Nance v. Ward

• Decision Date: 23 June 2022
• Docket Number: 21-439
• Citation: 142 S.Ct. 2214,213 L.Ed.2d 499
• Parties: Michael NANCE, Petitioner v. Timothy C. WARD, Commissioner, Georgia Department of Corrections, et al.
• Court: U.S. Supreme Court

142 S.Ct. 2214

213 L.Ed.2d 499

Michael NANCE, Petitioner

v.Timothy C. WARD, Commissioner, Georgia Department of Corrections, et al.

No. 21-439

Supreme Court of the United States.

Argued April 25, 2022

Decided June 23, 2022

Matthew S. Hellman, Washington, DC, for petitioner.

Masha G. Hansford for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Stephen J. Petrany, Solicitor General, for respondents.

Anna M. Arceneaux, Cory H. Isaacson, Georgia Resource Center, Atlanta, GA, David A. Strauss, Sarah M. Konsky, Jenner & Block, Supreme Court and Appellate Clinic at The University of Chicago Law School, Chicago, IL, Matthew S. Hellman, Counsel of Record, Urja Mittal, Kevin J. Kennedy, Deanna E. Krokos, Jenner & Block LLP, Washington, DC, Laurie Webb Daniel, Matthew D. Friedlander, Holland & Knight LLP, Atlanta, GA, for petitioner.

Beth A. Burton, Deputy Attorney General, Sabrina D. Graham, Senior Assistant Attorney General, Clint C. Malcom, Assistant Attorney General, Christopher M. Carr, Attorney General, Stephen J. Petrany, Solicitor General Counsel of Record, Ross W. Bergethon, Drew F. Waldbeser, Deputy Solicitors General, Office of the Georgia Attorney General, Atlanta, Georgia, for respondents.

Justice KAGAN delivered the opinion of the Court.

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. ––––, ––––, 139 S.Ct. 1112, 1128, 203 L.Ed.2d 521 (2019).

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, 124 S.Ct. 2117, 158 L.Ed.2d 924 (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.

I

A

States choosing to impose capital punishment have over time sought out "more humane way[s] to carry out death sentences." Glossip v. Gross , 576 U.S. 863, 868, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015). In the 27 States with the death penalty, lethal injection is by far the most common method of execution. See ibid. Fifteen States, including Georgia, authorize only the use of lethal injection.¹ Nine States authorize lethal injection plus one or more other specified methods; of those (to use an example relevant here), four approve the firing squad.² And three States provide that if their authorized methods (including lethal injection) are found unconstitutional, then they may carry out a death sentence by any constitutional means.³

A death row inmate may attempt to show that a State's planned method of execution, either on its face or as applied to him, violates the Eighth Amendment's prohibition on "cruel and unusual" punishment.

To succeed on that claim, the Court held in Glossip , he must satisfy two requirements. First, he must establish that the State's method of execution presents a "substantial risk of serious harm"—severe pain over and above death itself. Id. , at 877, 135 S.Ct. 2726. Second, and more relevant here, he "must identify an alternative [method] that is feasible, readily implemented, and in fact significantly reduce[s]" the risk of harm involved. Ibid. (internal quotation marks omitted). Only through a "comparative exercise," we have explained, can a judge "decide whether the State has cruelly ‘superadded’ pain to the punishment of death." Bucklew , 587 U. S., at ––––, 139 S.Ct., at 1126.

In identifying an alternative method, the Court in Bucklew held, an inmate is "not limited to choosing among those presently authorized by a particular State's law." Id. , at ––––, 139 S.Ct., at 1128. The prisoner may, for example, "point to a well-established protocol in another State as a potentially viable option." Ibid. The Eighth Amendment, Bucklew explained, "is the supreme law of the land, and the comparative assessment it requires can't be controlled by the State's choice of which methods to authorize." Id. , at ––––, 139 S.Ct., at 1128 ; see Arthur v. Dunn , 580 U. S. ––––, ––––, 137 S.Ct. 725, 729–730, 197 L.Ed.2d 225 (2017) (SOTOMAYOR, J., dissenting from denial of certiorari). In addition, Bucklew stated, allowing an inmate to propose a method not authorized by the State keeps his "burden" within reasonable bounds. 587 U. S., at ––––, 139 S.Ct., at 1128. Because the inmate can look beyond the State's current law, we saw "little likelihood" that he would "be unable to identify an available alternative." Id. , at ––––, 139 S.Ct., at 1136; see id. , at ––––, 139 S.Ct., at 1136 (KAVANAUGH, J., concurring).

