Lead Opinion
It is by now clear in capital cases that a plaintiff seeking to challenge a state’s method of execution under the Eighth Amendment of the United States Constitution must plausibly plead, and ultimately prove, that there is an alternative method of execution that is feasible, readily implemented, and in fact significantly reduces the substantial risk of pain posed by the state’s planned method of execution. Appellant Anthony Boyd, an Alabama death row inmate, appeals the district court’s dismissal of his federal civil rights lawsuit challenging the constitutionality of Ala
The district court determined that Boyd had failed to state a claim under the Eighth Amendment because Boyd’s proposed alternative methods of execution— firing squad and hanging—are not authorized methods of execution under Alabama law and, therefore, are neither feasible nor readily implementable by that state. It further held that Boyd’s remaining claims challenging Alabama’s execution protocol, the execution facilities, and the state’s decision to keep certain information about the protocol secret were time-barred by the statute of limitations. Finally, the district court ruled that amending these claims would be futile and dismissed Boyd’s complaint.
We agree with the district court that Boyd has not come close to pleading sufficient facts to render it plausible that hanging and firing squad are feasible, readily implemented methods of execution for Alabama that would significantly reduce a substantial risk of severe pain. The Alabama legislature is free to choose any method of execution that it deems appropriate, subject only to the constraints of the United States Constitution. But Boyd has not alleged that either lethal injection in all forms or death by electrocution poses an unconstitutional risk of pain. Having authorized two unchallenged methods of execution, Alabama is under no constitutional obligation to experiment with execution by hanging or firing squad. We also agree that Boyd’s remaining claims were filed well beyond the two-year statute of limitations governing § 1988 claims in Alabama. Accordingly, we affirm.
I.
A.
The facts of the kidnapping and murder that Boyd committed have been laid out by the Alabama Court of Criminal Appeals. See Boyd v. State,
B.
When Boyd was sentenced to death in 1995, Alabama executed inmates by electrocution. See McNair v. Allen,
The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. See Brooks v. Warden,
C.
Boyd’s present suit is one of several challenges brought by Alabama death row inmates pursuant to 42 U.S.C. § 1983 in the Middle District of Alabama, alleging that Alabama’s current lethal injection protocol is unconstitutional. On October 2, 2014, less than a month after the ADOC substituted midazolam for pentobarbital as the first drug in the lethal injection protocol, Boyd brought suit in that court and, in December 2014, filed an amended complaint that alleged the following facts. Boyd asserts that the ADOC’s switch from pentobarbital to midazolam renders it substantially more likely that he will suffer unnecessarily during the execution. Unlike pentobarbital, Boyd says, midazolam is “wholly unsuitable as the first drug in a three-drug lethal injection protocol because it will not render [him] unconscious, numb, and insensate from the administration of the painful second and third drugs, roeuronium bromide and potassium chloride.” Boyd also contends that the ADOC’s manner of determining whether inmates are rendered insensate to pain by the first drug—the “pinch test”—is “wholly ineffective” because, even if an inmate cannot feel a pinch, he may be able to feel the far more painful sensations caused by asphyxiation.
Boyd further alleges that the ADOC has kept important information concerning its lethal injection protocol secret, which prevents inmates from seeking effective judicial review of the ADOC’s protocol. He says that the ADOC does not ensure that the lethal injection personnel are sufficiently trained to administer anesthesia during the execution, and that the execution team “is wholly unprepared and inadequately trained as to constitutional execution procedures.” Finally, Boyd alleges that the ADOC’s execution facilities are deficient because the ADOC may not have the equipment necessary to achieve and maintain venous access in the event of a complication, and the physical condition of the execution facilities is “highly questionable.”
The amended complaint asserted seven claims for relief: (I) Alabama’s method of execution is cruel and unusual in violation of the Eighth Amendment because midazo-lam will not render him sufficiently insensate to the pain caused by the second and third drugs in the protocol; (II) Alabama’s execution squad personnel are inadequately trained and, therefore, there is a substantial risk that they will err during Boyd’s execution and cause him unnecessary pain and suffering, in violation of his Eighth Amendment rights; (III) Alabama’s execution facility is deficient, creating a substantial risk of maladministration of Boyd’s execution in violation of his Eighth Amendment rights; (IV) the Alabama Department of Corrections (“ADOC”) has adopted and revised processes and procedures for carrying out executions in secret, thus preventing Boyd from effectively being able to comment on the new proce
D.
