In a 5-4 ruling, the high court said Michael Nance, a death row inmate in Georgia who challenged the state's execution by lethal injection in favor of a firing squad, was right in pursuing the change by filing a suit under Section 1983 of the Civil Rights Act, which allows individuals to sue state agencies over civil rights violations.
Nance argues the lethal injection would create a substantial risk of severe pain and amount to cruel and unusual punishment under the Eighth Amendment.
High court precedent from 2004 in Nelson v. Campbell
already allowed capital prisoners to sue under Section 1983 for an alternative method of execution allowed in their state.In 2019, the Supreme Court ruled in Bucklew v. Precythe
that inmates can ask for an execution method used in other states but never established that they can do so through a civil rights action under Section 1983.Thursday's ruling allows that legal path for inmates requesting alternative execution procedures used in other states.
Lethal injection is the most common method of execution in the 27 states with the death penalty. Fifteen states, including Georgia, only authorize death by lethal injection.
Inmates challenging a method of execution on Eighth Amendment grounds must show that it presents a risk of severe pain and that a feasible alternative exists.
In Thursday's opinion by Justice Elena Kagan and joined by Chief Justice John Roberts and Justices Stephen G. Breyer, Sonia Sotomayor and Brett Kavanaugh, the court said the Eleventh Circuit erred in reading Nance's suit as a habeas corpus petition and dismissing it on procedural grounds.
Nance was convicted of murder and sentenced to death for killing a bystander after a bank robbery. He unsuccessfully challenged his conviction and sentence, first on direct appeal, then in state collateral proceedings, and finally in federal habeas corpus.
He then filed a Section 1983 suit asking to die by a firing squad, claiming that his veins might "blow" during the execution, "leading to the leakage of the lethal injection drug into the surrounding tissue" and causing him "intense pain and burning."
He also said a prescription drug for back pain could interfere with the sedative used during the lethal injection protocol and prevent the sedative from knocking him out, the opinion said.
After the district court dismissed Nance's suit as untimely, the Eleventh Circuit rejected it again, but on a procedural basis. That court said Nance should have brought his claim in a habeas petition.
After reinterpreting Nance's complaint as a habeas claim challenging his death sentence altogether, the court of appeals dismissed it, saying federal law regulating habeas corpus forbids successive petitions and Nance has already filed one.
"The two aspects of the circuit court's ruling, when taken together, turn Bucklew into a sham," Kagan wrote. "The Eleventh Circuit did not review that holding because it instead reconstrued the action as a habeas petition. Now that we have held that reconstruction unjustified, the court on remand can address the timeliness question, as well as any others that remain."
Justice Amy Coney Barrett dissented in an opinion joined by Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, agreeing with the Ninth Circuit that a method-of-execution challenge belongs in a federal habeas application.
If Nance successfully argues his case, Justice Barrett wrote, the state of Georgia "will be powerless to carry out his sentence," because lethal injection is the only method allowed in the state. "That makes habeas the right vehicle for Nance's Eighth Amendment challenge."
Matthew S. Hellman, a partner at Jenner & Block LLP who argued before the high court on behalf of Nance in April, said the ruling means "that the courthouse doors will not be closed" for Nance as he challenges the constitutionality of the lethal dose as it applies to him.
"We're very gratified by the court's decision," Hellman told Law360. "The court vindicated the rights of prisoners to bring civil rights actions to challenge how a state carries out executions, and to ensure that a punishment is not cruel and unusual."
Nance said in his Section 1983 complaint in 2020 and in his high court petition filed in September that a prison medical technician told him in 2019 that the executioners would have to cut through his neck because IV access in his arms was not viable.
He also said that around the same time an anesthesiologist told him his veins were too weak to sustain a lethal injection, and there was a risk that his execution would be torturous.
The district court dismissed Nance's suit, saying he filed it past a two-year statute of limitations. After Nance appealed, the Eleventh Circuit upheld the dismissal, but on a different basis: that he was barred under federal law from filing successive habeas petitions.
Nance's case will now go back to the Eleventh Circuit, which will assess whether or not he brought his claim in time.
Deborah W. Denno, a professor at Fordham University School of Law, told Law360 the ruling gives "breathing room" to death row inmates litigating methods of execution, particularly since execution method challenges under the Eighth Amendment have become harder to pursue in light of several Supreme Court decisions.
In 2008, the Supreme Court ruled in Baze v. Rees
that lethal injection is not cruel and unusual punishment. In 2015, the high court upheld the constitutionality of lethal injection and said that death row inmates can only challenge their method of execution after providing an alternative method that is already in use."It has made it increasingly difficult for death penalty attorneys to represent their clients, given that they're put in a position of having to provide an alternative method of execution," Denno said. "But that position is made all the more difficult if the method you want to recommend is not part of state law."
Death by firing squad, which is considered "probably more humane," is not authorized by most of the states, Denno said. Only Mississippi, Oklahoma, Utah and South Carolina allow it.
States tend to want to stick with lethal injection — the method used in all states — and not branch out for fear of increasing litigation and controversy, Denno said.
Thursday's decision will make it easier for prisoners to challenge their execution methods.
"This looks like a narrow decision, but I think it's quite powerful, because it gives some strength to attorneys who need to abide by this alternative method of execution requirement," she said.
Nance is represented by Matthew S. Hellman of Jenner & Block LLP.
Georgia is represented by Stephen John Petrany and Clint Christopher Malcolm of the Georgia Department of Law.
The case is Nance v. Ward, case number 21-439, in the Supreme Court of the United States.
--Editing by Brian Baresch.
Update: This story has been updated with more information on the ruling and comments.
For a reprint of this article, please contact reprints@law360.com.
