According to the case law of the Supreme Court in the eighth amendment, death row inmates have the burden of identifying alternative methods of execution that will significantly reduce the risk of pain. And Bucklew v. Precythe (2019) believed that prisoners can request a “well-established protocol authorized” – even if these protocol methods are not authorized under state law. Today, several states authorize the firing squad as a method of execution. And everyone agrees that the risk of pain from a firing squad is far less than the risk of pain from lethal injection. In addition, a firing squad is far easier to establish than the elaborate lethal injection protocols.
In the wake of Bucklew, imagine that Congress passes the following law: all states that allow the death penalty are required to use the firing squad as an alternative method of execution. Would this federal law be constitutional? In my view, such a law violates New York v. The United States. More specifically, this federal law commands state legislators to pass specific legislation, and commands state leaders to sign that legislation into law. Such a law would not be a “proper” exercise of federal power because it invades the sovereignty of the state. (New York, as well as Printz, are necessary and correct clauses; the tenth amendment is only indirectly involved.)
That hypothesis brings us to Nance v. Ward. A death row inmate in Georgia wanted to be executed by the firing squad. Georgia law allows the lethal injection, but does not allow the firing squad. In fact, in order to accommodate the prisoner’s request, the state legislature would have to adopt a new statute, which the governor would have to sign. Thereafter, the state administrative bodies must adopt regulations to implement the law. The Eleventh Circuit, in the opinion of Chief Justice William Pryor, believed that the prisoner could not use the 1983 section to achieve this goal. In fact, Pryor specifically invoked New York v. U.S.:
If we sanction Nance’s decision to continue under section 1983 by refusing to take state law into account, we must effectively interpret Nance’s complaint as a request for an injunction ordering the state to either pass new legislation or deviate from the death sentence. By doing so, we invite a collision with more than the habeas statutes. Cf. New York v. USA (1992).
Justice Barrett, in her only major dissent this past term, reiterated Pryor’s claims.
The court finds a way around these claims with a theory that is contrary to the very federalism interests they are designed to protect: that an injunction that prevents the state from enforcing a judgment under state law does not actually prevent the state from enforcing the punishment because the state can adopt a new law. In contrast to the court, I will take the state legislation as we find it to determine whether a case is in habeas or §1983.
Nevertheless, the majority accepted the prisoner’s demands. Justice Kagan’s majority opinion reads section 1983 – adopted over 150 years ago – as if it reflected the hypothetical statute I described above.
She easily assumes that the George legislature can approve the firing squad:
Nance’s requested relief still places his execution under Georgia’s control. Provided that it wishes to carry out the death sentence, the State may adopt legislation approving what a court has found to be a fairly simple method of execution. To be sure, changing a statute may require a little more time and effort than changing an agency protocol, of the type involved in Nelson and Hill.
The Berger v. NC State Conference of the NAACP identifies some of the conflicts that arise when the executive branch and the legislative branch of a state are not on the same page.
What authority does Kagan cite to support this proposal?
The Court of Appeal held that “there is no [a federal court] place to deal with appeals under section 1983” that would compel a state to amend its death penalty law.981 F. 3d, at. 1211; see post, at 3. Except that sometimes it is. One of the “main objectives” of section 1983 is to “override” – and thus force to amend – state laws when necessary to justify federal constitutional rights. Monroe v. Pape, 365 U. S. 167, 173 (1961); see Zinermon v. Burch, 494 U. S. 113, 124 (1990).
Did Monroe really say that section 1983 empowers courts to “entertain complaints under section 1983 ‘that would force a state to change its death penalty law”? Here is the relevant passage from Justice Douglas’ majority opinion:
The legislation – especially the section we are now concerned with – had several purposes. Many thoughts go through the debates. One who reads them in full, sees that this section had three main objectives. First, of course, it can override certain types of state laws. Mr. Sloss of Alabama, in opposition, spoke of this object, emphasizing that it was irrelevant because there were no such laws: The purpose of this section is not very clear, since its spokesmen on this floor do not claim that any state has enacted laws that endanger the rights or privileges of people of color. ‘
The word “override” simply referred to pre-emption. This means that the Ku Klux Klan law will override conflicting state laws – whether they are enshrined in statutes, state constitutional law or common law. Zinermon, as Kagan also quotes, makes this point:
In Monroe, this court rejected the view that section 1983 only applies to violations of constitutional rights authorized by state law, and does not apply to the abuse of state authority that is prohibited under state statutes or the constitution or is liability under state common law. .
Kagan’s expansion – “thus forcing change” – finds no direct support in Monroe. Justice Kagan is usually very careful with precedent, but her quote by Monroe here is resolved. The whole idea is really about this single passage, which lacks support.
The next Kagan comes with a related point: after a defeat in section 1983, the state may have to rewrite a law.
Or to put it another way, the ordinary and expected result of many deserved §1983 lawsuits is to declare unenforceable (either face to face or as applied) a statute as it is written. See e.g. Cedar Point Nursery v. Hassid, 594 U. S. ___ (2021). And in turn, the unsurprising effect of such a ruling could be to send state legislators back to the drawing board. See e.g. Kolender v. Lawson, 461 U. S. 352, 358 (1983).
(Some still sting from Cedar Point.) But choosing to rewrite a law is different from saying that 1983 “forces” the legislature to take preventive action. Here, if Georgia does nothing, section 1983 will be understood to prohibit it from carrying out any executions. The state is stuck between a rock and a Kagan site.
For the reasons Judge Pryor identified, Kagan’s reading of the 1983 section would encounter the anti-commander principle. Because the text does not command – or even suggest – that result, the statute should not be read to “force” such a result. The majority opinion in Nance is wrong. Alas, Chief Roberts and Justitiarius Kavanaugh joined forces with Kagan-tre, forming a 5-4 majority.
The last part of Nance is still a John Roberts special: rule for the prisoner who can not take advantage of the rule.
Finally, all § 1983 actions must be brought within a state’s limitation period for personal injury cases. See Wallace v. Kato, 549 U. S. 384, 387 (2007). Here, the district court found Nance’s lawsuit prematurely during that limitation period. See No. 20 – cv – 00107 (ND Ga., March 13, 2020), ECF Doc. 26, p. 12; supra, at 4. The Eleventh Circuit did not consider this stock because it instead reconstructed the action as a habeas petition. Now that we have ruled that the reconstruction is unjustified, the custody court can address the issue of topicality, as well as any others that remain.
This type of sling if the boss’s trademark. In fact, many Section 1983 suits of this type will be obsolete. If ever the price of a fifth.