The defendants moved to dismiss Boyd’s amended complaint for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(6). In March 2015, the district court entered orders staying Boyd’s suit, as well as the six other § 1983 lethal injection cases pending before it, until after the Supreme Court issued its decision in Glossip v. Gross, — U.S. -,
On June 29, 2015, the Supreme Court decided Glossip, holding that, in order to successfully challenge a method of execution, a plaintiff must plead and prove: (1) that the proposed execution method presents a risk that is “ ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers,’ ” Glossip,
Following the Supreme Court’s decision in Glossip, the defendants renewed their motion to dismiss Boyd’s amended complaint. During briefing on the renewed motion, Boyd sought leave to file a second amended complaint. The proposed amen-dation makes all of the same factual allegations contained in the first amended complaint, and includes additional allegations concerning Alabama’s execution team and potential alternative methods of execution that are available to Alabama. Regarding the execution team, Boyd claims that a member of the team was hospitalized in July 2015, and that in August 2015, two officers on the execution team abruptly quit the execution team. He also proposes two alternatives to Alabama’s current lethal injection protocol: execution by firing squad or hanging. Boyd alleges that the legislatures in both Utah and Oklahoma have approved the firing squad as a method of execution, and that there are no impediments to Alabama obtaining the necessary materials for performing an execution by firing squad. Furthermore, firing squad executions have a good track record of “speed and certainty for the condemned.” Moreover, Boyd says, in the alternative, Alabama could execute him by hanging, which has been approved by state legislatures as an available method of execution in Delaware, New Hampshire, and Washington, and which poses a lesser risk of pain than he faces under Alabama’s current protocol. He alleges that, like these other states, the Alabama legislature is “fully capable of’ approving either firing squad or hanging as a method of execution. Notably, Boyd did not propose an alternative drug cocktail that the state could use in his execution.
The court further determined that amending the remaining six claims also would be futile because the claims, even as amended, were barred by the statute of limitations. Relying on this Court’s controlling precedent in McNair v. Allen,
The district court similarly determined that Count IV, the due process challenge to the secrecy of Alabama’s lethal injection protocol, accrued when the legislature changed the method of execution in 2002 because the secrecy policy has remained unchanged since then. Moreover, the court said, Count IV also failed to state a due process claim under our decision in Wellons v. Comm’r, Ga. Dep’t of Corr.,
This timely appeal followed.
II.
We review a district court’s grant of a motion to dismiss with prejudice
A complaint need not contain “detailed factual allegations,” but must include enough facts “to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly,
We generally review a district court’s decision to deny leave to amend for abuse of discretion, but review de novo an order denjdng leave to amend on the grounds of futility, because it is a conclusion of law that an amended complaint would necessarily fail. Hollywood Mobile Estates Ltd, v. Seminole Tribe of Fla.,
III.
We proceed in two parts. First, we address Boyd’s Eighth Amendment method-of-execution claim asserted in Count I, challenging the state’s new midazolam protocol. Then, we address whether Boyd’s remaining claims are time-barred or otherwise fail as a matter of law. Like the district court, we analyze the allegations in Boyd’s proposed Second Amended Complaint because, if those allegations are insufficient as a matter of law, then so are the less thorough allegations contained in the operative Amended Complaint.
A.
1.
For state prisoners, “[fjederal law opens two main avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28 U.S.C. § 2254, and a complaint under the Civil Rights
In two cases, the Supreme Court has permitted inmates to bring method-of-execution challenges brought pursuant to § 1983. See Nelson v. Campbell,
2.
