Arguments in Nance v. Ward stem from petitioner Michael Nance's attempt to challenge the planned use of lethal injection to execute him. Nance, who claims that his underlying health conditions would make lethal injection especially painful and constitute cruel and unusual punishment, lodged his challenge under Section 1983 of the Civil Rights Act of 1871.
Georgia has argued that since lethal injection is the only statutorily approved method of execution in the state, Nance is really seeking to stop the state from executing him at all, which makes his claim a habeas corpus claim.
And because Nance has already brought a habeas petition challenging his death sentence, he is barred from bringing another by the restrictions on successive habeas petitions, according to Stephen J. Petrany of the Georgia Department of Law, who argued for the state's Department of Corrections.
That apparent Catch-22 seemed to worry some of the justices, including Justice Stephen Breyer, who wondered what would happen if a state changed its method of execution over time.
If a prisoner objected to the new method of execution but had already filed habeas petitions concerning other matters, could the prisoner still challenge that new method? Justice Breyer asked.
No, Petrany admitted.
"You're saying he should file in habeas, and by the way he can't," Justice Breyer pointed out.
Justice Elena Kagan took issue with Georgia's insistence that the method of execution is part of the death sentence, so a challenge to the method constitutes a challenge to the sentence.
"Doesn't Georgia law itself separate the sentence of death from the method of execution?" Justice Kagan asked. She read several of Georgia's statutes aloud to make her point.
"Here you have a statute. It says what it says," she insisted, adding, "So I guess I just don't see what argument you have here."
Petrany responded that the Georgia statute makes clear that execution is understood to include only lethal injection.
So why can't Georgia just change its law, Justice Sonia Sotomayor wondered. Florida recently changed a law concerning a single citizen in a matter of days, she said — presumably referring to Florida's dissolution of the special taxing district for Walt Disney World — and Georgia can act just as expeditiously.
Some states would have to go so far as to rewrite their entire constitutions under those circumstances, Petrany replied.
Justices Samuel Alito and Neil Gorsuch expressed sympathy for that position when questioning Nance's counsel, Jenner & Block LLP partner Matthew S. Hellman.
Nance has posited execution by firing squad as a feasible alternative method of execution, but since execution by firing squad is unauthorized in Georgia, the state argues that it would have to change its law to allow it.
"Here you're putting the state to a choice of either changing its law or being frustrated in its ability to carry out a lawful judgment," Justice Gorsuch told Hellman.
Although Nance is required to prove there is a feasible alternative method, that's not the alternative the state is obligated to use, Hellman responded. Georgia could find a method of lethal injection that is constitutional and so doesn't require changing the law.
"Section 1983 is the cause of action going back for 150 years that you use when you concede the validity of a sentence but ask for an injunction against carrying it out in an unconstitutional way," Hellman said.
Justices Alito and Gorsuch made similar points about requiring a state to change its laws when questioning Masha G. Hansford, an assistant to the solicitor general who argued on behalf of the federal government, which is supporting Nance.
Creating "a dual-track system" for challenging execution methods, with some challenges proceeding under Section 1983 and others under habeas petitions, "would add procedural complexity, creating delay and inviting gamesmanship," Hansford told the justices.
Justice Brett Kavanaugh, meanwhile, sought to apply Georgia's argument to recent high court cases involving religious advisers in the execution chamber.
If those cases had required the state to change its laws, would they have been properly brought under Section 1983 or would they have had to be brought as habeas cases, Justice Kavanaugh asked Petrany.
In that circumstance, there would be no federal district court review available to those prisoners, Petrany admitted.
"You're making Mr. Hellman's point for him," Justice Kagan responded.
As arguments wrapped up, Justice Kavanaugh seemed to give the attorneys a sense of how he and some of the other jurists might be leaning.
If Georgia were to lose the case, would it rather lose on the ground that Nance's claim is a Section 1983 claim or on the ground that it's a habeas claim but isn't barred by the rules against successive claims, Justice Kavanaugh asked Petrany.
The state's preference would depend on how the court ruled, Petrany said, adding, "It's not necessarily the last question you want to get while in front of the court, your honor."
Hellman said in a statement after arguments: "This case is about whether a prisoner can challenge a method of execution as unconstitutionally cruel even when it is the only method that the state has adopted. If the answer is no, the courthouse doors will be closed to many prisoners who simply seek to have their death sentences carried out in a humane and lawful manner."
A representative for the Georgia Department of Law declined to comment.
Nance is represented by Matthew S. Hellman of Jenner & Block LLP.
The Georgia Department of Corrections and its commissioner are represented by Stephen J. Petrany and Clint Christopher Malcolm of the Georgia Department of Law.
The federal government is represented by U.S. Solicitor General Elizabeth B. Prelogar and Assistant to the Solicitor General Masha G. Hansford.
The case is Michael Nance v. Timothy C. Ward, Commissioner of the Georgia Department of Corrections et al., case number 21-439, in the Supreme Court of the United States.
--Editing by Rich Mills.
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