing that courts may "give short shrift toa capital defendant's legitimate claims so as to avoid violatingthe [suggested] Eighth Amendment right" by lengthening the delayand running afoul of the Eighth Amendment).

(126) Lackey v. Texas, 514 U.S. 1045, 1047 (1995) (memorandum ofStevens, J., respecting the denial of certiorari); see also Knight, 528U.S. at 990 (statement of Stevens, J., respecting the denial ofcertiorari) ("It seems appropriate to emphasize that the denial ofthese petitions for certiorari does not constitute a ruling on themerits.").

(127) Justices Stevens and Breyer seem to have conceded this point.See Johnson v. Bredesen, 130 S. Ct. 541, 544 (2009) (statement ofStevens, J., respecting the denial of certiorari) ("Mostregrettably, a majority of this Court continues to find these issues notof sufficient weight to merit our attention.').

(128) Knight, 528 U.S. at 992-93 (Thomas, J., concurring in thedenial of certiorari); see id. at 992-93 & n.4 (citing eight statecourt cases in support of this assertion, and noting that he was"not aware of a single American court that has accepted such anEighth Amendment claim").

(129) Id. at 998-99 (Breyer, J., dissenting from the denial ofcertiorari); see id. at 999 (noting that the experiment had not yetconcluded, considering the fact that none of the opinions in the lowercourts "discuss the potential significance of that stateresponsibility at any length").

(130) See id. at 998-99.

(131) 130 S. Ct. at 544 (statement of Stevens, J., respecting thedenial of stay of execution and certiorari).

(132) Pub. L. No. 104-132, 110 Stat. 1214.

(133) Connolly, supra note 32, at 102.

(134) See 28 U.S.C. [section] 2244(b) (2006). Prior to AEDPA,"[t]he doctrine of abuse of the writ define[d] the circumstances inwhich federal courts decline[d] to entertain a claim presented for thefirst time in a second or subsequent petition for a writ of habeascorpus." McCleskey v. Zant, 499 U.S. 467, 470 (1991). A petitionerwho failed to raise a claim earlier needed to show "cause forfailing to raise it and prejudice there from." Id. at 494. AEDPAplaced narrower restraints on when courts could entertain claims raisedin second or successive petitions. See United States v. Roberson, 194F.3d 408, 410-11 (3d Cir. 1999).

(135) Id. [section] 2244(b)(2).

(136) 529 U.S. 420, 436 (2000).

(137) See, e.g., Ceja v. Stewart, 134 F.3d 1368, 1369 (9th Cir.1998) (affirming the district court's holding thatpetitioner's claims were covered by AEDPA's prohibition onsecond or successive habeas petitions).

(138) Gardner v. State, 234 P.3d 1115, 1136 (Utah 2010) ("Weconclude that Mr. Gardner could have raised these claims in his secondstate petition for post-conviction relief, filed in state court in May2000, or at any other time in the year after this evidence was adducedin 1999, and that he is therefore barred from raising it in thissuccessive petition.").

(139) See id. at n43-44 & nn.232-35; see id. at n44(determining that the defendant could have raised a Lackey claim in anearlier petition for postconviction relief because "at the time[he] filed his second state petition for post-conviction relief, he hadbeen incarcerated for more than fourteen years").

(140) Id. at n44.

(141) 551 U.S. 930 (2007).

(142) See Simmons, supra note 61, at 1266.

(143) Panetti, 551 U.S. at 945-48 (2007) ("We are hesitant toconstrue a statute, implemented to further the principles of comity,finality, and federalism, in a manner that would require unripe ...claims to be raised as a mere formality....").

(144) Simmons, supra note 61, at 1266.

(145) See 489 U.S. 288, 316 (1989) (opinion of O'Connor, J.)("[H]abeas corpus cannot be used as a vehicle to create newconstitutional rules of criminal procedure unless those rules would beapplied retroactively to all defendants on collateral review through oneof the two exceptions we have articulated.").

(146) Id. at 307 (quoting Mackey v. United States, 40a U.S. 667,692 (1971) (Harlan, J., concurring in two judgments and dissenting in athird)).

(147) Id. (alteration in original) (quoting Mackey, 401 U.S. at 693(Harlan, J., concurring in two judgments and dissenting in a third)(quoting Palko v. Connecticut, 302 U.S. 319,325 (1937))).

