Published on: Thursday, June 23, 2022

In Nance v. Ward, No. 21–439 (June 23, 2022), a divided Supreme Court held Section 1983 remains an appropriate vehicle for a prisoner’s method-of-execution claim where, as here, the prisoner proposes an alternative method not authorized by the State’s death-penalty statute.

Justice Kagan delivered the opinion of the Court, joined by Chief Justice Roberts, and Justices Breyer, Sotomayor, and Kavanaugh. Justice Barrett dissented, joined by Justices Thomas, Alito, and Gorsuch.

Petitioner Michael Nance brought suit under §1983 to enjoin Georgia from using lethal injection to carry out his execution. Lethal injection is the only method of execution that Georgia law now authorizes.  Nance alleges that applying that method to him would create a substantial risk of severe pain. Specifically, Nance alleges his . According to Nance, his veins are “severely compromised and unsuitable for sustained intravenous access.” He says they are likely to “blow”

during the execution, “leading to the leakage of the lethal injection drug into the surrounding tissue” and thereby causing “intense pain and burning.” Further, long term use of prescription medication for back pain creates a risk that the sedative used in the state’s lethal injection protocol will fail to “render him unconscious and insensate. As an alternative to lethal injection, Nance proposes death by firing squad—a method currently approved by four other States. The District Court dismissed Nance’s §1983 suit as untimely. The Eleventh Circuit rejected it for a different reason: that Nance should have advanced his method-of-execution claim by way of a habeas petition rather than a §1983 suit. A habeas petition, that court stated, is appropriate when a prisoner seeks to invalidate his death sentence. And the Eleventh Circuit thought that was what Nance was doing. It asserted that Georgia law—which again, only authorizes execution by lethal injection—had to be taken as “fixed.”  Construing his 1983 claim as a habeas claim, the Eleventh Circuit dismissed it as second or successive.

Reversing the Eleventh Circuit, Justice Kagan's majority opinion starts like this:

In several recent decisions, this Court has set out rules for challenging a State’s proposed method of execution under the Eighth Amendment. To prevail on such a claim, a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain. In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 19).

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim. We have held that such a claim can go forward under 42 U. S. C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law. See Nelson v. Campbell, 541 U. S. 637, 644–647 (2004). Here, the prisoner has identified an alternative method that is not so authorized. The question presented is whether §1983 is still a proper vehicle. We hold that it is.

The opinion is available here; oral argument here; and merits briefing here.