Amicus Curiae Brief — Michael Nance, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections, et al.

No. 21-439

In the

Supreme Court of the United States

MICHAEL NANCE,

Petitioner,

v.

TIMOTHY C. WARD, COMMISSIONER, GEORGIA

DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of A ppeals for the Eleventh Circuit

BRIEF OF AMICI CURIAE LEGAL

SCHOLARS IN SUPPORT OF PETITIONER

Bruce H. Schneider

Counsel of Record

Christine E. Ellis

Hinako Gojima

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5400

bschneider@stroock.com

Counsel for Amici Curiae

310853

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORTIES . . . . . . . . . . . . . . . iii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

A prisoner’s method-of-execution challenge

is properly raised under 42 U.S.C. § 1983

regardless of whether the alternative method

alleged is authorized under state law . . . . . . . . . 6

A. This Court clearly established in

Bucklew v. Precythe that a prisoner can

allege an alternative method of execution

that is not authorized by state law . . . . . . . . 7

B. T h i s C o u r t ’ s j u r i s p r u d e n c e

supports a ruling that 42 U.S.C. §

19 8 3 i s t he pr op e r pr o c e du r a l

vehicle for such challenges . . . . . . . . . . . . . 11

C. Alleging a non-statutory alternative

method of execution through 4 2

U.S.C. § 1983 is a well-established

practice that allows for the timely

administration of justice . . . . . . . . . . . . . . . 15

ii

Table of Contents

Page

II. Requiring prisoners who cannot allege

a statutorily-authorized alternative to

pr oc e ed i n hab e a s w i l l ef fe c t ively

prevent constitutional review of of states’

execution protocols . . . . . . . . . . . . . . . . . . . . . . . . 19

A. If non-statutory alternative methods

cannot be raised under 42 U.S.C. § 1983,

any state can insulate an unconstitutional

execution method from review by

failing to authorize an alternative . . . . . . . 20

B. Relegating all method-of-execution

challenges alleging a non-statutory

alternative method to successive

habeas petitions would procedurally

overrule the right recently announced

in Bucklew v. Precythe . . . . . . . . . . . . . . . . 22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

iii

TABLE OF CITED AUTHORITIES

Page

Cases

Abdur’Rahman v. Parker,

558 S.W.3d 606 (Tenn. 2018) . . . . . . . . . . . . . . . . . . . 17

Arthur v. Commissioner, Ala. Dept. of

Corrections,

840 F.3d 1268 (11th Cir. 2016),

abrogated in part by Bucklew, 139 S. Ct. 1112 . . 22-23

Arthur v. Dunn,

195 F. Supp.3d 12575 (M.D. Ala. 2016) . . . . . . . . . . . 23

Baze v. Rees,

553 U.S. 35 (2008) . . . . . . . . . . . . . . . . . . . . . . . . passim

Bible v. Davis,

No. 4:18-CV-1893, 2018 WL 30688049

(S.D. Tex. June 21, 2018),

aff’d, 739 F. App’x. 766 (5th Cir. 2018) . . . . . . . . .8, 24

Boyd v. Myers,

No. 2:14-CV-1017-WKW, 2015 WL 58529484

(M.D. Ala. Oct. 7, 2015), aff’d sub nom. Boyd v.

Warden, Holman Corr. Facility, 856 F.3d 853

(11th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Bucklew v. Precythe,

139 S. Ct. 112 (2019) . . . . . . . . . . . . . . . . . . . . . . passim

iv

Cited Authorities

Page

Butts v. Chatman,

No. 5:13-cv-194, 2014 WL 185339

(M.D. Ga. Jan. 15, 2014) . . . . . . . . . . . . . . . . . . . . . 5, 18

Dep’t of Homeland Sec. v. Thuraissigiam,

140 S. Ct. 1959 (2020) . . . . . . . . . . . . . . . . . . . . . . . 4, 11

Edwards v. Balisok,

520 U.S. 641 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Glossip v. Chandler,

No. CIV-14-0665-F, 2021 WL 3561229

(W.D. Okla. Aug. 11, 2021) . . . . . . . . . . . . . . . . . . . . . 24

Glossip v. Gross,

576 U.S. 863 (2015) . . . . . . . . . . . . . . . . . . . . . . . passim

Heck v. Humphrey,

512 U.S. 477 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 11, 14

Hill v. McDonough,

547 U.S. 573 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In re Campbell,

874 F.3d 454 (6th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 13

In re Fed. Bureau of Prisons’ Execution

Protocol Cases,

471 F. Supp. 3d 209 (D.D.C. 2020),

vacated on other grounds sub nom.

Barr v. Lee, 140 S. Ct. 2590 (2020) . . . . . . . . . . 24-25

v

Cited Authorities

Page

Kelley v. Johnson,

496 S.W.3d 3460 (Ark. 2016) . . . . . . . . . . . . . . . . . . 8, 23

Lockett v. Ohio,

438 U.S. 586 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Martin v. Hunter’s Lessee,

14 U.S. 304 (1816) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

McGehee v. Hutchinson,

854 F.3d 488 (8th Cir. 2017) . . . . . . . . . . . . . . . . . . 8, 23

Nelson v. Campbell,

541 U.S. 637 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11

Payne v. Tennessee,

501 U.S. 808 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Preiser v. Rodriguez,

411 U.S. 475 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Roane v. Barr,

2020 WL 3960928 (D.D.C. July 13, 2020) . . . . . . . . . 21

Sealey v. Chatman,

No. 1:14-cv-00285, 2017 WL 11477455

(N.D. Ga. Nov. 9, 2017), aff’d sub nom.

