No. 16IN THE SUPREME COURT OF THE UNITED STATES October Term, 2016 _________________________________________________________ LEDELL LEE, STACEY JOHNSON, MARCELL WILLIAMS, and KENNETH WILLIAMS Petitioners, -vASA HUTCHINSON, in his official capacity as Governor of Arkansas; WENDY KELLEY, in her official capacity as Director of the Arkansas Department of Correction; JOHN FELTS, JOHN BELKEN, ANDY SHOCK, DAWNE BENAFIELD VANDIVER, JERRY RILEY, ABRAHAM CARPENTER, JR., and LONA H. McCASTLAIN, all in their official capacities as Members, Respondents. THIS IS A CAPITAL CASE EXECUTIONS SCHEDULED FOR APRIL 20, 24, AND 27, 2017 __________________________________________________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT __________________________________________________________ PETITION FOR A WRIT OF CERTIORARI __________________________________________________________ Julie Pitt Vandiver Counsel of Record AR Bar 2008285 Julie_Vandiver@fd.org Assistant Federal Public Defender 1401 W. Capitol Ave., Ste 490 Little Rock, AR 72201 (501) 324-6114 (501) 324-5630 (fax) Counsel for Marcel Williams Jeff Rosenzweig AR Bar No. 77115 jrosenzweig@att.net 300 Spring St., Ste. 310 Little Rock, AR 72201 (501) 372-5247 Counsel for Stacey Johnson and Kenneth Williams Lee Short Short Law Firm AR Bar No. 2010136 leedshort@gmail.com 425 W. Broadway St. A North Little Rock, AR 72114 (501) 766-2207 Counsel for Ledell Lee COUNSEL FOR PETITIONERS QUESTIONS PRESENTED THIS IS A CAPITAL CASE In a rush to execute eight men in ten days, Respondents violated numerous Arkansas statutory, regulatory, and policy safeguards for clemency applicants. These violations—found by the district court below—include (i) scheduling hearings so that no Petitioner could have a favorable recommendation sent to the Governor before his execution; (ii) failing to notify stakeholders and solicit comment on clemency applications; (iii) limiting the time in which Petitioners could file their clemency applications; and (iv) cutting in half the hearing time. Unsurprisingly, in all but one case, the Parole Board reached the foreordained outcome and voted against recommending clemency. This Petition thus presents three straightforward questions: 1 I. Does the Due Process Clause, pursuant to Ohio Parole Authority v. Woodard,1 require—at a minimum—a State to substantially comply with its own statutory, regulatory, and policy provisions safeguarding the clemency process? II. Does an inmate have standing to challenge procedural Due Process violations even if, following a process admittedly compromised by numerous fundamental procedural errors, the Parole Board did not issue a positive clemency recommendation? III. Must a death row inmate under these circumstances show individualized prejudice to establish a Due Process violation, and, if so, was such a showing made here when Petitioners were denied any practical ability to secure clemency and sufficient time to make an adequate application and presentation? 523 U.S. 272 (1998) (O’Connor, J., concurring in part and concurring in the judgment, joined by Souter, Ginsburg, and Breyer, JJ.) (hereinafter Woodard). -i- TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW .............................................................................. i TABLE OF CONTENTS................................................................................................................ ii  TABLE OF AUTHORITIES ......................................................................................................... iii OPINIONS BELOW ........................................................................................................................2 JURISDICTION ..............................................................................................................................2 CONSTITUTIONAL PROVISIONS INVOLVED.........................................................................2 STATUTORY PROVISIONS INVOLVED....................................................................................3 REGULATIONS INVOLVED ........................................................................................................4 STATEMENT OF THE CASE ........................................................................................................5 REASONS FOR GRANTING THE PETITION ...........................................................................16 I. Certiorari Should be Granted to Provide Needed Direction to the Lower Courts. .................................................................................................................... 16 II.  The District Court Fundamentally Misapplied Governing Law    on the Standing and Prejudice ........................................................................................... 21  A. Standing Does Not Turn on the Result of the Very Process That Has Been Compromised ................................................................................21 B. Individualized Prejudice Is Not Required When a State Effectively Abrogates an Entire Statutory and Regulatory Scheme, But, Even If It Were Required, Petitioners Have Easily Shown Prejudice Sufficient to Obtain Injunctive Relief ....................................................................25 CONCLUSION ............................................................................................................................. 30  -ii- TABLE OF AUTHORITIES Page(s) Cases Ballard v. United States, 329 U.S. 187 (1946) ..............................................................................26 Bivens v. Forrest County, Civil Action No. 2:13–CV–8–KS–MTP, 2015 WL 1457529 (S.D. Miss. Mar. 30, 2015) .......................................................................................17 Carey v. Piphus, 435 U.S. 247 (1978) .......................................................................................8, 22 Catron County Bd. of Comm’rs, v. U.S. Fish & Wildlife Service, 75 F.3d 1429 (10th Cir. 1996) .................................................................................................23 Daniels v. Williams, 474 U.S. 327 (1986) .....................................................................................18 Duvall v. Keating, 162 F.3d 1058 (10th Cir. 1998) .................................................................16, 21 Faulder v. Texas Bd. of Pardons & Paroles, 178 F.3d 343 (5th Cir. 1999) ..................................17 Gissendaner v. Commissioner, Georgia Dept. of Corrections, 794 F.3d 1327 (11th Cir. 2015) .........................................................................................17, 19 Herrera v. Collins, 506 U.S. 390 (1993) .........................................................................................5 Lee v. Hutchinson, et al., Case No. 17-1822....................................................................................2 Lee v. Hutchinson, et al., Case No. 4:17-cv-00194-DPM, Dkt. Nos. 32, 44 (E.D. Ark. Apr. 6 and 18, 2017) ..........................................................................................................2 Lee v. Rios, 360 F. App’x 625 (6th Cir. 2010)...............................................................................26 Leslie v. Attorney General, 611 F.3d 171 (3d Cir. 2010) ..............................................................28 