New York v. United States and Nance v. Ward
Under the Supreme Court’s Eighth Amendment jurisprudence, death row inmates have the burden to identify alternative methods of execution that would significantly reduce the risk of pain. And Bucklew v. Precythe (2019) held that prisoners may request a “well-established protocol authorized”–even if that protocol methods are not authorized under state law. Today, several states authorize the firing squad as a method of execution. And, all agree that the risk of pain from a firing squad provides a far less than the risk of pain from lethal injection. Moreover, a firing squad is far simpler to establish than the elaborate lethal injection protocols.
In the wake of Bucklew, imagine that Congress enacts the following law: all states that permit the death penalty are required to adopt the firing squad as an alternative method of execution. Would this federal law be constitutional? In my view, such a law runs afoul of New York v. United States. Specifically, this federal law commandeers the state legislatures to enact specific legislation, and commandeers the state executives to sign that legislation into law. Such a law would not be a “proper” exercise of federal power because it intrudes upon state sovereignty. (New York, as well as Printz, are Necessary and Proper Clause cases; the Tenth Amendment is only involved indirectly.)
That hypothetical brings us to Nance v. Ward. A Georgia death row inmate wanted to be executed by firing squad. Georgia law authorizes the lethal injection, but does not permit the firing squad. Indeed, to accommodate the prisoner’s request, the state legislature would have to enact a new statute, which the governor would have to sign. Then, the state administrative agencies would have to adopt regulations to implement the statute. The Eleventh Circuit, in an opinion by Chief Judge William Pryor, held that the prisoner could not use Section 1983 to accomplish that goal. Indeed, Pryor specifically invoked New York v. U.S.:
If we sanction Nance’s decision to proceed under section 1983 by refusing to take the State’s law as fixed, we must effectively interpret Nance’s complaint as a request for an injunction directing the State to either enact new legislation or vacate his death sentence. By doing so, we invite a collision with more than the habeas statute. Cf. New York v. United States (1992).
Justice Barrett, in her only principal dissent this past Term
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