Supreme Court Preserves Death-Row Prisoners’ Ability to Challenge Execution Methods in Federal Civil Rights Lawsuits

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.