Jurisprudence

Is the Supreme Court About to Allow Virtually Any Method of Execution?

Roberts and Breyer stand next to each other in their robes talking with their hands clasped in front of them
Chief Justice John Roberts with retiring Justice Stephen Breyer at the State of the Union on March 1. Saul Loeb/Pool/Getty Images

Next month, the Supreme Court will hear oral arguments in a Georgia case that threatens to close the door to most of the challenges that inmates can bring about allegedly unconstitutional methods of execution. The court, which has already made such challenges exceeding difficult, is poised to use a seemingly technical ruling to so narrow the reach of the Eighth Amendment’s ban on cruel and unusual punishment as to render it meaningless.

At a time when there is growing awareness of problems with lethal injection, this nation’s primary method of execution, Georgia is asking the court to foreclose death row inmates from challenging a basic element of death penalty practice: how they will be executed.

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The state also is calling on the justices to ignore or overturn well-established Supreme Court precedent.

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The pending case, Nance v. Ward, raises the question of whether methods of execution challenges only can be brought to federal courts in one particular form, as habeas corpus petitions, and if so, whether they would constitute so-called successive petitions that are now barred under federal law.

Habeas corpus is a legal device for people convicted of a crime to contest the “lawfulness” of their imprisonment and secure their release.

Michael Nance, who was sentenced to death in 2002, is doing neither of those things. Instead, he wants to contest only the means by which Georgia proposes to execute him.

He suffers from medical conditions that have compromised his veins. In order to put him to death by lethal injection, prison authorities in Georgia would have to “cut his neck” to establish an intravenous execution line. Nance alleges that under such conditions lethal injection would be “torturous.”

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He asks to be executed by a firing squad. While it is authorized in other states (including South Carolina, which announced recently that it is now ready to carry it out), it is not now available in Georgia.

Moreover, Nance contends that the extremely restrictive rules and filing deadlines governing habeas corpus petitions by the 1996 Anti-Terrorism and Effective Death Penalty Act would effectively bar him from challenging even the most gruesome and inhumane execution methods.

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Among other things, AEDPA imposes a one-year deadline for filing federal habeas corpus petitions and requires that people seeking habeas relief must bring all federal claims in a single action.

Because states change their execution methods and protocols frequently, often altering them right before a particular execution, inmates are not in a position to challenge those methods within the tight time horizon contemplated by AEDPA.

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Nance argues that instead of habeas corpus, he should be able to sue the state of Georgia for violations of the Eighth Amendment under 42 U.S.C. Section 1983, a federal law that authorizes citizens to sue in federal court for the deprivation of rights. Section 1983 actions are not subject to AEDPA’s deadlines and restrictions.

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The 11th Circuit Court of Appeals, which heard Nance’s case in December 2020 and again in April 2021, disagreed.

It ruled that because Georgia did not authorize execution by firing squad, his challenge to lethal injection was designed to prevent him from being executed at all and set him free. In a Kafkaesque twist, the court said that Nance only could raise his claim through a habeas corpus petition, but that such an action was barred under AEDPA’s rules about successive petitions.

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But the 11th Circuit’s bizarre ruling conflicted with an earlier decision on the same issue made by the 6th Circuit Court of Appeals.

In 2017, that court acknowledged what it described as “the procedural labyrinth” involved in bringing methods of execution challenges and ruled that execution method challenges could be brought as civil rights suits under Section 1983.

The Nance case will require the Supreme Court to resolve the conflict between the circuits. But even if it sides with the 6th Circuit rather than the 11th and allows Nance to proceed with his suit, he will likely have a hard time prevailing on the merits. This is because, throughout American history, the court has decided very few methods-of-execution cases and never sided with the condemned inmate in any of them.

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The first such case to reach the Supreme Court occurred in 1878 when Wallace Wilkerson challenged Utah’s plan to execute him by firing squad. The court decided that “the punishment of shooting as a mode of executing the death penalty for the crime of murder” did not violate the Eighth Amendment.

Twelve years later, in a case called In re Kemmler, it took up a habeas corpus challenge to New York’s plan to use its newly developed electric chair. At that time, the rules governing habeas were much less restrictive than they are today.

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Even so, the court ruled against Kemmler and called death by electrocution a “humane method.”

More than a century passed before the Supreme Court took up another methods-of-execution case. This time it was a challenge to Kentucky’s use of lethal execution.

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Like the firing squad and the electric chair, lethal injection passed constitutional muster.

With Chief Justice John Roberts writing for a seven-judge majority in this 2005 decision, the Supreme Court imposed a new requirement on inmates seeking to question the constitutionality of an execution method. Roberts said that they had to identify an alternative procedure that is “feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”

In 2015, the court upheld the use of the sedative midazolam in lethal injection executions and said that the Eighth Amendment does not require that executions be “free of any risk of pain.” It said again that because capital punishment is constitutional, petitioners challenging an execution method had to identify what it called a “reasonable alternative that presents a significantly lower risk of pain.”

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Finally, in 2019, the Supreme Court reiterated its approval of lethal injection in a case brought by a Missouri inmate who preferred death by nitrogen hypoxia, which was not then legal in Missouri. But it made clear that “an inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State’s law.”

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This is the legal landscape that awaits Michael Nance if the Supreme Court follows its own previously established precedent and allows him to have his day in court.

That precedent was set in 2004, when the court ruled that Section 1983 “is an appropriate vehicle for [an] Eighth Amendment claim” against an allegedly unconstitutional execution method.

One would have thought that this decision settled the matter that is again on the court’s agenda. But a lot has happened on the Supreme Court since 2004. Most important in this context is the determination of its now activist, conservative majority not to let precedent stand in the way as it advances its substantive agenda.

But even in this environment, the justices should not permit death penalty states to avoid all judicial review of the methods they use to put people to death. They should not erect procedural barriers to prevent those who face law’s ultimate punishment from being heard when they challenge the constitutionality of an execution method. Doing so will only open the door for even more explicit forms of the kind of cruelty that the Constitution was designed to prevent.

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