Last winter, I completed a paper entitled “Jones, Lackey, and Teague,” (forthcoming in the John Marshall Law Review) which concerned the claim of death row inmates that their stay on death row has been so long as to violate the Eighth Amendment’s ban on cruel and unusual punishments (the so-called Lackey claim, after Lackey v. Texas). I argued that while Lackey claims are wrong on the merits, courts should be more attentive to a threshold means for disposing of such claims: the non-retroactivity rule of Teague v. Lane. In the article, I respond specifically to a recent United States District Court decision in Jones v. Chappell, which granted federal habeas relief on a Lackey claim, on the basis that California’s dysfunctional death penalty had resulted in inordinate delay in carrying out Jones’s execution. California appealed that decision to the United States Court of Appeals for the Ninth Circuit.
The Ninth Circuit has now reversed the judgment below. The basis: Jones’s Eighth Amendment claim was barred by the non-retroactivity rule of Teague v. Lane. I was gratified by the holding, though because of the timing of the decision, I was not able to incorporate it into my article, which has already gone to print. My hope, though, is that my article will influence other federal courts considering such claims on habeas review. (I will post it here within the next week or so) (I would also note that CJLF wrote an excellent amicus brief in this case, and C&C has a comment here).
I wanted, though, to respond here to a claim made by the dissent. As I state in my article, I do not think the application of Teague here is a slam dunk. There is a legitimate argument that the claim is substantive and not procedural, and therefore not barred under Teague. But I ultimately reject that argument. In his separate concurrence in Jones v. Davis, Judge Watford states that Teague does not bar the Lackey claim because the claim is quintessentially substantive, citing Penry v. Lynaugh’s line that substantive rules are those that place a class of offenders beyond the power of the state to punish. And that, he argues, is what we have here.
That is an alluring argument, particularly as the concurrence frames it. But there is a problem: what is the relevant class of offenders whom the state cannot punish with death now? As I argue, if the death penalty is unconstitutional because it no longer serves any retributive or deterrent function, because it comes with inordinate delays, and that is a substantive rule, then that rule would apply to everyone on death row. Meaning, it would protect even death row inmates who would have no Lackey claim at all – either because they are relatively new to death row, or because any delays in their execution are attributable to the inmate seeking legal relief. The rule that Jones was proposing, it seems to me, was limited to a class of offenders who had waited a long time to be executed. And even within that class, how does one know what wait has been too long for the Eighth Amendment to tolerate? Jones did not say, nor did the District Court.
I believe this is a fundamental problem with the Lackey claim generally: there is simply no good objective standard for determining when a Lackey claim accrues under the Eighth Amendment, and therefore no good way of determining the class of inmates that is protected. An even bigger problem: if the District Court was right, what is the remedy? New trial with death penalty option? Default to life in prison? And if life is the default, is that really a remedy for a claim that one was not executed quickly enough?
My own view is that California was accused of using procedures that resulted in inordinate delays not attributable to the inmate (or, more precisely, of failing to use procedures that mitigated those delays), and the remedy would be to adopt new procedures. That is a quintessentially procedural rule, and because it is unquestionably new, it is barred by Teague. The Ninth Circuit follows a slightly different line of reasoning than I propose in the paper, but reaches the same – in my view, correct – result.