Eleventh Circuit Affirms Use of Lethal Injection Despite Potentially Painful Interaction with Other Medication
Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation
On December 2, 2020, the United States Court of Appeals for the Eleventh Circuit vacated and remanded with instructions to dismiss Michael Nance’s appeal to prevent his execution by lethal injection. Nance claimed that lethal injection would cause him excruciating pain due to his compromised veins and brain chemistry.
In 1997, at age 36, Nance was convicted of murder after he fatally shot a driver during an attempted bank robbery. He was sentenced to death in Georgia, where the only method of execution available is lethal injection. Following an appeal, Nance was resentenced to death at a new trial in 2002. Nance filed an initial request in January 2020 to bar his execution because of his alleged medical situation, but the United States District Court for the Northern District of Georgia dismissed his request. Nance then appealed.
In his most recent appeal, Nance alleged that lethal injection would cause him excruciating pain due to his compromised veins. He argued that the lethal injection process would require many attempts to establish access to his vein, that it was likely that the drug would leak outside of his vein, and that alternative methods to establish access to the vein would not be humane.
Nance also alleged that his use of gabapentin, an anticonvulsant and nerve pain medication, would alter the effectiveness of the lethal injection drug. He had been taking gabapentin since 2016 for back pain. He alleged that the drug had “altered his brain chemistry” in a way that would leave him in extreme pain during the lethal injection, claiming that he might be conscious and able to feel pain. The interaction of gabapentin with lethal injection drugs had previously been addressed in Ledford v. Commissioner, Georgia Department of Corrections, 856 F.3d 1312 (11th Cir. 2017), a case in which the defendant raised a similar claim five days before his scheduled execution. In that case, the Eleventh Circuit denied the claim on the ground that it was untimely filed, among other reasons.
The statute under which Nance brought this suit about lethal injection required him to propose an alternative method of execution. Nance argued that death by firing squad would be a reasonable and readily available alternative method of execution.
The Eleventh Circuit vacated Nance’s appeal and remanded with instructions to dismiss for lack of jurisdiction. In its opinion, the court found that because the state of Georgia allows death only by lethal injection, and because Nance argued that he could not constitutionally be executed in that manner, Nance’s complaint in essence implied the invalidity of his death sentence. Accordingly, the Eleventh Circuit reconstrued Nance’s request to be a writ of habeas corpus, vacated the district court’s ruling, and remanded the case to the district court to dismiss for lack of jurisdiction for procedural reasons.
One judge dissented, claiming that the decision conflicted with precedent and created a new procedure for method-of-execution claims to be submitted as habeas petitions rather than section 1983 claims.
Citation: Nance v. Commissioner, Georgia Department of Corrections, 981 F.3d 1201
Key words: death penalty, lethal injection, gabapentin, brain chemistry, Georgia
This post is the 73rd post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.
