By Lee Kovarsky
April 22, 2022
at 1:09 p.m.
The Supreme Court doesn’t care that much about method of execution challenges. It particularly discriminates against Eighth Amendment litigation attacking familiar lethal injection protocols as “cruel and unusual” punishment. Over the past 20 years, the Court has announced substantive constitutional law, pleading requirements, and timeliness rules that make it more difficult to obtain such arguments. Nance v. Ward (to be discussed on Monday) concerns the procedural vehicle that prisoners should use to challenge the methods of execution. The case is significant because the rule favored by Georgia would significantly reduce legal remedies for unlawful executions. After filing a brief in support of the prisoner (Michael Nance), the United States requested and was granted time for oral argument.
Nance committed murder after a botched bank robbery and he was sentenced to death in 1997. His lengthy post-conviction litigation included re-sentencing proceedings in 2002 and, crucially, a previous round of federal habeas litigation. corpus. Nance eventually challenged Georgia’s lethal injection protocol, which uses a single drug (pentobarbital). He alleges that his veins cannot withstand intravenous access and that any attempt to administer pentobarbital will cause his veins to lose their structural integrity and “burst”. If the veins burst, Nance claims, then the pentobarbital will seep into his bloodstream, compromise the anesthesia and cause him to experience death in the form of burning and choking.
Nance (and the United States) argue that he can challenge the execution protocol under 42 USC § 1983, the landmark civil rights law allowing plaintiffs (including prisoners) to sue agents of the State for violation of constitutional rights. Georgia, on the other hand, argues that Nance must bring the Eighth Amendment claim under federal habeas laws. Heck vs. Humphrey sets out the famous rule requiring that certain claims otherwise amenable to litigation under Section 1983 be brought in habeas petitions. A containment challenge is “Damn– prohibited” – and must be presented in a habeas petition – if the remedy would result in a release or an abbreviated detention, or if it necessarily invalidates a conviction or sentence. Nance is whether a requester’s attack on an execution protocol is Damn– banned because relief would invalidate his death sentence.
The logic of Damn the bar is simple. There are strict limits on federal habeas assistance for convicted state prisoners, and these limits prioritize the interests of finality and federalism. These limits would be of little use if an inmate could simply use another, less restricted vehicle to challenge the constitutionality of a conviction or sentence. the Damn Barre therefore prevents state prisoners from using Section 1983 to circumvent habeas restrictions. If a state prisoner makes a claim that necessarily implies that the conviction or sentence is invalid, then the prisoner is limited to habeas remedies. Georgia argues that Nance’s lethal injection challenge is Damn– barred, and the United States Court of Appeals for the 11th Circuit took this position below – “reconstructing” Nance’s complaint under Section 1983 as a habeas petition.
Since at least Nelson v. Campbell in 2004 and Hill v. McDonough in 2006, Section 1983 was the recognized vehicle for method of execution claims. So how is Nance’s request different? Nance sits at a new decision-making intersection of advocacy requirements and Damn bar. In 2019, Bucklew v. Precythe announced that death row inmates who challenge methods of execution under the Eighth Amendment must still indicate a “feasible and easily implemented alternative method”. But this alternative does not have to be an authorized method of execution under the applicable law of a State. Loop observed that a rule to the contrary requiring state prisoners to plead only currently permitted alternatives would unwisely allow the Eighth Amendment investigation to be “controlled by the state’s choice of methods to be permitted in its statutes.”
Because Eighth Amendment claimants must now plead alternative methods of execution, and those methods will often be outside the scope of the existing authorization, Loopthe requirement of Damn case law. Specifically, the court expressly referenced the possibility that habeas may be the appropriate vehicle for method of execution claims where “current law” does not permit a plaintiff’s preferred method of execution. Georgia argues that Nance’s request implicates the invalidity of the sentence and activates the Damn bar, as he is seeking execution by firing squad – which is allowed in several states but not in Georgia.