The Eighth Amendment to the United States Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The prohibition against cruel and unusual punishments
The Supreme Court’s decisions in cases challenging methods of execution have been “animated in part by the recognition that because it is settled that capital punishment is constitutional, ‘it necessarily follows that there must be a constitutional means of carrying it out.’ ” Id (alterations adopted) (quoting Baze,
As we’ve explained, in Count I, Boyd is challenging only a single aspect of the ADOC’s current execution protocol. His sole claim is that the ADOC’s switch from pentobarbital to midazolam as the first of three drugs has rendered the ADOC’s protocol likely to cause a “demonstrated risk of severe pain,” Glossip,
The first question we confront, then, is whether—taking Boyd’s allegations as true—he has pled sufficient factual matter to make it plausible that the firing squad and hanging are known and available methods of execution that are feasible for use in and can be readily implemented by Alabama. Until recently, precedent provided little guidance in answering this question because, each time this Court or the Supreme Court had considered a method-of-execution challenge to a lethal injection protocol, the plaintiffs proposed alternative methods of lethal injection. Thus, for example, in Baze, the
In Arthur v. Comm’r, Ala. Dep’t of Corr.,
The concurring opinion agrees that we are bound by Arthur, but believes that case was incorrectly decided. We disagree for these reasons.
Glossip’s second prong requires that a proposed alternative method of execution be “known and available”'—or, as the Court also puts it, “feasible[ and] readily implemented.” See Glossip,
Often, courts are confronted only with factual issues in addressing whether an alternative is sufficiently feasible and readily implementable to satisfy Glossip’s second prong—for instance, that is generally the case when a plaintiff challenges a state’s lethal injection protocol and proposes some modification to that protocol as an alternative. Thus, in Glossip, the plaintiffs had alleged that Oklahoma could use a single-drug lethal injection protocol instead of its intended three-drug protocol, and the only question the Supreme Court asked was whether, as a matter of fact, Oklahoma could obtain the necessary alternative drugs. See id. at 2738. But Boyd has injected a distinct legal question into our analysis of this element (along with factual ones) by proposing an alternative method of execution that, under present conditions, appears unavailable to the ADOC under the state’s method of execution statute. Considering the legal obstacles that would prevent the ADOC from carrying out Boyd’s execution by hanging or firing squad, as well as the many factual deficiencies in Boyd’s pleading, we have little trouble concluding that Boyd has failed to state an Eighth Amendment claim.
For starters, neither hanging nor firing squad is a currently lawful method of execution in Alabama. Therefore, a state trial court would be without any authority to order Boyd to be executed by firing squad or hanging, just as the ADOC would be without authority to execute Boyd by either method, without the Alabama legislature fundamentally rewriting the state’s method-of-execution statute or one of the courts named in the statute striking down as unconstitutional either electrocution or lethal injection. See Arthur,
Boyd alleges, however, that, since the Oklahoma and Utah legislatures have approved death by firing squad and the Delaware, New Hampshire, and Washington legislatures have approved death by hanging, the Alabama legislature could easily do the same. But Boyd “misunderstands the state’s obligation under the Eighth Amendment.” Id. States that continue to have capital punishment may choose any method of execution they deem appropriate, subject only to the constraints of the United States Constitution. Id. Boyd argues that under the district court’s reading of the law a state could effectively negate the protections of the Eighth Amendment simply by enacting a method-of-execution statute that provides for only a single method of execution— even if that method “creates a demonstrated risk of severe pain,” Glossip,
As we explained in Arthur, in considering whether Boyd’s proposed alternatives are “feasible” and “readily implemented,” it is also important to note that hanging and firing squad are vastly different methods of execution from electrocution and lethal injection—the only methods of execution that Alabama has employed in the past ninety years. See id. Hanging was an available method of execution in Alabama until 1927, when the legislature passed a statute providing electrocution as the sole method of execution. See Bachelor v.
Moreover, while it is technically true that a handful of states have authorized executions by hanging and firing squad, lethal injection is still the primary method of execution in each of those states, as it is in every state that allows for capital punishment. Delaware law provides that “[plunishment of death shall, in all cases, be inflicted by [lethal injection].” Del. Code. tit. 11, § 4209(f). Only if lethal injection “is held unconstitutional by a court of competent jurisdiction” does the statute allow for execution “by hanging by the neck.” Id. Similarly, New Hampshire law provides that an inmate must be executed by lethal injection, and may only be executed by hanging “if for any reason the commissioner [of corrections] finds it to be impractical to carry out the punishment of death by [lethal injection].” N.H. Rev. Stat. § 630:5(XIV). Washington law also provides that executions “shall be inflicted by [lethal injection] ... or, at the election of the defendant, by hanging by the neck.” Wash. Rev. Code § 10.95.180(1).
