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US Supreme Court Backs Inmate on Execution-Method Challenges (1)

June 23, 2022, 2:23 PMUpdated: June 23, 2022, 3:41 PM

Federal civil-rights suits are one way to challenge state-execution methods as too cruel, the US Supreme Court said in the case of a Georgia inmate who preferred a firing squad to lethal injection.

In a 5-4 ruling by Justice Elena Kagan on Thursday, the justices said that a civil rights statute remains an appropriate vehicle for a prisoner’s method-of-execution claim, including where the prisoner proposed an alternative method not authorized by the state’s death-penalty statute.

The ruling means prisoners do not need to rely exclusively on post-conviction habeas claims, which remain available but are often hard to bring.

Kagan warned that suits should not be used as “dilatory” tactics to delay executions—a consistent concern for the court’s conservative majority in capital cases.

“Courts should police carefully against attempts to use method-of-execution] challenges as tools to interpose unjustified delay,” Kagan said.

Chief Justice John Roberts and Justice Brett Kavanaugh joined their more liberal collegues in the majority.

Writing for the dissent, Justice Amy Coney Barrett said she understood “the impulse to find a way out of habeas and into §1983,” the civil rights statute as issue in Thursday’s decision.

Barrett noted that habeas claims involving execution method will “almost inevitably collide with the second-or-successive bar,” which strictly limits the number of habeas claims that can be brought. Nevertheless, Barrett said prisoners facing habeas bars were out of luck.

Important to the majority’s reasoning is that fact that the case doesn’t affect whether someone is executed but rather how that execution will be carried out in accordance with the Eighth Amendment’s ban on cruel and unusual punishment.

The appeal stemmed from the high court’s requirement that an inmate challenging a state’s method has to propose an alternative. That raised the question of how such method-of-execution claims are litigated: Civil-rights lawsuits under Section 1983 or in habeas-corpus proceedings?

Facing execution in Georgia, Michael Nance challenged the state’s injection method in a Section 1983 suit, arguing the firing squad would be less cruel. He said forcing inmates to raise claims in more restrictive habeas proceedings would shut the courthouse door to claims.

In a separate ruling Thursday, the court restricted the use of §1983 claims, saying they couldn’t be used to sue for a violation of Miranda rights.

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

(Updates with details from the opinion.)

To contact the reporters on this story: Jordan S. Rubin in Washington at; Lydia Wheeler in Washington at; Kimberly Strawbridge Robinson in Washington at

To contact the editors responsible for this story: Seth Stern at; John Crawley at