I have posted before (here), and written elsewhere (here) on the delay-in-execution claim (a.k.a, the Lackey claim): that the Eighth Amendment bars imposition of the death penalty after some (undefined?) length of time on death row. Earlier this week, the Court – as is its habit – denied certiorari on yet another Lackey claim, this one (unsurprisingly) out of California. In Boyer v. Davis, a California death row inmate claimed that his death sentence violates the Eighth Amendment because he has been on death row for so long – Boyer had three trials, the last of which was in 1992.
Notably, Justice Breyer again dissented from the denial of certiorari, citing his opinions dissenting from cert denial in other delay-in-execution cases. Breyer explained that California’s system of capital punishment raises concerns about unreliability, arbitrariness, and “unconscionably long delays that undermine the death penalty’s penological purpose.” He spoke only for himself, apparently, as no other Justice joined the opinion.
Again, I am sympathetic to the claims about the dysfunction in California’s system. But in my view, the appropriate response is neither abolition nor re-sentencing of folks like Boyer. It is, rather, legal reform that will ensure a more timely and responsible review of capital cases and a more timely execution once all claims to legal relief and mercy have been exhausted. From what I can tell, the time between Boyer’s conviction (upon his third trial) and now was spent litigating his conviction and sentence. According to the State, Boyer did not raise the Lackey claim on his initial cert petition, which was denied in 2006; he filed two state habeas petitions, one in 2001 and another in 2010; he filed his federal habeas petition in 2010; then he appealed the denial of federal habeas to the Ninth Circuit and the Supreme Court, though he did not raise the Lackey claim in the Ninth Circuit. In other words, it is not as if Boyer had completed all of his appeals and has been sitting idle in his prison cell awaiting execution for 20 years. He has contributed to the delays by availing himself of every litigation opportunity available to him.
Moreover, even assuming there was some hypothetical merit to Boyer’s Eighth Amendment claim, I continue to wonder: what is the appropriate remedy for this claim? Boyer’s cert petition does not really say what he was seeking, other than that California’s death penalty is unconstitutional and that this would be a substantive rule (so as to avoid the Teague bar). Presumably, then, he is saying that he cannot now be executed. But isn’t he claiming that the very problem here is that he has not been executed yet? How can not executing him be the remedy for that?
Also of note, according to the Petitions to Watch list up at SCOTUSBlog, there is another Lackey claim before the Court, this one out of Texas (Moore v. Texas). This case presents an even greater obstacle to relief because when it comes to administering the death penalty, quite frankly, and as Texas has observed, Texas is not California. The Moore case might, however, get the Court’s attention on his mental disability claim.
For what it’s worth, Boyer stabbed to death an elderly couple that had allowed him to do odd jobs and given him money – Francis Harbitz sustained 24 stab wounds; Aileen suffered 19 stab wounds. The State also presented evidence at sentencing that Boyer committed another murder of an elderly man two years earlier. As for Moore, he used a shotgun to to kill an elderly man who was working the courtesy booth at a supermarket that Moore and two accomplices were robbing. According to a witness, the victim had his hands in the air when Moore shot him in the head.