Sealey v. Warden, Georgia Diagnostic Prison,

954 F.3d 1338 (11th Cir. 2020) . . . . . . . . . . . . . . . . . 18

vi

Cited Authorities

Page

Skinner v. Switzer,

562 U.S. 521 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Texas v. United States,

523 U.S. 296 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Tollette v. Warden,

No. 4:14-cv-110, 2014 WL 5430029

(M.D. Ga. Oct. 22, 2014) . . . . . . . . . . . . . . . . . . . . . 5, 18

Wilkinson v. Dotson,

544 U.S. 74 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15

Wolff v. McDonnell,

418 U.S. 539 (1974) . . . . . . . . . . . . . . . . . . . . . 11, 14, 15

Wood v. Ryan,

759 F.3d 1076 (9th Cir. 2014),

vacated, 573 U.S. 976 (2014) . . . . . . . . . . . . . . . . . . . 17

Woodson v. North Carolina,

428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Statutes and Other Authorities

U.S. Const. Amend VIII . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 2244(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

vii

Cited Authorities

Page

28 U.S.C. § 2244(d)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 16

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Death Penalty Information Center, Authorized

Methods by State . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Death Penalty Information Center, State and

Federal Info, Utah . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Emily Bohatch, SC House passes bill bringing

back electric chair, introducing firing squad,

State (May 6, 2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Kim Chandler, Alabama says it has built method for

nitrogen gas execution, AP News (Aug. 7, 2021) . . 13

Mark Berman, Arizona Execution Lasts Nearly

Two Hours; Lawyer Says Joseph Wood

Was ‘Gasping and Struggling to Breathe,’

Washington Post (Jul. 23, 2014) . . . . . . . . . . . . . . . . 17

Statista, Average time between sentencing and

execution for inmates on death row in the

United States from 1990 to 2019 . . . . . . . . . . . . . . . . 16

1

INTERESTS OF AMICI CURIAE1

Amici Curiae2 are legal scholars and academics who

have dedicated their careers to the study, teaching and

practice of United States constitutional law, including the

death penalty and methods of execution. Many amici have

written scholarly articles on these topics.

Many amici listed below earlier wrote to this Court

in 2018 by submitting a brief in Bucklew v. Precythe, 139

S. Ct. 1112 (2019), to apprise the Court of information

regarding the availability of alternative methods of

execution to be considered in clarifying the applicable

Eighth Amendment standard for method-of-execution

challenges. Amici agreed with the Court’s clear statement

in that case that prisoners challenging an unconstitutional

method of execution are not limited to proposing

alternative methods already authorized by state law.

They are particularly concerned today that the decision

below violates this Court’s own guidance by foreclosing

prisoners’ previously protected ability to allege wellestablished and available alternative methods of execution

that are not yet authorized under a given state’s law.

1. Amici affirm that no counsel for a party authored this brief

in whole or in part, and no party other than amici or their counsel

made a monetary contribution to the preparation or submission of

this brief. All parties consent to the filing of this brief.

2. The views expressed by amici curiae are their own and not

those of the institutions where they teach. The list of institutions to

which amici curiae belong is provided for identification purposes

only.

2

The below amici respectfully submit this brief urging

the Court to rule in favor of Petitioner.

• Eric Berger, Earl Dunlap Distinguished Professor

of Law, University of Nebraska College of Law

• William W. Berry III, Montague Professor of Law,

University of Mississippi School of Law

• Christopher L. Blakesley, Emeritus Professor of

Law, William S. Boyd School of Law

• Marc D. Falkoff, Professor of Law, Northern

Illinois University College of Law

• Brian Gallini, Dean & Professor of Law, Willamette

University College of Law

• Catherine M. Grosso, Professor of Law, Michigan

State University College of Law

• Janet C. Hoeffel, Catherine D. Pierson Professor

of Law, Tulane Law School

• Daniel LaChance, Winship Distinguished Research

Professor in History (2020-23) and Associate

Professor, Department of History, Emory University

• Corinna Barrett Lain, S. D. Roberts & Sandra

Moore Professor of Law, University of Richmond

School of Law

• Joseph Margulies, Professor of the Practice of Law

and Government, Cornell Law School

3

• Colin Miller, Professor of Law & Thomas H. Pope

Professorship in Trial Advocacy, University of

South Carolina School of Law

• Austin D. Sarat, William Nelson Cromwell

Professor of Jurisprudence and Political Science;

Chair of Political Science, Amherst College

• Kenneth Williams, Professor of Law, South Texas

College of Law Houston

SUMMARY OF ARGUMENT

In order to challenge a state’s proposed method

of execution as cruel and unusual under the Eighth

Amendment, a prisoner must also allege a known and

available alternative method. See Glossip v. Gross, 576

U.S. 863 (2015); Baze v. Rees, 553 U.S. 35, 50 (2008).

This court made clear in Bucklew v. Precythe that

“[a]n inmate seeking to identify an alternative method of

execution is not limited to choosing among those presently

authorized by a particular State’s law.” 139 S. Ct. 112,

1128 (2019) (emphasis added). When Petitioner raised an

as-applied challenge to Georgia’s method of execution

and alleged a non-statutory alternative that would spare

him unconstitutional pain, the Eleventh Circuit held that

the claim must be brought in habeas and dismissed the

challenge altogether as a second or successive habeas

petition. With this procedural maneuver, the decision below

effectively overturns this Court’s recent pronouncement in

Bucklew by leaving prisoners with no cognizable vehicle

to allege non-statutory alternative methods of execution.

To reaffirm the right explicitly recognized in Bucklew,

the decision below must be reversed.

