2022 was an active year for the U.S. Supreme Court in death-penalty jurisprudence with three significant cases narrowing the availability of federal habeas corpus relief for death-sentenced prisoners and two cases bringing prisoner litigants modest wins under Section 1983 civil rights lawsuits challenging the circumstances of their executions, though not their actual death sentences.
2022 Supreme Court Year in Review
A Narrowing of the Great Writ
Ramirez v. Collier, 21-5592
In a moment of rare ideological agreement in March 2022, the Court in an 8-1 opinion, held in Ramirez v. Collier that a death-sentenced prisoner would likely prevail on his claim that the Religious Land Use and Institutionalized Persons Act (RLUIPA) entitled him to have his pastor touch him and pray aloud during his execution. Sentenced to die for the 2004 Texas murder of a convenience store clerk, and with his execution fast approaching, John Ramirez filed a prison grievance requesting that his long-time spiritual advisor be allowed into the execution chamber in order to “lay hands” on and “pray over” him during his execution, arguing that these acts of spiritual comfort were fundamental to his religious beliefs. Texas turned down his request, citing vague security concerns, although nothing in the execution protocol required this result and despite Texas’s history of permitting prison chaplains into the chamber to perform these activities. Ramirez filed a Section 1983 action seeking injunctive relief barring the State from executing him unless it provided his requested religious accommodation. After losing in the lower courts, Ramirez successfully requested that the Supreme Court stay his execution until his case could be fully briefed and argued.
Writing for the Court, Chief Justice Roberts concluded that Ramirez was likely to succeed in proving a RLUIPA violation because he could show that prison policy placed a substantial burden on the exercise of a sincere religious belief. Noting the “rich history of clerical prayer at the time of a prisoner’s execution” stretching back to the nation’s founding, Chief Justice Roberts wrote that Texas had failed to show that banning all audible prayer and touch advanced any important state interest. The case was remanded to the lower courts for additional proceedings, with Chief Justice Roberts observing pointedly that the state’s continued refusal to grant the prisoner’s accommodation would result in further delays.
Nance v. Ward, 21-439
In a modest procedural win for prisoners challenging a state’s method of execution, the Court in Nance v. Ward held that death-sentenced individuals wishing to challenge the method of their execution under the Eighth Amendment may do so under 42 U.S.C. § 1983. Method-of-execution challenges are typically brought as a Section 1983 civil rights suit, unless the relief requested “necessarily implies the invalidity of conviction or sentence.” In such cases, the 1983 challenge is barred under the 1994 Supreme Court decision in Heck v. Humphrey and must instead be brought in a federal habeas petition. Federal habeas is typically not an option for method-of-execution challenges, however, because those claims typically do not become ripe until federal habeas proceedings have concluded, and procedural rules ordinarily prohibit prisoners from reopening federal habeas proceedings once completed.
Georgia death row prisoner Michael Nance waded into this procedural thicket when he tried to challenge his lethal injection. In 2019, the Supreme Court held that prisoners challenging a certain method of execution must propose an available alternative, and to comply with this rule, Nance suggested the firing squad. In response, Georgia argued that this alternative “necessarily implied the invalidity of his sentence” because the firing squad was not included as an alternative execution method under Georgia law—thus activating the Heck bar and dooming the challenge.
In a 5-4 decision, with Justice Kagan writing for the majority, the Court held that Section 1983 is an “appropriate vehicle” for seeking an alternative method for execution, and to apply the Heck bar is an illogical barrier that would split the universe of method of execution claims into two categories, based on whether an execution alternative happens to appear in the state’s law, with some going forward and some barred. The four dissenting justices, in an opinion authored by Justice Barrett, would have found the claim Heck-barred because the relief requested by Nance, execution by firing squad, was not available under Georgia law and would have necessarily barred his execution. The dissent’s approach would have largely foreclosed federal remedies for prisoners challenging a method of execution on Eighth Amendment grounds, making such claims nearly unreviewable.
Brown v. Davenport, 20-826
In the first of the three federal prisoner losses, Brown v. Davenport, decided in April, clarified in a non-capital case that federal habeas litigants who have proved an error must satisfy two different tests to win relief: the Brecht test (that the error had a “substantial and injurious effect”) and the criteria under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Michigan prisoner Ervine Davenport challenged his murder conviction under the Due Process Clause after a trial in which he sat shackled at a table with a “privacy screen.” Every court agreed that this was violation, with courts disagreeing on whether and how he could show prejudice. The state courts found that a violation had occurred, but that it was harmless based on jurors' testimony that the shackling had not affected their verdict. On federal habeas review, the Sixth Circuit instead granted the petition after finding that Davenport had met the standard under Brecht v. Abrahamson by showing that the shackling had a “substantial and injurious effect” on the verdict. The Sixth Circuit declined to apply AEDPA’s test, following guidance drawn from two Supreme Court cases which plainly stated that a prisoner who satisfies Brecht necessarily satisfies AEDPA, and the Supreme Court granted cert to resolve the interplay between the two tests.
