Blind Dates: When Should the Statute of Limitations Begin to Run on a Method-of-Execution Challenge?

54 Pages Posted: 22 Sep 2010 Last revised: 2 Apr 2011

See all articles by Ty Alper

Ty Alper

University of California, Berkeley

Date Written: September 21, 2010


When is the right time to object to how you are going to die? For the thousands of men and women on death row in the United States, this question has taken on, in the words of one circuit court, “exceptional importance” – but only recently so. For more than a century, death row inmates have challenged the method by which the state intends to execute them. Only in the past several years, however, have courts begun to dismiss such challenges on statute of limitations grounds. They have done so by deciding a question that, for most courts, has been one of first impression, namely, when does the statute of limitations begin to run on a constitutional violation that has not yet occurred?

Without any real precedent to guide them, and over a number of vigorous dissents, most circuit courts have held that method-of-execution challenges accrue at the completion of the direct appeal process. This means that death row inmates in these jurisdictions must file method of execution challenges years, and sometimes even decades, before an actual execution is scheduled. Even the dissents, however, would tie the accrual date to the inmates’ appeals and post-conviction processes; they would start the statute of limitations running at the completion of federal habeas proceedings.

This Article is the first to take a comprehensive look at the issue of statute of limitations accrual in method-of-execution cases. Specifically, it examines whether either rule – the majority or minority – makes any sense given the nature of method-of-execution challenges and in light of the purpose of statutes of limitation. It concludes that, rather than using the appellate and post-conviction process as a guide to determining when an unrelated challenge to the state’s method of execution should accrue, courts should treat method-of-execution claims as the unique tort claims that they are, and tie accrual to the future constitutional injury that has yet to occur.

The approach this Article proposes would allow death row inmates with meritorious claims to have their days in court. It is also more faithful to the historical purposes of statutes of limitation, more practical to administer, and no less consistent with a desire to preclude dilatory lawsuits.

Keywords: capital punishment, lethal injection, criminal law, criminal defense, method of execution, statute of limitations, accrual dates

Suggested Citation

Alper, Ty, Blind Dates: When Should the Statute of Limitations Begin to Run on a Method-of-Execution Challenge? (September 21, 2010). Duke Law Journal, Vol. 60, 2011. Available at SSRN:

Ty Alper (Contact Author)

University of California, Berkeley ( email )

School of Law
346 North Addition
Berkeley, CA 94720-7200
United States
510-643-7849 (Phone)
510-643-4625 (Fax)


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