FindLaw > Criminal Law Summaries > 1998 Index > Stewart v. LaGrand

Case: Stewart v. LaGrand

Issue: Can a capital murder defendant waive any Eighth Amendment objection to the State's method of executing him by affirmatively choosing that method of execution?

Facts: Walter LaGrand was convicted of first-degree murder and sentenced to be executed by lethal gas. His conviction was affirmed on appeal in Arizona in 1987. At the time of his conviction and appeal, the only method of execution in Arizona was by gas. LaGrand made no constitutional challenge to execution by gas on his direct appeal. Arizona ultimately changed its system of execution, providing those sentenced to die with a choice between execution by gas and lethal injection. Lethal injection was the default method in the event that a sentenced inmate did not affirmatively choose one or another of the alternatives. After Arizona changed its laws, LaGrand was offered a choice of methods of execution by the State of Arizona and chose execution by gas. Nevertheless, he challenged, in a federal habeas petition, said execution under Eighth Amendment grounds of cruel and unusual punishment. Near the end of the long procedural history of this case, the Court of Appeals for the Ninth Circuit denied a stay of execution for LaGrand, but restrained and enjoined the State of Arizona from executing him by means of lethal gas. Arizona filed a petition for writ of certiorari and an application to lift the Ninth Circuit's injunction. The United States Supreme Court granted the petition for certiorari, summarily reversed the Ninth Circuit's judgment and vacated its injunctive order.

Holding: A state prisoner awaiting execution by lethal gas waives any constitutional challenge, under 28 U.S.C. § 2254, when he is given a choice between execution by lethal gas or lethal injection and chooses the former. To hold otherwise, would be to hold that Eighth Amendment protections "cannot be waived in the capital context." Moreover, a habeas petitioner who neglects to raise Eighth Amendment constitutional objections to lethal execution by gas on direct appeal, at a time when the state's only method of lethal execution was by gas, has procedurally defaulted.

Reasoning: The Court, in a per curiam opinion, stated that "by declaring his method of execution, picking lethal gas over the state's default form of execution - lethal injection - Walter LaGrand has waived any objection he might have to it. . . . To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of Teague v. Lane, 489 U.S. 288 . . . (1989)." The majority also held that even if LaGrand had not waived his Eighth Amendment rights, he had procedurally defaulted by not challenging his execution on Eighth Amendment grounds at the time of his original appeal. This was so because, "[a]t the time of Walter LaGrand's direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter LaGrand cannot show cause for his failure to raise his claim."

Other Opinions: Justice Souter joined by Justices Ginsberg and Breyer joined only part I (the waiver portion) of the Court's opinion and joined it "on the understanding that petitioner makes no claim that death by lethal injection would be cruel and unusual under the Eighth Amendment. I do not reach any issue of the applicability of Teague v. Lane, 489 U.S. 288 . . . (1989)." Justice Stevens dissented. He would require full briefing and argument before answering the important question of "whether a capital defendant may consent to be executed by an unacceptably torturous method of execution."

Comment: The Court also held that LaGrand had explicitly waived any ineffective assistance of counsel argument.