Petition for Writ of Certiorari — Nathaniel Woods, Petitioner v. Jefferson S. Dunn, Commissioner, Alabama Department of Corrections, et al.

No. ___________________

IN THE

Supreme Court of the United States

________________

NATHANIEL WOODS,

Petitioner,

v.

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, WARDEN, HOLMAN CORRECTIONAL FACILITY, ATTORNEY GENERAL, STATE OF ALABAMA,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Marc R. Shapiro

Counsel of Record

Shane McCammon

José Mario Valdés

ORRICK, HERRINGTON & SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

mrshapiro@orrick.com

Counsel for Petitioner

CAPITAL CASE: EXECUTION SCHEDULED FOR MARCH 5, 2020

CAPITAL CASE: QUESTIONS PRESENTED

At present, fifteen inmates on Alabama’s death row have exhausted federal

habeas. All of them are eligible for execution. But only one is scheduled to be put to

death. That’s Nathaniel Woods. The reason being: he declined the State’s invitation

to participate in his own execution process by choosing the method by which the State

would kill him.

In June 2018, Alabama officials told the State’s death-row population to

choose: execution by lethal injection or by nitrogen gas. See Ala. Code § 15-1882.1(b)(2). Inmates had thirty days to decide. Id. At that time, the State knew it did

not have a nitrogen gas protocol in place, would not have one for the foreseeable future, and would not execute anyone scheduled to die in that manner until it developed

a protocol. But the State disclosed none of this. Consequently, seeing no other relevant considerations, inmates chose (or declined to choose) based on what they deemed

a preferred method of death.

Recently though it came to light that the State is scheduling executions based

on whether inmates unwittingly stumbled into a viable method (or not). That is, if

an inmate incidentally chose nitrogen gas, his execution has been stayed until the

State can create an execution protocol. If he did not, his execution is being prioritized.

Such arbitrary application of the death penalty—predicated upon suppressed information—contravenes the Eighth Amendment. The Eleventh Circuit held otherwise,

concluding that Mr. Woods’ claim is foreclosed because the Eighth Amendment applies only to “imposition of the death penalty,” not to “the carrying out of [the] death

sentence.” App. Ex. 1 at 13-14 (emphasis in original).

Mr. Woods asks this Court to address the following substantial questions:

1.

Does the Eighth Amendment apply only to imposition of a death sen-

tence, as the Eleventh Circuit held, or may a petitioner challenge, as arbitrary and

capricious, how a death sentence is carried out?

2.

If the Eighth Amendment does apply to the manner in which a death

sentence is carried out, was it violated here where the State targeted Mr. Woods for

execution based on his refusal to participate in the execution process?

3.

Do the Due Process and Equal Protection Clauses allow the State to sup-

press information vital to making a life-altering decision and then discriminate

among individuals based on such suppressed information?

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .................................................................................... i

TABLE OF AUTHORITIES ...................................................................................vi

INTRODUCTION ....................................................................................................1

OPINIONS AND ORDERS BELOW.......................................................................3

STATEMENT OF JURISDICTION ........................................................................3

CONSTITUTIONAL PROVISIONS INVOLVED...................................................3

STATEMENT OF THE CASE.................................................................................4

I.

Prior Proceedings ..............................................................................................4

II. Proceedings Below.............................................................................................5

III. Facts Pertinent to the State’s Deprivation of Mr. Woods’ Eighth

and Fourteenth Amendment Rights. ...............................................................6

A. The nitrogen-hypoxia opt-in process. ..........................................................6

B. Post-amendment executions in Alabama. ..................................................8

C. Current status of Alabama’s Nitrogen-Hypoxia Protocol. .......................10

REASONS FOR GRANTING THE WRIT ............................................................11

I.

This Court Should Grant Certiorari to Decide Whether the Eighth

Amendment Applies to How the State Carries Out the Death

Penalty. ............................................................................................................11

II. This Court Should Grant Certiorari to Decide Whether the Eighth

Amendment Is Violated When the State Targets One Class of

Inmates for Execution. ....................................................................................12

III. This Court Should Grant Certiorari to Decide Whether the Due

Process and Equal Protection Clauses Preclude the State from

Withholding Vital Information Central to a Life-Altering Decision

and Discriminating Among Individuals Based on That Suppressed

Information......................................................................................................14

A. The Court Should Address the Scope of Information Inmates

Are Entitled to When Asked to Choose Their Method of

Execution....................................................................................................14

B. This Court Should Grant Certiorari to Decide Whether an

Illusory Choice Supplies a Basis for Discriminating Under the

Equal Protection Clause. ...........................................................................17

