I have been meaning to post something about the opinions respecting the denial of certiorari in Johnson v. Bredesen from a few weeks back, but never had the time to do it. The delay is ironic (sort of) since that case concerned the issue of whether an execution after a "lengthy and inhumane" delay violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. It's known as a Lackey claim. I realize that three weeks of failing to blog about a non-binding case does not quite qualify as a lengthy and inhumane delay. But everything on the internet does seem to happen at light speed, so three weeks is nearly an eternity in internet time.
Johnson contained two opinions respecting the denial of cert. The first was from Stevens, who was joined by Breyer. The second was from Thomas, who just wrote to criticize Stevens' opinion.
The substantive part of the Lackey claim got a lot of media attention, especially the back and forth between Stevens and Thomas. And deservedly so.
But it's the procedural aspects of the case that will get some attention around here.
In Johnson, the petitioner brought his Lackey claim in a 1983 claim.* According to Stevens, this was a novel approach since Lackey claims are typically brought in habeas petitions. Indeed, in Johnson's case, the Sixth Circuit construed the 1983 claim as a habeas petition and denied the petition under the second or successive standard.
*A 1983 claim is a civil action arguing that the state had violated the plantiff's constitutional rights.
Stevens says that the case raised two interesting procedural questions:
(1) whether a Lackey claim can be brought in a 1983 actions; and
(2) if not, whether a second habeas petition raising a Lackey claim is a successive petition under 2244(b)(2).
Stevens argues that the "resolution of these questions below poses a nearly insurmountable hurdle for those seeking to raise similar Eighth Amendment claims."
Here's why:
Stevens shows the difficult Catch-22 here. First, he opines that the claim can be raised in a 1983 actions since it is a claim that the method under which that the State seeks to execute him (i.e. the long delay) is unconstitutional. But at the same time, success on this claim would also mean that the execution cannot be carried out, which would directly call into question the validity of the sentence. That type of claim needs to be raised in a habeas petition. Tricky.
And here's another Catch-22: Okay, so let's say that it has to be a habeas. The rules only allow one petition and are very strict about when a petitioner can file a second. A Lackey claim clearly does not fall under the limited circumstances in which authorization to bring a second claim can be granted. Thus, mandating that a petitioner must bring the claim in a habeas petition has "the curious effect of forcing Johnson to bring a Lackey claim prematurely, possibly at a time before it is ripe." Extra tricky.
Stevens acknowledges that when he first envisioned the Lackey claim, he did not foresee these procedural loop-de-loops. Because they were so tied-in with the merits of the claim, he argues that they merit the Court's attention. At this point, only one other judge agrees.
Interesting little non-binding opinion respecting the denial of cert.