(148) See Caspari v. Bohlen, 510 U.S. 383, 390 (1994) ("Astate conviction and sentence become final for purposes of retroactivityanalysis when the availability of direct appeal to the state courts hasbeen exhausted and the time for filing a petition for a writ ofcertiorari has elapsed or a timely filed petition has been finallydenied.").

(149) Saffle v. Parks, 494 U.S. 484, 488 (1990).

(150) See Caspari, 510 U.S. at 390.

(151) See Simmons, supra note 61, at 1263 (noting that at firstblush the Lackey claim might appear to be Teague-barred "because itrequests application of a new constitutional rule to a judgment that haslong since become final").

(152) Smith v. Mahoney, 611 F.3d 978, 998-99 (9th Cir. 2010); seealso Allen v. Ornoski, 435 F.3d 946, 955 (9th Cir. 2006) (determiningthat "[t]here is no clearly established federal law, as determinedby the Supreme Court, to support" the petitioner's claim). TheFifth Circuit has also ruled that the Lackey claim--indeed, the originalLackey claim--is Teague-barred. That court vacated the districtcourt's stay of Clarence Lackey's execution in 1995, notingthat "Teague's noonretroactivity doctrine bars Lackey'scurrent claim." Lackey v. Scott, 52 F.3d 98, 100 (5th Cir.), cert.dismissed, 514 U.S. 1093 (1995); see also Chambers v. Dretke, 145 F.App'x 468, 472 (5th Cir. 2005) (declaring that the districtcourt's resolution that petitioner's claim was Teague-barredwas "not debatable.").

(153) Simmons, supra note 61, at 1263; see Flynn, supra note 79, at316 ("Although prisoners raise Lackey claims collaterally throughhabeas petitions, these claims do not attack the constitutionality ofinitial state court proceedings, but instead seek relief for thestate's post judgment action." (footnote omitted)).

(154) Id.

(155) Id. at 1264.

(156) Id.

(157) See Flynn, supra note 79, at 317 ("Because Lackey claimspropose that lengthy death row incarceration renders a class of deathrow prisoners constitutionally ineligible for the death penalty, suchclaims should escape Teague's bar under this exception."(footnote omitted)).

(158) 492 U.S. 302, 328 (1989).

(159) All the Justices joined in Part IV-A of JusticeO'Connor's opinion. See id. at 306.

(160) Id. at 330. Justice O'Connor further noted that"[i]n both cases, the Constitution itself deprives the State of thepower to impose a certain penalty, and the finality and comity concerns... have little force." Id.

(161) Simmons, supra note 61, at 1264; see Flynn, supra note 79, at318 ("Teague doctrine permits retroactive application of new rulesconcerning bedrock constitutional principles 'implicit in theconcept of ordered liberty.' The Lackey claim rests on the EighthAmendment's prohibition of cruel and unusual punishment, afundamental constitutional guarantee." (footnotes and citationomitted)).

(162) See Knight v. Florida, 528 U.S. 990, 993 (1999) (Thomas, J.,concurring in the denial of certiorari).

(163) See, e.g., Bieghler v. State, 839 N.E.2d 691, 697 (Ind. 2005)("We also noted Justice Thomas's subsequent observation inKnight v. Florida that Lackey claims had been rejected by the courtsthat have considered them." (citations omitted)).

(164) See, e.g., Aarons, supra note 35, at 206; Dwight Aarons,Getting Out of this Mess: Steps Toward Addressing and AvoidingInordinate Delay in Capital Cases, 89 J. CRIM. L. & CRIMINOLOGY 1,40 (1998) (noting that a capital defendant's "Eighth Amendment... claim is analogous to a claim based on the Sixth Amendment right toa speedy trial"); Root, supra note 64, at 316-17 ("The centraltenet of the Eighth Amendment claim is that an execution after a periodof inordinate delay no longer serves any legitimate social purpose.Indeed, lengthy delays would have been unimaginable to the framers ofthe constitution, so they cannot be justified via the framers'intent.").

(165) See, e.g., Connolly, supra note 32, at 116-30; Flynn, supranote 79, at 332-33.