4

The writ of habeas corpus has long been understood

as providing “a means of contesting the lawfulness of

restraint and securing release,” Dep’t of Homeland Sec.

v. Thuraissigiam, 140 S. Ct. 1959, 1969 (2020), while 42

U.S.C. § 1983 claims concern conditions of confinement

and sentencing, Nelson v. Campbell, 541 U.S. 637, 643–45

(2004). Method-of-execution challenges are properly

brought under § 1983 rather than through habeas petitions

because they do not challenge the validity of the prisoner’s

sentence or conviction, and success on such a claim leaves

the prisoner on death row and eligible for execution as he

was before. The burden to plead an alternative method

when raising method-of-execution challenges was placed

on prisoners in the first place “because [given] it is settled

that capital punishment is constitutional, ‘[i]t necessarily

follows that there must be a [constitutional] means of

carrying it out.’” Glossip, 576 U.S. at 869 (quoting Baze,

553 U.S. at 47). Alleging an alternative method serves

to prevent method-of-execution challenges from de facto

invalidating the sentence altogether, making them claims

most appropriately raised under § 1983.

Judicial economy further counsels in favor of allowing

prisoners to raise method-of-execution challenges as

straight-forward § 1983 claims, regardless of whether

the alternative method alleged is statutorily authorized.

Federal habeas petitions are required to be filed within

one year of the conviction being final, which is typically

several years before an execution is scheduled. Method-ofexecution challenges are often unripe at that time because

both the state’s execution method and/or the prisoner’s

physical condition can change in the intervening years,

giving rise to new as-applied claims. In recognition of this

fact, the Eleventh Circuit regularly dismisses methodof-execution challenges in habeas petitions, explicitly

5

mentioning the likelihood that the method in use at the

time of the petition is unlikely to be the one actually used.

See, e.g., Butts v. Chatman, No. 5:13-cv-194, 2014 WL

185339, *4 (M.D. Ga. Jan. 15, 2014); Tollette v. Warden,

No. 4:14-cv-110, 2014 WL 5430029, *9 (M.D. Ga. Oct. 22,

2014). Allowing prisoners to raise such challenges with a

straightforward § 1983 claim allows states to adopt new

execution methods when needed, while allowing prisoners

with as-applied challenges to vindicate their Eighth

Amendment rights.

The decision below relegates any method-of-execution

challenge raising a non-statutory alternative method to

a habeas petition and then dismisses such a petition on

the grounds that it is second or successive. This leaves

prisoners with no cognizable vehicle to allege non-statutory

alternative methods. Under such a rule, any state could

shield a new method of execution from meaningful review

by simply failing to authorize an alternative. Prisoners in

any of the seventeen states that authorize only one method

of execution will be especially affected, as the decision

below leaves them with no avenue to allege any alternative

method of execution, even when the state’s only authorized

method would cause them unconstitutional pain and an

alternative is feasible and easily implemented. This will

lead to a balkanized Eighth Amendment jurisprudence,

with prisoners of different states afforded different

opportunities to defend their constitutional rights. Such

a situation is contrary to this Court’s supreme authority

and is reflective of the exact situation that existed preBucklew, which this Court sought to correct with its

clear pronouncement in that case. To re-affirm Bucklew’s

explicit recognition that prisoners are not limited to

alleging statutorily-authorized alternative methods of

execution, the decision below should be reversed.

6

ARGUMENT

I.

A prisoner’s method-of-execution challenge is

properly raised under 42 U.S.C. § 1983 regardless

of whether the alternative method alleged is

authorized under state law.

This Court has held that in order to challenge a state’s

proposed method of execution as cruel and unusual under

the Eighth Amendment, a prisoner must also allege a

known and available alternative method. See Glossip v.

Gross, 576 U.S. 863 (2015); Baze v. Rees, 553 U.S. 35,

50 (2008). In Bucklew v. Precythe, this Court provided

further, clear guidance by holding that “[a]n inmate

seeking to identify an alternative method of execution is

not limited to choosing among those presently authorized

by a particular State’s law.” 139 S. Ct. 1112, 1128 (2019)

(emphasis added). The Eleventh Circuit’s ruling below

now seeks to relegate any challenge raising a nonstatutory alternative method to a habeas petition and to

foreclose relief by dismissing such a petition as successive,

effectively eradicating the right that this Court explicitly

announced in Bucklew.

Under this Court’s jurisprudence, method-ofexecution claims are not properly brought in habeas

because they do not challenge the validity of the death

sentence—even if a state’s only authorized method is

invalidated as applied to a particular prisoner, that

prisoner will remain on death row and immediately

eligible for execution when a new method is adopted. The

requirement to plead an alternative method was itself

created to ensure that challenges to a method of execution

do not render the death penalty de facto unconstitutional,

7

see Glossip, 576 U.S. at 869, making it clear that such

claims do not challenge the validity of the sentence itself

and are thus properly brought under § 1983 rather than

through a habeas petition.

Additionally, the Eleventh Circuit’s decision runs

contrary to the principles of judicial economy. A federal

habeas petition must be filed within a year of the conviction

becoming final, which is often a decade or longer before

an execution is scheduled. The methods authorized by

a state at the time of the habeas petition may well be

changed before the execution occurs, meaning such

claims would go from being unripe to moot. As-applied

challenges in particular cannot be expected to be raised

in a prisoner’s habeas petition because the prisoner’s

unique circumstances or medical condition that render the

state’s method unconstitutionally painful might develop or

worsen years after the habeas petition is filed. Methodof-execution claims are thus more appropriately brought

under 42 U.S.C. § 1983 when the claim accrues, rather

than years earlier when a federal habeas petition is filed.

This well-established practice ensures that questions

around a method’s constitutionality are adjudicated only

when they are ripe and ensures efficient use of judicial

resources.

A.

This Court clearly established in Bucklew

v. Precythe that a prisoner can allege an

alternative method of execution that is not

authorized by state law.

