May a death-row prisoner use 42 U.S.C. § 1983 to challenge a state’s proposed method of execution as cruel and unusual under the Eighth Amendment, when his proposed alternative method of execution is not presently authorized under the extant state law?

Georgia death-row prisoner Michael Nance learned that, due to his unique medical conditions, which had developed over many years of living on death row, his execution by lethal injection would likely be torturous, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment.

The U.S. Supreme Court’s Eighth Amendment jurisprudence requires a prisoner raising such a claim to identify an alternative method of execution that would not be cruel and unusual. And the Court has made clear that the alternative method need not be a method currently authorized under extent state law. The Court has also held, time and again, that challenges to method of execution may be raised as civil-rights lawsuits (under 42 U.S.C. § 1983), rather than as habeas corpus petitions, because such challenges, if successful, would require a state to change its method of execution rather than to change the punishment to a non-death sentence (or release the prisoner).

Based on the above jurisprudence, Michael Nance filed a civil-rights lawsuit challenging his execution by lethal injection, and naming as his proposed constitutional alternative the firing squad. Execution by firing squad is not currently authorized under Georgia law. On appeal to the Eleventh Circuit, that court held that, because Nance had relied on an execution alternative not recognized under Georgia law his claim was, in reality, challenging the judgment of execution and he could therefore not raise it as a civil-rights lawsuit under § 1983.

The Court granted Mr. Nance’s motion for certiorari, and set the case down for oral argument and a decision on the merits. On March 4, 2022, the ACLU, the ACLU of Georgia, and the Rutherford Institute filed an amicus brief in support of Mr. Nance, arguing that, contrary to the Eleventh Circuit’s strained reasoning, the U.S. Supreme Court permits prisoners to point to alternative execution methods authorized in other states, and that states routinely change their execution methods without resentencing death-condemned prisoners, understanding that the method of execution is independent from the death sentence itself. Accordingly, such challenges are properly heard under § 1983.

At oral argument, on April 25, 2022, multiple parties and justices cited the ACLU brief for the history it provided concerning executions going forward without resentencing, even after a state’s change of method of execution.

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