(166) Jessica Feldman, Comment, ,4 Death Row IncarcerationCalculus: When Prolonged Death Row Imprisonment BecomesUnconstitutional, 40 SANTA CLARA L. REV. 187, 199 (1999) ("If theFramers did not intend prisoners to sit on death row for years awaitingexecution, and if neither retribution nor deterrence is served byexecuting prisoners after a lengthy delay, then an execution after sucha delay fails the Gregg test and conflicts with the EightAmendment.").

(167) See Thompson v. McNeil, 129 S. Ct. 1299, 1299 (2009)(statement of Stevens, J., respecting the denial of certiorari)("[B]oth Justice Breyer and I have noted that substantially delayedexecutions arguably violate the Eighth Amendment's prohibitionagainst cruel and unusual punishment.").

(168) See McMahon, supra note 76, at 59-62 ("The simplereality is that more states than not haven't encountered this issueand are now barred from seriously considering it.").

(169) Carol S. Steiker and Jordan M. Steiker, Capital Punishment: ACentury of Discontinuous Debate, 100 J. CRIM L. & CRIMINOLOGY643,685-86 (2010).

(170) See Furman v. Georgia, 408 U.S. 238, 305 (1972) (Brennan, J.,concurring); id. at 369-72 (Marshall, J., concurring) (concluding that"capital punishment cannot stand"). In Gregg v. Georgia,Justice Stewart wrote for a plurality of the Court:

 Although this issue [of whether capital punishment is per se unconstitutional] was presented and addressed in Furman, it was not resolved by the Court. Four Justices [Burger, Blackmun, Powell, and Rehnquist] would have held that capital punishment is not unconstitutional per se; two Justices [Brennan and Marshall] would have reached the opposite conclusion; and three Justices [Douglas, Stewart, and White], while agreeing that the statutes then before the Court were invalid as applied, left open the question whether such punishment may ever be imposed.

428 U.S. 153, 169 (1976) (plurality opinion) (footnotes omitted).Justice Stevens has voiced this opinion more recently. See Baze v. Rees,553 U.S. 35, 86 (2008) (Stevens, J., concurring in the judgment)("I have relied on my own experience in reaching the conclusionthat the imposition of the death penalty represents 'the pointlessand needless extinction of life with only marginal contributions to anydiscernible social or public purposes.'" (quoting Furman, 408U.S. at 312 (White, J., concurring))). "With his concurring opinionin Baze, Justice Stevens became the fifth Gregg Justice to declare thatcapital punishment violates the Eighth Amendment." Elisabeth Semel,Reflections on Justice John Paul Stevens's Concurring Opinion inBaze v. Rees: A Fifth Gregg Justice Renounces Capital Punishment, 43U.C. DAVIS L. REV. 783, 79x (2010).

(171) See Frank Newport, In U.S., Support for Death Penalty Fallsto 39-Year Low, GALLUP (Oct. 13, 2011),http://www.gallup.com/poll/150089/support-death-penahy-falls-year-low.aspx (noting that this poll was taken soon after the controversialexecution of Troy Davis in Georgia, although "high-profileexecutions" in previous years were not accompanied by similardecreases in support for capital punishment).

(172) See Illinois .Abolishes the Death Penalty, NPR (Mar. 9,2011), http://www.npr.org/2011/03/09/134394946/illinois-abolishes-death-penalty.

(173) States with and without the Death Penalty, DEATH PENALTYINFO. CENTER, http://www.deathpenaltyinfo.org/states-and-without-death-penalty (last visited Jan.11, 2013).

(174) Ray Long & Todd Wilson, Gov. Pat Quinn Turned to Bibleand Writings of Late Cardinal Joseph Bernardin for Difficult DeathPenalty Decision, CHI. TRIB. (Mar. 10, 2011), http://articles.chicagotribune.com/2011-03-10/news/ct-met-illinois-death-penalty-bill-si20110309_1_death-penalty-patquinn-families-of-murder-victims.

(175) 2012--Legislation, DEATH PENALTY INFO. CENTER,http://www.deathpenaltyinfo.org/2012Legislation (last visited Jan. 11,2013) (listing state-by-state legislation (proposed and/or passed in2012) regarding the death penalty).