Utah law provides that “lethal injection ■is the method of execution” for all defendants “sentenced to death on or after May 3, 2004,” Utah Code § 77-18-5.5(1), but allows for execution by firing squad if “a court holds that a defendant has a right to be executed by firing squad,” M. § 77-18-5.5(2), “a court holds that lethal injection is unconstitutional on its face” or “as applied,” kk § 77-18-5.5(3), or “the sentencing court determines the state is unable to lawfully obtain the substance or substances necessary to conduct an execution by lethal intravenous injection,” id. § 77-18-5.5(4). And Oklahoma law provides for firing squad as the quaternary option for carrying out an execution, making it available only after execution by lethal injection, nitrogen hypoxia, and electrocution are all declared unconstitutional. See Okla. Stat. tit. 22, § 1014. Thus, none of these states provide for hanging or firing squad as a primary method of execution, and they generally only make either of those methods available if certain contingencies are satisfied. And, indeed, Boyd’s complaint does not so much as allege that any of these states have actually used hanging or firing squad to carry out executions. Boyd has given us no indication of how often these methods are actually used, nor has he told us when the last time anyone was hung or shot by an American jurisdiction. This sits in stark contrast to the numerous executions by lethal injection that are carried out across the country each year. The fact that a few other states could theoretically carry out an execution by hanging or firing squad without violating their own laws tells us nothing about whether the methods are, in fact, readily implementable for use in actual executions in Alabama today.
The Supreme Court has recognized that-requiring a state to amend its method-of-execution statute or to authorize a variance from that statute “impos[es] significant costs on the State and the administration of its penal system.” Nelson,
B.
We now turn to Boyd’s remaining claims. All constitutional claims brought under § 1983 are tort actions and, thus, are subject to the statute of limitations governing personal injury actions in the state where the § 1983 action has been brought. See Wallace v. Kato,
In McNair v. Allen, we addressed when a method of execution challenge under § 1983 accrues. Applying the general principle that “a federal claim accrues when the prospective plaintiff knows or has reason to know of the injury which is the basis of the action,” we considered four possible dates on which a method-of-execution claim could accrue: (1) the date the defendant’s death sentence became final; (2) the date that Alabama enacted its new lethal injection protocol; (3) the date the denial of the defendant’s federal habeas
We held that a method of execution claim will ordinarily accrue on the “date on which a litigant’s death sentence becomes final following direct appeal” for the following reasons:
First, by requiring a defendant to wait to bring a claim after direct review is complete (as opposed, say, to when the sentence is first imposed), we ensure claims are not brought prematurely, before state courts have had an adequate opportunity to correct any infirmities in the defendant’s conviction or sentence. Second, by requiring a claim to be brought within two years of the completion of state review, we guarantee defendants’ constitutional challenges to the method of their execution can be fully adjudicated and at the same time protect states from unnecessary interference in carrying out their judgments. Finally, selecting the completion of direct appeal as the moment a § 1983 claim accrues has the added benefit of mirroring the time at which a defendant’s habeas limitations period begins to run, see 28 U.S.C. § 2244(d)(1)(A), thereby simplifying the postconviction labyrinth of filing deadlines through which capital litigants must navigate.
Id. at 1176-77. However, if there is a “significant change in the state’s execution protocol” after the inmate’s death sentence becomes final on direct appeal, the inmate has a new Eighth Amendment claim that accrues on the date of that significant change. Id. at 1177.
Thus, it is now well established that “a method of execution claim accrues on the later of the date on which state review is complete, or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.” Id. at 1174; see also, e.g., Gissendaner,
Boyd’s conviction became final in 1998, when the United States Supreme Court denied certiorari review of his state direct appeal. See Boyd,
In Count II, Boyd alleges that the ADOC’s lethal injection protocol subjects him to a substantial risk of serious harm in violation of the Eighth Amendment because the officers who will carry out his execution are inadequately trained to establish an appropriate “plane of anesthesia” throughout the lethal injection process. In Count III, Boyd alleges that the ADOC’s execution facilities have deteriorated and that the ADOC lacks certain necessary equipment, and that these deficiencies create a substantial risk that his execution will not be carried out properly in violation of the Eighth Amendment. Boyd readily concedes that Counts II and III are unrelated to the adoption of the new midazolam protocol, but argues that they are timely anyway because they relate to the present training of the execution team and the current condition of the ADOC’s facilities, each of which has substantially changed within two-years prior to filing his complaint. We remain unpersuaded.