In 6-3 decision authored by Justice Gorsuch, the Supreme Court reversed, stating that its prior guidance was merely dicta, that the tests are analytically distinct, that they require different materials to apply, and that a litigant must satisfy both. The Court decided that even assuming Davenport could satisfy Brecht, he could not satisfy AEDPA’s requirement that the verdict was either contrary to or involved an unreasonable application of federal law or based on an unreasonable determination of the facts. In an ominous note, Gorsuch provided a tremendously flawed history of federal habeas, asserting that it was originally not designed to review the substance of state court decisions, but merely whether the court was one of competent jurisdiction. It is difficult not to wonder whether some members of the Court hope to turn back the clock to this inert, pre-incorporation version of habeas in which states were largely free to run police investigations and trials without oversight. Justice Kagan, in an energetic dissent dismantling the majority’s habeas history lesson, would have followed previous Supreme Court law and found the AEDPA prejudice test superfluous to Brecht, complaining the decision imposes pointless work on courts. If she is correct, then Davenport will remain a narrow holding that is unlikely to affect many case outcomes, since a petitioner meeting one test is still likely to meet the other.
Shoop v. Twyford, 21-511
In June, the Court reversed the Sixth Circuit again in Shoop v. Twyford, which curtailed federal courts’ ability to use the All Writs Act to order states to transport prisoners, even for the purpose of determining whether a constitutional violation has occurred. The district court ordered Ohio warden Tim Shoop to transport death-sentenced prisoner Raymond Twyford to a nearby hospital for neuroimaging, based on its traditional authority under the All Writs Act to issue orders “necessary or appropriate in aid” of resolving a habeas dispute. Specifically, Twyford hoped to show the presence of bullet fragments in his brain from a self-inflicted gunshot, evidence that would support a claim that his trial counsel had performed ineffectively. While the case was still pending, the State sought and obtained a rare interlocutory review by the U.S. Supreme Court. The ABA filed an amicus brief in support of Twyford, urging the Court not to adopt a rule that would interfere with counsel's duty to investigate potentially meritorious claims. Writing for the majority, Chief Justice Roberts found that Twyford had failed to show the transport was “necessary or appropriate in aid of” resolving any habeas claim, viewing the request as one enabling a petitioner “to fish for unusable evidence.” Roberts pointed to the procedural bar on the consideration of new evidence that had not been submitted in state court, reasoning that Twyford had failed to show in advance how the neuroimaging evidence he had not yet uncovered would be admissible under these stringent limitations on new evidence. The majority declined to address whether there may be circumstances warranting transport under the All Writs Act, providing little guidance for future litigants. Writing in dissent, Justices Breyer, Sotomayor, Kagan, and Gorsuch argued that the Court lacked jurisdiction over an interim appeal in these circumstances and stated they would have declined to rule on the merits.
Shinn v. Ramirez, 20-1009
The Court’s most significant new limitations on federal habeas relief were imposed in May when the Court decided in Shinn v. Ramirez that federal habeas courts may not conduct evidentiary hearings or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel. This decision effectively closed the door on a narrow pathway to access the federal courts created by the Court just ten years prior in Martinez v. Ryan. In Martinez, the Court found that strict procedural bars to federal court review could be set aside when a prisoner’s state post-conviction counsel performed ineffectively in raising a Sixth Amendment claim of ineffective trial counsel. Martinez struck a balance between the rigid statutory requirements that apply to federal habeas cases and equitable concerns about prisoners denied their Sixth Amendment rights because they were unlucky enough to be twice appointed ineffective counsel. The dissent, written by Justice Sotomayor and joined by Justices Breyer and Kagan described the majority's decision as “illogical,” explaining that it guts Martinez, rendering it utterly meaningless. The Shinn decision has reignited the crisis of counsel that death-sentenced prisoners have faced for more than 30 years, ever since the Court’s 1989 decision that the Sixth Amendment’s protections do not apply to people on death row challenging their convictions or sentences. Read the Project’s additional coverage of the decision and the need for pro bono lawyers to respond to the widening justice gap facing indigent defendants.