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ....................................................................22 Noel v. Norris, 336 F.3d 648 (8th Cir. 2003)...........................................................................16, 17 Ohio Parole Authority v. Woodard, 523 U.S. 272 (1998) ..................................................... passim Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148 (9th Cir. 1998)...................................................20 Tamayo v. Perry, 553 Fed. Appx. 395 (5th Cir. 2014) ..................................................................16 Tun v. Gonzales, 485 F.3d 1014 (8th Cir. 2007)............................................................................27 -iii- United States v. Morgan, 193 F.3d 252 (4th Cir. 1999) ................................................................28 Vietnam Veterans of America v. C.I.A., 288 F.R.D. 192 (N.D. Cal. 2012) ...................................23 Wellons v. Commissioner, Ga. Dept. of Corrections, 754 F.3d 1268 (11th Cir. 2014) ...............................................................................................17 Wessel v. City of Albuquerque, 299 F.3d 1186 (10th Cir. 2002) ...................................................23 Young v. Hayes, 218 F.3d 850 (8th Cir. 2000) ...................................................................... passim Zamudio-Pena v. Holder, 333 Fed. Appx. 165 (9th Cir. May 20, 2009).......................................27 Statutes 28 U.S.C. § 1254(1) .........................................................................................................................2 42 U.S.C. § 1983 ........................................................................................................................3, 12 Ark. Admin. Code 158.00.1-4.5 ..............................................................................................11, 12 section 4.1 of Ark. Admin. Code 158.00.1-4 .................................................................................11 Ark. Code Ann. § 16-93-204 ...............................................................................................3, 10, 11 Other Authorities Ark. Const. Art. 6, § 18........................................................................................................2, 17, 19 U.S. Const. amend. XIV § 1 ............................................................................................................2 United States Constitution ...............................................................................................................2 -iv- No. 16IN THE SUPREME COURT OF THE UNITED STATES October Term, 2016 _________________________________________________________ LEDELL LEE, STACEY JOHNSON, MARCELL WILLIAMS, and KENNETH WILLIAMS Petitioners, -vASA HUTCHINSON, in his official capacity as Governor of Arkansas; WENDY KELLEY, in her official capacity as Director of the Arkansas Department of Correction; JOHN FELTS, JOHN BELKEN, ANDY SHOCK, DAWNE BENAFIELD VANDIVER, JERRY RILEY, ABRAHAM CARPENTER, JR., and LONA H. McCASTLAIN, all in their official capacities as Members, Respondents. THIS IS A CAPITAL CASE EXECUTIONS SCHEDULED FOR APRIL 20, 24, AND 27, 2017 __________________________________________________________ ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT __________________________________________________________ PETITION FOR A WRIT OF CERTIORARI __________________________________________________________ Ledell Lee, Stacey Johnson, Marcel Williams, and Kenneth Williams respectfully petition this Court for a writ of certiorari to review the judgment of the -1- Eighth Circuit Court of Appeals rejecting their allegations of a due process violation. OPINIONS BELOW The decision of the Eighth Circuit Court of Appeals, entered on April 20, 2017, in Lee v. Hutchinson, et al., Case No. 17-1822, affirming the district court’s denial of a preliminary injunction is unreported and attached as Appendix A. The underlying district court decisions in Lee v. Hutchinson, et al., Case No. 4:17-cv00194-DPM, Dkt. Nos. 32, 44 (E.D. Ark. Apr. 6 and 18, 2017), are unreported and attached as Appendices B and C. Excerpts from the transcripts of the district court proceeding, in which the court articulated the reasons for its decision, are also attached hereto as Appendix D. JURISDICTION The judgment of the Eighth Circuit Court of Appeals affirming the district court’s denial of a preliminary injunction was entered on April 20, 2017. See Appendix A. This Court therefore has jurisdiction under 28 U.S.C. § 1254(1). CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” U.S. Const. amend. XIV § 1. Arkansas Constitution: “In all criminal and penal cases, except in those of treason and impeachment, the Governor shall have power to grant reprieves, commutations of sentence, and pardons, after conviction . . . .” Ark. Const. Art. 6, § 18. -2- STATUTORY PROVISIONS INVOLVED 42 U.S.C. § 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .” 18 Ark. Code Ann. § 16-93-204: (fully set out in Attachment E) “(a)(3) Applications shall be referred to the Parole Board for investigation. (b) The board shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant . . . . (d) (1) Before the board shall consider an application for a pardon or recommend a commutation of sentence, the board shall solicit the written or oral recommendation of the committing court, the prosecuting attorney, and the sheriff of the county from which the person was committed. (2) (A) Before considering an application for a pardon or recommending a commutation of sentence of a person who was convicted of capital murder . . . the board shall notify the victim of the crime or the victim’s next of kin, if he or she files a request for notice with the prosecuting attorney. (B) When the board provides notice under subdivision (d)(2)(A) of this section, the board shall solicit the written or oral recommendations of the victim or the victim’s next of kin regarding the granting of a pardon or commutation of sentence .... (e) At least thirty (30) days before submitting to the Governor a recommendation that an application for . . . commutation of sentence . . . be granted, the board shall: (1) Issue a public notice of its intention to make such a recommendation; and (2) Send notice of its intention to the circuit judge who presided over the applicant’s trial, the prosecuting attorney, and the sheriff of the county in which the applicant was convicted and, if applicable, to the victim or the victim’s next of kin if -3- the victim or the victim’s next of kin registered for notification with the prosecuting attorney under 16-21-106(c).” REGULATIONS INVOLVED Code Ark R. 159.00.1-1.1, 158.00.1-4, 158.00.1-6 (Fully set out in Attachment F) -4- STATEMENT OF THE CASE A. Introduction “Executive clemency has provided the ‘fail safe’ in our criminal justice system . . . . It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Herrera v. Collins, 506 U.S. 390, 413 (1993) (citing K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989)). Arkansas has attempted to further the interest in this “fail safe” by implementing a series of statutory, regulatory, and policy measures designed to safeguard the clemency process, which, at its heart, is designed to allow an “act of grace” that can bestow mercy even on individuals duly convicted and