Beaty and the Beast: A Prisoner’s Due Process Right to Notice of Changes to Execution Protocols

Abstract

On May 25, 2011, in Beaty v. Brewer, the U.S. Court of Appeals for the Ninth Circuit held that a prisoner’s due process rights do not include the right to notice or to appeal a last-minute change to a state’s method of execution. In doing so, the court established a loophole, permitting states to avoid Eighth Amendment challenges to execution protocols by waiting until the final moment to amend them. This Comment argues that implicit within a prisoner’s right to challenge a state’s method of execution is a due process right to timely notice of changes to that method of execution.