Supreme Court Hears Arguments in Death Penalty Cases that Could Limit Access to Federal Court Review

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.