sentenced to death. See id. Recognizing that Arkansas could not possibly meet all of its statutory clemency obligations and still execute eight men in ten days, Respondents made a calculated decision to forego critical statutory and regulatory protections that ensure a fair and orderly clemency process. As a result, the State adopted a procedure that that was literally incapable of resulting in a recommendation that the Governor grant clemency before the Petitioners are executed. The State concedes the reason for short-changing the clemency process is that the controversial drug Midazolam is set to expire at the end of the month. The district court expressed profound concerns about the deviations from law, noting that “it troubles the Court deeply that moving back to the threshold or starting the process . . . in the event of a clemency recommendation, it was -5- impossible from the beginning . . . for the board to comply.”2 The district court went so far as to note that “[t]hat speaks to me of interference and arbitrariness.”3 The Court at various times described the process adopted in this case as “shoddy,” “inadequate,” and “[b]eyond imperfect,” and found “a significant likelihood that the prisoners could prevail on that claim of arbitrariness.”4 The Court stated candidly that he had “struggled long and hard” in reaching a decision.5 Nevertheless, the court “reluctantly” concluded that Petitioners were not entitled to a preliminary injunction because the Board proceedings resulted in “without merit” votes for all but one of the prisoners. According, the the district court, because the thirty-day notice period was not triggered by a positive recommendation, any injury to the prisoners “evaporated.”6 Similarly, the court found with respect to the remaining admitted violations of law and policy that none of the Petitioners had established individualized prejudice, concluding that “the Court doesn’t have of record enough evidence that the imperfections, the deviations from procedure, that it has made any real difference”—for example, affidavits from other stakeholders stating that they would have spoken out if they had received 2 Tr. Vol. III at 423:9-14 (emphasis added). 3 Id. at 423:15. 4 Id. at 418:24-419:6, 422:8-12, 424:18-19. 5 Id. at 424:9-10. 6 Id. at 423:15-17. The district court enjoined the execution of Jason McGehee, the one plaintiff who did receive a “with merit” vote by the Parole Board. -6- adequate notice, or evidence of what any particular prisoner would have done had he had more time for his application or presentation to the Board.7 Thus, “as troubling as the State’s violations of law and deviations from the regulations” were to the district court, it nonetheless held that the minimal due process required by Woodard had been provided.8 In other words, the “shoddy,” “inadequate,” “troubling” “violations of law” and applicable regulations were not enough to grant a preliminary injunction of Petitioners’ executions under Woodard.9 In the nearly twenty years since Woodard was decided, lower courts like the district court here have grappled with what due process means in the context of clemency. While Justice O’Connor’s controlling plurality opinion made clear that some process is required, the guidance as to what the process must be was less than clear. See, e.g., Woodard, 523 U.S. at 1247 (citing only counterfactual examples such as “flipp[ing] a coin to determine whether to grant clemency” or “arbitrarily den[ying] a prisoner any access to [a state’s] clemency process”) (emphasis in original). As a result, courts have varied wildly in interpreting Woodard. As set forth in greater detail below, this very real conflict between (and even within) circuits can have fatal consequences. As the district court put it bluntly in this case, 7 Id. at 424:20-425:5. 8 Id. at 425:17-23. 9 Id. (emphasis added). -7- while “[w]e all have the benefit of the Supreme Court’s decision in Woodard . . . I wish it were clearer.”10 This Court should now clarify that, at an absolute minimum, flagrant, admitted violations of a state’s established clemency processes—including violations rendering any positive recommendation a practical nullity—breach even the “minimal” Due Process Woodard requires. If there were ever a case to articulate such a rule, this is it. The district court found undisputed violations of law, and was “deeply troubled” by the fact that no prisoner here could ever have obtained clemency under the law, unless a court granted the very relief that Petitioners now seek. This clarification will resolve wide conflicts among the circuits, add important context to Justice O’Connor’s opinion in Woodard, and ensure that death row inmates receive the process they are due before they are executed. Finally, even absent this straightforward reason to grant the petition, the Court should also take the petition for the separate reason that the district court’s holdings on standing and prejudice are simply wrong. With respect to standing, it is the black-letter law of this Court that “the right to procedural due process is ‘absolute’ in the sense that it does not depend on the merits of a claimant’s substantive assertions,” and thus standing to assert procedural violations does not depend on the outcome of the proceeding in question. Carey v. Piphus, 435 U.S. 247, 266 (1978) (emphasis added). It is absurd to suggest that a prisoner loses 10 Tr., Vol. III at 409:10. -8- standing to challenge procedural violations once he receives an adverse outcome in the very proceeding that was the subject of numerous admitted violations of law. Similarly, while Petitioners are unaware of case law specifically in the clemency context regarding the prejudice showing—if any—required to obtain injunctive relief, this Court should now clearly hold that no such individualized prejudice is required or, in the alternative, that Petitioners have satisfied any such requirement. A rushed execution schedule that literally forecloses clemency is inherently prejudicial, both in the signal it sends to the Board that any clemency recommendation will be futile and in the wholesale destruction of any possibility of clemency absent a court’s intervention. *** There is no Constitutional right to clemency. There is not even a Constitutional right to any particular procedure in the clemency process. But having adopted detailed procedures designed to safeguard Petitioners’ right to a fair process in ensuring this “fail safe,” the State must follow them. The petition should be granted. B. Proceedings Below 1. Background and Summary of Statutory and Regulatory Framework Petitioners are death-sentenced prisoners in the custody of the State of Arkansas. On February 27, 2017, Arkansas Governor Asa Hutchinson announced that he was scheduling two-a-night executions on each of April 17, 20, 24, and 27, -9- 2017. No state has ever executed so many people in so short a period of time since the death penalty was reinstated in 1976. Arkansas differs from many states because it imposes specific, detailed restrictions on its Parole Board by statute and regulation. Arkansas law provides that “[a]pplications [for clemency] shall be referred to the Parole Board for investigation.” The “board shall thereupon investigate each case and shall submit to the Governor its recommendation, a report of the investigation, and all other