SCOTUS Rules for Inmates in Method-of-Execution Case

In Nance v. Ward the U.S. Supreme Court held 5-4 that a capital inmate may bring a method-of-execution case under 42 USC §1983 rather than federal habeas even  when the alternative method proposed isn’t allowed under state law. The holding of this case benefits inmates because the habeas statute contains procedural requirements §1983 lacks which may require dismissal of a claim.

Supreme Court precedent allows death row inmates to challenge a state’s proposed method of execution under the Eighth Amendment. The inmate must “identify a readily available alternative method of execution that would significantly reduce the risk of severe pain.” He or she may propose a method used in other states. If the alternative method proposed is already authorized under state law the Court has held the inmate may bring his or her claim under §1983.

Michael Nance was sentenced to death for shooting and killing a bystander while fleeing from a bank robbery. He claims that lethal injection will create a substantial risk of severe pain for him and has proposed that he be executed by firing squad. Georgia only allows capital inmates to be executed by lethal injection; four other states allow execution by firing squad.

The Supreme Court has previously held that an inmate must proceed to habeas and may not bring a §1983 case when the relief sought would “necessarily imply the invalidity of his conviction or sentence.” According to Justice Kagan, writing for the Court, Nance may bring his case under §1983 even though Georgia law doesn’t allow the firing squad because he isn’t seeking to invalidate his sentence.

In Nelson v. Campbell (2004) and Hill v. McDonough (2006) the Court held that method-of-execution claims could be brought under §1983 where inmates requested that the state use a different lethal injection protocol (not a different execution method). Except for the Georgia statute, the Court reasoned, “this case would even more clearly than Nelson and Hill be fit for §1983” since when those cases were decided the Court had not yet required those challenging the method of execution to identify alternative methods.

The Court reasoned: “The substance of the [method-of-execution] claim, now more than ever, thus points toward §1983. The prisoner is not challenging the death sentence itself; he is taking the validity of that sentence as a given. And he is providing the State with a veritable blueprint for carrying the death sentence out. If the inmate obtains his requested relief, it is because he has persuaded a court that the State could readily use his proposal to execute him. The court’s order therefore does not, as required for habeas, ‘necessarily prevent’ the State from carrying out its execution.”  
This is true even if Georgia must change its law to allow death by firing squad the Court opined. It did admit “amending a statute may require some more time and effort than changing an agency protocol, of the sort involved in Nelson and Hill.”

Justice Barrett dissented joined by Justices Thomas, Alito, and Gorsuch. She opined that Nance is seeking to invalidate his death sentence by proposing a method of execution Georgia doesn’t currently allow. “The Court is looking too far down the road. In my view, the consequence of the relief that a prisoner seeks depends on state law as it currently exists. And under existing state law, there is no question that Nance’s challenge necessarily implies the invalidity of his lethal injection sentence: He seeks to prevent the State from executing him in the only way it lawfully can.”