The Unrealized Promise of Section 1983 Method-of-Execution Challenges

Note — Volume 94, Issue 8

94 Va. L. Rev. 1987
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Prior to Hill v. McDonough, federal courts largely viewed method-of-execution challenges as being cognizable only through a petition for habeas corpus. Because federal habeas doctrine involves significant restrictions, such challenges were often difficult, if not impossible, to bring. This was particularly true, for instance, where an inmate had already litigated his first habeas petition and attempted to bring a later habeas corpus execution-protocol challenge: the rules against successive petitions nearly always prevented it, regardless of any newly-revealed factual or legal predicates for the challenge.

But Hill (and a predecessor case, Nelson v. Campbell) changed this framework: inmates could now challenge their method of execution through § 1983. By freeing inmates from many of habeas corpus’s restrictions, this ought to have made a significant difference for litigants.

As is often the case, though, theory and practice can diverge. This Note will show that lower courts seeking procedurally to limit the litigation resulting from Hill often fall back on habeas doctrine, importing aspects of it into these § 1983 suits. Given the very different policies and rules that underlie each of these doctrines, this importation frustrates the promise of Hill’s § 1983 vehicle for method-of-execution challenges. And even where courts do not engage in such importation, they frustrate Hill’s promise in other ways not required by applicable § 1983 doctrine, such as by formulating unduly harsh timing rules or overlooking the applicable standard of review. Thus, to date Hill’s § 1983 vehicle has done little to loosen the method-of-execution challenge vise.

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