Premature Execution Warrants in Louisiana Deny Death-Sentenced Prisoners Due Process and Fair Consideration of Constitutional Claims

The Supreme Court has con­sis­tent­ly held that ​“death is dif­fer­ent”: the ​“qual­i­ta­tive dif­fer­ence between death and oth­er penal­ties calls for a greater degree of reli­a­bil­i­ty when the death sen­tence is imposed.” As a result, cap­i­tal defen­dants pur­sue a series of manda­to­ry and dis­cre­tionary appeals to ensure that mis­takes of con­sti­tu­tion­al sig­nif­i­cance are iden­ti­fied and cor­rect­ed. However, death-sen­tenced pris­on­ers in Louisiana recent­ly argued that the state issued exe­cu­tion war­rants before they had exhaust­ed their appeals, and the state high court agreed to recall the war­rants. When a state pur­sues exe­cu­tions before pris­on­ers receive the full mea­sure of due process to which they are enti­tled, the fair­ness, accu­ra­cy, con­sis­ten­cy, and trans­paren­cy of the death penal­ty are called into ques­tion — imper­a­tives that the appeal process is intend­ed to ensure. 

On April 11, the Louisiana Supreme Court recalled death war­rants for Darrell Draughn and Marcus Reed, agree­ing with the two men that a judge must con­sid­er their state post-con­vic­tion claims before set­ting exe­cu­tion dates. Mr. Draughn had been sched­uled for exe­cu­tion on May 28 and Mr. Reed on June 4. The per curi­am (unsigned) deci­sion not­ed that the court had pre­vi­ous­ly ordered the appoint­ment of post-con­vic­tion coun­sel for the men, and their post-con­vic­tion appeal claims heard, ​“before sign­ing the war­rant of exe­cu­tion.”¹ Instead, a low­er court judge had signed exe­cu­tion war­rants at the request of the state before either man had been able to file a post-con­vic­tion appeal with the assis­tance of a lawyer. 

A death-sen­tenced pris­on­er has the right to a ​“direct appeal” of their con­vic­tion and death sen­tence, where the state supreme court reviews the tri­al record for errors.² Prisoners are con­sti­tu­tion­al­ly enti­tled to rep­re­sen­ta­tion dur­ing this direct appeal. If the direct appeal is denied, pris­on­ers may file a ​“post-con­vic­tion” appeal in state court, where they can for the first time raise claims about evi­dence out­side the tri­al record, such as inef­fec­tive assis­tance of tri­al coun­sel, pros­e­cu­to­r­i­al mis­con­duct, or new­ly dis­cov­ered evi­dence of inno­cence. Though pris­on­ers do not have a con­sti­tu­tion­al right to an attor­ney dur­ing post-con­vic­tion appeals, it is com­mon prac­tice for coun­sel to be appoint­ed in cap­i­tal cas­es due to the ​“height­ened” fair­ness con­cerns raised by the death penal­ty. If the state courts deny the death-sen­tenced prisoner’s post-con­vic­tion appeal, he may raise those claims in fed­er­al court in a process known as ​“habeas cor­pus” review. The fed­er­al appeal reviews the state court deci­sions for ​“rea­son­able­ness” and com­pli­ance with U.S. Supreme Court prece­dent. The prisoner’s appeals are typ­i­cal­ly con­sid­ered ​“exhaust­ed” once the U.S. Supreme Court denies review of the fed­er­al courts’ judgment.

Both Mr. Draughn and Mr. Reed had com­plet­ed only their direct appeals before state offi­cials request­ed their exe­cu­tion dates, mean­ing no state or fed­er­al court had ever con­sid­ered the types of con­sti­tu­tion­al claims regard­ing defense rep­re­sen­ta­tion or pros­e­cu­to­r­i­al mis­con­duct that can only be brought dur­ing the post-con­vic­tion process. After the Supreme Court denied their direct appeals, both men filed ​“shell” post-con­vic­tion peti­tions on their own, with the expec­ta­tion (pur­suant to past state law and prac­tice) that an appoint­ed attor­ney would lat­er sup­ple­ment the peti­tion with case-spe­cif­ic claims. Louisiana law requires coun­sel to be appoint­ed for cap­i­tal state post-con­vic­tion pro­ceed­ings ​“if appro­pri­ate.” However, due to appar­ent delays in rep­re­sen­ta­tion and court review, nei­ther man ever filed an amend­ed post-con­vic­tion peti­tion with the assis­tance of a lawyer. The state argued that the men had for­feit­ed their post-con­vic­tion claims as a result, mak­ing them eli­gi­ble for exe­cu­tion, while defense attor­neys argued that the state or the courts had pre­vent­ed the peti­tions from being filed. It would be ​“unheard of in both this state and the nation” for a pris­on­er to be ​“pushed towards an exe­cu­tion with­out any court hear­ing his state post-con­vic­tion or Federal Habeas claims,” Mr. Draughn’s attorneys said. 

In Mr. Draughn’s case, the Louisiana Supreme Court denied his direct appeal in 2007 and he filed a shell peti­tion to begin the post-con­vic­tion process. In 2011, he request­ed an exten­sion to file a peti­tion with attor­ney sup­port, but a judge nev­er ruled on the motion and there were no fur­ther devel­op­ments in the case until the state asked for an exe­cu­tion date this year. 

Mr. Reed’s direct appeal con­clud­ed in 2017 and he filed a shell peti­tion while his attor­neys began work­ing on a more detailed sup­ple­ment to the peti­tion, due at the end of 2019. However, before the full peti­tion was filed, the dis­trict attorney’s office asked the court to remove Mr. Reed’s lead attor­ney Blythe Taplin from the case on the grounds that Ms. Taplin had also rep­re­sent­ed Mr. Reed on direct appeal. The court removed Ms. Taplin and stayed the dead­line for the peti­tion, but Mr. Reed was not appoint­ed a new lawyer and no amend­ed peti­tion was filed until after the exe­cu­tion war­rant was issued this year. Ms. Taplin con­tends that the DA sought to remove her because she had filed records requests with the DA’s office. ​“It’s shock­ing to see that the DA is now ask­ing for an exe­cu­tion war­rant and com­plain­ing about delay, giv­en the role that his office has played,” she told The Advocate.

The Louisiana Supreme Court held that the men must be able to sub­mit their post-con­vic­tion peti­tions, with the assis­tance of coun­sel, for con­sid­er­a­tion by a judge before an exe­cu­tion date is set. ​“The Louisiana Supreme Court rec­og­nized the fun­da­men­tal prin­ci­ple that the state can­not send a man to the death cham­ber with­out at least allow­ing him to exhaust his appeals,” said Cecelia Kappel, an attor­ney for Mr. Draughn. ​“If pris­on­ers can be exe­cut­ed before they have com­plet­ed all of their appeals, by war­rants signed under cov­er of dark­ness, then all of our rights are seri­ous­ly in jeopardy.”