The Supreme Court doesn’t care all that much for method-of-execution challenges. It particularly disfavors Eighth Amendment litigation attacking familiar lethal injection protocols as “cruel and unusual” punishment. In the past 20 years, the court has announced substantive constitutional law, pleading requirements, and timeliness rules that make it harder to win such arguments. Nance v. Ward (to be argued on Monday) is about the procedural vehicle that prisoners must use to challenge execution methods. The case is important because Georgia’s preferred rule would quite substantially curtail judicial remedies for unlawful executions. After filing a brief in support of the prisoner (Michael Nance), the United States sought and was granted time at oral argument.
Nance committed a murder after a botched bank robbery, and he was sentenced to death in 1997. His lengthy post-conviction litigation included a new sentencing proceeding in 2002 and, crucially, an earlier round of federal habeas corpus litigation. Nance eventually challenged Georgia’s lethal injection protocol, which uses a single drug (pentobarbital). He alleges that his veins cannot support intra-venous access, and that any attempt to administer the pentobarbital will cause his veins to lose their structural integrity and “blow.” If the veins blow, Nance alleges, then the pentobarbital will leak into his bloodstream, compromise anesthesia, and cause him to experience death as burning and suffocation.
Nance (and the United States) contend that he can challenge the execution protocol under 42 U.S.C. § 1983, the iconic civil rights statute permitting plaintiffs (including prisoners) to sue state officers for infringing constitutional rights. Georgia, by contrast, argues that Nance must bring the Eighth Amendment claim under the federal habeas statutes. Heck v. Humphrey sets forth the famous rule requiring that certain claims otherwise litigable under Section 1983 be brought in habeas petitions. A challenge to confinement is “Heck-barred” — and must be presented in a habeas petition — if relief would result in discharge or shortened detention, or if it necessarily invalidates a conviction or sentence. Nance is about whether a claimant’s attack on an execution protocol is Heck-barred because relief would invalidate his death sentence.
The logic of the Heck bar is straightforward. There are stringent limits on federal habeas relief for convicted state prisoners, and those limits prioritize interests in finality and federalism. Those limits wouldn’t do much good if a prisoner could simply use another, less-restricted vehicle to raise a constitutional challenge to a conviction or sentence. The Heck bar therefore prevents state prisoners from using Section 1983 to skirt the 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 Heck-barred, and the U.S. Court of Appeals for the 11th Circuit took that position below — “reconstruing” Nance’s Section 1983 complaint as a habeas petition.
Since at least Nelson v. Campbell in 2004 and Hill v. McDonough in 2006, Section 1983 has been the recognized vehicle for method-of-execution claims. So how is Nance’s claim different? Nance sits at a new decisional intersection of pleading requirements and the Heck bar. In 2019, Bucklew v. Precythe announced that death-sentenced prisoners who challenge execution methods under the Eighth Amendment must always indicate a “feasible and readily implemented alternative method.” But that alternative need not be an execution method authorized under a state’s current law. Bucklew observed that a contrary rule requiring state prisoners to plead only presently authorized alternatives would unwisely permit the Eighth Amendment inquiry to be “controlled by the State’s choice of which methods to authorize in its statutes.”
Because Eighth Amendment claimants must now plead alternative execution methods, and because those methods will often be outside the scope of existing authorization, Bucklew’s requirement put pressure on its Heck jurisprudence. Specifically, the court has expressly referenced the possibility that habeas might be the appropriate vehicle for method-of-execution claims when “present law” does not authorize a claimant’s preferred execution method. Georgia argues that Nance’s claim implies the invalidity of the sentence, and activates the Heck bar, because he seeks to be executed using a firing squad — which is authorized in several states but not in Georgia.