To prove that a method of execution is cruel and

unusual in violation of the Eighth Amendment, a prisoner

must demonstrate that the state’s proposed method

8

presents an “objectively intolerable risk of harm.” Baze,

553 U.S. at 50. This Court set forth a two-prong test for

meeting this Eighth Amendment standard in Glossip

v. Gross. A petitioner must plead and prove: (1) that

the state’s execution method poses a substantial risk of

severe pain; and (2) that there is a “known and available”

alternative method of execution that is “feasible, [and]

readily implemented” that “significantly reduce[s] a

substantial risk of severe pain.” Glossip, 576 U.S. at

877–82.

Glossip, however, “provided little guidance as to when

an alternative method of execution is ‘available,’” McGehee

v. Hutchinson, 854 F.3d 488, 500 (8th Cir. 2017) (Kelly,

J., dissenting), resulting in lower courts addressing the

“known and available” requirement inconsistently and

incorrectly. Many courts interpreted all non-statutory

alternative methods to be unavailable for that reason

alone. See, e.g., Kelley v. Johnson, 496 S.W.3d 346, 359–60

(Ark. 2016) (“Execution by firing squad is not identified

in the statute as an approved means of carrying out a

sentence of death . . . [therefore] it cannot be said that

the use of a firing squad is a readily implemented and

available option to the present method of execution.”);

Bible v. Davis, No. 4:18-CV-1893, 2018 WL 3068804, at

*9 (S.D. Tex. June 21, 2018) (holding that firing squad and

nitrogen hypoxia were not feasible or readily implemented

alternative methods because “Texas law and protocol

allow for the State to use only one method of execution:

lethal injection.”), aff’d, 739 F. App’x. 766 (5th Cir. 2018).

The recent decision in Bucklew v. Precythe further

clarified and built upon the Baze-Glossip pleading

standard while rejecting such overly strict interpretations

9

of the burden to allege an alternative method. 139 S. Ct.

at 1112. The Court reiterated that to establish whether

a “State’s chosen method of execution cruelly superadds

pain to the death sentence, a prisoner must show a feasible

and readily implemented alternative method of execution

that would significantly reduce a substantial risk of severe

pain and that the State has refused to adopt without a

legitimate penological reason.” Id. at 1125 (citing Baze,

553 U.S. at 52 and Glossip, 576 U. S. at 877). The Court

further explained that:

[T]he burden [a prisoner] must shoulder under

the Baze-Glossip test can be overstated. An

inmate seeking to identify an alternative method

of execution is not limited to choosing among

those presently authorized by a particular

State’s law. . . So, for example, a prisoner may

point to a well-established protocol in another

State as a potentially viable option.

Bucklew, 139 S. Ct. at 1128.

Justice Kavanaugh, who joined the decision, wrote

separately “to underscore the Court’s additional holding

that the alternative method of execution need not be

authorized under current state law—a legal issue that

had been uncertain before today’s decision. Importantly,

all nine Justices today agree on that point.” Id. at 1136

(Kavanaugh, J., concurring) (internal citations omitted).

In light of this holding, the Court saw “little likelihood

that an inmate facing a serious risk of pain will be unable

to identify an available alternative.” Id. at 1128–29. Yet

under the Eleventh Circuit’s ruling, such an outcome would

10

be virtually certain in any of the 17 states that, along

with the federal government, authorize only one method

of execution. See Death Penalty Information Center,

Authorized Methods by State, https://deathpenaltyinfo.

org/executions/methods-of-execution/authorized-methodsby-state. The decision below requires any prisoner

alleging an alternative method of execution that is not

yet authorized by the sentencing state to raise his claim

in a habeas petition, and then dismisses such a petition as

being second or successive and failing to meet the strict

jurisdictional requirements of 28 U.S.C. § 2244(b)(2).

Given that method-of-execution claims are unlikely to be

ripe when a prisoner’s first habeas petition is due to be

filed, such claims would virtually always have to be raised

sometime after the initial habeas petition is filed and are

therefore effectively barred under the Eleventh Circuit’s

ruling below. Thus, by eliminating § 1983 as a vehicle for

such challenges and holding that a habeas petition raising

such a claim is successive, the ruling below eviscerates a

method for vindicating a fundamental constitutional right

that this Court clearly and unequivocally preserved in

Bucklew. The Eleventh Circuit’s decision relegates deathsentenced prisoners to the uncertainty of the pre-Bucklew

era, destroying Bucklew’s clear mandate that prisoners

may allege methods of execution that are not presently

permitted under state law. The resulting patchwork

approach, in which a prisoner’s Eighth Amendment rights

are prescribed and limited by the relevant state’s law, is

incompatible with the fundamental principle emphasizing

a “necessity of uniformity of decisions throughout the

whole United States, upon all subjects within the purview

of the constitution.” Martin v. Hunter’s Lessee, 14 U.S.

304, 347–348 (1816) (emphasis in original).

11

B. This Court’s jurisprudence supports a ruling

that 42 U.S.C. § 1983 is the proper procedural

vehicle for such challenges.

In Bucklew, this Court emphasized that “the Eighth

Amendment is the supreme law of the land, and the

comparative assessment it requires can’t be controlled

by the State’s choice of which methods to authorize in its

statutes.” Bucklew, 139 S. Ct. at 1128. Because a methodof-execution challenge does not challenge the validity

of the underlying sentence—whether or not the alleged

alternative method is authorized by state statute—this

Court’s jurisprudence supports a conclusion that such

challenges must be brought under § 1983.

The writ of habeas corpus has long been understood

as providing “a means of contesting the lawfulness of

restraint and securing release,” Dep’t of Homeland Sec. v.