CONCLUSION.......................................................................................................19

iv

APPENDIX

U.S. Court of Appeals for the Eleventh Circuit, Decision dated March 4, 2020

U.S. District Court for the Middle District of Alabama, Memorandum Opinion and Order dated March 2, 2020

v

TABLE OF AUTHORITIES

Page(s)

Cases

In Re: Alabama Lethal Injection Protocol Litigation,

Case No. 12-cv-00316 (M.D. Ala.) ............................................................................ 6

Bucklew v. Precythe,

139 S.Ct. 1112 (2019) ............................................................................................. 11

Caldwell v. Mississippi,

472 U.S. 320, 343 (1983) ........................................................................................ 13

Ford v. Wainwright,

477 U.S. 399 (1986) .........................................................................................passim

Furman v. Georgia,

408 U.S. 238 (1972) .................................................................................... 11, 13, 19

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ................................................................................................ 16

Mathews v. Eldridge,

424 U.S. 319 (1976) ................................................................................................ 15

McCleskey v. Kemp,

481 U.S. 279, 341 (1987) ........................................................................................ 14

Morrissey v. Brewer,

408 U.S. 471 (1972) ................................................................................................ 15

Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272, 290 ........................................................................................ 14, 15, 16

Pabon v. Wright,

459 F.3d 241 (2d Cir. 2006) .................................................................................... 16

Panetti v. Quarterman,

551 U.S. 930 (2007) ................................................................................................ 11

Price v. Comm’r, Dep’t of Corr.,

920 F.3d 1317, 1327 (11th Cir. 2019) ........................................................ 7, 8, 9, 18

Price v. Dunn,

139 S. Ct. 1312 (2019) .............................................................................................. 9

vi

Price v. Dunn et al.,

1:19-cv-57 (S.D. Ala. Apr. 11, 2019), Dkt. 49........................................................... 9

Price v. Dunn,

No. 19-11268-P (11th Cir. Apr. 11, 2019) .......................................................passim

Sessions v. Dimaya,

138 S.Ct. 1204, 1225 (2018) ................................................................................... 16

Skinner v. State of Okl. ex rel. Williamson,

316 U.S. 535 (1942) .......................................................................................... 18, 19

Stone v. Univ. of Md. Med. Sys. Corp.,

855 F.2d 167 (4th Cir. 1988) .................................................................................. 16

United States v. Frye,

402 F.3d 1123 (11th Cir. 2005) .............................................................................. 16

Woods v. Alabama,

559 U.S. 942 (2010) .................................................................................................. 4

Woods v. Dunn,

No. 2:20-cv-58-ECM (M.D. Ala. March 2, 2020) ............................................... 3, 10

Woods v. State,

13 So. 3d 1 (Ala. Crim. App. 2017)........................................................................... 4

Woods v. State,

221 So. 3d 1125 (Ala. Crim. App. 2016)................................................................... 4

Woods v. Stewart,

140 S.Ct. 67 (2019) ................................................................................................... 4

Statutes

28 U.S.C. § 1254(1) ........................................................................................................ 3

28 U.S.C. § 2254 ............................................................................................................. 4

42 U.S.C. § 1983 ............................................................................................................. 5

Alabama Code § 15-18-82.1 ................................................................................... 1, 6, 7

Other Authorities

Alabama Rules of Criminal Procedure Rule 32 ............................................................ 4

vii

United States Constitution Eighth Amendment .................................................passim

United States Constitution Fourteenth Amendment .........................................passim

viii

INTRODUCTION

Before July 1, 2018, the Alabama Attorney General carried out executions in

chronological fashion based on when the inmate had exhausted his or her federal

habeas proceedings. Whatever discretion the Alabama Attorney General exercised

was never challenged. That’s because the process—grounded in a “first-out-of-habeas, first-up” policy—was predicated upon objective criteria. But, beginning in July

2018, the State unilaterally deviated from this objective process and instead began

targeting for execution only those inmates who did not elect, during a 30-day period,

to die via nitrogen hypoxia.

In June 2018, Alabama officials told death row inmates to choose execution via

lethal injection or via nitrogen gas. See Ala. Code § 15-18-82.1(b)(2). They had thirty

days to elect. Id. With what information they had available, some chose lethal injection, others chose nitrogen gas, and others simply declined to participate in their own

execution process and made no choice.

The State knew, in June 2018, that it did not have a nitrogen-hypoxia protocol

in place—and likely would not have one any time soon. As a result, the State knew

that any inmate who opted into death via nitrogen gas would be spared from execution until such time as the State could develop and implement a nitrogen-hypoxia

protocol. The State did not disclose this information to Mr. Woods.

The State also knew, in June 2018, that it still intended to seek the lethalinjection executions of individuals who did not opt into nitrogen hypoxia. This represented a significant change from the State’s long-standing “first-out-of-habeas, firstup” policy. The State did not disclose this information to Mr. Woods.

