The "Agony of Suspense": How ProtractedDeath Row Confinement Gives Rise toan Eighth Amendment Claim ofCruel and Unusual Punishment

I. Introduction In 1995, Texas death row inmate Clarence Lackey argued that the execution of a prisoner who had spent seventeen years on death row would violate the Eighth Amendment's prohibition of cruel and unusual punishment. ' The rationale behind the Eighth Amendment argument rested on the severe punishment Lackey had already received during his protracted death row confinement.2 Lackey contended that years of death row imprisonment, coupled with the extreme psychological anguish caused by such confinement, constitutionally deprived Texas of the power to inflict a death sentence.3 Although the Supreme Court's denial of certiorari in Lackey v. Texas4 leaves Lackey's question temporarily unanswered, Justice Stevens noted the novelty and significance of Lackey's claim and wrote a memorandum concurring in the Court's denial of certiorari.5 His concurring memorandum (Lackey Memorandum) briefly explored the constitutionality of imposing a death sentence after lengthy death row confinement.6 Justice Stevens observed that the Court has largely relied on two factors in finding capital punishment constitutionally permissible.7 First, the Constitution's framers (Framers) tolerated capital punishment.8 Second, the death penalty traditionally has furthered the public goals of retribution and deterrence.9 The Lackey Memorandum questioned whether either justification retains force after a prisoner has spent seventeen years on death row." Historically, the Framers did not anticipate protracted imprisonment before execution of a death sentence." Moreover, a lengthy and severe incarceration followed by execution of a death sentence may be overly retributive.12 Finally, any additional deterrent value of a seventeen-year delay followed by execution, as compared with a seventeen-year delay followed by life imprisonment, seems minimal. 13 In the absence of the factors that justify an execution's constitutionality, Justice Stevens concluded that imposition of death after prolonged delay may provide such diminished returns as to be patently excessive under the Eighth Amendment. 14 Since the issuance of Justice Stevens's memorandum, several courts have considered claims similar to Clarence Lackey's.15 A Lackey-type claim (Lackey claim) states that execution after protracted death row confinement is cruel and unusual punishment prohibited by the Eighth Amendment of the Constitution.l6 The Eighth Amendment argument hinges on the torturous psychological conditions prisoners experience during prolonged death row stays.' Due to nearly insurmountable procedural hurdles, however, courts have yet to decide the Eighth Amendment claim on its merits. 18 This Note argues that execution after protracted death row confinement violates the Eighth Amendment. 19 Part II explores the documented mental suffering caused by lengthy death row incarceration.20 Part III examines the substantive Eighth Amendment issues underlying Lackey claims, including the death row delay21 and the prolonged mental suffering2 that trigger Eighth Amendment protections. Part IV addresses the procedural hurdles associated with Lackey claims and proposes solutions for these dilemmas.2 Part V discusses the policy implications of Lackey claims, including the length and types of death row delay that give rise to an Eighth Amendment claim, as well as an appropriate remedy for such claims.24 II. Mental Suffering Caused by Protracted Death Row Confinement The Lackey claim rests on the well-documented fact that condemned prisoners experience severe mental suffering while awaiting execution: For over two years, [death row prisoner] Henry Arsenault "lived on death row feeling as if the [c]ourt's sentence were slowly being carried out." Arsenault could not stop thinking about death. Despite several stays, he never believed he could escape execution. "There was a day to day choking, tremulous fear that quickly became suffocating." If he slept at all, fear of death snapped him awake sweating. …