Georgia urges the court to Damn-prohibit such challenges, which would require Eighth Amendment claimants indicating a currently unauthorized alternative to rely on habeas litigation. Georgia argues that, if a court were to declare the state’s lethal injection protocol unconstitutional in such circumstances, the constitutional decision would necessarily invalidate the death sentence. Nance and the United States respond that Nance’s Eighth Amendment claim has no bearing on the validity of the death sentence – at least in the sense envisioned by Damn. There is no new conviction, the death penalty remains valid and Georgia would simply have to comply with an injunction to carry it out. Nance and the United States liken any reactive authorization that follows a successful lethal injection challenge to reactive credits that would follow a successful claim under Section 1983 for better health care. In neither case, Nance and the United States insist, does the need to implement appropriate legislative changes invalidate the criminal penalty. Georgia counters by distinguishing between the two: requesting medical care under section 1983 would not result in release from prison, but requesting under section 1983 against the death protocol would result in “release[,] … at least for a time”, execution.
Changing the procedural treatment — that is, forcing most method of execution litigation to adopt federal habeas postures — would strangle judicial enforcement of Eighth Amendment law. If state prisoners must present their method of execution challenges in habeas petitions, then they must submit to an array of modern habeas relief legal restrictions: stimulus bans, statutes of limitations, rules of exhaustion, limits on new evidence, etc. These procedural obstacles are particularly perilous for prisoners who challenge execution protocols, as grievances over the method of execution only mature at the end of the capital punishment sequence. Executed prisoners are now killed, on average, about 20 years after their death sentence is announced. But these plaintiffs cannot challenge the methods of execution until they have a realistic idea of what are the protocols. (Imagine a state prisoner basing a method of execution claim on a guess about what a state’s protocol would look like 20 years later!) That’s theoretically possible that a state prisoner could overcome all obstacles to habeas and obtain redress following a meritorious challenge to a method of execution, although the practice the feasibility of such a litigation strategy is low. But Georgia argues that plaintiffs can still present their Eighth Amendment claims in their original habeas petitions, so the courthouse doors remain “wide open.”
The parties also disagree on the applicability of Georgia’s preferred rule. According to Georgia, the method of execution allegations indicating a authorized the alternative should receive the treatment of Section 1983, and claims indicating a unauthorized the alternative should be in habeas petitions. Nance and the United States argue that such a two-track system would bog down as litigants traverse state and federal court systems in order to fight, among other things, whether the indicated alternative is permitted. Georgia downplays the possibility of such disputes and also argues that the court’s real policy concern should be the potential play invited by the rule that Nance and the feds prefer.
If the Supreme Court concludes that Nance’s challenge must be analyzed as a habeas action, then it must answer the second question posed: should this action be subject to the quasi-categorical ban on “successive” habeas litigation? The relevant habeas provision (28 USC § 2244(b)(2)) prohibits the review of successive motions, with extremely thin exceptions for new rules of substantive constitutional law and overwhelming evidence of innocence. (No exception matters in most method of execution disputes.) But not all second motions are classified as successive. So Nance presents a question as to whether a second petition containing a challenge to the method of execution should be classified as “successive” within the meaning of section 2244(b)(2). Georgia says it should, and Nance says it shouldn’t. (The United States takes no position on the second question.)
The most important precedent on this issue is Panetti vs. Quartermanwho took a functionalist approach to ‘successfulness’. Panetti involved a so-called “Ford claim”, which is an allegation that a prisoner is not fit for execution. Because Ford claims implicate a prisoner’s mental fitness at the time of execution, they cannot be raised until the time of execution is ascertainable. Panetti therefore ruled that a Ford the claim is not successive within the meaning of Art. 2244(b)(2), even if such claims formally appear in a second request. The second question in Nance is whether the court is going to deal Panetti as a general rule for Ford complaints onlyor as a slightly wider ruler for other claims that are not ripe by the time the prisoner files his first federal petition.
Nance is ultimately a case about how aggressively the Supreme Court wants to suppress method of execution claims, which it generally views as legalistic ploys to delay the imposition of valid death sentences. If it adopts Georgia’s favorite rule, it will significantly alter the form and timing of Eighth Amendment challenges, and it will significantly reduce judicial enforcement against states. Notwithstanding the court’s general disposition to method of execution claims, the court agreed to reconsider a decision of a lower court versus a prisoner – which raises the very real prospect that Nance may be a case in which the court is actually willing to rule in favor of the detainee.