information the board may have regarding the applicant.” Ark. Code Ann. § 16-93204(a)(3), (b). The statute further provides that “[b]efore the board shall consider an application for a pardon or recommend a commutation of sentence, the board shall solicit the written or oral recommendation of the committing court, the prosecuting attorney, and the sheriff of the county from which the person was committed,” and that “[b]efore considering an application for a pardon or recommending a commutation of sentence of a person who was convicted of capital murder . . . the board shall notify the victim of the crime or the victim’s next of kin, if he or she files a request for notice with the prosecuting attorney,” including “solicit[ing] the written or oral recommendations of the victim or the victim’s next of kin regarding the granting of a pardon or commutation of sentence.” Ark. Code Ann. § 16-93204(d)(1)-(2). Importantly, the statute also requires at least thirty days’ public notice before a positive recommendation of clemency can be sent to the Governor for -10- consideration. Ark. Code Ann. § 16-93-204(e). By law, then, no positive clemency recommendation can be sent to, and considered by, the Governor until 30 days after notice of the anticipated recommendation is provided by the Board pursuant to statute and stakeholders are allowed to provide feedback. Recommendations against clemency are not bound by the same notice requirements. Arkansas has also adopted a detailed set of regulations that govern the clemency process and that constrain the Board. See generally Ark. Admin. Code 159.00.1-1.1. Briefly, section 4.1 of Ark. Admin. Code 158.00.1-4 defines clemency as “kindness, mercy, forgiveness and leniency.” Section 4.5 then provides, in relevant part: In addition to any other requirements, the Executive Clemency Coordinator will solicit the written or oral recommendations from the sentencing court, the prosecuting attorney, and the sheriff of the county from which the person was committed. If the inmate is serving a sentence for capital murder . . . copies of the application will be filed with the Secretary of State, the Attorney General, the Sheriff of the county in which the offense was committed, the Prosecuting Attorney of the judicial district in which the applicant was found guilty and sentenced and the Circuit Judge who presided over the proceedings at which the applicant was found guilty and sentenced or his/her successor. Ark. Admin. Code 158.00.1-4.5 (emphasis added). Section 4.8 of the Code further provides in relevant part that, “at least 30 days prior to the execution date, the Board, with a quorum of members present, must conduct a hearing with the inmate who has submitted an executive clemency request,” a provision clearly designed to protect the applicant’s right to actually have any positive clemency recommendation -11- considered by the Governor before his execution. Section 4.8 also requires that the clemency application deadline be set by counting back “40 days from the scheduled date of execution, with the day preceding the scheduled date of execution being counted as day 1. If the 40th day is a Saturday, Sunday, or holiday, an application filed on the next business day will be accepted.” Id. (emphasis added). Incorporated into the regulations is “Attachment 2” setting out “Policies and Procedures for Executive Clemency Application by Persons Sentenced to Death.” Ark. Admin. Code 158.00.1-6. Attachment 2 reiterates that a clemency application must be filed no later than 40 days before the scheduled execution date, that the Board must interview the inmate and conduct the clemency hearing at least 30 days prior to the execution date, and that each prisoner will have up to two hours to present testimony from the prisoner himself, counsel, and/or witnesses at the hearing. Id. The Board can “make an exception to these policies and procedures” (but not the statute—and Petitioners argue not the regulations) “in the interests of justice.” Id. 2. Procedural History and Findings Below On March 28, 2017, Petitioners filed a Complaint (hereinafter “Compl.”) under 42 U.S.C. § 1983 and simultaneously filed a motion for preliminary injunction asserting, inter alia, that arbitrary violation of the process adopted by the State violates due process. Case No. 4:17-cv-00194-DPM, Dkt. Nos. 2-3 (E.D. Ark. Mar. 28, 2017). -12- The two-day evidentiary hearing established the following:  Petitioners filed applications for clemency on the timetable imposed by the State. Tr. R. 223.  The Board provided less than 40 days from the execution date for clemency applications to be filed. This reduction in time “cost some of the prisoners approximately three days of time to get the clemency applications together.” Tr. R. 421.  Each clemency hearing was scheduled fewer than thirty days before the prisoner’s scheduled execution date, preventing the Board from submitting a recommendation that clemency be granted to the Governor before the execution dates. See Tr. R. 60-61; 63-64; 413; 420.  The Board trimmed in half the time for hearings to one hour. Tr. R. 420-21. While Respondents testified that they would have allowed Petitioners to go over the one-hour limit, Respondents did not inform Petitioners or their counsel of that fact. See, e.g., Tr. R. at 110-111.  The Board held back-to-back clemency hearings and deliberations for four of the original Plaintiffs. Tr. R. at 108.  Respondents deviated from the notice provisions required by statute upon receipt of a clemency application. See, e.g., Tr. R. at 418-420.  The Board found all but one of the clemency applications to be “without merit.” Jason McGehee received a “with merit” vote. Tr. R. 308. -13- After a two-day evidentiary hearing, the district court ruled from the bench that, except for McGehee, the motion for preliminary injunction would be denied. The court reasoned that, with respect to McGehee, it was impossible for the board to comply with the 30-day post-recommendation notice period because “[t]his is an instance where the expedited schedule that the State has adopted has interfered with the clemency process and effectively prevented the board from complying with the law.” Tr. R. at 413-414. The court added that “the law requires that the Governor have the benefit of comments from the public and all of what have been called stakeholders, including interested members of the public, those involved in the judicial process that resulted in a death sentence for Mr. McGehee, others who have an opinion, and Mr. McGehee himself.” Id. at 414. With respect to the other prisoners, however, the court concluded that, while “deeply” troubled by Respondents’ admitted “violations of law” and regulations, none could establish the standing or prejudice required to show a violation of due process. Id. at 423, 425. First, with respect to the thirty-day notice period, the other Petitioners’ standing had “evaporated” once the Board failed to issue a positive recommendation, and thus never triggered the thirty-day period. Second, with respect to the other admitted violations, none of the other Petitioners had established prejudice in the form of evidence of what specific stakeholders might have said or what additional material Petitioners might have presented to the Board. See, e.g., id. at 423, 424-425. The court concluded that the other