In support of Count II, Boyd makes several allegations about seemingly longstanding facets of the ADOC lethal injection protocol. For example, he alleges that the ADOC’s protocol is unconstitutional because the ADOC fails to “adequately ensure that the individuals responsible for inducing and maintaining unconsciousness are credentialed, licensed and proficient in the knowledge, skills, and procedures necessary to establish an appropriate plane of anesthesia throughout the lethal injection process.” He makes no claim that the ADOC has recently altered its training and credentialing requirements for members of its execution team. Similarly, he alleges generally that the ADOC doesn’t have any guidelines in place for the execution team to rely on in exercising its discretion dim-ing the execution process, but does not say that this is the result of any change to the ADOC’s lethal injection practices that have been in place since 2002. Because these allegations relate to aspects of (or deficiencies in) the ADOC’s lethal injection protocol that have been in place since July 2002, Boyd’s claim that they violate the Eighth Amendment is time barred.
Boyd also alleges that recent changes in the composition of the ADOC’s execution team render it unprepared to perform his execution. Boyd says that, over the course of three years, the execution team lost three members and has not performed enough training exercises. Even taking these allegations as true and drawing all reasonable inferences therefrom, we do not think that Boyd has said enough to plead a “significant change” in the ADOC’s execution protocol. Indeed, apart from the alleged fact that the ADOC does not adequately train its execution team—which, as we just explained, is time-barred from
In support of Count III, Boyd again offers general allegations about the conditions of the ADOC’s execution facilities and the dearth of necessary equipment, as well as more specific claims about recent changes in the conditions of the facilities and equipment. Thus, for example, he alleges that the ADOC has not demonstrated that it has the equipment necessary to achieve and maintain venous access in the event of a complication during his execution. This, again, is a general allegation that is not related to any change in the ADOC’s protocol, facilities, or equipment and, therefore, is time-barred from challenge. Boyd also alleges that, “[s]hortly before” the new midazolam protocol was announced, “reports indicate[d]” that the ADOC’s execution chamber was in poor condition and had suffered water damage, and that the equipment in the chamber was moved out of place and may have been damaged. But, apart from the conclusory allegation that these conditions are “insufficient for performing a constitutional execution,” Boyd provides no allegations to support the inference that water damage to the execution chamber or possible damage to certain unspecified equipment renders it substantially more likely that his execution will be unnecessarily painful. Because Boyd became subject to death by lethal injection in the William C. Holman execution chamber when the legislature amended the method of execution in July 2002, see Ala. Code § 15-18-82, and has not provided sufficient factual allegations to show that there has been a constitutionally significant change to the quality of those facilities since that time, we find Count III to be .time barred as well.
In Count IV, Boyd alleges that the ADOC’s secrecy surrounding its lethal injection protocol violates his right to due process of law because it deprives him of the information necessary to effectively enforce his Eighth Amendment rights in court. He also alleges that the ADOC’s ability to amend the protocol without affording him and other death row inmates notice and an opportunity to challenge the proposed amendments violates due process. As we see it, Boyd’s secrecy claim is time-barred because the ADOC’s protocol has been protected by the same secrecy since the Alabama legislature enacted lethal injection as its method of execution on July 31, 2002.