(176) Daniela Altimari, Without Fanfare, Malloy Signs BillAbolishing Death Penalty, HARTFORD COURANT (Apr. 2.5, 2012),http://articles.courant.com/2012-04-2.5/news/hc-death-penahy-signing-0426-20120425_1_ death-penalty-gail-canzano-capital-punishment.

(177) Id.

(178) Recent Legislation: Governor's Signature MakesConnecticut Fifth State in Five Years to End Death Penalty, DEATHPENALTY INFO. CENTER,http://www.deathpenaltyinfo.org/recent-legislationgovernors-signature-makes-connecticut-fifth-state-five-years-end-death-penalty (last visitedJan. 11, 2013).

(179) Id.

(180) See Recent Legislative Activity, DEATH PENALTY INFO. CENTER,http://www.deathpenaltyinfo.org/recent-legislative-activity (lastvisited Jan. 11, 2013) (listing recent state-by-state legislation(proposed and passed) regarding the death penalty).

(181) This scenario is particularly unlikely, as some of theremaining states--such as California, Texas, and Florida--have thelargest populations on death row. See DEATH ROW U.S.A., supra note 21,at 32-61 (listing the number of death row inmates per state).

(182) For example, there are perverse incentives for reviewingcourts (raised by Justice Thomas in Knight), as well as incentives forinmates to file frivolous claims purposefully to delay incarceration ondeath row as a predicate for raising a Lackey claim later. See supranotes 124-26 and accompanying text.

(183) See Eve Brensike Primus, Structural Reform in CriminalDefense: Relocating Ineffective Assistance of Counsel Claims, 92 CORNELLL. REV. 679, 684, 706 (2007).

(184) Id. at 706-09.

(185) Id. at 706.

(186) Robert Johnson & John L. Carroll, Litigating Death RowConditions: The Case for Reform, in PRISONERS AND THE LAW 8-3 (Ira P.Robbins ed., Release no. 31, 2004); see also Melvin I. Urofsky, A Rightto Die: Termination of Appeal for Condemned Prisoners, 75 J. CRIM L.& CRIMINOLOGY 553,568-73 (1984) (detailing the horrid conditions ofdeath row that often lead prisoners to waive their appeals).

(187) See Johnson & Carroll, supra note 186, at 8-4("Death-row living conditions vary little from state tostate."); see also supra notes 69-71 and accompanying text. But seeMary A. Fischer, The Appeal of Death Row, ATLANTIC MONTHLY, Nov. 2011,at 21 (discussing how one prisoner would prefer to be sentenced to deathas he knows that an actual execution is unlikely, and living conditionson death row are better).

(188) Urofsky, supra note 186, at 571 (quoting ROBERT JOHNSON,CONDEMNED TO DIE: LIFE UNDER SENTENCE OF DEATH 47 (1981)).

(189) Id. at 573.

(190) See George Lombardi, Richard D. Sluder & Donald Wallace,The Management of Death Sentenced Inmates: Issues, Realities, andInnovative Strategies 6 (Mar. 1996) (unpublished manuscript), availableat http://doc.mo.gov/documents/DeathSentencedInmates.pdf (discussingdramatic death row reforms under the leadership of Warden Tom Murton).

(191) See id. (discussing this successful but brief reform, whichwas eventually dismantled by the Arkansas Board of Corrections).

(192) See id. ("Although the program was initially met withskepticism by staff, no serious incidents were reported followingimplementation of reforms." (citations omitted)).

(193) Id.

(194) Feldman, supra note 166, at 209 n.197.

(195) See Aarons, supra note 35, at 207 ("While inordinatedelay need not be strictly defined as twice the national average, thisproposed bright line rule represents a choice that provides a readyreference point for capital cases.").

(196) See SNELL, supra note 20, at 12 tbl.8 (178 months times two).

(197) While this task can be delegated to administrative staff oranother body, the court needs to assess the constitutional issue.

(198) See Lackey v. Texas, 514 U.S. 1045, 1047 (1995) (memorandumof Stevens, J., respecting the denial of certiorari) (noting how Englishjurists have made similar distinctions based on the cause of delay)(citing Pratt v. Att'y Gen., [1994] 2 A.C. 1 (P.C.) 33 (appealtaken from Jam.)).

