Somewhere Between Death Row and Death Watch: The Procedural Trap Capital Defendants Face in Raising Execution-Related Claims

Abstract

For as long as the death penalty remains a viable punishment in the United States, safeguarding defendants’ rights from sentencing through execution is crucial. As part of that effort, this Essay focuses on a portion of the capital appellate process that is often overlooked and, in practice, effectively divests defendants of significant constitutional claims.

As illustrated by the U.S. Supreme Court’s recent decisions in Bucklew v. Precythe and Dunn v. Price, defendants face a significant procedural predicament in raising warrant- and execution- related claims. On one hand, courts have explained that execution-related claims are not ripe, or premature, when raised before a defendant is under an active death warrant. On the other, as in Bucklew and Dunn, when the defendant is under an active death warrant, courts are skeptical of the merits of these claims and determine the defendant raised the claim too late, suspecting a game of delay. Yet, defendants are faced with increasingly short and arbitrary warrant periods. Thus, as this Essay explains, the proper time for defendants to raise warrant- and execution-related claims is caught somewhere between death row and death watch. Courts have essentially precluded defendants from properly raising and being heard on these critical issues.

Addressing this concern, this Essay canvasses potential solutions, exploring the advantages and disadvantages of each. Ultimately, this Essay concludes that the best solution is for states to enact and courts to enforce uniform warrant procedures. In doing so, this Essay proposes statutory language that would implement this solution. However, as states’ former attempts to enact such procedures show, enforcement by courts is crucial for this solution to be effective and properly safeguard defendants’ rights in last-minute, execution-related appeals.

Keywords: capital punishment, death penalty, criminal procedure, postconviction review, execution, death warrant, Eighth Amendment