In Count V, Boyd alleges that there is a substantial risk that the ADOC execution team will treat him differently from other inmates by failing to perform a “pinch test” on him during his execution, which will make it more likely that he will be conscious when he is injected with the painful second and third drugs in the protocol and will deny him equal protection of the laws under the Fourteenth Amendment. We find this claim to be time-barred as well. Boyd does not allege that the pinch test is a new component of the lethal injection protocol, nor does he contend that some recent change to the protocol has rendered the consciousness test less reliable. While he says that the state failed to perform a pinch test on Eddie Powell prior to injecting him with the second and third drugs in the protocol, Powell’s execution was in 2011, more than two years before Boyd filed his complaint. See Arthur v. Thomas,
Even so, Boyd argues that his equal protection claim is timely because he is challenging an “ongoing circumstance” that constitutes a “continuing violation” of his right to equal protection of the laws, and that his cause of action will not accrue until the alleged unlawful conduct ceases. However, this Court has already rejected that argument in McNair, where we recognized that a method-of-execution challenge is seeking prospective relief against a future injury,
While Boyd’s case was pending on appeal, the Supreme Court decided Hurst v. Florida, — U.S. ——,
Moreover, Boyd’s Hurst claim plainly falls within the province of habeas corpus and cannot be brought pursuant to § 1983. Habeas and § 1983 are “mutually exclusive” avenues for relief; if a claim can be raised in a federal habeas petition, “§ 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements.” Nelson v. Campbell,
The long and short of it is Boyd’s proposed second amended complaint falls well, short of plausibly pleading an alternative method of execution that is feasible, readily implemented, and in fact significantly less risky or painful than ADOC’s current three-drug midazolam protocol and, therefore, fails to state a claim for an Eighth Amendment violation regarding the new protocol. The remainder of Boyd’s claims are untimely as they were filed well beyond the two-year statute of limitations that govern § 1983 claims in Alabama. Accordingly, we affirm- the district court’s determination that granting Boyd leave to amend his complaint would be futile, and affirm its dismissal of Boyd’s suit.
AFFIRMED.
Notes
. Generally, "[w]ords are to be understood in their ordinary, everyday meanings.” Alberts v. Royal Caribbean Cruises, Ltd.,
. It is also not clear that Boyd's proposed second amended complaint contained sufficient factual allegations to establish that the ADOC could readily carry out an execution by hanging. See Iqbal,
And there is good reason to think that Boyd could not plead sufficient facts to show that hanging " significantly reduces a substantial risk of severe pain.’ ” Glossip,
Although hanging has become something of an art in modern times, and may well be painless if properly performed, evidence of bungled hangings abounds: inadvertent decapitation when victims are dropped too long; strangulation when they are dropped too short to break their necks. Strangulation may be the rule rather than the exception. Unconsciousness is supposedly instantaneous even when the neck is not broken, but it is not entirely certain that this is true. If the victim is conscious, death by strangulation must be extremely painful.
Id. at 120 (footnotes omitted); see also Campbell v. Wood,
There is absolutely no question that every hanging involves a risk that the prisoner will not die immediately, but will instead strangle or asphyxiate to death. This process, which may take several minutes, is extremely painful. Not only does the prisoner experience the pain felt by any strangulation victim, but he does so while dangling at the end of a rope, after a severe trauma*872 has been inflicted on his neck and spine. Although such a slow and painful death will occur in only a comparatively small percentage of cases, every single hanging involves a significant risk that it will occur.
Id. at 712. ‘'[D]raw[ing] on [our] judicial experience and common sense,” Iqbal,
. The parties do not point to any rule or regulation that requires that the ADOC keep its lethal injection protocol confidential. The “secrecy” Boyd seeks to challenge stems from the fact that, under the July 31, 2002 method-of-execution statute, the ADOC’s execution protocols are exempt from the notice and comment requirements of the Alabama Administrative Procedure Act in exercising that authority. See Ala. Code. § 15-18-82.1(g).
. The district court also held that Boyd's secrecy claim fails as a matter of law under our decision in Wellons,
. On appeal, Boyd does not challenge the district court’s dismissal of Counts VI and VII, seeking declaratory and injunctive relief.
Concurrence Opinion
concurring in judgment:
Arthur
1. METHOD-OF-EXECUTION CLAIM
The Majority affirms the dismissal of Boyd’s method-of-execution claim based on the finding that Boyd has not sufficiently alleged an execution alternative. Boyd proposes death by firing squad as an execution alternative, but the Majority correctly determines that, under Arthur, § 15-18-82.1 of the Alabama Code precludes Boyd from relying on the firing squad as an alternative.
As I discussed in my Arthur dissent, I do not believe that § 15-18-82.1 precludes claimants like Boyd from relying on death by firing squad. Arthur,
A. Arthur was wrongly decided.
In concluding that § 15-18-82.1 forecloses method-of-execution claims that rely on death by firing squad as an execution alternative, our decision in Arthur promulgated a startling holding: that state legislation can thwart constitutional claims for relief from cruel and unusual punishment. See id. at 1327-28. In my view, that holding is deeply flawed and Arthur was wrongly decided. But rather than revisit why I believe the holding is flawed, I defer to my Arthur dissent and limit my discussion to developments subsequent to Arthur that further lament the holding. In the short time since Arthur was decided, two Supreme Court justices have expressed reservations about the holding; a court of appeals judge has penned a concurrence that highlights the tension between the holding and the Eighth Amendment; a district court judge has disagreed with the holding; and at least one circuit court has departed from the holding, creating a circuit split.
