Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes opinions issued on June 23 and 24, 2022 (Part I).
Opinion: Nance v. Ward, 21-439
Nance v. Ward, 21-439. In a 5-4 decision, the Court held that a state prisoner who identifies an alternative method of execution not presently authorized by state law may challenge the state’s method of execution under 42 U.S.C. §1983 rather than a habeas action. Michael Nance was convicted of murder and sentenced to death. He unsuccessfully challenged his conviction and sentence on direct appeal, in state collateral proceedings, and in federal habeas. Nance then sued under §1983 to enjoin Georgia from using lethal injection to carry out his death sentence. Lethal injection is the only method of execution Georgia law authorizes, but Nance alleges that it would create a substantial risk of severe pain in violation of the Eighth Amendment because his veins are “severely compromised” and likely to “blow” during the execution, and his longtime prescription drug use creates a risk that the sedative used in the lethal injection protocol will fail to render him unconscious. Nance proposes death by firing squad as a “readily available alternative” to lethal injection because it will lead to a “swift and virtually painless” death and has been adopted by other states. The district court dismissed Nance’s claim as untimely, but the Eleventh Circuit rejected his claim on the ground that it should have been brought in a habeas petition rather than a §1983 suit because preventing the use of lethal injection would necessarily imply the invalidity of Nance’s sentence since Georgia law does not authorize firing squads. Construing the complaint as a habeas action, the court dismissed it as “second or successive” and therefore barred. In an opinion by Justice Kagan, the Court reversed and remanded.
A death row inmate may challenge a state’s planned method of execution as “cruel and unusual” under the Eighth Amendment by (1) establishing that the method presents a substantial risk of severe pain beyond death itself, and (2) identifying an alternative method that is “feasible, readily implemented, and in fact significantly reduces the risk of harm involved.” The Court’s precedents exclude from §1983 those actions that lie “within the core of habeas corpus.” Under Nelson v. Campbell, 541 U.S. 637 (2004), and Hill v. McDonough, 547 U.S. 573 (2006), a claim should go to habeas only if the desired relief “would necessarily prevent the State from carrying out its execution.” The plaintiffs in those cases challenged only the lethal injection protocol, and were therefore cognizable under §1983. Both cases reserved the question whether the result would be different when a state does not authorize the alternative method of execution. Here, Georgia would need to change its death penalty statute to carry out Nance’s execution by means of a firing squad.
The Court concluded nonetheless that Nance is not challenging the death sentence itself; he is “providing the State with a veritable blueprint for carrying the death sentence out.” Therefore, the requested relief does not “necessarily” prevent the state from carrying out its execution. “That remains true, we hold today, even if the alternative route necessitates a change in state law.” Amending a statute “may require some more time and effort than changing an agency protocol” as in Nelson and Hill, but such delay does not “necessarily” foreclose the state from implementing the death sentence. Indeed, observed the Court, Georgia and other states have changed their execution methods in the past. The contrary conclusion could only be reached by treating Georgia’s statute as immutable. Yet “[o]ne of the main aims of §1983 is to override―and thus compel change of―state laws when necessary to vindicate federal constitutional rights. . . . Or said otherwise, the ordinary and expected outcome of many a meritorious §1983 suit is to declare unenforceable (whether on its face or as applied) a state statute as currently written.” If that were not so, then whether a claim must be brought under §1983 or the habeas statute would depend on the “vagaries” of state law such as whether a state authorizes multiple methods of execution, and what sort of collateral relief individual states allow. The Court cautioned that its decision does not countenance “last-minute” claims to stay execution or other dilatory or manipulative litigation tactics.
Justice Barrett dissented, joined by Justices Thomas, Alito, and Gorsuch. In their view, Nance’s claim must be brought as a habeas petition because the defendants whom Nance sued―the commissioner of the Georgia Department of Corrections and the warden―will be powerless to carry out his sentence if he is successful. Justice Barrett opined that the majority “is looking too far down the road” by stating that Georgia can amend its statute if it wants to execute Nance, and that “the consequence of the relief that a prisoner seeks depends on state law as it currently exists.” In Nelson and Hill, the specific procedures at issue were not required by law, and the states could carry out the executions by lethal injection using modified protocols. When a challenge would prevent a state from enforcing a conviction or sentence, the “more rigorous, federalism-protective requirements of habeas apply.” What the Court called “vagaries” of state law, Justice Barrett called “an unremarkable consequence of federalism.”