1

In the months following that 30-day time period, the State first moved to execute a couple inmates whose federal habeas proceedings had been completed. The

State appeared to be focusing its execution efforts on inmates scheduled to die by

lethal injection but, with such a small sample size, there was no way to definitively

know. Then came the execution of Jarrod Taylor.

In the summer of 2019, the State of Alabama moved to set Mr. Taylor’s execution. In so doing, it represented that Mr. Taylor had chosen lethal injection. The

State was mistaken. Mr. Taylor’s counsel apprised the Attorney General’s Office as

much. The State then scrambled to withdraw Mr. Taylor’s execution, explaining,

“ADOC is not yet prepared to proceed with an execution by nitrogen hypoxia” because

it does not have—nor has it ever had—a protocol in place. But what the State could

not withdraw was its unintended disclosure that it was now singling out for execution

inmates scheduled to die by lethal injection. In other words, contrary to past practice,

inmates were now being chosen not based on timing but based on whether they had

chosen nitrogen gas in June 2018.

The State’s response to all of this has been: we’re simply “honoring each inmate’s choice two years ago.” But that was no choice at all. Mr. Woods was led to

believe any decision was strictly relegated to method. He was never told it would

impact the timing of his execution. And in the absence of this critical information,

Mr. Woods refused to participate in a process that required him to play an active role

in his own execution. The result: unlike the fourteen death row inmates at Holman

Prison whose federal habeas proceedings were exhausted months (if not over a year)

2

ago, Mr. Woods faces imminent execution by Alabama’s default method: lethal injection. Had Mr. Woods known the State would weaponize his abstinence from the execution process against him, he would have proceeded differently.

OPINIONS AND ORDERS BELOW

The decision of the court of appeals is available at Woods v. Comm’r, Ala. Dep’t

of Corr., No. 20-10843 (11th Cir. Mar. 3, 2020) (slip opinion). The district court’s

decision is available at Woods v. Dunn et al., Civil Act. No. 2:20-cv-58-ECM (WO),

Doc. 33 (M.D. Ala. March 2, 2020) (slip opinion). Both decisions are included in the

Appendix filed with this petition, as Exhibits 1 and 2, respectively.

STATEMENT OF JURISDICTION

The United States Court of Appeals for the Eleventh Circuit issued its opinion

on March 4, 2020. No en banc hearing or reconsideration was sought. This Court’s

jurisdiction is based upon 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides in relevant

part:

Excessive bail shall not be required, nor excess fines imposed, nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides in relevant part:

No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to

any person within its jurisdiction the equal protection of

the laws.

3

STATEMENT OF THE CASE

I.

Prior Proceedings

On October 2005, Mr. Woods was convicted of capital murder and sentenced to

death. See Appendix, Ex. 2 at 2. His convictions and sentence were affirmed by the

Alabama Court of Criminal Appeals in 2007 and the Alabama Supreme Court denied

his motion for an out-of-time appeal in August 2009. Id. at 2-3 (citing Woods v. State,

13 So. 3d 1 (Ala. Crim. App. 2017)). This Court denied certiorari on February 22, 2010.

Id. at 3 (citing Woods v. Alabama, 559 U.S. 942 (2010) (mem.)).

Mr. Woods filed a petition for postconviction relief pursuant to Rule 32 of the

Alabama Rules of Criminal Procedure in December 2008, which the circuit court

summarily dismissed on December 1, 2010. Id. The Alabama Court of Criminal

Appeals affirmed the dismissal of Mr. Woods’ Rule 32 petition, and the Alabama

Supreme Court denied certiorari. Id. (citing Woods v. State, 221 So. 3d 1125 (Ala. Crim.

App. 2016)).

Mr. Woods then filed a petition for habeas corpus under 28 U.S.C. § 2254 in

October 2016 in the Northern District of Alabama, which was denied in July 2018. Id.

at 3-4. He then moved in the Eleventh Circuit Court of Appeals for a certificate of

appealability, which was denied in February 2019. Id. at 4. This Court denied certiorari

on October 7, 2019. Id. (citing Woods v. Stewart, 140 S.Ct. 67 (2019) (mem.)).

On October 29, 2019, the State moved the Alabama Supreme Court to set an

execution date, specifically requesting that Mr. Woods be executed via lethal injection.

See Appendix, Ex. 1 at 2. Mr. Woods opposed the motion on December 5, 2019.

4

II.