prisoners -14- had ultimately received notice and the right to be heard, which the court determined is all that Woodard requires. See, e.g., id. at 409. While denying the motion for preliminary injunction with respect to all movants except McGehee, the court left the proceedings open for Petitioners to present further evidence of prejudice (or other reasons to revisit the motion for preliminary injunction). On April 14, 2017, Petitioner Marcel Williams filed an amended motion for preliminary injunction, setting forth extensive additional evidence that he would have presented at his clemency hearing had it proceeded on the normal schedule and with the normal time provided by law. Case No. 4:17-cv00194-DPM, Dkt. No. 41 (E.D. Ark. April 14, 2017). The district court denied that motion on April 18, 2017. Id., Dkt. No. 44 (E.D. Ark. Apr. 18, 2017). On April 19, 2017, Petitioner Ledell Lee filed a motion for reconsideration in the district court, setting forth additional evidence of prejudice. Id. Dkt. No. 49 (E.D. Ark. Apr. 19, 2017). That motion was also denied. Id. Dkt. No. 56 (E.D. Ark. Apr. 20, 2017). On April 18, 2017, Petitioners appealed the district court’s decisions to the Eighth Circuit Court of Appeals. On April 20, 2017, shortly before 6 p.m. the Eighth Circuit summarily affirmed the district court’s orders finding that “despite the procedural shortcomings in the clemency process” the inmates received the “minimal due process guaranteed by the Fourteenth Amendment.” Appendix A at 5. The Eighth Circuit found that the district court did not abuse its discretion by finding that the inmates lacked standing to challenge the functional impossibility of -15- a clemency grant once the Board voted not to recommend clemency. Appendix A at 6. REASONS FOR GRANTING THE PETITION I. Certiorari Should be Granted to Provide Needed Direction to the Lower Courts. Justice O’Connor’s conclusion in Woodard that some minimal due process right attaches to the clemency process has left the lower courts bewildered and led to disparate interpretations the due process right. For example, even on the threshold issue of whether a state must comply with its own laws in administering the clemency process, circuits have come to fundamentally different conclusions. Compare, e.g., Young v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000) (“The Constitution of the United States does not require that a state have a clemency procedure, but, in our view, it does require that, if such a procedure is created, the state’s own officials refrain from frustrating it . . . .”) (finding Due Process violation where State threatened to fire a witness who wished to provide the Governor with information in favor of clemency); Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (noting that, “if the state actively interferes with a prisoner’s access to the very system that it has itself established for considering clemency petitions, due process is violated”) (emphasis added); Duvall v. Keating, 162 F.3d 1058, 1061 (10th Cir. 1998) (noting that “the minimal application of the Due Process Clause only ensures a death row prisoner that he or she will receive the clemency procedures explicitly set forth by state law, and that the procedure followed in rendering the clemency decision will not be wholly arbitrary, capricious -16- or based upon whim, for example, flipping a coin”) (emphasis added); Tamayo v. Perry, 553 Fed. Appx. 395 (5th Cir. 2014) (“We conclude that [Tamayo] has failed to show a substantial likelihood that he could demonstrate the Board violated its policies . . . .”) (emphasis added) with, e.g., Gissendaner v. Commissioner, Georgia Dept. of Corrections, 794 F.3d 1327, 1333 (11th Cir. 2015) (rejecting approach taken by Eighth Circuit in Young and Noel and holding that that framework “cannot be squared with what Justice O’Connor’s opinion actually says”) (citing Winfield v. Steele, 755 F.3d 629, 631–32 (8th Cir. 2014) (en banc) (Gruender, J., concurring) (arguing for the overruling of Young itself on the ground that it misinterpreted Woodard and “runs counter to the weight of authority from other courts”). More fundamentally, courts have struggled even to decide whether Justice O’Connor’s opinion extends beyond the exact two examples she provided—flipping a coin or complete denial of access to the clemency process. See, e.g., Tr. R. at 427; Faulder v. Texas Bd. of Pardons & Paroles, 178 F.3d 343, 344 (5th Cir. 1999) (“Faulder’s clemency procedures exhibited neither of these extreme situations.”); Wellons v. Commissioner, Ga. Dept. of Corrections, 754 F.3d 1268, 1268 (11th Cir. 2014) (holding that even exact scenario found by Eighth Circuit to violate Due Process in Young—the State’s preventing an employee from providing a statement in favor of clemency on threat of termination—failed to establish likelihood of success on Due Process claim).11 11 See also, e.g., Bivens v. Forrest County, Civil Action No. 2:13–CV–8–KS–MTP, 2015 WL 1457529, at *12 (S.D. Miss. Mar. 30, 2015) (holding that “the Fourteenth Amendment is only -17- Assuming that Justice O’Connor’s opinion was not limited to the two literal scenarios she describes, the question remains: what is the “minimal” process that must be afforded with respect to an application for clemency? It is especially important that the Court consider this question where, as here, the lower courts have been left with virtually no guidance as to how the Due Process Clause applies in clemency, or even whether a violation of law itself is actionable under these circumstances. This type of case is particularly ripe for review by the Court. See, e.g., Daniels v. Williams, 474 U.S. 327, 330 (1986).Clarifying the murky analytical framework left by Woodard will not only benefit the lower courts, but may very well allow inmates to have fair access to the clemency process before they are executed. It is therefore especially important for the Court to resolve the circuit split regarding this issue. If the Court ever should seek a case in which to clarify the due process standard laid out in Woodard, this is it. Petitioners literally could not have obtained clemency under Arkansas state law—effectively a complete denial of “any access to the clemency process.” Woodard, 523 U.S. at 1247 (emphasis in original). The district court concluded this impossibility smacked of “interference and arbitrariness.” It is difficult to imagine a simpler or more straightforward vehicle in which to consider whether a state is required to comply with its own statutes and regulations that govern the clemency process. implicated where an inmate is arbitrarily denied access to the clemency process, or the clemency decision itself is made arbitrarily”). -18- In addition to the reasons set forth above, the Court should also hear this case because the lower courts’ decision is clearly wrong as to what constitutes a violation of Due Process in this context. In Woodard, Justice O’Connor—while not directly stating that due process requires compliance with applicable law in clemency—devoted extensive attention to the State’s compliance with its own procedures. After walking through a detailed summary of the procedures that were in place, including that “the parole board must schedule a clemency hearing 45 days before an execution,” “for a date approximately 21 days in advance of the execution,” and