Justice Sotomayor, joined by Justice Breyer, dissented to the denial of certiora-ri in Arthur, and in the dissent, the Justices voiced serious concerns about this court’s holding in the case. Our decision in Arthur, the Justices found, “contradicts the very decisions it purports to follow— Baze and Glossip”;
Shortly after certiorari was denied in Arthur, Judge Stranch of the Sixth Circuit Court of Appeals cited Justice Sotomayor and Justice Breyer’s dissent in a concurrence that calls attention to the tension between our holding in Arthur and the Eighth Amendment. See In re Ohio Execution Protocol,
Judge Stranch stressed that the Eighth Amendment requires “a continuing dialogue” between courts, legislatures, and the American people “on the meaning of the Amendment’s prohibition on cruel and unusual punishments.” See id. “[T]he meaning of th[e] prohibition is derived from the evolving standards of decency that mark the progress of a maturing society,” and without a continuing dialogue, courts cannot fulfill their duty under the Eighth Amendment to identify, clarify, and enforce those standards. See id. (internal quotation marks omitted).
Pointing to recent developments in our society that bear on the death penalty and evolving standards of decency, Judge Stranch deftly illustrated this point. Judge Stranch noted that countless drug companies in recent years have refused “to sell execution drugs” and that this development may evidence “changing societal attitudes toward the death penalty and a conclusion ... that the business in which drug companies engage, selling drugs that improve health and preserve life, is not consistent with selling drugs that are used to put people to death.” Id. at 846. She also noted that a “2015 survey found that a majority of Americans prefer life without parole over the death penalty for people convicted of murder” and that the survey “matches polling in 2016 finding that public support for the death penalty has dropped below 50%, to its lowest level in 45 years.” Id. at 847. Absent a continuing dialogue among courts, legislatures, and the American people that takes into account these types of developments, our jurisprudence and state-execution practices would inevitably become divorced from evolving standards of decency. See Graham v. Florida,
Following Judge Stranch’s concurrence, Judge Baker of the District Court for the Eastern District of Arkansas issued an order further calling into question our court’s holding in Arthur. In granting a preliminary injunction to halt a series of
Although the Eighth Circuit Court of Appeals, sitting en banc, vacated Judge Baker’s preliminary injunction, it agreed with Judge Baker’s departure from the Arthur holding: “[W]e disagree with the legal standard that the district court applied in determining whether alternative methods of execution are known and available. [However, w]e do not say that an alternative method must be authorized by statute or ready to use immediately....” See McGehee II,
These critiques of our decision in Arthur underscore its serious flaws. I suspect that as time passes the body of jurisprudence casting doubt on Arthur will only continue to grow.
B. Boyd’s allegations are sufficient.
Boyd is entitled to proceed to discovery if his complaint includes allegations sufficient to support a reasonable inference that death by firing squad (1) is “feasible [and] readily implemented” and (2) “significantly reduces a substantial risk of severe pain.” See Glossip,
Boyd alleges:
Both Utah and Oklahoma use or could use the firing squad, which makes it a known alternative. Use of a firing squad based on an existing protocol from one of these states is “available” because there are no impediments to obtaining the required materials, as there may be for lethal injection drugs. [Alabama] h[as] represented that [certain alternative lethal injection drugs] are not “available,” and the same cannot be said for the materials required for a firing squad execution. For instance, Utah’s protocol contemplates five trained shooters, four of whose guns are loaded and the fifth loaded with a non-lethal wax bullet. Both of these other states evaluated and approved the firing squad as a method of execution through the legislative process, as states, including [Alabama] are fully capable of doing. Use of a firing squad, a known and available alternative based on one of these other states’ protocols, would entail a lesser risk of pain than the substantial risk of severe pain Mr. Boyd faces under Alabama’s existing protocol. This is so even though firing squad execution—while more unpleasant to observe than lethal injections, and while described as “barbaric”—are viewed as having a record of relative speed and certainty for the con*881 demned, whose constitutional rights are actually at stake.