Georgia is urging the court to Heck-bar such challenges, which would require Eighth Amendment claimants indicating a presently unauthorized alternative to rely on habeas litigation. Georgia argues that, were a court to find the state’s lethal injection protocol unconstitutional under such circumstances, the constitutional determination necessarily invalidates 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 all — at least in the sense contemplated by Heck. There is no resentencing, the death sentence remains valid, and Georgia would simply need to comply with an injunction in order to implement it. Nance and the United States analogize any responsive authorization that follows a successful lethal injection challenge to responsive appropriations that would follow a successful Section 1983 claim for improved health care. In neither case, Nance and the United States insist, does the need to implement responsive statutory changes invalidate the criminal sentence. Georgia counters by distinguishing the two: The Section 1983 claim for medical care would not result in release from prison, but the Section 1983 claim against the death protocol would result in “release[,] … at least for a time,” from execution.
The change in procedural treatment — that is, forcing most method-of-execution litigation into federal habeas postures — would throttle judicial enforcement of the Eighth Amendment right. If state prisoners must bring their method-of-execution challenges in habeas petitions, then they must run a gauntlet of modern statutory restrictions on habeas relief: relitigation bars, statutes of limitations, exhaustion rules, limits on new evidence, and so forth. These procedural obstacles are especially perilous for prisoners challenging execution protocols, because method-of-execution claims do not ripen until the end of the capital punishment sequence. Prisoners who are executed are now killed, on average, roughly 20 years after their death sentences are announced. But these claimants cannot lodge their method-of-execution challenges until they have a realistic idea of what the planned protocols are. (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!) It is theoretically possible that a state prisoner could overcome all the habeas obstacles and obtain relief on a meritorious challenge to an execution method, although the practical feasibility of such a litigation strategy is small. But Georgia argues that claimants can still bring their Eighth Amendment claims in their initial habeas petitions, so the courthouse doors remain “wide open.”
The parties also disagree about the administrability of Georgia’s preferred rule. Per Georgia, method-of-execution claims indicating a presently authorized alternative should get Section 1983 treatment, and claims indicating a presently unauthorized alternative should be in habeas petitions. Nance and the United States argue that such a dual-track system would bog down when litigants shuttle across state and federal judiciaries in order to fight about, among other things, whether the indicated alternative is authorized. Georgia downplays the possibility of such disputes, and also argues that the court’s real policy concern should be the potential gamesmanship invited by the rule that Nance and the federal government prefer.
If the Supreme Court concludes that Nance’s challenge must be analyzed as a habeas claim, then it must answer the second question presented: whether that claim should be subject to the near-categorical prohibition on “successive” habeas litigation. The pertinent habeas provision (28 U.S.C. § 2244(b)(2)) prohibits consideration of successive petitions, with extremely thin exceptions for new rules of substantive constitutional law and overwhelming evidence of innocence. (Neither exception matters in most method-of-execution litigation.) But not all second-in-time petitions are classified as successive. So Nance presents a question about whether a second-in-time petition containing a method-of-execution challenge 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 issue.)
The most important precedent on this question is Panetti v. Quarterman, which took a functionalist approach to “successiveness.” Panetti involved a so-called “Ford claim,” which is an allegation that a prisoner is not competent to be executed. Because Ford claims involve a prisoner’s mental fitness at the moment of execution, they can’t be raised until the timing of an execution is ascertainable. Panetti therefore held that a Ford claim is not successive within the meaning of Section 2244(b)(2), even though such claims formally appear in a second-in-time petitions. The second question in Nance is whether the court is going to treat Panetti as a rule for Ford claims only, or as a slightly broader rule for other claims that remain unripe at the moment the prisoner files their initial 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 imposition of valid death sentences. If it adopts Georgia’s preferred rule, then it will meaningfully alter the form and timing of Eighth Amendment challenges, and it will substantially reduce judicial enforcement against the states. The court’s general disposition towards method-of-execution claims notwithstanding, the court agreed to review a lower court decision against a prisoner — which raises the very real prospect that Nance might be a case in which the court is actually prepared to rule in the prisoner’s favor.
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