Thuraissigiam, 140 S. Ct. 1959, 1969 (2020), while § 1983

claims concern conditions of confinement and sentencing,

Nelson v. Campbell, 541 U.S. 637, 643–45 (2004). A habeas

claim is one that implies invalidity of the conviction

or sentence altogether, while a claim that “would not

necessarily spell speedier release, however . . . may be

brought under § 1983.” Skinner v. Switzer, 562 U.S. 521,

525 (2011) (internal quotation omitted). This Court has

repeatedly held that an action under § 1983 will not lie

where a state prisoner challenges “the fact or duration

of his confinement” and seeks either “immediate release

from prison” or shortening of the term of confinement.

Preiser v. Rodriguez, 411 U.S. 475, 482, 489 (1973); see

also Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Heck v.

Humphrey, 512 U.S. 477, 481 (1994); Edwards v. Balisok,

520 U.S. 641, 648 (1997).

12

In practice, this has consistently been understood to

mean that challenges to the method and protocol by which

a prisoner is to be executed are properly brought under

§ 1983, as they impact not the sentence itself, but how it

is carried out. To hold otherwise is a misunderstanding

of black letter law. As Justice Scalia wrote,

It is one thing to say that permissible habeas

relief, as our cases interpret the statute,

includes ordering a ‘quantum change in the

level of custody,’ . . . It is quite another to say

that the habeas statute authorizes federal

courts to order relief that neither terminates

custody, accelerates the future date of release

from custody, nor reduces the level of custody.

Wilkinson v. Dotson, 544 U.S. 74, 86 (2005) (Scalia, J.,

concurring) (citation omitted).

The Eleventh Circuit’s reasoning in drawing the

opposite conclusion—that invalidating Georgia’s only

authorized execution method as applied to Petitioner

would necessarily imply the invalidity of his sentence—is

inaccurate. Were lethal injection to be held unconstitutional

as applied to Petitioner, he would remain on death row in

Georgia and still be eligible for execution. To carry out his

sentence, the people of Georgia and their representatives

could authorize one of many other available execution

methods, like the firing squad that petitioner alleged.

South Carolina amended its laws to allow the firing squad

and electric chair just last year, see Emily Bohatch, SC

House passes bill bringing back electric chair, introducing

firing squad, State (May 6, 2021), https://www.thestate.

com/news/politics-government/article251151894.html,

13

while Alabama, Oklahoma and Mississippi chose to

authorize execution by nitrogen hypoxia in 2018, see Kim

Chandler, Alabama says it has built method for nitrogen

gas execution, AP News (Aug. 7, 2021), https://apnews.

com/article/alabama-executions-57c6d76d5a0f6b4a8ecb23

24b7a68004. Nothing would prevent Georgia from taking

a similar step to authorize another method that does not

violate Petitioner’s constitutional rights. Such an approach

has been endorsed by the Sixth Circuit, which held that

an Ohio prisoner’s challenge to lethal injection (the state’s

only authorized method of execution) was required to be

raised as a § 1983 claim because if he were successful,

Ohio would still be permitted to execute the petitioner.

The Sixth Circuit held that success on Petitioner’s claim:

would not impair the validity of Campbell’s

death sentence at all. The fact that Ohio

currently permits execution only by lethal

injection does not change that fact. The Ohio

legislature could, tomorrow, enact a statute

reinstating the firing squad as an alternative

method of execution. . . . The State of Ohio could

still execute Campbell—it would simply need to

find a method that comports with the Eighth

Amendment.”

In re Campbell, 874 F.3d 454, 465–66 (6th Cir. 2017)

(emphasis in original).

This Court acknowledged in Bucklew that “existing

state law might be relevant to determining the proper

procedural vehicle for the inmate’s claim,” and that “if the

relief sought in a 42 U.S.C. §1983 action would ‘foreclose

the State from implementing the [inmate’s] sentence under

14

present law,’ then ‘recharacterizing a complaint as an

action for habeas corpus might be proper,’” Bucklew, 139

S. Ct. 1112 at 1128 (quoting Hill v. McDonough, 547 U.S.

573, 582–583 (2006)), but ultimately did not resolve the

question. This Court’s logic in placing the burden to raise

an alternative method of execution upon prisoners itself

supports a holding now that such claims are best brought

under § 1983. The Court reasoned in Glossip that “because

it is settled that capital punishment is constitutional,

‘[i]t necessarily follows that there must be a [constitutional]

means of carrying it out.’” 576 U.S. at 869 (quoting Baze,

553 U.S. at 47). Glossip placed this pleading burden

on prisoners explicitly to prevent method-of-execution

challenges from de facto rendering the death penalty

unconstitutional. The need to allege an alternative method

prevents the challenge from invalidating the sentence

altogether, making it more appropriately brought as a

§ 1983 claim rather than a habeas petition.

By seeking to challenge the method of execution

to be used against him while affirmatively pleading an

alternative method that would be less painful, Petitioner

does not challenge the validity of his sentence; if

successful, he would still remain under a sentence of

death. His claim is similar to that of petitioners in Wolff

v. McDonnell, who sought to challenge disciplinary

procedures by which state prison officials denied goodtime credits. 418 U.S. at 539. This Court ruled that

§ 1983 was the proper vehicle for the petitioners to obtain

both a declaration that the disciplinary procedures were

invalid and an injunction against their future enforcement.

