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.
Follow @Megwiththenews