must also “advise the prisoner that he is entitled to a prehearing interview with one or more parole board members,” Woodard, 523 U.S. at 289, Justice O’Connor then noted that “the Ohio Adult Parole Authority complied with those instructions here.” Id. (emphasis added); see also id. at 288 (“The question this case raises is the issue of what process is constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures.”) (emphasis added).12 Thus, while not an express holding that compliance with law is required, it would certainly be a strange reading of Justice O’Connor’s opinion to conclude that failure to comply with the applicable statutes and regulations does not give rise to a due process issue at all, as the district court held in this case and as other circuits 12 Justice O’Connor drew no distinction between statutory provisions and regulatory or rulesbased provisions. See, e.g., id. (referring generally to the “Ohio Death Penalty Clemency Procedure”). However, since, here, the state has admittedly violated the fundamental thirtyday notice requirement set forth in its own statute—precluding any grant of clemency at all under these circumstances— as well as failing to provide statutorily required notices to stakeholders who may have changed the outcome of Petitioners’ clemency proceedings, the Court need not resolve this issue in order to grant the petition. -19- have also found. See, e.g., Tr. R. at 425 (finding that even admitted “violations of law” did not support injunctive relief under Woodard); Gissendaner, 794 F.3d at 1333 (rejecting this argument based on “the great run of Supreme Court decisions refusing to transform violations of state law into federal due process claims”). On the other hand, as set forth above, several courts in the Eighth, Tenth, and other circuits have found that a state must comply with state law to satisfy Due Process in this context. The Court should intervene and hold unambiguously that, at an absolute minimum, compliance with a state’s own express statutory and regulatory requirements safeguarding the clemency process is necessary to provide “minimal” due process articulated by Justice O’Connor—including, if nothing else, at least a theoretical chance of actually getting clemency before being executed. Indeed, even outside of the clemency-specific cases discussed above, numerous other courts have held more generally that, “[w]here a prescribed procedure is intended to protect the interests of a party before the agency, ‘even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.’” Sameena, Inc. v. U.S. Air Force, 147 F.3d 1148, 1153 (9th Cir. 1998). In short, while Arkansas need not have adopted detailed clemency procedures in the first place, having done so, it must follow them. To do otherwise “may result in a -20- violation of an individual’s constitutional right to due process.” Sameena, 147 F.3d at 1153.13 Finally, the district court below incorrectly determined that no due process violation had occurred simply because Petitioners had received some notice and opportunity to be heard. That finding is certainly debatable—since no applicant here could ever have secured clemency absent a court’s intervention—but it is also irrelevant. As set forth above, regardless of whether the process Arkansas followed might have passed Constitutional muster in the abstract, the State’s failure to comply with its most basic statutory and regulatory requirements violates due process. See, e.g., Woodard, 523 U.S. at 289; see also, e.g., Young, 218 F.3d at 853; Duvall, 162 F.3d at 1061. 13 While the Eighth Circuit’s decision in Young appears to be the only case finding a Due Process violation based on the State’s interference with its own established clemency process, Petitioners are also unaware of any case finding the absence of a Due Process violation where a state does violate its procedures. In any event, both Woodard itself and numerous lower court decisions such as those set forth above support a ruling that a state must, at minimum, give applicants a fighting chance to obtain clemency under the procedures codified in state law. -21- II. The District Court Fundamentally Misapplied Governing Law on Standing and Prejudice. A. Standing Does Not Turn on the Result of the Very Process That Has Been Compromised. Even if a violation of state law did not itself raise constitutional concerns sufficient to grant the injunction here, granting the petition is imperative because the district court fundamentally misconstrued governing Supreme Court law on standing and prejudice. As set forth above, the district court first found that none of the prisoners (except McGehee) had standing to allege a Constitutional violation based on the State’s failure to comply with its own 30-day statutory notice period, because standing “evaporated” once the Board voted against recommending clemency. This turns the Due Process inquiry on its head. The right to procedural due process is not dependent on the outcome of the proceeding in question, especially where the proceeding itself has been infected by numerous violations. All that is needed for Article III standing is a finding that each plaintiff: “[(1)] suffered . . . an invasion of a legally protected interest which is (a) concrete and particularized . . . and (b) actual or imminent, not conjectural or hypothetical . . . [(2)] there must be a causal connection between the injury and the conduct complained of . . . [and (3)] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). -22- This showing of concrete harm (whether actual or imminent) is separate and independent from the substantive result of the underlying proceeding. Indeed, it is hornbook law that the right to procedural due process is “absolute” and not contingent on whether the person asserting a due process claim prevailed—or even would prevail upon rehearing—in the underlying substantive proceeding. See, e.g., Carey, 435 U.S. at 266 (“[T]he right to procedural due process is ‘absolute’ in the sense that it does not depend on the merits of a claimant’s substantive assertions.”) and because of the importance to organized society that procedural due process be observed,” the plaintiffs’ claim remained viable even if their substantive allegations would ultimately have failed on the merits) (emphasis added). Numerous lower courts have held the same. See, e.g., Wessel v. City of Albuquerque, 299 F.3d 1186, 1193 (10th Cir. 2002) (holding that “the loss of a procedural right ‘is itself an injury’ sufficient to provide standing ‘without any requirement of a showing of further injury.”); Catron County Bd. of Comm’rs, v. U.S. Fish & Wildlife Service, 75 F.3d 1429, 1433 (10th Cir. 1996) (“That the Secretary may ultimately make the same decision and designate critical habitat within the same geographical parameters is immaterial; the County’s alleged injury results from Secretarial failure substantively to consider the environmental ramifications of its actions in accordance with NEPA.”); Vietnam Veterans of America v. C.I.A., 288 F.R.D. 192, 210 (N.D. Cal. 2012) (“Because both Blazinski and Josephs applied for benefits, they have standing to pursue this claim [for -23- failure to provide a fair hearing], regardless of whether or not they will ultimately receive more benefits as a result of this action.”). Moreover, Justice O’Connor’s opinion in Woodard itself