NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.9  Tenure On Death Row
               1.9.1  Last Rites

In a pre-Furman case, the Ninth Circuit denied relief to an inmate who argued that an inordinately long time on death row could itself constitute an Eighth Amendment violation of cruel and unusual punishment. Chessman v. Dickson, 275 F.2d 604 (9th Cir. 1960). In 1992, the Ninth Circuit confirmed its denial of such a claim in Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990), rev’d on other grounds, 506 U.S. 40 (1992), pointing out the inherent contradiction created where the delay is due to the petitioner’s own appeals.

The Supreme Court later entertained but declined to decide this issue. Lackey v. Texas, 514 U.S. 1045 (1995). Justice Stevens, however, issued a memorandum in conjunction with this decision, inviting the federal courts to investigate whether executing an inmate who has been on death row for an inordinately long time constitutes cruel and unusual punishment. Although the Supreme Court ruling in Lackey did not address the issue, Justice Stevens’ statements nevertheless prompted several appeals based on this claim. In McKenzie v. Day, 57 F.3d 1493 (9th Cir.), cert. denied, 514 U.S. 1104 (1995), the Ninth Circuit again expressed its rejection of the claim that lengthy incarceration on death row itself constitutes cruel and unusual punishment.

Foster v. Florida, 537 U.S. 990 (2002) (Thomas, J., concurring) (concurring in denial of certiorari as to inmate who spent over 27 years awaiting execution).

Knight v. Florida, 528 U.S. 990 (1999) (Thomas, J., concurring) (concurring in denial of certiorari regarding two cases over 20 years old with delays resulting in large part from the states’ failure to apply constitutionally sufficient procedures at the time of initial sentencing).

Knight v. Florida, 528 U.S. 990, 992 (1999) (Breyer, J., dissenting) (dissenting from denial of certiorari regarding two cases over 20 years old with delays resulting in large part from the states’ failure to apply constitutionally sufficient procedures at the time of initial sentencing).

Elledge v. Florida, 525 U.S. 944 (1998) (Breyer, J., dissenting) (dissenting from denial of certiorari regarding twenty-three-year delay on death row substantially resulting from successful appeals).

Gomez v. Fierro, 519 U.S. 918 (1996) (Stevens, Breyer, JJ., dissenting) (objecting to Supreme Court’s remand on procedural grounds out of concern for undue delay in execution of capital judgments, where Court’s decision causes delay without providing any relief to petitioner).

Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari, but urging judges to study whether long execution delay amounts to cruel and unusual punishment, so that the Court can rule on the “novel” issue).

Allen v. Ornoski, 436 F.3d 946 (9th Cir.) (rejecting capital petitioner’s Lackey claim, in which he asserted that he had been confined on death row for over 23 years under “horrific” conditions, and holding that it was SOS application which could have been discovered previously through the exercise of due diligence; noting that the Lackey claim was devoid of support in federal or state law), cert. denied, 126 S. Ct. 1140 (2006).

Gerlaugh v. Stewart, 167 F.3d 1222 (9th Cir.) (holding that a Lackey claim does not satisfy either gatekeeping provision of § 2244(b)(2)), cert. denied, 525 U.S. 1131 (1999). 

Gretzler v. Stewart, 146 F.3d 675 (9th Cir.) (holding that Lackey claim raised in successive petition filed twenty-three years after conviction is barred under 28 USC 2244(b); claim could have been raised in earlier petition filed seventeen years after conviction), cert. denied, 524 U.S. 912 (1998).

Ceja v. Stewart, 134 F.3d 1368 (9th Cir.) (holding that petitioner’s Eighth Amendment claim as to length of death row confinement, which was not raised in first habeas petition, is covered by AEDPA, and petitioner failed to seek or obtain permission to file second or successive petition), cert. denied, 522 U.S. 1085 (1998).

Bonin v. Calderon, 77 F.3d 1155 (9th Cir.) (barring Lackey claim because procedurally defaulted; noting McKenzie with approval), cert. denied, 516 U.S. 1143 (1996).

McKenzie v. Day, 57 F.3d 1493 (9th Cir.) (adopting Richmond analysis of claim of Eighth Amendment violation due to lengthy delay on death row), cert. denied, 514 U.S. 1104 (1995).

