Nance v. Ward (21-439)

argument 21-439

Nance v. Ward

Supreme Court of the United States 1h 26m 8 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central legal issue in Nance v. Ward regarding execution methods?

John G. Roberts 0:00

We'll hear argument next in uh case number twenty one four thirty nine, Nance against Ward. Mr Hellman.

Nicholas D. Hellman 0:10

Thank you, Mr Chief Justice, and may it please the Court. Mr Nance's claim sounds in Section nineteen eighty three because it is a claim about how the state may execute him, not a claim that the state cannot execute him. That simple proposition decides this case, and indeed when the case began, respondents did not dispute it. Respondents' new contention that some method of execution cases sound in habeas is wrong. Wrong about the scope of the writ, wrong about the scope of Section nineteen eighty three, and wrong under this Court's method of execution case law. Proposing a non statutory method of execution is proposing a method of execution. By its very nature, the claim does not attack the validity of the death sentence, which places it squarely on the nineteen eighty three side of the line that this court has demarcated.

Nicholas D. Hellman 1:07

And that is particularly so because Mr Nance is required to prove that the State has a feasible and readily available alternative means of carrying out the execution. It would stretch habeas beyond recognition to hold that it applies to a claim that not only concedes the validity of the sentence, but proves that the state has a feasible means of carrying it out. Respondents, of course, are free to dispute the feasibility of the firing squad as an alternative method, but that feasibility analysis is part of the Section nineteen eighty three merits inquiry. just as it is with the feasibility inquiry for any other proposed method. Any other result would mire method of execution litigation in threshold questions about whether a proposed alternative is truly non statutory.

Nicholas D. Hellman 2:03

The result would be confusion, delay and arbitrariness. More than that, respondents' rule would close the courthouse doors to the very claim that all nine members of the Buckloo Court held should not be unduly difficult to bring. With that, I welcome the Court's questions.

Clarence Thomas 2:20

Could a uh state write into legislation that uh for certain crimes that the execution would be, for example, uh only uh uh n lethal injection?

Nicholas D. Hellman 2:35

It is possible to imagine a state law that d that does that. That is not what Georgia law does, but I do think if the state And this would be the first state that we are aware of. Well let's

Clarence Thomas 2:45

just say a state in response to this confusion writes it into their statute capital uh uh uh crime that uh there is to be a specific uh form of execution.

Nicholas D. Hellman 3:01

I do think that would present a different case, Your Honor, but if I may, what Georgia does is different and typical of state practice. When Georgia changes its method of execution, for example, when it went from electrocution to lethal injection, no one on death row was resentenced. And that is because Georgia law, like every other state law that we're aware of, treats the method as different from the method of execution from the death sentence itself. And the State has good reasons for doing that. That is not an accident. If changing the method of execution invalidated the sentence and required a new sentence, that could have collateral effects, such as reopening post-conviction review or not. or retroactivity analysis.

Nicholas D. Hellman 3:49

So that's fine if the state does it that way, but they can't have it both ways. Well

Clarence Thomas 3:53

and and from your standpoint, if you uh and the argument you're making now is of course that the firing squad. Uh if Georgia uh uh agrees with you and accedes uh to to your request, would uh do be foreclosed from arguing another method of execution uh challenge or having another method of execution challenge with respect to the firing squad? Yeah.

Nicholas D. Hellman 4:22

Yes, Your Honor. If you It would be foreclosed. We are proposing the firing squad as our alternative method. We will prove that it is feasible and readily available. That's our burden. And in the process of doing that, if if the case were to go forward on that basis, we would establish a method. If the state uses that method, yes, we we may not challenge it on on on as you are saying.

Elena Kagan 4:46

Council, to unpackage what you said, as far back as nineteen fifteen.