Proceedings Below

Mr. Woods promptly filed the instant Complaint pursuant to 42 U.S.C. § 1983 on

January 23, 2020—a full week before the Alabama Supreme Court scheduled his

execution, forty-three (43) days before that execution is due to take place, and nearly

six (6) weeks ago. Id. In his Complaint, Mr. Woods alleges that Respondents violated

his rights under the U.S. Constitution, Alabama state constitution, and Alabama state

law by wrongfully withholding from him the vital fact that electing—during June

2018—to die via nitrogen hypoxia was choosing to live indefinitely, whereas not so

electing was an unknowing and involuntary choice for rapidly looming death. Id.

On January 30, 2020, the Alabama Supreme Court scheduled Mr. Woods’

execution for March 5, 2020. E.g., Appendix, Ex. 2 at 9.

On February 6, 2020, Respondents moved for summary judgment on the

Complaint. Id.

On February 7, 2020, Mr. Woods petitioned the Alabama Supreme Court to

temporarily stay his execution. Id. at 45. The Alabama Supreme Court summarily

denied the petition on February 14, 2020. Id.

Believing there were no genuine issues of material fact—and wanting to give the

district court sufficient time to reach the merits of his claims—Mr. Woods expeditiously

cross-moved for summary judgment in the district court on February 13, 2020. See id.

at 9. As a prophylactic measure and as a courtesy to the district court, Mr. Woods

submitted a stay motion in the lower court on February 24, 2020 while simultaneously

maintaining that the court had before it the necessary facts to reach the merits with

enough time to permit appellate review. See id. at 10.

5

On March 2, 2020, the district court granted Respondents’ motion for summary

judgment, denied Mr. Woods’ cross-motion for summary judgment, and denied Mr.

Woods’ motion for a stay. See id.

Mr. Woods filed a Notice of Appeal, a Motion for Stay of Execution, and Principal

Brief in the Eleventh Circuit on March 3, 2020. Respondents filed their Principal Brief

on this same day. Mr. Woods filed his Reply Brief the following day, March 4, 2020.

The Eleventh Circuit denied Mr. Woods’ appeal and his motion for a stay on March 4,

2020. See Appendix, Ex. 1.

III.

Facts Pertinent to the State’s Deprivation of Mr. Woods’ Eighth and

Fourteenth Amendment Rights.

A. The nitrogen-hypoxia opt-in process.

Lethal injection is Alabama’s default method of execution. Appendix, Ex. 2 at

4 (citing Ala. Code § 15-18-82.1(a)). On April 6, 2012, inmate Carey Dale Grayson

sued the State of Alabama, alleging that the State’s lethal-injection protocol (and the

secrecy then surrounding it) violated his Eighth and Fourteenth Amendment rights.

Id. at 5. Other death-sentenced inmates eventually filed their own complaints, which

were consolidated in the U.S. District Court, Middle District of Alabama, as In Re:

Alabama Lethal Injection Protocol Litigation, Case No. 12-cv-00316 (M.D. Ala.). Appendix, Ex. 2 at 5-6.

In that litigation, plaintiffs proposed nitrogen gas as an

alternative method of execution. Id. at 6.

While In Re: Alabama Lethal Injection Protocol Litigation was pending, on

June 1, 2018, the State of Alabama amended its laws to allow death-sentenced

inmates to choose the manner by which they would be executed: by Alabama’s default

6

method of lethal injection or by nitrogen hypoxia. Id. at 4. Inmates whose death

sentences had become final prior to the amendment’s enactment, like Mr. Woods,

were given 30 days to make this election. Id. at 4-5 (citing Ala. Code § 15-1882.1(b)(2)). After June 30, 2018, inmates who did not opt into death by nitrogen

hypoxia would be deemed to have forever waived their right to make such election.

See id.

At the time of the amendment’s enactment and throughout the 30-day election

period, the State of Alabama had not created or implemented a protocol by which it

could carry out executions using nitrogen hypoxia. Id. at 7; see also Price v. Comm’r,

Dep’t of Corr., 920 F.3d 1317, 1327 (11th Cir. 2019) (noting Attorney General’s

disclosure that, as of April 2019, “ADOC ha[d] not yet finalized a nitrogen-hypoxia

protocol”). As conceded by Respondents in the courts below, State officials—such as

Respondents—were aware of this. And they were aware of the consequences of it: no

executions via nitrogen hypoxia would take place until a protocol was adopted. However, they did not share this information with inmates on death row, including Mr.

Woods, during the 30-day election period.

On or after June 26, 2018, the warden of Holman Correctional Facility ordered

that an election form be distributed to all death-row inmates. E.g., Appendix, Ex. 2

at 6. The form consisted of the following, in its entirety:

ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA

Pursuant to Act No. 2018-353, if I am to be executed, I elect that it be by

nitrogen hypoxia rather than by lethal injection. This election is not

intended to affect the status of any challenge(s) (current or future) to my

conviction(s) or sentence(s), nor waive my right to challenge the

7

constitutionality of any protocol adopted for carrying out execution by

nitrogen hypoxia.

