The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Supreme Court made an important statement about crime victims' rights in capital cases. In Bucklew v. Precythe, the Court recognized the harmful effects of delays in capital cases on victims' families and called on lower courts to prevent dilatory tactics. The Court's statement extends beyond the narrow issues in the case and may signal that the Court is willing to take steps to reduce the unjustifiable delays that plague many capital cases.
I have previously blogged about the case of Russell Bucklew, who murdered Michael Sanders and was sentenced to death more than two decades ago in Missouri. Mr. Bucklew's latest legal argument against his death sentence was an "as applied" challenge to Missouri's method of executing him (lethal injection). After the Supreme Court granted Bucklew's petition for review, I joined counsel of record Allyson Ho and several of her colleagues at Gibson, Dunn & Crutcher in filing an amicus brief on behalf of Michael Sanders' sister and Arizona Voice for Crime Victims. Our brief urged the Court to reject Bucklew's challenge and end more than two decades of litigation, noting the significant effect that such delays have on victims' families.
Today the Supreme Court rejected Bucklew's claims, echoing some of the points that we had made. The Court first ruled 5-4 that Bucklew had not made the case that, because of his unusual medical conditions, Missouri's lethal injection protocol is unconstitutional as applied to him. But in reading through the Court's opinion, I was pleased to see the Court's concluding section discussing the interests of crime victims' and their families, acknowledging how they are harmed by unjustifiable delays and encouraging lower courts to resolve challenges to lawfully issued sentences "fairly and expeditiously":
"Both the State and the victims of crime have an important interest in the timely enforcement of a sentence." Hill, 547 U. S., at 584. Those interests have been frustrated in this case. Mr. Bucklew committed his crimes more than two decades ago. He exhausted his appeals and separate state and federal habeas challenges more than a decade ago. Yet since then he has managed to secure delay through lawsuit after lawsuit. He filed his current challenge just days before his scheduled execution. That suit has now carried on for five years and yielded two appeals to the Eighth Circuit, two 11th-hour stays of execution, and plenary consideration in this Court. And despite all this, his suit in the end amounts to little more than an attack on settled precedent, lacking enough evidence even to survive summary judgment—and on not just one but many essential legal elements set forth in our case law and required by the Constitution's original meaning.
The people of Missouri, the surviving victims of Mr. Bucklew's crimes, and others like them deserve better. Even the principal dissent acknowledges that "the long delays that now typically occur between the time an offender is sentenced to death and his execution" are "excessive." Post, at 16. The answer is not, as the dissent incongruously suggests, to reward those who interpose delay with a decree ending capital punishment by judicial fiat. Post, at 18. Under our Constitution, the question of capital punishment belongs to the people and their representatives, not the courts, to resolve. The proper role of courts is to ensure that method-of-execution challenges to lawfully issued sentences are resolved fairly and expeditiously. Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.
Last-minute stays should be the extreme exception, not the norm, and "the last-minute nature of an application" that "could have been brought" earlier, or "an applicant's attempt at manipulation," "may be grounds for denial of a stay." Hill, 547 U. S., at 584 (internal quotation marks omitted). So, for example, we have vacated a stay entered by a lower court as an abuse of discretion where the inmate waited to bring an available claim until just 10 days before his scheduled execution for a murder he had committed 24 years earlier. See Dunn v. Ray, 586 U. S. ___ (2019). If litigation is allowed to proceed, federal courts "can and should" protect settled state judgments from "undue interference" by invoking their "equitable powers" to dismiss or curtail suits that are pursued in a "dilatory" fashion or based on "speculative" theories.
Bucklew's meritless challenge has now been rejected. Hopefully the Supreme Court's guidance to lower courts on preventing "dilatory" tactics will help to reduce unjustified delays in capital (and other) cases.