Chad Lennon, Accrual and Unusual? Calibrating the Statute of Limitations on Section 1983 Method-of-execution Challenges

• Publication year: 2012

ACCRUAL AND UNUSUAL? CALIBRATING THE STATUTE OF LIMITATIONS ON SECTION 1983 METHOD-OF- EXECUTION CHALLENGES

ABSTRACT

Death-row prisoners have long challenged the methods by which states intend to execute them. Recently, prisoners have begun to challenge revisions made by states to their execution procedures, arguing the revisions violate the Eighth Amendment ban on cruel and unusual punishment. But reviewing courts—almost without exception—bar these challenges on statute of limitations grounds. Courts rule that the prisoner’s claim accrues shortly after conviction and that the statute of limitations expires shortly thereafter, no matter when the challenged revision was actually made. Method-of-execution challenges are routinely dismissed in this fashion without full consideration of their underlying constitutional merits. This result essentially grants immunity to states and prevents meaningful challenge to revised execution procedures.

This Comment proposes that courts should adopt a broader and more prisoner-friendly statute of limitations in the method-of-execution context. The statute of limitations on method-of-execution claims should reset when a state changes its execution procedure in any way that creates a cognizable claim of cruel and unusual punishment or other constitutional violation. This change is warranted in light of the gravity of the issues at stake and the need to synchronize with related areas of law. It would better serve the purposes motivating statutes of limitations; it would work hand in hand with the equitable doctrine of laches; it would mirror tort law’s discovery rule; it would align with courts’ interpretation of the Antiterrorism and Effective Death Penalty Act; and it would honor the Supreme Court’s “death is different” jurisprudence. For all these reasons, this Comment argues that a broad, flexible, and prisoner-friendly statute of limitations on method-of-execution claims is appropriate and just.

INTRODUCTION 409

1. BACKGROUND 412

   1. Section 1983 Generally & Its Statute of Limitations 413

   2. The Section 1983 Method-of-Execution Accrual Date Framework 413

      1. Cooey v. Strickland: The First Word on Accrual 414

      2. McNair v. Allen: The Eleventh Circuit Follows Suit 417

      3. Powell v. Thomas: The Current Limited-Access Framework 422

2. THESIS & EXAMINATION OF STATUTE-OF-LIMITATIONS PRINCIPLES 424

   1. General Statute-of-Limitations Principles 424

   2. The Laches Backstop 428

3. LESSONS TO BE LEARNED FROM RELATED AREAS OF LAW 429

   1. Tort Law’s Discovery Rule 430

   2. Flexible Application of the AEDPA’s Statute of Limitations 433

   3. The Supreme Court’s “Death is Different” Jurisprudence 437

CONCLUSION 439

INTRODUCTION

Andrew Grant DeYoung was executed in Georgia on July 21, 2011.1 Executions in the State of Georgia occur regularly,2 and while an execution is always noteworthy, DeYoung’s was particularly significant for two reasons.

First, DeYoung’s was only the second execution carried out under a revised Georgia execution procedure using pentobarbital rather than sodium thiopental as the first drug in the so-called three-drug cocktail.3 Second, his execution was the only lethal injection ever videotaped, and the first videotaped execution of any kind in the United States in nearly twenty years.4 While these two reasons may seem distinct, they are inextricably linked.

The videotaping of DeYoung’s execution was ordered in connection with an appeal by another Georgia death-row inmate, Gregory Walker.5 Walker claimed, as part of his case in a Georgia superior court, that the State’s revised execution procedure violated his Eighth Amendment right to be free from cruel and unusual punishment.6 Georgia had recently changed its execution procedure: it substituted pentobarbital for sodium thiopental as the first drug in the three-drug cocktail.7 Walker claimed that pentobarbital, unlike sodium thiopental, would not sufficiently anesthetize him.8 This type of challenge to a revised execution procedure, known as a “method-of-execution” claim, is increasingly common among death-row inmates.9

1. See Rhonda Cook, Georgia’s Death Row; Family Murderer DeYoung Executed, ATLANTA J. CONST., July 22, 2011, at 1B.

2. Georgia has executed more prisoners since 1976 than all but six states in the union. Facts About the

   Death Penalty, DEATH PENALTY INFO. CENTER 1, 3 (Aug. 15, 2012), http://www.deathpenaltyinfo.org/ documents/FactSheet.pdf.

3. Cook, supra note 1.

4. See id. California’s execution of Robert Alton Harris by gas chamber in 1992 is considered the only other videotaped execution. Videotape of a California Execution is Destroyed, N.Y. TIMES, Feb. 13, 1994, § 1, at 35.