Dated this ________ day of June, 2018.

______________________

Inmate/Inmate Number

_________________________

Signature

Mr. Woods did not return the form at that juncture.

B. Post-amendment executions in Alabama.

Since June 30, 2018, eighteen (18) Alabama death-sentenced inmates have

completed federal habeas review. Id. at 5. The State has moved to execute five inmates since that time, believing all of them were scheduled to die by lethal injection:

Domineque Ray, Michael Brandon Samra, Christopher Lee Price, Jarrod Taylor, and

Nathaniel Woods. Id. at 7-8 (“While the State is currently unable to perform nitrogen

hypoxia executions, it has proceeded with the executions of death row inmates who

have completed their appeals and who did not elect nitrogen hypoxia.”).

Domineque Ray

Mr. Ray was executed on February 7, 2019 via lethal injection. Id. at 8.

Michael Brandon Samra

Mr. Samra was executed on May 16, 2019 via lethal injection. Id.

Christopher Lee Price

Christopher Lee Price desired to be executed via nitrogen hypoxia. On January

27, 2019—more than a month before the Alabama Supreme Court scheduled the execution—Mr. Price asked the warden of Holman Correctional Facility to allow him to

be executed by nitrogen hypoxia. Price, 920 F.3d at 1322. The warden claimed to

“not have the authority to grant, deny, or reject the request,” and instead referred

8

Mr. Price and his counsel to the State Attorney General. Id. The Attorney General

ultimately denied Mr. Price’s request, “citing the thirty-day period to opt into the

protocol.” Id.

On February 8, 2019, Mr. Price sued the State in U.S. District Court, raising

various constitutional objections to the State’s refusal to allow him to die by nitrogen

hypoxia. During the litigation of Mr. Price’s lawsuit, the State admitted that it did

not have a protocol or the means by which to execute individuals via nitrogen hypoxia.

Id. at 1327. Until that point, the State had not definitively disclosed whether it had

an execution protocol for nitrogen hypoxia. Mr. Price’s lawsuit eventually was dismissed. The Eleventh Circuit affirmed. Price, 920 F.3d 1317.

Before the Eleventh Circuit entered its mandate, however, the lower court received new evidence (in the form of a final version of a draft report that was at issue)

and stayed Mr. Price’s execution. Price v. Dunn et al., 1:19-cv-57, Doc. 49 (S.D. Ala.

Apr. 11, 2019). The Eleventh Circuit affirmed the stay. Price v. Dunn, No. 19-11268P (11th Cir. Apr. 11, 2019). On April 12, 2019, this Court vacated the stay, Price v.

Dunn, 139 S. Ct. 1312 (2019), but the execution order expired before the vacatur was

communicated to Alabama correctional facilities. In a concurring opinion written a

month later, when Mr. Price unsuccessfully sought a petition for a writ of certiorari

to challenge the lethal-injection protocol, Justice Thomas explained that vacating the

stay in April 2019 was necessary in large part because the district court did not have

jurisdiction to enter the stay in the first instance. Id. at 1537 (Thomas, J., concurring).

9

Mr. Price was executed on May 30, 2019 via lethal injection.

Jarrod Taylor

On July 29, 2019, the State moved the Alabama Supreme Court to schedule

Jarrod Taylor’s execution. Woods v. Dunn, No. 2:20-cv-58-ECM, Doc. 22 at 7 (M.D.

Ala. Feb. 13, 2020). Id. As part of the motion, the State represented that Mr. Taylor

had not made a timely election of death by nitrogen hypoxia. Id. On July 30, 2019,

Mr. Taylor’s counsel informed the State that Mr. Taylor had, in fact, timely elected

death by nitrogen hypoxia. Id. A day later, Mr. Taylor’s counsel provided the State

documentation showing Mr. Taylor’s timely election. Id. On August 2, 2019, the

State moved to withdraw the motion to set Mr. Taylor’s execution date. Id. In support of the motion to withdraw, the State affirmed that “ADOC is not yet prepared to

proceed with an execution by nitrogen hypoxia[.]”. Id.

C. Current Status of Alabama’s Nitrogen-Hypoxia Protocol.

While the State disclosed in April 2019 that it had not yet created or

implemented a protocol or acquired the means to execute Alabama inmates via

nitrogen hypoxia, it could have done so at any point in time leading up to the time

the Alabama Supreme Court set Mr. Woods’ execution date. As a consequence of the

State’s failure to adopt a protocol, it has indefinitely suspended and postponed the

execution of all inmates who elected death by nitrogen hypoxia. To date, no state,

including Alabama, has carried out an execution via nitrogen hypoxia.