confirms that the right to due process in clemency is not dependent on a positive recommendation. In that case, the applicant there had not even “request[ed] an interview” with the Parole Board, much less obtained a favorable outcome. See Woodard, 523 U.S. at 277, 289; see also, e.g., Baze, 302 S.W.3d at 59 (“The supposed constitutional violation has already been completed and does not depend on the actual filing of a clemency petition.”). If standing to assert a due process violation depended on first securing a positive recommendation from the Board, then Justice O’Connor’s entire analysis would have been surplusage—or, at minimum, the Court would first have had to remand to determine whether the Board intended to recommend clemency. But even if Petitioners could lose standing to assert a procedural due process claim—and they cannot—the undisputed facts show they were injured by Respondents’ actions and retain a live claim that can be redressed by an injunction. Each Petitioner suffered concrete harm as soon as Respondents put in place a schedule that precluded clemency, dooming their chances before they began. Indeed, even McGehee, the sole prisoner whose execution the district court ultimately stayed, would have been executed before a recommendation was transmitted to the Governor, had the district court not granted the very relief that Petitioners now seek. -24- In short, it is not hard to understand why all of the Petitioners suffered concrete harm, even though the thirty-day notice period was not triggered for them. First, the schedule imposed by Respondents signaled to the Board that any positive recommendation of clemency would be futile, predetermining the outcome. Second, this framework denied Petitioners any practical access to the clemency process in the first place, which, as set forth in greater detail above, constitutes a violation of due process even under the extreme hypotheticals advanced by Justice O’Connor. See Woodard, 523 U.S. at 289 (citing as an example denial of “any access” to the clemency process) (emphasis in original). Put another way, granting nominal access to a clemency procedure is not very useful when no one can actually obtain the desired relief. Simply put, it defies logic to suggest that the State can defeat a due process claim merely by ensuring a negative outcome in the underlying proceeding, which was the subject of those very violations. That the Board here reached its foreordained result in all but one case hardly shows that the process it followed satisfied due process—precisely the opposite is true. Petitioners have thus easily met the requirements for Article III standing.14 B. 14 Individualized Prejudice Is Not Required When a State Effectively Abrogates an Entire Statutory and Regulatory Scheme, But, Even If It Were Required, Petitioners Have Easily Shown Prejudice Sufficient to Obtain Injunctive Relief. Taken to its logical extreme, applying the district court’s reasoning would preclude a due process claim based on the failure to provide a fair trial once the prisoner lost at trial, or based on an unfair grand jury process once an indictment was issued. That cannot be right. -25- As set forth above, except for the thirty-day notice period,15 the district court largely denied Petitioners’ motion for preliminary injunction on the ground that they had failed to establish individualized prejudice. In other words, because Petitioners had failed to adduce evidence of what a particular stakeholder would have said had he or she received the statutorily required notice, or what each Petitioner would have said or done differently had he received the time allotted by the governing statutory, regulatory, and policy framework, even the State’s “troubling” violations of its own law did not establish the right to a preliminary injunction here. The court again misapprehended the governing law. Similar to the standing analysis discussed above, the right to procedural due process does not always depend on a showing that the outcome of the proceeding would have been different. Rather, as this Court and numerous circuit courts have held in other contexts, prejudice may be presumed where the entire process is infected to the point that the applicants could not obtain a fair result. See, e.g., Ballard v. United States, 329 U.S. 187, (1946) (in context of tainted jury pool, “reversible error does not depend on a showing of prejudice in an individual case”); Lee v. Rios, 360 F. App’x 625, 630–31 (6th Cir. 2010) (“Regardless of the probability that a third commissioner deciding the issue at the same time would come to a different conclusion, the Commission’s 15 As set forth above, Petitioners have indisputably established a Constitutional violation based on the State’s breach of the thirty-day notice provision as long as they have standing to assert the claim, which they do. The district court expressly found prejudice from this violation, as discussed below. -26- procedural violation is not made harmless simply because [Petitioner] appears to have . . . little chance of success . . . . To hold otherwise, and to recognize substantial evidence as a defense to non-compliance . . . would afford the Commissioner the ability to violate the regulation with impunity . . . .”). Again, Woodard itself is instructive. There, the applicant had not even requested an interview from the Parole Board, much less shown what he would have done differently had he received additional time or other protections. Woodard, 523 U.S. at 289. Nevertheless, Justice O’Connor analyzed the procedural safeguards afforded by the state entirely independent of whether the prisoner would have prevailed (or whether he would even have done anything differently) had he secured additional process. See id. Similarly, in the limited circuit court decisions addressing due process violations where a state violated its own statutory and regulatory scheme, courts have considered what other evidence an applicant might have submitted but none has adopted the prejudice standard the district court appeared to rely on here. See, e.g., Young, 218 F.3d at 852-53 (while briefly discussing substance of affidavit that state employee intended to introduce, court never so much as mentioned “prejudice,” much less based ruling on whether additional evidence would have changed the outcome; court held that due process forbade state from “frustrating” its clemency process).16 16 Certain lower court decisions have required some showing of prejudice to establish a procedural due process violation in very different contexts, such as immigration regulatory proceedings. See, e.g., Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007) (“To be entitled to relief based on an alleged due process violation, a petitioner under the immigration laws must show prejudice. In this context, prejudice means a showing that the outcome of the -27- There are numerous other reasons why individualized prejudice should not be required. First, courts have generally not required a showing of prejudice where “an agency promulgates a regulation protecting fundamental statutory or constitutional rights of parties appearing before it.” Leslie v. Attorney General, 611 F.3d 171, 180 (3d Cir. 2010). There is no dispute the State of Arkansas has adopted statutory and regulatory provisions protecting the fundamental due process rights