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Georgia inmate takes bid for firing squad execution to Supreme Court

Sentenced to death in the late '90s, Michael Nance argues execution by lethal injection would cause him to suffer extreme pain and wants to use a firing squad as an alternative method.

WASHINGTON (CN) — The Supreme Court heard arguments on Monday from a Georgia death row inmate who claims that lethal injection, the state's only method of execution, is unconstitutional in light of his compromised veins.

Michael Wade Nance robbed a bank and fatally shot a man in an attempted carjacking in Gwinnett, Georgia, in 1993. A jury convicted Nance of murder and he was sentenced to death in 1997, when electrocution was the state's primary method of execution.

However, on appeal in 2000, the Georgia Supreme Court reversed Nance's death sentence and remanded for a new sentencing trial, after discovering the trial court had erred by failing to excuse an unqualified juror. A year later, the court declared electrocution to be unconstitutional and Georgia switched to lethal injection as the sole method of execution.

Nance was again sentenced to death in the retrial and the state high court affirmed the sentence in 2005. After unsuccessful appeals in federal district court and the 11th Circuit, he turned to the U.S. Supreme Court. The justices originally denied his petition for certiorari in March 2020, but after the Covid-19 pandemic delayed his scheduled execution the high court eventually agreed to decide if a habeas petition is the proper procedural motion for method-of-execution challenges like Nance’s. 

Nance alleges Georgia's lethal-injection protocol violates his Eighth Amendment right to be free from cruel and unusual punishment. He says his compromised veins and past use of the seizure medication gabapentin would cause an "intensely painful burning and a prolonged and only partially anesthetized execution."

He has suggested death by firing squad as a “feasible, readily implemented” alternative to lethal injection. However, Georgia's Department of Corrections argues it has never executed a prisoner in that manner and lethal injection is the state's only statutorily authorized method of execution.

While lethal injection is the predominant execution method used in states that permit the death penalty, some states allow alternative methods such as electrocution, primarily due to resistance from drug manufacturers that supply the injections. The firing squad is currently authorized as an alternative method of execution in four states: Oklahoma, South Carolina, Mississippi, and Utah.

In Nance's appeal to the 11th Circuit, a three-judge panel concluded that because the relief he sought implied the invalidity of his death sentence, his complaint must be construed as a habeas petition. Because he had already filed an earlier habeas petition, the judges found the latest filing was properly considered a “successive” petition, over which a district court lacks subject-matter jurisdiction.

Nance argues to the Supreme Court that the rules governing successive habeas petitions should not apply to claims like his that only become ripe after the conclusion of a prior habeas petition. The inmate's attorneys cite the high court’s 2007 decision in Panetti v. Quarterman, which held that claims relating to an inmate’s competency to be executed fell outside the successive petition restriction.

Attorney Matthew Hellman, representing Nance, told the justices on Monday that he does not seek to challenge his client's conviction or sentence, but rather the manner in which it is to be carried out.

Hellman said the challenge falls under 42 U.S.C. §1983 and therefore can be filed directly in federal court for constitutional violations instead of via a habeas petition.

"Under habeas, Georgia could do what it chooses to do in terms of finding a viable method of execution?" asked Justice Sonia Sotomayor, a Barack Obama appointee.

"That's what makes it a 1983 claim, your honor, because the claim isn't that he can't be executed. The claim is a how question – what manner?" Hellman replied.

Chief Justice John Roberts, a George W. Bush appointee, asked if the state would have to change the relevant statute.

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Hellman replied that a firing squad may require a statutory amendment, but that is not the alternative the state is obligated to use in the case.

"You make forceful arguments about why 1983 is the appropriate mechanism here. But, if this - suppose it's in a gray area, and we basically have a choice of which way to proceed here. And suppose relevant to that choice are the practical considerations of how this will play out under 1983 versus habeas in the future," said Justice Brett Kavanaugh, a Donald Trump appointee. "The other side, I think, says the 1983 route is too susceptible to delay, gamesmanship, those kinds of things."

Masha Hansford, assistant to the solicitor general, argued as amicus curiae on behalf of the federal government in support of Nance's petition, claiming that "the state retains the power to enforce its criminal judgment so long as it complies with the injunction’s terms, either by adopting the identified alternative method of execution or any other method that is constitutional."

Sotomayor addressed the fact that 10 states specify only one method of execution in their laws, while seven states allow multiple methods.

"So your point is, if we rule in respondents' favor, we're going to have this patchwork of similar identical issues on a particular method of execution, perhaps around different states, some going into 1983 and some going into habeas," Sotomayor said.

"The states vary widely, and there are some states like Florida and Alabama that actually just include a safety valve," Hansford said. "They say our preferred method is lethal injection, also electrocution, but if both of those are unconstitutional, any constitutional manner is fine. The same claim would always be a Section 1983 in those suits."

Hansford said that if the state defined punishment for the offense to be execution by lethal injection, then a challenge against it would be filed under a habeas petition.

Stephen Petrany, Georgia's solicitor general representing state Attorney General Christopher Carr and the Georgia Department of Corrections, argued it doesn't matter whether Nance is able to be executed under a different method.

"The relevant point is that he seeks to bar death by lethal injection, the only state-authorized punishment he's actually subject to," Petrany said.

"So I guess I just don't see what argument you have here," said Justice Elena Kagan, an Obama appointee, when she questioned Petrany on the fact that Georgia law separates the sentence of death from the method of execution, which is the reason why no one was resentenced when the state changed its method of execution.

"What about new facts? You know, you've gotten older and you have a new medical condition that will make lethal injection feel like torture?" Kavanaugh asked.

"I mean, in a lot of circumstances, of course, it's going to fail because of timeliness or the merits or something like that, but it's definitely cognizable in Georgia state court," replied Petrany.

Kavanaugh brought up the Supreme Court's 2019 decision in Bucklew v. Precythe, in which he said that "all nine justices agreed on one point, which is that somebody in Mr. Nance's position was entitled to raise an alternative method of execution that had not been authorized by state law."

Petrany admitted there was nothing precluding the state from changing its laws or regulations if necessary when questioned by Sotomayor.

"But the warden can't. And the order is going to the warden. I mean, this is an injunction against a particular person who wants to exercise a particular form of custody over Nance. And that's habeas relief. That's classic habeas relief. And that's the bottom of our argument," Petrany said.

Justice Stephen Breyer, a Bill Clinton appointee who is retiring at the end of this term, brought up a hypothetical situation.

"What's the prisoner supposed to do if the method seems alright when he is sentenced, and then they change it over 10 years and now it doesn't seem alright? And he's filed 14 habeas petitions on other matters," Breyer asked.

Petrany replied that an inmate could seek relief under state law if they're able to establish the merits of their claims, but not in a federal habeas petition.

"You're saying he should go into state court and you mentioned earlier that he was likely - would be likely to lose there," Roberts said.

Petrany said that Nance in particular would lose due to the timeliness of his claims, arguing that he has known about his compromised veins for decades.

The justices are expected to rule on the issue by July.

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