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Kavanaugh Hints Support for Inmate Execution-Method Appeal (1)

April 25, 2022, 5:34 PMUpdated: April 25, 2022, 7:54 PM

Supreme Court Justice Brett Kavanaugh suggested he may side with a Georgia death-row inmate who prefers the firing squad to lethal injection in a dispute over challenges to state execution methods.

Kavanaugh’s questions at Monday’s argument indicated that he’s skeptical of the state’s stance, which Michael Nance’s lawyer said would shut the courthouse door to claims.

Whether Kavanaugh indeed votes that way along with any other conservatives to make a majority remains to be seen in the case expected to be decided by late June.

The appeal stems from the high court’s requirement that inmates challenging a state’s method have to propose an alternative method. The Eighth Amendment bans cruel and unusual punishment.

Monday’s argument was over how such method-of-execution claims are litigated: Civil-rights lawsuits under Section 1983 or in habeas-corpus proceedings?

The justices are also considering the related question whether, if habeas is the answer, the usual strict time constraints for bringing second or successive challenges applies.

“Don’t take it the wrong way, but if you were to lose in this case, is it better for the State of Georgia to lose on the 1983 point or to lose on the second or successive point?” Kavanaugh asked state solicitor general Stephen Petrany.

Jenner & Block’s Matthew Hellman, who’s representing Georgia inmate Nance, hopes the state loses on the 1983 point. Nance challenged the state’s lethal-injection method that way, urging officials to instead kill him by firing squad for the 1993 murder of Gabor Balogh.

Firing squad isn’t authorized by Georgia law. But in 2019’s Bucklew v. Precythe, Kavanaugh wrote a concurrence underscoring the court’s view that “the alternative method of execution need not be authorized under current state law.”

That led Justice Elena Kagan to wonder if, under the state’s approach, Bucklew “is completely gutted.”

She told the state’s lawyer Petrany that he’s “suggesting an approach where it’s like, it’s not 1983; it’s habeas. Oh, sorry, in habeas, you run into the second and successive bar. You’re just never going to be able to bring these claims.”

Roberts likewise pressed Petrany on the state’s position when it comes to inmates not being able to raise successive claims if new facts arise, such as a change in medical condition affecting lethal injection.

“And now that does seem like a pretty daunting Catch-22,” Roberts said.

The Atlanta-based U.S. Court of Appeals for the Eleventh Circuit said Nance’s case needed to be brought in habeas, and that his habeas attempt would also fail. The Cincinnati-based U.S. Court of Appeals for the Sixth Circuit said civil-rights suits are the way to raise challenges, Nance said in his petition.

The case is Nance v. Ward, U.S., No. 21-439.

(Adds reporting from argument, transcript, snapshots.)

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Tom P. Taylor at ttaylor@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com