If we set aside Arthur, these allegations—viewed through the lens of judicial experience, common sense, and the context surrounding death by firing squad—are sufficient to support a “reasonable inference” that the firing squad satisfies the requirements of Baze and Glossip. See Iqbal,
1. Boyd’s allegations support a reasonable inference that the firing squad is feasible and readily implemented.
The context specific to death by firing squad provides an important backdrop for our analysis of whether Boyd has sufficiently alleged that the firing squad is feasible and readily implemented. See id. at 679,
Considering this context and taking Boyd’s allegations as true, the allegations support a reasonable inference that death by firing squad is “known and available,” which means the allegations support a reasonable inference that the firing squad is feasible and readily implemented. See Baze,
First, the firing squad itself, the possible procedures for administering the firing squad, and the materials and personnel needed to perform the firing squad are clearly “known.” The long history of the firing squad and the straightforward process for implementing the firing squad compel this conclusion.
Second, Boyd’s allegations make plausible his claim that the firing squad is available to Alabama. Boyd alleges that Utah and Oklahoma use or could use the firing squad
2. Boyd’s allegations support a reasonable inference that the firing squad significantly reduces a substantial risk of severe pain.
Boyd extensively alleges that Alabama’s current execution method—lethal injection using midazolam—poses a substantial risk of severe pain, and Alabama does not dispute the sufficiency of those allegations.
Boyd pleads that death by firing squad poses minimal risk of pain because it is a certain, speedy method of execution. Taking into account judicial experience and common sense, that allegation is plausible. The Supreme Court has remarked that “there is some reason to think that [the firing squad] is relatively quick and painless.” See Glossip,
II. DUE PROCESS CLAIM
The Majority also dismisses Boyd’s due process claim, finding that the claim is
Because Boyd’s method-of-execution claim is timely, see id. at 859, so is his due process claim. The same two-year limitations period governs both claims, and the claims accrued at the same time. Boyd argues that the secrecy surrounding Alabama’s execution protocol violates his due process rights because the secrecy denies him a fair opportunity to pursue his method-of-execution claim. Boyd’s due process claim is therefore ancillary to his method-of-execution claim,
Even so, we must dismiss Boyd’s due process claim since it is ancillary to, and thus shares the fate of, his method-of-execution claim.
III. CONCLUSION
Although Arthur compels us to affirm the dismissal of Anthony Boyd’s method-of-execution and due process claims, I continue to believe Arthur was wrongly decided. This case highlights the tension between that decision and the Eighth Amendment. Boyd faces a controversial method of execution—midazolam-based lethal injection—that has resulted in botched and inhumane executions, and he has identified a viable execution alternative. Yet because of Arthur, Boyd cannot even access discovery.
I concur in the result only.
. Arthur v. Comm’r, Ala. Dept. of Corrs.,
. Boyd relies on hanging as another execution alternative, but Arthur forecloses that alternative as well.
. Baze v. Rees,
. Bolstering this allegation, Utah successfully carried out a firing-squad execution as recently as 2010—a fact of which judicial notice can be taken at this stage in the proceedings. See Fed. R. Evid. 201(b), (d).
. Alabama would likely have difficulty challenging Boyd's allegations given that “[s]cience and experience are now revealing that, at least with respect to midazolam-centered protocols, prisoners executed by lethal injection are suffering horrifying deaths....” See Arthur II,
. Moreover, a number of scholars have opined that states should turn to death by firing squad because, among other things, it is a relatively quick and painless method of execution. See, e.g., Deborah W. Denno, The Firing Squad As "A Known and Available Alternative Method of Execution” Post-Glossip, 49 U. Mich. J. L. Reform 749, 792-93 (2016); Alexander Vey, Note, No Clean Hands in A Dirty Business: Firing Squads and the Euphemism of "Evolving Standards of Decency”, 69 Vand. L. Rev. 545, 575-78 (2016); Kristen Loveland, Note, Death and Its Dignities, 91 N.Y.U. L. Rev. 1279, 1313 (2016); P. Thomas Distanislao, III, Note, A Shot in the Dark: Why Virginia Should Adopt the Firing Squad As Its Primary Method of Execution, 49 U. Rich. L. Rev. 779, 805 (2015).
. Citing Wellons v. Commissioner, Georgia Department of Corrections,