The U.S. Supreme Court has heard argument in two death penalty cases that present highly technical legal issues that could profoundly affect the extent to which prisoners convicted in state courts will have meaningful access to federal review of their cases.

In two of the last cases to be argued before Justice Stephen Breyer’s retirement at the end of the Court’s term, the Court on April 25 and 26 considered Nance v. Ward, a Georgia case about the proper way to challenge execution protocols, and Shoop v. Twyford, an Ohio case about federal courts’ authority to transport state prisoners for forensic testing relating to the investigation and presentation of issues in their federal habeas corpus appeals. The arguments took place while the consolidated death penalty cases Shinn v. Ramirez and Jones remain pending before the court. Those appeals by Arizona prosecutors seek to limit the evidence a federal court can consider in reviewing cases in which prisoners have been provided a series of ineffective lawyers in state court proceedings.

Georgia death-row prisoner Michael Nance challenged the state’s use of lethal injection to execute him, arguing that his severely compromised veins would make such an execution cruel and unusual. Recent Supreme Court case law requires prisoners who wish to challenge a state’s method of execution to propose an alternative method by which they can be put to death. Nance proposed the firing squad. Because Georgia law does not authorize execution by firing squad, state prosecutors argued that his claim effectively constituted a challenge to his death sentence, not just the means by which it would be carried out. Accordingly, they argued — and the Georgia federal courts held — that Nance could not bring his claim under the federal civil rights law and instead would need to file a successive habeas petition, potentially making his and hundreds of other execution challenges untimely. At the Supreme Court, Nance argued that this approach conflicted with prior case law and the intent of federal civil rights protections. Several Justices seemed sympathetic to Nance’s argument, particularly when considering Georgia’s position in light of recent cases seeking access to a spiritual adviser in the execution chamber.

Ohio corrections officials appealed a federal district court order that allowed Raymond Twyford to be transported to a medical facility outside the prison for neuroimaging that could provide evidence of brain damage. Based on a neuropsychological examination that was performed in the prison, Twyford’s expert had recommended additional testing that could not be conducted in the prison but was available at another prison facility. The state claimed that the federal habeas corpus statute barred federal courts from ordering a state court prisoner to be transported for any reason other than being brought to the court to testify or attend court proceedings. It further argued that if transport were permissible, the court should be required to determine before testing was conducted (and before the results of the testing was known) that the testing would produce admissible evidence that would support Twyford’s federal habeas claims. During much of oral argument, the Justices focused on whether the state could appeal such an order, putting in question whether the case could be dismissed for lack of jurisdiction.

The Argument in Nance v. Ward

Nance argued that his execution by lethal injection would be unconstitutionally tortuous because pre-existing health issues left his veins so badly compromised that prison officials would have to “cut his neck” to insert an intravenous execution line for the execution. Nance brought this claim under the federal civil rights law, as is typical for challenges to execution protocols. To comply with U.S. Supreme Court caselaw requiring prisoners to offer an alternative method for their own execution before courts will evaluate the constitutionality of the state’s chosen method, Nance proposed that he be executed by firing squad. The only execution method allowed by Georgia statute is lethal injection.

Much of the questioning during oral argument revolved around whether the execution protocol challenge was truly about the method of execution or about whether the state could execute Nance at all. The former would make the challenge appropriate for a federal civil rights suit, but the latter would require a federal habeas petition to be filed.

Matthew Hellman argued on behalf of Nance that Nance was not attacking the validity of his death sentence, so his challenge was not being brought under federal habeas law. He argued that barring this type of claim from being brought in a federal civil rights suit would be inconsistent with settled Supreme Court precedent and prevent death-row prisoners from receiving review of meritorious claims by requiring them to raise execution challenges in an initial habeas corpus petition before they were ripe for review or subjecting them to a procedural bar if they were presented in a second or successive habeas petition after they became ripe. In response to Justices’ questions about whether the method of execution could be considered a part of the original death sentencing order, Hellman noted that states do not resentence prisoners when they change execution methods and the Georgia courts had specifically determined that the method of execution was not part of the judgment of sentence.

Stephen Petrany, arguing for Georgia, asserted that Nance was required to present his claim in a habeas petition because he was requesting an execution method that the warden could not implement. “[I]f you no longer can be executed,” Petrany argued, “then that’s a bar against custody,” implicating the habeas corpus statute.

Justices Brett Kavanaugh and Amy Coney Barrett were particularly interested in the implications of Georgia’s argument on the Court’s recent religious advisor cases. Petrany answered that, contrary to the approach in all of the religion-in-the-death-chambers cases the Court has considered, such cases also would have to be brought in federal habeas petitions. The Court seemed skeptical of this line of reasoning.

The Argument in Shoop v. Twyford

A victim of severe abuse, including rape, during his childhood, Twyford attempted suicide at age 13. He survived, but 20 bullet fragments from the attempt lodged in his brain. His trial counsel failed to investigate and develop evidence of his resulting neurological impairments. In his federal habeas corpus appeal, his lawyers sought to have him transported for a neurological evaluation as part of their investigation into the efficacy of potential habeas corpus claims related to Twyford’s mental competence and the ineffective assistance of his trial counsel. The neurologist who examined Twyford in the prison recommended that additional testing and brain imaging be conducted that could not be performed in the prison. Twyford sought and was granted a district court order directing the prison to transport him, finding that further neurological imaging would aid counsel’s investigation and help the court assess the constitutionality of Twyford’s conviction.

In its briefing, the prison argued that the court did not have jurisdiction to order the transport because the federal habeas corpus statute “allows federal courts to issue a writ of habeas corpus ordering the transportation of a state prisoner only if ‘necessary to bring him into court to testify or for trial.’” That specific authority to transport, the state argued, imposed a limit on the general powers of district courts conveyed by the federal All Writs Act, which provides federal courts the authority to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

Arguing for Ohio, Benjamin M. Flowers asserted that the district court had no authority to order transportation because issuing such an order “evades the rules governing discovery in habeas cases and facilitates the development of evidence that no habeas court can even consider.” Nicole Reaves, counsel for the United States, which had filed an amicus curiae brief in support of neither party, argued that federal courts have authority under the All Writs Act to issue transportation orders in limited circumstances, “if a prisoner shows good cause for the order and demonstrates that equitable considerations support his transport request.”

The Justices’ questions focused heavily on whether the prison could immediately appeal the order, a fundamental question about whether the Supreme Court had jurisdiction to decide the case. Flowers and Reaves argued that the order was immediately appealable, while counsel for Twyford, David O’Neil, argued that “there is no appellate jurisdiction over an … order involving such a routine event, particularly one that merely removes an obstacle to counsel’s investigation of the case.” O’Neil also disputed Ohio’s assertion that there was no statutory basis for the court to exercise its powers under the All Writs Act. In capital cases, he noted, federal law provides for the appointment of habeas corpus counsel and provides that the court, “[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, … may authorize the defendant’s attorneys to obtain such services on behalf of the defendant.” The transport order was clearly necessary to obtain the testing and the testing was clearly necessary in the investigation of issues and to obtain expert services in the case, he said.