5. Cook, supra note 1.

6. Id.; Rhonda Cook & Bill Rankin, Court Allows Execution’s Taping, ATLANTA J. CONST., July 21, 2011, at 2B (describing Walker’s attorney’s argument that the previous execution of Roy Blankenship

   subjected him “to unnecessary pain and suffering”). The Eighth Amendment protects individuals from the infliction of cruel and unusual punishment. U.S. CONST. amend. VIII.

7. See Cook, supra note 1 (describing the recent change from sodium thiopental to pentobarbital).

8. Shannon McCaffrey, Judge OKs Video Recording of Execution; for Use by Inmate in Lethal-Injection Suit; Georgia Man Put to Death for 1993 Slayings of Parents, Sister, CHARLESTON GAZETTE (W. Va.), July 22, 2011, at 3C.

9. See, e.g., Walker v. Epps, 550 F.3d 407 (5th Cir. 2008); McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008); Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007). These challenges often claim the revised execution procedure violates the Eighth Amendment’s prohibition on cruel and unusual punishment. E.g., Walker, 550

   The superior court ordered DeYoung’s execution to be taped so the judge could watch DeYoung’s execution to determine whether the use of pentobarbital caused “the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual”10 and is prohibited by the Eighth Amendment.11

   
   

   One might assume that if the DeYoung tape showed affirmative evidence of harm caused by the revised execution procedure, Walker’s Eighth Amendment challenge would have been successful. However, this Comment shows that under current law, challenges to revised execution procedures are often unsuccessful notwithstanding their underlying merits.

   
   

   This lack of success stems from numerous rulings that bar such challenges on statute-of-limitations grounds.12 Courts have held that the limitations period on method-of-execution claims accrues shortly after conviction,13 expires a short time thereafter,14 and only resets if the state makes a substantial change to its execution procedure.15 Importantly, courts have interpreted substantial

   change very narrowly: only wholesale, transformative changes in the execution procedure will reset the limitations period.16

   
   

   Prisoners who seek to challenge a revised execution procedure are often barred from doing so because courts find the challenged revision is not

   
   

   F.3d at 409; McNair, 515 F.3d at 1171. However, some prisoners have claimed other constitutional violations, including Fourteenth Amendment equal protection and due process. See, e.g., DeYoung v. Owens, 646 F.3d 1319, 1323 (11th Cir. 2011) (equal protection); Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011) (per curiam) (due process), cert. denied, 131 S. Ct. 3018 (2011). This Comment does not take a position on the underlying merits of these claims, under either amendment. For the purpose of clarity, this Comment generally refers to Eighth Amendment cruel and unusual punishment challenges. It should be remembered, however, that this Comment’s position applies to all method-of-execution challenges, whether brought under the Eighth, Fourteenth, or any other Amendment.

10. Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion) (announcing the Eighth Amendment cruel and

    unusual standard in death penalty cases).

11. Id. at 50 (announcing the Eighth Amendment cruel and unusual standard in death penalty cases); Cook

    & Rankin, supra note 6, at 2B.

12. See, e.g., McNair, 515 F.3d at 1174. See generally infra Part I.B (discussing rulings relating to accrual dates).

13. The default rule, absent a change in the execution procedure, is that a method-of-execution claim accrues after a prisoner’s state appeal (as opposed to federal habeas review) is completed. See McNair, 515 F.3d at 1174.

14. The statute of limitations on modern method-of-execution claims is two years. See infra note 35 and accompanying text.

15. See McNair, 515 F.3d at 1174.

16. See, e.g., Powell v. Thomas, 643 F.3d 1300, 1304 (11th Cir. 2011) (per curiam) (stating that change from sodium thiopental to pentobarbital is not a substantial change), cert. denied, 131 S. Ct. 3018 (2011); see also infra Part I.B.3.

    substantial.17 This finding leads to the conclusion that the limitations period has run, sometimes even before the challenged revision occurred.18 This procedural hurdle bars method-of-execution challenges without full consideration of their underlying merits.19 This Comment takes issue with this result and proposes a conceptual shift to avoid that unjust and seemingly absurd outcome.

    
    

    The proposed conceptual shift involves instituting a more flexible and prisoner-friendly statute-of-limitations framework. Specifically, this Comment argues that while the existing accrual framework outlined above—and discussed in more detail below20—is appropriate, courts should expansively

    define substantial change as any change that creates a cognizable claim of cruel and unusual punishment or other constitutional violation.

    
    

    This proposed framework would give prisoners a full and fair hearing on the merits of their method-of-execution challenges and prevent states from repeatedly defeating those challenges on procedural grounds alone. This result is not only just and desirable, but also in line with reasoning from related areas

    of law.21

    
    

    This Comment’s three Parts each lend support to its proposal. Part I presents a brief background of relevant principles and supporting caselaw, including the statutes of limitations on method-of-execution claims and...