The Supreme Court’s Unusual Move on the Death Penalty

The 5-4 decision was notable for its interesting mix of justices: It saw Chief Justice John Roberts and Justice Brett Kavanaugh join Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor in the majority. It highlights the dilemmas facing the court’s liberals on a conservative dominated bench, and offers a clear example of how they are playing defense.

Voting to uphold precedents with which they fundamentally disagree, which is what the liberal justices did in Nance, is one way for them to build bridges to some of their conservative colleagues, at least in relatively low profile cases.

Such appeals to precedent did not work in last week’s gun or abortion decisions, of course, which suggests that the conservative activist justices will ignore or trash precedent when it suits their political purposes. But, for Roberts and for Kavanaugh, who often vote with the chief justice, such appeals may give them cover for splitting with their usual allies.

This is especially the case when, as in Nance, they have every reason to believe that doing so will only result in a temporary setback in their longstanding pro-capital punishment track record and their consistent efforts to keep the machinery of state-administered death running.

The question the Court decided in the Nance case was whether methods of execution challenges only can be brought to federal courts in one particular form, as habeas corpus petitions, and if so, whether such challenges would constitute so-called successive petitions that are now barred under federal law. Federal law imposes a one-year deadline for filing federal habeas corpus petitions and requires that people seeking such relief must bring all claims in a single action.

Because states change their execution methods and protocols frequently, even altering them right before a particular execution, inmates are not in a position to challenge those methods within the tight time horizon of federal habeas corpus.

The frequency with which lethal injection executions are botched led Michael Nance, like other death row inmates before him, to seek to be put to death by another method.

He suffers from medical conditions that have compromised his veins. As a result, the Georgia execution team would have to “cut his neck” to establish an intravenous execution line. He also alleged that his long-time use of a palliative drug for back pain would diminish the effect of the sedative used in Georgia’s drug cocktail.

Nance claims that under such conditions lethal injection would be “torturous” and violate the Eighth Amendment prohibition on cruel and unusual punishment. Instead of lethal injection, he wants to be executed by a firing squad.

While the firing squad is authorized in other states (including South Carolina, which announced in March that it is now ready to carry it out), it is not now available in Georgia. Unlike several other death penalty states that use more than one execution method, Georgia law specifies that death sentences can only be carried out by lethal injection.

The cruelty of Nance’s situation is almost unimaginable. Litigating in the hope that the courts will allow you to choose the way you will die from among several gruesome methods of execution seems ghastly.

Nonetheless, Nance brought suit under 42 U.S.C. Section 1983, a federal law that authorizes citizens to sue in federal court for the deprivation of rights. Section 1983 actions are not subject to strict time limits and deadlines. The 11th Circuit Court of Appeals, which heard Nance’s case in December 2020 and again in April 2021, said that he could not proceed with his suit.

The court ruled that because Georgia did not authorize execution by firing squad, his challenge, in effect, was designed to prevent him from being executed at all. As a result, the Circuit Court said that Nance could raise his claim only through a habeas corpus petition. Habeas corpus petitions are designed to be used when prisoners seek to invalidate their convictions or sentences entirely.

But, the court added, even if he wanted to go that route it was too late to do so.

Last week the Supreme Court reversed that decision and agreed that Nance could proceed under Section 1983.

Kagan, writing for the unusual majority alignment, said that a habeas petition would only be appropriate if Nance was suing to “invalidate his death sentence” and prevent the state from executing him at all. Instead, Kagan wrote, he is “providing the State with a veritable blueprint for carrying the death sentence out. If the inmate obtains his requested relief,” she said “it is because he has persuaded a court that the State could readily use his proposal to execute him.”

Kagan noted that “Nance’s requested relief still places his execution in Georgia’s control.” Unlike her colleagues who dissented (Justices Amy Coney Barrett, Neil Gorsuch, Samuel Alito and Clarence Thomas), Kagan argued that the Courts of Appeals was wrong to treat the state’s death penalty law as “immutable.” If Nance were to prevail in his effort to prevent Georgia from using lethal injection, the state could do as other states have done by changing its law to add the firing squad or any other method to its execution arsenal.

An appeal to precedent provided the cornerstone of Kagan’s opinion. She first cited cases in which the court had previously held that challenges to methods of execution could be brought under Section 1983. Ruling in favor of Nance and giving a victory to death penalty opponents was also required, Kagan explained, to respect a line of three cases in which, in 2005, 2009 and 2015, the court had turned back challenges to lethal injection.

And it was not lost on Kagan that the chief justice authored the majority opinion in Baze v. Rees, the first of those cases.

In, Bucklew v. Precythe, the last in that line of cases, the court held that lawsuits by inmates seeking to force the state to use some other execution method could go forward if the inmate “could identify an alternative method not ‘presently authorized’ by the state’s execution law.”

Precluding claims like Nance’s, Kagan concluded, would turn those precedents into a “sham.”

Kagan, along with Breyer and Sotomayor, had dissented in Bucklew, with Breyer calling the decision upholding lethal injection “misguided” and a “violation of the clear command of the Eighth Amendment.”

Yet respecting even such misguided precedents now offers a safe harbor against the avalanche of conservative judicial activism. It offered a strong counterpoint to Alito’s dismissive attitude toward precedent in last week’s decision to overrule Roe v. Wade.

That difference suggests that the appeal to respect precedent in the hope of nudging the court away from hard line outcomes may work for liberal justices in a limited range of cases in which the political stakes are not great.

Now for the bad news for death penalty opponents: Nance’s victory is likely to be short lived.

The Supreme Court’s decision allows him to continue his legal challenge to lethal injection, but he is unlikely to prevail on the merits. Courts, including a federal court in Oklahoma earlier this month, have not been sympathetic to such challenges. And in all of American history, the Supreme Court has never sided with a condemned inmate in any methods-of-execution case.

In all likelihood, all the procedural wrangling will not spare Nance from dying by lethal injection.

Perhaps knowing the fate awaiting Nance, rather than Kagan’s appeal to precedent, is the real reason why Roberts and Kavanaugh joined their liberal colleagues. They provided the votes to deliver a temporary victory to death penalty opponents and to Nance. But they did so with full confidence that he will be executed nonetheless.