10

REASONS FOR GRANTING THE WRIT

I.

This Court Should Grant Certiorari to Decide Whether the Eighth

Amendment Applies to How the State Carries Out the Death Penalty.

The Eleventh Circuit Court of Appeals rejected Mr. Woods’ Eighth Amendment

because, it held, the amendment is limited to “imposition of a death sentence;” it does

not apply to the “carrying out of [a] death sentence.” Appendix, Ex. 1 at 13-14

(emphasis in original). Were that true, it would mean death row inmates have no

Eighth Amendment rights following completion of federal habeas. Attorney Generals

would have such unfettered discretion that they could, for instance, target inmates

for execution based on the race of their victims, marching off to the death chamber

those with white victims, while providing for a de facto moratorium where the crimes

involved individuals of color.

Such an outcome would contravene settled authority from this Court, which

recognizes, contrary to the Eleventh Circuit’s conclusion, that “the imposition and

carrying out of the death penalty … [may] constitute cruel and unusual punishment

in violation of the Eighth and Fourteenth Amendments.” Furman v. Georgia, 408

U.S. 238, 239 (1972) (per curiam) (emphasis added). Time and again, this Court has

reaffirmed the proposition that the Eighth Amendment applies with as much force to

imposition of the death penalty as it does to how it is carried out. See, e.g., Bucklew

v. Precythe, 139 S.Ct. 1112, 1122 (2019) (“While the Eighth Amendment doesn’t forbid

capital punishment, it does speak to how States may carry out that punishment,

prohibiting methods that are ‘cruel and unusual.’”) (emphasis added); Panetti v.

Quarterman, 551 U.S. 930, 934 (2007) (noting that “carrying out a sentence of death

11

upon a prisoner who is insane” violates the Eighth Amendment, even though the

prisoner was earlier determined to be competent to stand trial) (emphasis added);

Ford v. Wainwright, 477 U.S. 399, 409 (1986) (“[T]his Court is compelled to conclude

that the Eighth Amendment prohibits a State from carrying out a sentence of death

upon a prisoner who is insane.”) (emphasis added).

The Eleventh Circuit’s contrary determination calls into question this long line

of authority, presents a recurring problem (at a minimum, until a nitrogen hypoxia

protocol is created), and addresses important questions concerning the bounds of

discretion in the context of death penalty administration. This Court should grant

certiorari to clarify the contours of the Eighth Amendment.

II.

This Court Should Grant Certiorari to Decide the Bounds of

Discretion in the Context of Death Penalty Administration.

In Ford v. Wainwright, this Court explained “that the Eighth Amendment has

been recognized to affect significantly the procedural and the substantive aspects of

the death penalty[.]” 477 U.S. at 405. Given the Eighth Amendment’s application to

how the death penalty is carried out, this Court held that a state could not target for

execution an inmate deemed to be insane. Id. at 409-410. In the process, the Ford

Court suggested that actions by the State which affect the timing of an inmate’s

execution also could fall within the protections of the Constitution. See id. at 411

(“Although the condemned prisoner does not enjoy the same presumptions accorded

a defendant who has yet to be convicted or sentenced, he has not lost the protection

of the Constitution altogether; if the Constitution renders the fact or timing of his

execution contingent upon establishment of a further fact, then that fact must be

12

determined with the high regard for truth that befits a decision affecting the life or

death of a human being.”).

But because states have largely selected which death-row inmates to execute

and when based on objective, non-arbitrary criteria, this Court has not had the

opportunity to address the Eighth Amendment’s contours in this context. Indeed,

that was the case in Alabama until June 2018 where it utilized a “first-out-of-habeas,

first-up” policy. But Respondents have since changed that policy. As they revealed

with the mistaken effort to execute Jarrod Taylor, they are now scheduling executions

for inmates who fortuitously (though unknowingly) chose nitrogen gas, while

penalizing inmates such as Mr. Woods who unwittingly refused to participate in the

execution process by selecting a method.

This Court has established that the death penalty should not be deployed in

“circumstances under which” it will be “meted out arbitrarily or capriciously or

through whim or mistake.”

Caldwell v. Mississippi, 472 U.S. 320, 343 (1983)

(O’Connor, J., concurring in part and concurring in the judgment) (citation and

internal quotations omitted) (grammatical alterations omitted). That is precisely

what is occurring with the State’s selective pursuit of the death penalty. Such

targeting is not simply arbitrary and freakish, it is affirmatively discriminatory and

serves to punish individuals based on factors divorced from their offense. Furman,

408 U.S. at 249. (“A penalty … should be considered ‘unusually’ imposed if it is

administered arbitrarily or discriminatorily.”).