Id. at 79–80. In obtaining this relief, petitioners challenged

the “wrong procedures, not . . . the wrong result (i.e.,

[the denial of] good-time credits).” Heck, 512 U.S. at 483

15

(discussing Wolff ). Conversely, they could not have their

invalidated credits restored under § 1983 because that

would necessarily shorten their terms of confinement,

making it a habeas claim. Wolff, 418 U.S. at 554. Similarly,

Petitioner’s claim in the instant case seeks to challenge

“wrong procedures”—an unconstitutionally painful

method of execution—without making any claim that his

execution itself would be a “wrong result.” This Court

used the same logic when deciding that Ohio prisoners

could use § 1983 to challenge the state’s procedures for

denying parole eligibility or suitability. While success in

their claims would entitle the prisoners to a new parole

eligibility review or application, which might in turn

shorten their sentences, it would not “necessarily spell

speedier release” and therefore the claims did not go to

“the core of habeas corpus.” Wilkinson, 544 U.S. at 82

(emphasis added) (internal citations omitted). Similarly,

while Petitioner’s success in the instant case might

temporarily impact the timing of his execution while

Georgia adopts a new, constitutional method to be used

against him, it does not necessarily prevent his sentence

from being carried out as ordered.

C.

Alleging a non-statutory alternative method

of execution through 42 U.S.C. § 1983 is a wellestablished practice that allows for the timely

administration of justice.

The need for rigorous procedural protections and

the highest standard of reliability in capital cases is

clear and well recognized by this Court. Woodson v.

North Carolina, 428 U.S. 280, 305 (1976) (“[T]he penalty

of death is qualitatively different from a sentence of

imprisonment . . . . Because of that qualitative difference,

16

there is a corresponding difference in the need for

reliability in the determination that death is the appropriate

punishment in a specific case.”); Lockett v. Ohio, 438 U.S.

586, 604 (1978) (“We are satisfied that this qualitative

difference between death and other penalties calls for

a greater degree of reliability when the death sentence

is imposed.”). Because method-of-execution challenges

are rarely, if ever, ripe at the time of a petitioner’s first

habeas deadline, the Eleventh Circuit’s decision below

will require courts to pass judgment on questions that are

not yet ripe for judicial review because they rely “upon

contingent future events that may not occur as anticipated,

or indeed may not occur at all.” Texas v. United States,

523 U.S. 296, 300 (1998) (citations omitted).

Congress has established a strict statute of limitations

that requires a federal habeas petition to be filed within

one year from the time that the conviction becomes

final. 28 U.S.C. § 2244(d)(1)(A). As this Court has noted,

however, there is often significant additional delay before

an execution is actually scheduled. See, e.g., Bucklew, 139

S. Ct. at 1134. In 2019, the average length of time between

sentencing and execution for prisoners on death row in

the United States was 264 months, or 22 years. Statista,

Average time between sentencing and execution for

inmates on death row in the United States from 1990 to

2019, https://www.statista.com/statistics/199026/averagetime-between-sentencing-and-execution-of-inmates-ondeath-row-in-the-us/. It is therefore likely that the method

of execution authorized and used by a state at the time a

prisoner files and litigates his habeas petition will change

before his execution date is set years later. While this

Court has recognized a need to prevent such delays, see,

e.g., Bucklew, 139 S. Ct. at 1134, the solution cannot be to

adjudicate claims before they are ripe.

17

States are changing their execution methods and

protocols with increasing frequency. This is a particular

concern for lethal injection executions, because prisoners

cannot determine if the lethal injection will cause them

unconstitutional pain without knowing the exact drugs,

dosages and procedures to be used. It has become common

practice for states to adopt lethal injection protocols for

each specific execution, based on the materials available

at that time. For example, Joseph Wood was executed in

Arizona on July 23, 2014 under a protocol confirmed by

the state a month earlier on June 25. See, e.g., Wood v.

Ryan, 759 F.3d 1076, 1078 (9th Cir. 2014), vacated, 573

U.S. 976 (2014), and Mark Berman, Arizona Execution

Lasts Nearly Two Hours; Lawyer Says Joseph Wood Was

‘Gasping and Struggling to Breathe,’ Washington Post

(Jul. 23, 2014), https://www.washingtonpost.com/news/

post-nation/wp/2014/07/23/arizona-supreme-court-staysplanned-execution/. Billy Ray Irick was executed on August

9, 2018 under a new protocol announced by Tennessee on

January 8 of the same year. Abdur’Rahman v. Parker, 558

S.W.3d 606, 611 (Tenn. 2018). While a prisoner might know

at the time of filing his habeas petition that he is likely

to be executed by lethal injection, he cannot adequately

assess the constitutionality of that without knowing the

precise protocol to be used. Neither can he determine what

alternative drugs, if any, are available for use instead.

Moreover, his own medical condition may change in a way

that renders a previously-constitutional method in his

case unconstitutionally painful in the present. Therefore,

it is impossible for prisoners to adequately challenge the

lethal injection years before they are to be executed, and

very possible that only non-statutory alternative methods

that do not require restricted drugs may be available.

In recognition of these trends, District Courts in the

18

Eleventh Circuit regularly dismiss method-of-execution

challenges in habeas petitions for being unripe. See Butts,

2014 WL 185339 at *4 (“Georgia’s lethal injection protocol

and procedures change frequently . . . Even if this Court

allowed discovery and held an evidentiary hearing now,

the evidence developed would likely be irrelevant by the

time [petitioner’s] execution is scheduled . . . [petitioner’s]

lethal injection claim is premature and should be brought

in a 42 U.S.C. § 1983 action.”); Tollette, 2014 WL 5430029

at *9 (“Any discovery regarding Georgia’s current lethal

injection procedures is likely to have no relevance when,

and if, [petitioner’s] execution is scheduled. As the Georgia

Supreme Court noted, Georgia has recently found it

necessary to make repeated alterations to its lethal

injection procedures. It is likely that the procedures will

change again before [petitioner’s] execution is scheduled.”)

