Tomorrow, the Supreme Court turns from a new school prayer controversy in the first hearing of the day, to a second potentially deeply divisive controversy – a major dispute over the death penalty.  Frustrated for years that the process of capital punishment stretches out for years and years, the Court is more or less continually looking for ways to speed up the process without turning it into a constitutionally unregulated system.  A quick-to-execute system might threaten to turn the Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” into a mockery.

The audio (no video) of the Supreme Court’s hearings is broadcast on Quick Links on the Court’s homepage, supremecourt.gov, and is also available at c-span.org/supremecourt and at C-Span Now App.  (The school prayer case being heard first on Monday was discussed in this space yesterday.) 

Monday’s second hearing:  Nance v. Ward   Scheduled for 70 minutes, this hearing will begin at about 11:30 a.m., after the school prayer hearing ends.

Background:  Cases testing how the government may carry out the death penalty have occupied the Supreme Court since the 19^th Century – decisions in 1879 upheld the constitutionality of the firing squad, and in 1890 allowed the use of the electric chair.  The Death Penalty Information Center, the private group that most closely monitors capital punishment in America, has noted that the Supreme Court has never ruled unconstitutional any death penalty method challenged before it.

As long as the death penalty remains an option (as it does in 27 states, in federal government cases and in the U.S. military), Death Row inmates are sure to continue challenging the method chosen.  Today, the most common method is the use of a combination of lethal drugs, which are designed to numb the body and the senses before causing death.  However, some states still have on their books laws that could allow electrocution, lethal gas, hanging and firing squad, which are seldom used anymore.

The Court has been actively exploring the lethal injection method since a 2008 decision (Baze v. Rees).  In that ruling, the Court established a procedure that Death Row inmates could use to challenge the method their state planned to use.  Such challenges would be based on the Constitution’s Eighth Amendment, which forbids “cruel and unusual punishment.”  (Originally written to apply only to the federal government, the Amendment was applied to state governments by the Court in a 1947 decision, Robinson v. California.)

Under the procedure the Court now requires, an inmate must be able to show that the planned method would cause “a substantial risk of severe pain” or “needless suffering” before death occurs.  In addition, the inmate would have to show that there is an alternative method available, that it is feasible, can be readily implement, and would “significantly reduce a substantial risk of severe pain.”  If the inmate meets that test, the state in response can try to show that it must use the challenged method for reasons of prison policy. A failure to prove that need would mean that the state must use the alternative method in order to satisfy the Eighth Amendment.

While that mandated process is settled, the Court has not yet given a clear answer to the separate question of which type of lawsuit a Death Row inmate may file in pursuing such a challenge.  There are two options, but they can have different consequences.

A Death Row inmate who is seeking to challenge a conviction or sentence can sue under the constitutional right of “habeas corpus” (Latin for “you have the body”) to require the government to justify depriving a person of their freedom or life.  Congress has created a specific law authorizing such “habeas” claims.

Under a Supreme Court decision in 1989 (Teague v. Lane), an inmate basically gets only one chance to attempt such a challenge, absent new evidence or significant changes in the law.  The Court ruled that way in an attempt to cut down on repeated habeas challenges by inmates, aiming to assure that more  verdicts become final and punishment can be carried out.

Alternatively, a Death Row inmate can sue under an 1871 civil rights law (known generally as “Section 1983”) to challenge action by state or local officials that violates federal constitutional rights – for example, a claim under the Eighth Amendment that a method of execution would be “cruel and unusual punishment.”

The case being argued on Monday involves a Death Row inmate in Georgia, Michael Nance.  He has been convicted and given a death sentence for killing a bystander after robbing a bank in Gwinnett County, Georgia, in 1993.

After failing with initial appeals and a first round of a habeas challenge in federal court, he did not further challenge the guilty verdict or the death sentence, but began a new case under the 1871 law.  He contended that because of a problem with his veins, limiting the injection of lethal drugs, he would suffer great pain and have his Eighth Amendment rights violated by the use of that method.  That was the only method available in Georgia, but he argued that Georgia could use a firing squad as a less painful alternative.

That failed because a federal appeals court ruled that a Section 1983 claim was not available to him because he was proposing an alternative method not available in Georgis and thus was, in essence, challenging the state’s power to sentence him to death.  While such a claim could only be pursued in a habeas challenge, the appeals court ruled further, Nance had already failed in that and could not pursue it again.

Left with no option to make his claim that he faces severe pain during his execution, he appealed to the Supreme Court.  The Biden Administration’s Justice Department, entering the case to support him, urged the Court to rule that challenges to the method of execution are allowed under the 1871 law.

The questions before the Court:  Are Death Row inmates challenging the method of execution allowed to sue under the 1871 civil rights law, giving them potentially a new remedy? If the Court answers No to that question, could those inmates pursue a new challenge under habeas law, even if they had failed once in an earlier test of the verdict and sentence?

Significance:  For years, varying Supreme Court majorities have been expressing discontent that death-penalty cases get strung out over many years, and multiple court challenges, but there has never been a majority to declare that capital punishment itself – by any method – is “cruel and unusual punishment,” although a few Justices have made that argument.  But crafting ways to speed up the process has been an ongoing labor, with a workable system eluding them.

This case presents a fairly simple alternative, at least when the inmate accepts the guilty verdict and accepts the fact that the state may carry out the penalty, and seeks only to ensure what the Court has several times promised: that capital punishment does not require a regime that would impose such pain that the process would amount to torture.

There is probably no way that the outcome of the case will be unanimous, because some of the more conservative Justices have lost patience with death-penalty law altogether, and desire to find more ways to make the system achieve greater finality.

On Tuesday, the Court will hear a new appeal by the Biden Administration, seeking to end a Trump Administration policy of sending immigrants to Mexico while processing their pleas to enter the U.S.  A second hearing will examine the role of federal courts in overseeing state criminal prosecutions.