Richmond v. Lewis, 948 F.2d 1473, 1491 (9th Cir. 1990) (ruling lengthy delay on death row not unconstitutional because time due to petitioner’s appeals; “a defendant must not be penalized for pursuing his constitutional rights, but he also should not be able to benefit from the ultimately unsuccessful pursuit of those rights”), rev’d on other grounds, 506 U.S. 40 (1992).

Chessman v. Dickson, 275 F.2d 604, 607 (9th Cir. 1960) (denying claim that eleven and one-half years on death row constitutes cruel and unusual punishment; “it may show a basic weakness in our governmental system that a case like this takes so long, but . . . we can[not] offer life (under a death sentence) as a price for one who can stall the processes for a given number of years”; also noting inevitable arbitrariness of minimum time necessary for delay claims).

Alldredge v. Davis, 2001 WL 793274 (N.D. Cal. July 3, 2001) (holding that imprisoned petitioner’s writ of habeas corpus, in which he claimed a constitutional entitlement to a sentence of death, is dismissed without prejudice because collateral challenges to length of confinement must properly be exhausted through state remedies first).

Free v. Peters, 50 F.3d 1362 (7th Cir.) (denying Eighth Amendment claim, distinguishing on grounds that Free’s time on death row was spent pursuing discretionary–as opposed to mandatory–direct appeals; any inordinate delay in execution of sentence is directly attributable to defendant’s own conduct), cert. denied, 514 U.S. 1034 (1995).

State v. Richmond, 180 Ariz. 573, 886 P.2d 1329 (1994) (reducing capital sentence to life sentence after twenty years on death row; declining to decide constitutional question of delay, but implying that extended time weighs in favor of leniency).

People v. Ochoa, 26 Cal. 4th 398, 28 P.3d 78, 110 Cal. Rptr. 2d 324 (2001) (holding that execution notwithstanding 9-year delay associated with defendant’s appeals furthered both deterrent and retributive functions and that shielding defendant from execution solely on this basis would frustrate these two penological purposes), cert. denied, 535 U.S. 1040 (2002).

Dwight Aarons, Can Inordinate Delay Between a Death Sentence and Execution Constitute Cruel and Unusual Punishment?, 29 Seton Hall L. Rev. 147 (1998) (arguing that executions after inordinate delay are “unusual” because most defendants are executed before spending inordinate time on death row and are “cruel” in the constitutional sense because defendants experience severe mental anguish while awaiting execution).

Amber A. Bell, Note, McKenzie v. Day: Is Twenty Years on Death Row Cruel and Unusual Punishment?, 26 Golden Gate L. Rev. 41 (1996) (addressing issue of length of death row incarceration as cruel and unusual punishment and criticizing McKenzie opinion).

Jessica Feldman, Comment, A Death Row Incarceration Calculus: When Prolonged Death Row Imprisonment Becomes Unconstitutional, 40 Santa Clara L. Rev. 187 (1999) (addressing whether execution after prolonged death row incarceration violates Eighth Amendment prohibition of cruel and unusual punishment and whether there is merit to “Lackey claim.”

Michael P. Connolly, Note, Better Never Than Late: Prolonged Stays on Death Row Violate the Eighth Amendment, 23 New Engl. J. on Crim. & Civ. Confinement 101 (1997) (exploring question of whether prolonged time on death row violates cruel and unusual punishment clause of Eighth Amendment, arguing it does).

Kathleen M. Flynn, Note, The “Agony of Suspense”: How Protracted Death Row Confinement Gives Rise to an Eighth Amendment Claim of Cruel and Unusual Punishment, 54 Wash. & Lee L. Rev. 291 (1997) (arguing that execution after protracted death row confinement violates Eighth Amendment).

Rich v. Woodford, 210 F.3d 961 (9th Cir. 2000) (Reinhardt, Pregerson, Kozinski and Wardlaw, J.J., dissenting from denial of rehearing en banc) (arguing condemned inmate entitled to last rites of Native American sweat lodge ceremony as fundamental to religious beliefs, notwithstanding prison’s stated security concerns).