by David M. Reutter

Though Georgia has no other way to kill him, a condemned state prisoner convinced the U.S. Supreme Court to agree on June 23, 2022, that his objection to lethal injection is a viable civil rights claim and not a doomed petition for habeas corpus relief.

In 1993, after robbing a bank, Michael Nance shot and killed a bystander while trying to flee. He was convicted of murder and sentenced to death in 2002. His appeals and post-conviction relief remedies were unsuccessful, as was an elaborate prison escape plot. [See: PLN, Apr. 2006, p.1.]

In 2020, Nance, 61, brought a civil rights suit under 42 U.S.C. § 1983 to enjoin Georgia from carrying out his execution by lethal injection, the only method state law authorizes, arguing it would create a substantial risk of severe pain, violating his Eighth Amendment guarantee of freedom from cruel and unusual punishment.

As the Court recalled, Nance said his veins are “severely compromised and unsuitable for sustained intravenous access,” so they are likely to “blow” during the execution, “leading to the leakage of the lethal injection drug into the surrounding tissue” thereby causing “intense pain and burning.” Nance further alleged that his longtime use of a prescription drug for back pain creates a risk the sedative used in lethal injection will fail to “render him unconscious and insensate.”

As an alternative, Nance proposed a “readily available” method of execution, “death by firing squad,” which four other states have approved. This would result in a “swift and virtually painless” death, he said. Implementing the method would be “simple” because “Georgia has enough qualified personnel and could borrow specific protocols from another state.”

The district court dismissed Nance’s suit as untimely. He appealed, and the U.S. Court of Appeals for the Eleventh Circuit affirmed, holding Nance should have brought his claim in a habeas corpus petition because he was effectively trying to invalidate his death sentence. It then reconstrued Nance’s complaint as a prayer for habeas relief and found it barred as a “second or successive” petition, since Nance had already sought federal habeas relief unsuccessfully.

Taking up the case then, the Supreme Court noted it had already decided that a prisoner may challenge his method of execution under § 1983 when he “proposes a method already authorized under state law,” as outlined in Nelson v. Campbell, 541 U.S. 637 (2004).

Like that ruling, the Court’s decision in Hill v. McDonough, 547 U.S. 573 (2006), also allowed a method-of-execution challenge to proceed under § 1983 rather than a habeas corpus petition unless granting relief “would necessarily prevent [the State] from carrying out its execution.”

So what about a case like Nance’s, in which the state’s death-penalty statute does not authorize an alternative method of execution?

The Court’s requirement that a prisoner propose an alternative execution method was laid out in Glossip v. Gross, 576 U. S. 863 (2015), which also listed two elements needed to succeed on the claim: First, that “the State’s method of execution presents a ‘substantial risk of serious harm’ — severe pain over and above death itself”; and also that the prisoner “‘must identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduce[s]’ the risk of harm involved.”

The Court also said in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), that the prisoner objecting to his method of execution is “not limited to choosing among those presently authorized by a particular State’s law,” but he rather may “point to a well-established protocol in another State as a potentially viable option.”

Writing for the majority, Justice Elena Kagen said that when a prisoner provides a detailed alternative execution plan, he “is not challenging the death sentence itself” but rather “taking the validity … of the sentence as a given.” If he then “obtains his requested relief” from a court, the order “does not, as required for habeas, ‘necessarily prevent’ the State from carrying out its execution,” the Justice continued, again quoting Hill, and this “remains true … even if the alternative route necessitates a change in state law.”

“Assuming it wants to carry out the death sentence,” the Court continued, “the State can enact legislation approving what a court has found to be a fairly easy-to-employ method of execution.”

Of course, amending a law is more difficult than changing an agency protocol, but “the ‘incidental delay’ involved in changing a procedure — which even when uncodified may take some real work — is not relevant to the vehicle question,” the Court added. Georgia also gave the Justices “no reason to think that the amendment process would be a substantial impediment.” In fact, other states have done so to make the death penalty more humane.

Finally, the Court noted, § 1983 is regularly used to “override” or change state laws when they violate the federal constitution. As Nance was not challenging the validity of his death sentence but only the method of his execution, §1983 was the proper vehicle. Thus the Eleventh Circuit’s opinion was reversed and the case remanded for further proceedings.

In a dissent joined by Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas, Justice Amy Coney Barrett also quoted Hill to argue that Nance should file a habeas corpus petition, since “judgment in his favor would ‘necessarily bar’ the State from executing him.” Because the prisoner “seeks to prevent the State from executing him in the only way it lawfully can” without amending its law, the majority “is looking too far down the road,” the Justice said.

Nance’s case was argued before the Court by attorneys Matthew S. Hellman of Jenner & Block LLP in Chicago and Masha G. Hansford of Paul, Weiss, Rifkind, Wharton & Garrison LLP in Washington, DC. See: Nance v. Ward, 142 S. Ct. 2214 (2022). 

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