(citations omitted); Sealey v. Chatman, No. 1:14-cv-00285,

2017 WL 11477455, *38 (N.D. Ga. Nov. 9, 2017) (“It is quite

possible that Georgia’s protocols will change between

now and the time that Petitioner’s execution date is set,

rendering moot any ruling by this Court.”), aff’d sub nom.

Sealey v. Warden, Georgia Diagnostic Prison, 954 F.3d

1338 (11th Cir. 2020).

Under the well-settled practice, states have the

flexibility to adopt a new method of execution, or a change

in protocol, and if indicated, prisoners can challenge its

constitutionality by filing a straightforward § 1983 claim.

Under the Eleventh Circuit’s logic, however, a prisoner is

required to raise any indicated challenges to the method of

execution in use at the time of his habeas petition, despite

the likelihood that a different method will be used when

he is actually executed. In practice, the Eleventh Circuit

would require prisoners to anticipate an unconstitutional

19

manner of execution (even one resulting from a medical

condition that may thereafter develop or worsen) and

prophylactically raise that challenge too early in the

process, wasting valuable time and judicial resources

in reviewing a method that will very likely not be used

on the day of the execution. Raising such claims under

§ 1983 instead allows courts to review a state’s method of

execution in the context of an actual “case or controversy,”

with due concern for prisoners’ Eighth Amendment rights.

II. Requiring prisoners who cannot allege a statutorilyauthorized alternative to proceed in habeas will

effectively prevent constitutional review of states’

execution protocols.

Method-of-execution challenges, and particularly asapplied challenges, are often not ripe when a first federal

habeas petition is required to be filed—within one year of

the conviction being final and typically a decade or longer

before a warrant of execution is actually issued—and they

are not adequate grounds to file a successive petition under

the decision below. Thus requiring petitioners without

a statutory alternative method to plead to proceed in

habeas would circumvent any meaningful opportunity to

challenge the state’s method. Such a rule is particularly

problematic in the many states that authorize only one

method of execution, where any petitioner raising an asapplied challenge would by definition be required to plead

a non-statutory alternative. This is contrary to this Court’s

recent pronouncement in Bucklew. Prior to Bucklew, some

state and lower courts took an overly restrictive view of

Glossip and summarily dismissed method-of-execution

challenges which alleged any alternative method that

was not already authorized under state law, effectively

allowing state law to set the parameters for prisoners’

20

Eighth Amendment challenges. This Court responded

to that problem by providing clear guidance that

“[a]n inmate seeking to identify an alternative method of

execution is not limited to choosing among those presently

authorized by a particular State’s law.” Bucklew, 139 S.

Ct. at 1128. This Court should now reaffirm that decision

by holding that non-statutory alternative methods are

properly raised in method-of-execution challenges under

42 U.S.C. § 1983.

A.

If non-statutory alternative methods cannot

be raised under 42 U.S.C. § 1983, any state

can insulate an unconstitutional execution

method from review by failing to authorize an

alternative.

The Eleventh Circuit’s decision below would require

any prisoner raising a method-of-execution challenge and

alleging an alternative method that is not authorized by

state law to bring his claim in a habeas petition. Given the

timeline of capital litigation, it is very common for such

claims to ripen long after a prisoner files his first habeas

petition, arising due to changes to the method of execution,

the prisoner’s physical condition, or both. Any successive

petition on these grounds would fail for lack of jurisdiction

under the decision below, as the Eleventh Circuit held

that the bar on successive petitions applies. Thus, by

eliminating § 1983 as an avenue for these challenges, the

Eleventh Circuit would allow any state to circumvent any

and all challenges to its execution method, including by

simply authorizing only one method. This would effectively

overturn Bucklew by leaving death-sentenced petitioners

with no cognizable avenues to allege non-statutory

alternatives, despite this Court’s recent proclamation that

they have the right to do so.

21

If a state can shield a potentially cruel and unusual

punishment from rev iew by not author izing any

constitutional alternatives, then that state effectively has

a veto power over capital prisoners’ Eighth Amendment

rights. Any state would be able to authorize impermissibly

cruel and unusual execution methods, like being drawn

and quartered, and could prevent the federal courts

from conducting a meaningful review by simply failing to

authorize any constitutional alternatives. More likely, a

state might authorize an otherwise constitutional method

of execution that causes a particular prisoner severe pain

and suffering, in violation of the Eighth Amendment, due

to his unique circumstances. And were such a Petitioner

to raise medical circumstances that make a state’s only

execution method cruel and unusual as applied to him, as

in the instant case, a method of execution “known” and

recognized could be denied to him simply because it was

not listed in the particular state statute, even if it would

alleviate unconstitutional suffering. This cannot be the

law.

A rule that allows each state to determine its “available”

methods of execution, no matter the constitutionality of

such methods, potentially permits a state to avoid all

review of those methods. Such a landscape will balkanize

Eighth Amendment jurisprudence, leading to arbitrary

and inconsistent results. Without question, “state laws

respecting crimes, punishments, and criminal procedure

are . . . subject to the overriding provisions of the United

States Constitution.” Payne v. Tennessee, 501 U.S. 808,

824 (1991). Yet, the Eleventh Circuit’s decision does bring

this principle into question, by allowing state statutes to

determine which prisoners are given an effective vehicle

to secure their Eighth Amendment rights and challenge

the unconstitutional method of execution to be used to

22

kill them. This cannot be what this Court intended when

it held so clearly that “[a]n inmate seeking to identify an

alternative method of execution is not limited to choosing

among those presently authorized by a particular State’s

law.” Bucklew, 139 S. Ct. at 1128.

B. Relegating all method-of-execution challenges

alleging a non-statutory alternative method to

successive habeas petitions would procedurally

overrule the right recently announced in

Bucklew v. Precythe.

