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High Court Allows Death Appeal Over Lethal Injection Issue

By Jeralyn, Section Death Penalty
Posted on Mon May 24, 2004 at 12:03:55 PM EST
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The Supreme Court today ruled death row inmate David Larry Nelson can appeal this death sentence on the ground that lethal injection is cruel and unusal punishment, even though he waited until just three days before his scheduled excectuion to make the claim in a civil rights lawsuit, after his habeas petition had been denied:

On Oct. 6, 2003, three days before his scheduled execution, David Nelson filed the civil rights lawsuit. He claimed his veins have been damaged by years of drug use and challenged as unconstitutionally cruel and unusual punishment the proposed "cut down" procedure that may be used to access his veins. If access to a suitable vein cannot be achieved, prison authorities proposed to have a doctor perform the procedure involving use of a local anesthetic and a two-inch incision to insert the intravenous line that carries the lethal drugs.

TalkLeft's prior coverage of the case and issue is here, here and here. Here's some AP coverage of the oral argument in the Supreme Court. From today's syllabus:

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 03—6821. Argued March 29, 2004–Decided May 24, 2004

Three days before his scheduled execution by lethal injection, petitioner filed a 42 U.S.C. § 1983 action against respondent Alabama prison officials, alleging that the use of a “cut-down” procedure requiring an incision into his arm or leg to access his severely compromised veins constituted cruel and unusual punishment and deliberate indifference to his medical needs in violation of the Eighth Amendment. Petitioner, who had already filed an unsuccessful federal habeas application, sought a permanent injunction against the cut-down’s use, a temporary stay of execution so the District Court could consider his claim’s merits, and orders requiring respondents to furnish a copy of the protocol on the medical procedures for venous access and directing them to promulgate a venous access protocol that comports with contemporary standards.

Respondents moved to dismiss the complaint for want of jurisdiction on the grounds that the §1983 claim and stay request were the equivalent of a second or successive habeas application subject to 28 U.S.C. § 2244(b)’s gatekeeping requirements. Agreeing, the District Court dismissed the complaint because petitioner had not obtained authorization to file such an application. In affirming, the Eleventh Circuit held that method-of-execution challenges necessarily sound in habeas, and that it would have denied a habeas authorization request.

Held: Section 1983 is an appropriate vehicle for petitioner’s Eighth Amendment claim seeking a temporary stay and permanent injunctive relief. Pp. 5—13.

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