(199) The leading cause of delay is to be determined by the judgebased on the report which will detail each inmate's time on deathrow. This inquiry is akin to the type of causation determinations judgesmake on a regular basis. Judges are therefore best suited to inquireinto which cause accounts for more years of delay than any other.

(200) Lackey, 514 U.S. at 1047 (memorandum of Stevens, J.,respecting the denial of certiorari).

(201) A frivolous claim has been defined by the court as one thatis "clearly baseless"--this definition "encompass[es]allegations that are 'fanciful,' 'fantastic,' and'delusional.'" Denton v. Hernandez, 504 U.S. 25, 32-33(1992) (citations omitted). Although this definition is already a narrowone, especially in criminal cases "courts are loath to imposesanctions [for filing frivolous claims] against lawyers in any case inwhich the defendant's liberty is at stake." Monroe H.Freedman, The Professional Obligation to Raise Frivolous Issues in DeathPenalty Cases, 31 HOFSTRA L. REV. 1167, 1177-78 (2003).

(202) Id. at 1177-79 ("Counsel in a capital case must, as amatter of professional responsibility, raise every issue at every levelof the proceedings that might conceivably persuade even one judge in anappeals court, or in the Supreme Court....").

(203) Root, supra note 64, at 299.

(204) See Aarons, supra note 35, at 46-47 (suggesting thatfrivolous filings are rare in capital cases, and noting that"[s]ignificiantly, it is hard to find reported cases imposing suchsanctions"); Root, supra note 64, at 299 ("There is anextensive network of procedural rules in place that discourages thefiling of frivolous, premature, or otherwise inappropriatepetitions.").

(205) Id.

(206) See David Margolick, At the Bar: Death Row Appeals AreDrawing Sharp Rebukes from Frustrated Federal Judges in the South, N.Y.TIMES, Dec. 2, 1988, at B9 ("Unable to abolish capital punishmentde jure, they are attempting it de facto, by making the process soprotracted that it will ultimately be abandoned.").

(207) Lackey v. Texas, 514 U.S. 1045, 1047 (1995) (memorandum ofStevens, J., respecting the denial of certiorari).

(208) See Knight v. Florida, 528 U.S. 990, 992 (1999) (Thomas, J.,concurring in the denial of certiorari).

(209) Lackey, 514 U.S. at 1047 (memorandum of Stevens, J.,respecting the denial of certiorari).

(210) See, e.g., Johnson v. Bredesen, 130 S. Ct. 541, 542 (2009)(statement of Stevens, J., respecting the stay of execution and denialof certiorari) ("[S]tate-caused delay in state-sponsored killingscan be unacceptably cruel.").

(211) See id.

(212) Id. (citing Brady v. Maryland, 373 U.S. 83 (1963)).

(213) Id.

(214) The term would not include the Judiciary insofar as theaction by the state is simply judicial decision-making. Intentionalmisconduct on the part of the Judiciary that results in an inmate'sdelay, however, would be counted against the state in assessing a Lackeyclaim.

(215) See Carol J. Williams, State Won't Execute Anyone in2011, L.A. TIMES, May 4, 2011, at A1 ("The California Department ofCorrections and Rehabilitation requested more time because San QuentinState Prison's new warden, Michael Martel, wants to recruit a newexecution team to replace the one that was assembled and trained lastyear....").

(216) See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96(1990) ("Federal courts have typically extended equitable reliefonly sparingly."). Kate McMahon has also recommended legislation toaddress the problems that arise from the "death row syndrome";in addition to the proposals outlined in this paper, I recommendfollowing McMahon's suggestion that legislation support appropriatealternatives, such as clemency. See McMahon, supra note 76, at 74-75("[L]egislation should nonetheless continue to provide a clemencyappeal option for that very narrow set of cases that might be able tobenefit from it, but it should not presume that clemency adequate [sic]fulfills the function that an Eighth Amendment inordinate delaychallenge does.").

KARA SHARKEY, J.D. Candidate, 2013, University of Pennsylvania LawSchool; B.A. 2008, Gettysburg College. I would like to thank ProfessorMichael Salmanson for comments on earlier drafts, as well as the editorsof the University of Pennsylvania Law Review for their hard work on thisComment. I would especially like to thank my family for their continuedsupport.

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Delay in considering the constitutionality of inordinate delay: the death row phenomenon and the Eighth Amendment. (2024)

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