Newton — Volume 62, Issue 4

Newton examines Justice Kennedy's remarks during the Hall v. Florida oral argument in early 2014, analyzing their implications for Lackey claims—arguments that executing someone after excessive delay following sentencing violates the Eighth Amendment's prohibition on cruel and unusual punishment. Newton, who represented capital defendant Clarence Lackey in 1995, raised the original Lackey claim when Lackey faced execution after spending seventeen years (over 6,000 days) on death row, most under mandatory direct appeal. The Eighth Amendment claim asserted that executing Lackey after such extended delay constituted cruel and unusual punishment because the state lost its right to carry out execution after such lengthy periods of extreme conditions on death row. By 1995, several foreign courts recognized lengthy stays on death row as cruel and inhumane grounds for prohibiting capital punishment, including the British Privy Council's 1994 decision in Pratt & Morgan v. Attorney General for Jamaica. Kennedy's positions on high-profile legal issues like the death penalty indicate he may join Justices Breyer and Stevens in considering whether excessive delays in death penalty cases violate the Eighth Amendment. Although a majority has not yet addressed Lackey claims, Kennedy's comments suggest a possible brink of joining others to grant certiorari on this constitutional question.

Topics: Criminal Procedure · Constitutional Law

Keywords: Lackey claims · capital punishment · Eighth Amendment · cruel and unusual punishment · death row delays · Hall v. Florida · Justice Kennedy · cruel punishment