13

Whatever may be said of the State’s approach to carrying out executions where

it is based on some objective measure—such as timing of conclusion of appeals or date

of conviction—the Eighth Amendment is not so brittle as to confer freewheeling

authority to dole out the penalty at prosecutor’s whims. Cf. McCleskey v. Kemp, 481

U.S. 279, 341 (1987) (Brennan, J., dissenting) (“Certainly, a factor that we would

regard as morally irrelevant, such as hair color, ... could be associated with sentencing

results to such an extent that we would regard as arbitrary a system in which that

factor played a significant role.”). This Court should grant certiorari to address the

novel question concerning the bounds of the Eighth Amendment in the context of

dispensing the death penalty.

III.

This Court Should Grant Certiorari to Decide Whether the Due

Process and Equal Protection Clauses Preclude the State from

Withholding Vital Information Central to a Life-Altering Decision and

Discriminating Among Individuals Based on That Suppressed

Information.

A.

The Court Should Address the Scope of Information Inmates Are

Entitled to When Asked to Choose Their Method of Execution.

When the State affirmatively implements a process by which death-sentenced

inmates may obtain relief, that process must comply with the Fourteenth Amendment—even when that process is purely discretionary. See Ohio Adult Parole Auth.

v. Woodard, 523 U.S. 272, 290 (O’Connor, J., concurring in part and concurring in the

judgment); Ford, 477 U.S. at 412. This case presents a unique opportunity to address

the due process obligations the State has when it creates a process purporting to give

inmates a choice in the method of their execution. Given the shortage of lethal-injection drugs now available, states like Alabama, Oklahoma, and Missouri are exploring

14

alternatives. See, e.g., Dunn v. Price, 139 S.Ct. 1312, 1313 (2019) (Breyer, J., dissenting) (noting that both the Alabama and Oklahoma state legislatures had recently

adopted nitrogen hypoxia as an available method of execution). This case allows the

Court to definitively set the contours of the States’ due-process obligations as the

states embark on efforts to provide inmates with alternative methods of execution.

The Fourteenth Amendment forbids the State from “depriv[ing] any person of

life, liberty, or property without due process of law ….” In the capital-punishment

arena, the Government’s obligation to provide due process is all the more critical.

Indeed, this Court has emphasized its “heightened concern for fairness and accuracy”

when reviewing “the process requisite to the taking of a human life.” Ford, 477 U.S.

at 414. How much process is due depends on the situation. See Morrissey v. Brewer,

408 U.S. 471, 481 (1972) (“[D]ue process is flexible and calls for such procedural protections as the particular situation demands.”); see also Mathews v. Eldridge, 424

U.S. 319, 334-35 (1976) (describing three-part due process test).

Life Interest. Mr. Woods maintains a life interest. See Woodard, 523 U.S. at

281 (1998) (Rehnquist, C.J., joined by Scalia, Kennedy, and Thomas, JJ.) (“We agree

that respondent maintains a residual life interest, e.g., in not being summarily executed by prison guards.”); Ford, 477 U.S. at 411 (“if the Constitution renders the fact

or timing of [the condemned prisoner’s] execution contingent upon establishment of

a further fact, then that fact must be determined with the high regard for truth that

befits a decision affecting the life or death of a human being.”) (emphasis added).

15

In contrast to the limited due process afforded the Woodard respondent as part

of a purely discretionary clemency scheme, and that afforded the Ford petitioner, Mr.

Woods was deprived of even minimal procedural safeguards during the 30-day period

he was required to choose how Respondents would execute him. At a minimum, he

was entitled to all relevant information bearing upon his choice, including that (1)

the State did not have a nitrogen-hypoxia protocol in place and (2) the State intended

to continue executing individuals via lethal injection while indefinitely sparing the

lives of inmates who opted into nitrogen gas. But Respondents did not tell him this

and thus deprived Mr. Woods of his constitutional right to notice “at a meaningful

time and in a meaningful manner.” See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)

(citation and internal quotations omitted); Sessions v. Dimaya, 138 S.Ct. 1204, 1225

(2018) (Gorsuch, J., concurring) (“Perhaps the most basic of due process’s customary

protections is the demand for fair notice.”) (citations omitted).

Risk of Erroneous Deprivation. Mr. Woods could not have protected his

residual life interest unless he had sufficient information about the effect of his election on those interests. See, e.g., Pabon v. Wright, 459 F.3d 241, 249-50 (2d Cir. 2006)

(“[A]n individual cannot exercise his established right to refuse medical treatment in

a meaningful and intelligent fashion unless he has sufficient information about proposed treatment.”); see also United States v. Frye, 402 F.3d 1123, 1127 (11th Cir.