of an applicant in the clemency process. See, e.g., Woodard, 523 U.S. at 288 (“A prisoner under a death sentence remains a living person and consequently has an interest in his life. The question this case raises is the issue of what process is proceeding may well have been different had there not been any procedural irregularities.”) (internal quotation marks and citations omitted); Zamudio-Pena v. Holder, 333 Fed. Appx. 165, 167 (9th Cir. May 20, 2009). The purpose of these requirements is of course to avoid constant procedural challenges based on nominal or trivial violations—a far cry from the pervasive, substantial abrogration of its own statutory scheme that Arkansas carried out here, precluding Petitioners from even knowing what further evidence they might have been able to develop, much less show what key witnesses might have said had the State satisfied its own procedures. In any event, it makes no sense to import an impossible requirement that applicants show how any error affected or potentially affected the clemency decision, which is inherently subjective, unknowable, and largely based on emotional and human considerations. See, e.g., Woodard, 523 U.S. at 280-81 (noting that “the heart of executive clemency” is “to grant clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehended by earlier judicial proceedings and sentencing determinations) (emphasis added). Not surprisingly, then, neither Woodard itself nor any lower court clemency decision of which Petitioners are aware had previously required a showing of what specific additional information an applicant would have garnered to potentially affect the outcome of the proceeding, which would essentially vitiate the Due Process requirements recognized by Justice O’Connor in Woodard. See, e.g., id. at 288 (analyzing State’s compliance with its own laws, with no reference to prejudice or how further process might have affected the outcome, where applicant had not even sought an interview); Young, 218 F.3d at 853. Bringing in a prejudice requirement—which could virtually never be met—from very different procedural settings is especially disturbing when Petitioners here face imminent execution after failing to receive the fair clemency process promised by law, a fundamental interest in life and liberty that far outweighs any minor burden on the State in offering rehearings that comply with its own statute and regulations. -28- constitutionally necessary to protect that interest in the context of Ohio’s clemency procedures.”) (emphasis added). Second, even if the right to due process in clemency were not a fundamental statutory or constitutional right, courts have recognized that, “where an entire procedural framework, designed to insure the fair processing of an action affecting an individual is created but then not followed by an agency, it can be deemed prejudicial.” United States v. Morgan, 193 F.3d 252, 267 (4th Cir. 1999). As set forth above, the State in this case effectively tossed its entire set of codified clemency procedures, upon which applicants should be entitled to rely, “out the window” in order to meet the Governor’s arbitrary timeline, vitiating any need to show individualized prejudice. See generally id. But even if individualized prejudice were required, and even if Petitioners had actually been afforded any adequate chance to show it, they still have easily satisfied that burden. The district court has already found the State’s violation of the thirty-day notice period to be prejudicial, enjoining one execution and finding that this error substantially harmed all Petitioners. Similarly, the other established statutory violation—the State’s failure to send out the required notices to various stakeholders—prejudiced Petitioners by depriving them of the opportunity to receive support from influential figures such as prosecutors, the presiding judges, and, potentially, the victims or victims’ families. This is among the most powerful evidence that an applicant can submit in support of clemency. -29- The Board’s failure to comply with the applicable law—most of which violations the district court determined were not cloaked in the “interests of justice” exception—likewise prejudiced Petitioners. Limiting the time available to submit a clemency application in the first instance by up to 25% for some prisoners, particularly in conjunction with a compressed timeframe that sharply diminished counsel’s ability even to communicate with their clients about clemency, made it extremely difficult to prepare an effective clemency application and presentation. Similarly, as set forth above, reducing the hearing time from two hours to one dramatically reduced the potential scope of each presentation, by definition foreclosing some avenues that Petitioners and counsel could otherwise have pursued. The district court has already found most of these errors to have been “arbitrary” and unsupported by any provision of state law, regulatory provision, or policy. These types of harms readily establish individualized prejudice, even if any such showing were required here. CONCLUSION Respondents scheduled eight executions over the span of ten days with less than two months’ notice from the dates the death warrants were issued. The sole reason for this rush is the imminent expiration of a single controversial execution drug that, while the State asserts is difficult to procure, is admittedly not impossible to obtain or even the only way to carry out these executions in the very near future. The convenience of rushing these executions before this batch of drugs -30- goes bad has come at the expense of Petitioners’ statutory, regulatory, and fundamental Constitutional rights. It violates the interests of justice and should not be permitted. Wherefore, Petitioners respectfully pray that this Court stay their respective executions and grant the petition for certiorari or, at minimum, remand for further proceedings either in the district court or the court of appeals. This the 20th day of April, 2017. -31- Respe mitted, Julie Pitt Ar Bar 2008285 Julie_Vandiver@fd. or g Assistant Federal Public Defenders 1401 W. Capitol Ave., Ste 490 Little Rock, AR7220I (ror) 824-6114 (sot) 824'bGBo (fax) Counsel for Marcel Williams Jeff Rosenzweig AR Bar No. 77115 jrosenzweig@att.net 300 Spring St., Ste. 310 Little Rock, AH7220I (ror) B7z'5247 Counsel for Stacey Johnson and Kenneth Williams Lee Short Short Law Firm AR Bar No. 2010136 leedshort@gmail.com 426 W . Broadway St. A North Little Rock, AR72LL4 (sor) 766'2207 Counsel for Ledell Lee COUNSEL FOR PETITIONERS -32- No. 16' IN THE SUPREME COURT OF THE UNITED STATES October Term, 2016 LEDELL LEE, STACEY JOHNSON, MARCELL WILLIAMS, and KENNETH WILLIAMS Petitioners, 'v- ASA HUTCHINSON, in his official capacity as Governor of Arkansasi WENDY KELLEY, in her official capacity as Director of the Arkansas Department of Correction; JOHN FELTS, JOHN BELKEN, ANDY SHOCK, DAWNE BENAFIELD VANDIVER, JERRY RILEY, ABRAHAM CARPENTER, JR., and LONA H. McCASTI"AIN, all in their official capacities as Members, Respondents THIS IS A CAPITAL CASE ** EXECUTIONS SCHEDULED FOR APRIL 20,24, AND 27,20T7 ** CERTIFICATE OF SERVICE This is to certifii that I have served a copy of the fore by electronic mail on counSel for Respondent at the This the -th document this day ss. day of April, 20L7. J -JJ- Vandiver