Death by Firing Squad: Nance v. Ward


In 1993, Michael Wade Nance attempted to rob a bank and killed an innocent bystander in the process of fleeing the scene. In 1997, Nance’s case was held in trial court in which a jury convicted him of murder and sentenced him to the death penalty. Nance appealed the conviction, applying for collateral relief. However, the Georgia Supreme Court upheld the conviction, affirming the death sentence and thereby rejecting collateral relief. Collateral relief allows criminal defendants to avoid the long-term consequences, such as difficulty finding employment, that can often accompany having a criminal record. As such, collateral relief can help a person reintegrate into society. 

In District Court, Nance filed a habeas petition used to review State court convictions often employed with a conviction resulting in a death sentence. The District Court denied the habeas petition and when taken to the Appeals Court, the court affirmed the district court’s rejection. 

After living for more than 20 years on death row, Nance went back to court, this time to challenge the method of his execution. In 2020, Nance filed an action under 42 U.S.C. § 1983 alleging that the State’s lethal injection protocol was unconstitutional due to his medical issues and would cause significant risk of severe pain, violating the Eighth Amendment’s prohibition of “cruel and unusual punishment.” Nance claimed issue with his veins saying they were “severely compromised and unsuitable for sustained intravenous access.” He expressed concern that his veins would “blow”; therefore, causing “intense pain and burning.” Instead of lethal injection, Nance proposed death by firing squad, a method approved by four states at the time. Georgia’s only approved method was the lethal injection and did not have death by firing squad as an approved method. Under 42 U.S.C. § 1983, if the prisoner proposes another method already approved by the state, the court may approve that the execution can go forward by this legal procedure instead of habeas (Nelson v. Campbell). However, the prisoner is not confined to only state sanctioned methods as they can bring forth other methods approved in other states (Bucklew v. Precythe). The District Court dismissed the action claiming it to be “untimely.” Appealing the action, the Eleventh Circuit Court concluded that because the relief sought by Nance implied the invalidity of his death sentence, his complaint must be in the form of a habeas petition. However, because he already filed a previous habeas petition, it was considered a “successive” petition of which the district court lacks jurisdiction. In other words, the court concluded that Nance used the wrong procedural vehicle. 

In the Supreme Court case heard April 25, 2022, the question the Court had to decide became as follows: what was the appropriate legal procedure for a death-row inmate to challenge the state’s intended method of execution? The Court decided the case on June 23, 2022. In an opinion written by Justice Kagan, the Court held that Nance’s challenge was correct to continue under 42 U.S.C. § 1983 rather than by habeas. The reasoning being that the Court believed the Eleventh Circuit Court erred in “reconstruing” the intention of Nance’s appeal by reviewing it as a successive habeas petition. The Eleventh Circuit believed Georgia law to be “fixed” and that by granting Nance relief they in turn would make his death conviction invalid. Judge Martin of the Eleventh Circuit dissented, understanding Nance’s argument as accepting the death conviction but only wanting to alter the method by which to carry out the conviction. Like Martin, the Supreme Court understood Nance to be “providing the State with a veritable blueprint for carrying the death sentence out.” The Supreme Court held the “reconstruction” as unjustified and ordered on remand that the Eleventh Circuit Court of Appeals address the “timeliness” question and any other remaining questions.


The overall conclusion of Nance v. Ward is that 42 U.S.C. § 1983 is the appropriate legal procedural vehicle for a prisoner’s challenge to their method of execution even if the request of relief would require a change in state law. The case has been sent back down from the Eleventh Circuit Court of Appeals to the Northern U.S. District of Georgia to be decided further. Due to the outcome of the Supreme Court, the decision of Georgia’s District Court could lead to a possible change in Georgia law if prompted. For death-row inmates, this case gives them the clarity to use the right legal tool to dispute the method of their deaths and die partially on their own terms.

Madeleine McLean is from Arlington, VA, studying History

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