2005) (in deciding whether to plead guilty, defendant must know and understand the

consequences of doing so); Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 174

(4th Cir. 1988) (where employee’s resignation is obtained by employer’s

16

misrepresentation or deception, the employer has “prevented the employee from making a free and informed choice” and thus “deprived the employee of his protected property interest”).

To prevent the risk that inmates like Mr. Woods would make uninformed decisions, Respondents should have disclosed—during the 30-day opt-in period—that

there was no nitrogen-hypoxia protocol in place. Or, alternately, the State could revert to its non-discriminatory and fairly administered policy of scheduling executions

based only on when an inmate has exhausted his judicial review.

Government Interest. Whatever interest the State has in enforcing its judgments, the procedural safeguards that should be afforded in this situation do not

meaningfully impede them. All Mr. Woods desires is an election process wherein all

relevant information is provided, along with an opportunity to consult with counsel

concerning that information. Given that the State was apparently prepared to indefinitely suspend the execution of any inmate who chose nitrogen gas (which could have

been all of them), the State cannot claim a strong interest in swift executions justifies

suppression of the critical information to which Mr. Woods was entitled.

B.

This Court Should Grant Certiorari to Decide Whether an

Illusory Choice Supplies a Basis for Discriminating Under the

Equal Protection Clause.

This case presents the importation question of whether the Equal Protection

Clause tolerates a state distinguishing among groups of otherwise similarly situated

inmates when the purported distinguishing factor is the natural byproduct of the

State’s unlawful conduct.

17

Disparate Treatment. Mr. Woods is similarly situated in all meaningful

respects to the fourteen (14) other death-row inmates who are eligible to be executed

due to the completion of their direct appeals and federal habeas proceedings.

However, the State has created two classes of death-sentenced inmates: (1) those

whose executions have been indefinitely suspended because they elected, during a 30day window, a method the State is not prepared to carry out, and (2) those whose

executions will proceed because they did not elect to die via nitrogen hypoxia. Mr.

Woods falls into the latter category—but only because the State suppressed material

information from him. Because Mr. Woods did not stumble into an indefinite

suspension of his execution, he has been targeted for execution sooner than similarly

situated death-sentenced prisoners solely as a function of his purported “choice.” This

is an unconstitutional distinction. See, e.g., Skinner v. State of Okl. ex rel. Williamson,

316 U.S. 535, 541 (1942).

The Eleventh Circuit concluded that its decision in Price, 920 F.3d at 1327,

controls. Appendix, Ex. 1 at 12. But Price cannot be an answer to the claim Mr.

Woods raises because, in Price, the distinction among the classes was based on

information known to inmates at the time: whether they preferred one substantive

method over another. What distinguishes the inmates here is the timing of their

execution—a fact that none of them knew at the time of the supposed election because

the State suppressed it. It is therefore a tainted variable and serves only as a pretext

for distinguishing among inmates. This Court should thus clarify that its Equal

Protection jurisprudence does not permit suppressing information and then citing

18

that suppressed information as a constitutional basis for distinguishing among

individuals.

Degree of Scrutiny. Had the lower courts recognized Mr. Woods is similarly

situated to inmates that chose nitrogen gas, they would have found an equal

protection violation because strict scrutiny applies. Indeed, numerous fundamental

rights are at issue, including Mr. Woods’ Fourteenth Amendment rights to life and

notice. See, e.g., Furman, 408 U.S. at 359 n.141 (1972) (Marshall, J., concurring)

(“[B]ecause capital punishment deprives an individual of a fundamental right (i.e.,

the right to life), the State needs a compelling interest to justify it.”); Skinner, 316

U.S. at 541 (recognizing strict scrutiny applies where the right at issue is

“fundamental to [an individual’s] very existence and survival” and he would “forever

[be] deprived of a basic liberty”).

There is no compelling reason—or even a rational basis—for withholding such

information or targeting. Nor have Respondents ever articulated one. In fact, by

virtue of passing Alabama Code § 15-18.82.1, the State was fully prepared for delay,

as all death-sentenced inmates had the ability to opt for nitrogen hypoxia. As such,

it cannot claim urgency as an interest that warrants depriving an individual of the

opportunity to make an informed decision.

CONCLUSION

Nathaniel Woods is scheduled to die today, while fourteen of his fellow deathrow inmates have a de facto moratorium. The sole distinguishing factor is that Mr.

Woods declined to participate in his own execution by choosing between methods of

19

execution. This Court should grant certiorari to resolve the critically important questions of whether the Eighth and Fourteenth Amendment permit the State to play this

shell game with inmate lives and tolerate such arbitrary, discriminatory, and cruel

administration of the death penalty.

Respectfully submitted,

Marc R. Shapiro

Counsel of Record

Shane McCammon

José Mario Valdés

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

(212) 506-5000

mrshapiro@orrick.com

Date March 5, 2020

20