In a 5-4 decision, the U.S. Supreme Court affirmed the long-standing practice of using federal civil rights suits to challenge state execution methods. The Court ruled in favor of death-row prisoner Michael Nance, rejecting Georgia’s contention that such challenges must be brought in federal habeas corpus proceedings when the death-row prisoner proposes an alternative method not authorized by state law.

A contrary ruling would have severely limited challenges to execution methods. Matthew Hellman, a partner at Jenner and Block who argued on Nance’s behalf before the Supreme Court, emphasized the importance of the decision. “We’re very gratified by the Court’s decision, which confirms that prisoners have judicial recourse to seek protection from cruel and unusual punishment.”

Nance filed a federal civil rights suit in which he argued that his execution by lethal injection, the only method authorized by Georgia law, would be unconstitutionally tortuous. Nance explained that pre-existing health issues left his veins so badly compromised that prison officials would have to “cut his neck” to insert an intravenous line for the execution. Because recent Supreme Court case law requires prisoners who object to a state’s method of execution to propose an alternative method by which they can be put to death, Nance proposed the firing squad.

The state argued that since firing squad executions are not permitted under Georgia law, Nance was attempting to invalidate his death sentence, a challenge that can only be brought in habeas corpus proceedings. Under this interpretation of the law, prisoners like Nance would need to file successive habeas petitions, potentially making his and hundreds of other execution challenges untimely.

Nance sought Supreme Court review after Georgia federal courts accepted the state’s arguments.

In a majority opinion written by Justice Elena Kagan, the Supreme Court rejected Georgia’s interpretation of the law. Justice Kagan reviewed the Court’s recent precedent that requires prisoners to make a showing of the feasibility of the proposed alternative method. Therefore, even if Nance’s proposal requires a state law change, the “requested relief still places his execution in Georgia’s control. Assuming it wants to carry out the death sentence, the State can enact legislation approving what a court has found to be a fairly easy-to-employ method of execution.”

Justice Kagan noted that successful federal civil rights lawsuits often require changes in state law, and lawsuits brought by prisoners are no exception. She emphasized that “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.” This would be true in a variety of cases brought by prisoners, ranging from claims of prison overcrowding to challenges to a state’s exclusion of spiritual adviser from the execution chamber. According to Justice Kagan, “no one would think an action of that kind should go to habeas if the prison policy challenged (say, each facility’s maximum population) were specified in a statute or regulation.”

Justice Kagan also considered the results of consigning claims such as Nance’s to federal habeas petitions. Because of the differences in state laws governing executions, prisoners in different states with the exact same claim would have radically different avenues for federal review, and “the viability of the claim … would depend on the vagaries of state law.” Such an interpretation of the law would also undermine the Court’s pronouncement in the 2019 case Bucklew v. Precythe that death row prisoners could propose alternative methods not “presently authorized” under state law.

Justice Amy Coney Barrett, joined by Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, dissented. The dissenters argued that if Nance’s federal civil rights suit succeeded, Georgia corrections officials “will be powerless to carry out his sentence” without a change in state law. As a result, the dissenters argued, the challenge would only be appropriately raised in federal habeas corpus proceedings.


Lee Kovarsky, A small, pro­ce­dur­al win for pris­on­ers chal­leng­ing a state’s method of exe­cu­tion, SCOTUSblog, June 23, 2022; Marco Poggio, Justices Give Inmates Path To Swap Execution Methods, Law360, June 23, 2022; Robert Barnes and Ann E. Marimow, Supreme Court rules for death-row inmate ask­ing to die by fir­ing squad, The Washington Post, June 232022.

Read the Supreme Court’s deci­sion in Nance v. Ward.