B

While trying to flee a bank robbery, petitioner Michael Nance shot and killed a bystander. A Georgia jury convicted Nance of murder, and the trial court sentenced him to death. Nance challenged his conviction and sentence—first on direct appeal, next in state collateral proceedings, and finally in federal habeas—but without success.

Nance later brought suit under § 1983 to enjoin Georgia from using lethal injection to carry out his death sentence. As stated above, lethal injection is the only method of execution Georgia law now authorizes. See supra , at 2219.⁴ In his complaint, Nance alleges that applying that method to him would create a substantial risk of severe pain. See App. to Pet. for Cert. 86a. According to Nance, his veins are "severely compromised and unsuitable for sustained intravenous access." Ibid. They are, Nance says, 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." Ibid. On top of that, Nance asserts, his longtime use of a prescription drug 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." Ibid. Nance proposes, as a "readily available alternative" method of execution, "death by firing squad." Ibid. As noted earlier, four other States have approved that method. See supra , at 2219, and n. 2. Use of a firing squad, Nance says, will lead to "swift and virtually painless" death. App. to Pet. for Cert. 102a. And implementing that method, he says, would be simple: Georgia has enough qualified personnel and could borrow specific protocols from another State. Ibid.

After the District Court dismissed Nance's suit as untimely, the Court of Appeals for the Eleventh Circuit rejected it for a different reason—that Nance had used the wrong procedural vehicle. In the panel majority's view, Nance should have brought his method-of-execution claim by way of a habeas petition rather than a § 1983 suit. A habeas petition, the court stated, is appropriate when a prisoner seeks to "invalidate" a death sentence. 981 F.3d 1201, 1209 (2020). And the court thought that was what Nance was doing: The injunction he requested, preventing the use of lethal injection, "necessarily impl[ies] the invalidity of his death sentence." Id. , at 1203. That was so, the court reasoned, because Georgia law "must [be taken] as fixed"—and under that "fixed" law, if Nance could not be executed by lethal injection, then he could not be executed at all. Id. , at 1211. The court therefore "reconstrued" Nance's complaint as a habeas petition. Id. , at 1203. And having done so, the court dismissed the petition as "second or successive" because Nance had already sought federal habeas relief. 28 U.S.C. § 2244(b) ; see supra , at 2220 - 2221. Judge Martin dissented, arguing that Nance could proceed under § 1983. In her view, Nance was not challenging his death sentence; all he wanted was an order telling "the State to execute him by a different method." 981 F.3d at 1215. The Eleventh Circuit denied Nance's petition for rehearing en banc over the dissent of three judges. See 994 F.3d 1335 (2021).

We granted certiorari, 595 U. S. ––––, 142 S.Ct. 858, 211 L.Ed.2d 533 (2022), and now reverse.

II

This Court has often considered, when evaluating state prisoners’ constitutional claims, the dividing line between § 1983 and the federal habeas statute. Each law enables a prisoner to complain of "unconstitutional treatment at the hands of state officials." Heck v. Humphrey , 512 U.S. 477, 480, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). But there the resemblance stops. The habeas statute contains procedural requirements (like the second-or-successive rule) nowhere found in § 1983 ; the former statute may therefore require dismissal of a claim when the latter statute would not. See id. , at 480–481, 114 S.Ct. 2364. Still more pertinent here, the scope of the two laws also differs. Section 1983 broadly authorizes suit against state officials for the "deprivation of any rights" secured by the Constitution. Read literally, that language would apply to all of a prisoner's constitutional claims, thus swamping the habeas statute's coverage of claims that the prisoner is "in custody in violation of the Constitution." 28 U.S.C. § 2254(a) ; see Wilkinson v. Dotson , 544 U.S. 74, 78–79, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005). So we have not read § 1983 literally in the prisoner context. To the contrary, we have insisted that § 1983 contains an "implicit exception" for actions that lie "within the core of habeas corpus." Id. , at 79, 125 S.Ct. 1242.

In defining that core, this Court has focused on whether a claim challenges the validity of a conviction or sentence. See Preiser v. Rodriguez , 411 U.S. 475, 489, ...