If the right announced in Bucklew is to have meaning,

such claims must be allowed under § 1983, when a

prisoner’s as-applied challenge actually ripens. Allowing

the decision below to stand would procedurally circumvent

Bucklew’s holding, meaning new execution methods can

be easily shielded from constitutional scrutiny.

In the years before Bucklew, many lower courts

adopted an overly restrictive interpretation of the

requirement to plead an “available alternative,” allowing

petitioners to allege only methods already prescribed

in a state statute and for which the necessary elements

were in that state’s “medicine cabinet” at that moment in

time. The Eleventh Circuit held that allowing a petitioner

to amend his complaint to allege an alternative method

not authorized under Alabama state law would have

been futile, in part because petitioner was “not entitled

to veto the Alabama legislature’s constitutional choice as

to how Alabama inmates will be executed” and because

“Alabama is under no obligation to deviate from its widely

accepted, presumptively constitutional methods in favor

of [the petitioner’s] retrogressive alternative.” Arthur v.

Commissioner, Ala. Dept. of Corrections, 840 F.3d 1268,

23

1318 (11th Cir. 2016), abrogated in part by Bucklew, 139

S. Ct. 1112. Similarly, the Supreme Court of Arkansas

rejected the firing squad—one of the nation’s oldest

and most easily performed forms of execution—as an

alternative to lethal injection, determining that because

“[e]xecution by firing squad is not identified in the statute

as an approved means of carrying out a sentence of

death . . . it cannot be said that the use of a firing squad is

a readily implemented and available option to the present

method of execution.” Kelley, 496 S.W.3d at 359–60 (Ark.

2016). See also Arthur v. Dunn, 195 F. Supp.3d 1257,

1260 n.5 (M.D. Ala. 2016) (“A firing squad is not a legal

method of execution in Alabama.”); Boyd v. Myers, No.

2:14-CV-1017-WKW, 2015 WL 5852948, at *4 (M.D. Ala.

Oct. 7, 2015) (holding that Boyd failed to meet his burden

of pleading a feasible and readily available alternative

because he “identifie[d] a firing squad and hanging

as two feasible and readily available alternatives . . .

[b]ut those two methods are not permitted by statute

in Alabama”), aff’d sub nom. Boyd v. Warden, Holman

Corr. Facility, 856 F.3d 853 (11th Cir. 2017). Other courts

recognized that available methods can be non-statutory,

with the Eighth Circuit holding that “[w]e do not say that

an alternative method must be authorized by statute or

ready to use immediately” but that rather “the State must

have access to the alternative and be able to carry out

the alternative method relatively easily and reasonably

quickly.” McGehee, 854 at 493.

These inconsistent interpretations of Glossip’s

requirements gave rise to perverse and illogical results.

Firing squad, for example, was held as not “known and

available” in Arkansas, Kelley, 496 S.W.3d at 359–60,

Alabama, Arthur, 195 F. Supp. 3d at 1264–69, and Texas,

24

Bible, 2018 WL 3068804 at *9, despite being a method of

execution that is simple to implement, is older than the

United States, and was used in Utah as recently as 2010.

See Death Penalty Information Centre, State and Federal

Info, Utah, http://www.deathpenaltyinfo.org/state-andfederal-info/state-by-state/utah. While prisoners in states

like Arkansas and Alabama could at least pursue their

challenges by alleging other, statutory alternatives, such

rulings left prisoners in one-method states like Texas

and Georgia with no feasible option to pursue a methodof-execution challenge.

This Court sought to end this inconsistent practice in

Bucklew by clearly establishing that prisoners seeking to

challenge the method of execution to be used against them

are not limited to alleging alternative methods authorized

under the relevant state’s law. Lower courts began to

assess alleged alternative methods per Bucklew’s guidance

that they must be something that the “State could carry

[] out relatively easily and reasonably quickly,” Bucklew

at 1129, rather than focusing solely on the question of

statutory authorization. See, e.g., Glossip v. Chandler, No.

CIV-14-0665-F, 2021 WL 3561229, *12 (W.D. Okla. Aug.

11, 2021) (allowing a Petitioner in Oklahoma to proceed

past summary judgment with a method-of-execution

challenge alleging a firing squad as an alternative

method because it was sufficiently detailed to “permit a

finding that the State could carry it out ‘relatively easily

and reasonably quickly.’”) (quoting Bucklew); In re Fed.

Bureau of Prisons’ Execution Protocol Cases, 471 F.

Supp. 3d 209, 221-22 (D.D.C. 2020) (holding that because

a firing squad “is feasible, readily implemented, and would

significantly reduce the risk of severe pain, it satisfies the

Baze-Glossip requirements for proposed alternatives.”),

25

vacated on other grounds sub nom. Barr v. Lee, 140 S.

Ct. 2590 (2020). Yet the Eleventh Circuit’s decision below

would procedurally circumvent this Court’s recent holding

by relegating all such challenges to habeas petitions that

it then considers jurisdictionally barred as second or

successive. This would essentially be a return to the preBucklew era, when state and lower courts often rejected

non-statutory alternative methods as not being available.

If the Court’s recent holding is to have meaning, prisoners

must be allowed to allege non-statutory alternatives

through timely litigation under § 1983 when their claims

actually ripen, typically long after a first federal habeas

petition has been filed. Procedurally limiting prisoners to

raising only statutory alternative methods at this stage

would circumscribe Eighth Amendment rights by state

law, contrary to this Court’s supreme authority.

CONCLUSION

This Court should reverse and remand the judgment

below.

Respectfully submitted,

Bruce H. Schneider

Counsel of Record

Christine E. Ellis

Hinako Gojima

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

(212) 806-5400

bschneider@stroock.com

Counsel for Amici Curiae