Justices clear the way for Alabama execution

Last week’s opinion in a Missouri inmate’s challenge to the state’s plan to execute him by lethal injection revealed deep divisions among the justices on capital punishment. Those rifts were on full display again early this morning, as the court’s conservative majority granted Alabama’s request to allow an execution in that state to go forward. Justice Stephen Breyer filed a lengthy and often biting dissent from the order, which was joined by all three of his liberal colleagues: Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The order and dissent came in the case of Christopher Price, who is on death row for the 1991 murder of Bill Lynn, a minister who had gone outside to investigate after his electricity went out while he was putting together Christmas presents for his grandchildren. Price and another man attacked Lynn with a sword and a dagger. Lynn suffered 38 wounds: One of his arms was almost severed from his body, while his scalp was detached from his head in some places.

A federal district court in Alabama had stayed Christopher Lee Price’s execution for 60 days and planned to hold a hearing in early summer on Price’s claim that executing him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment. Price contended that executing him by lethal nitrogen gas, which is included as a method of execution under state law, would significantly reduce his risk of pain. The state went first to the U.S. Court of Appeals for the 11th Circuit, asking that court to lift the district court’s order. When the court of appeals declined to do so, instead keeping the execution on hold temporarily, the state went to the Supreme Court last night.

In an order issued shortly before 3 a.m. this morning, the Supreme Court overturned the stays of execution entered by the lower courts. In a brief unsigned opinion, the court emphasized that Price’s challenge came too late: In June 2018, it stressed, Alabama inmates whose convictions were already final had been given until the end of the month to choose whether they wanted to be executed by lethal nitrogen gas, but Price had not done so. Instead, the court added, he had waited until February 2019 to file his challenge to the use of lethal injection “and submitted additional evidence today, a few hours before” he was scheduled to be executed.

In his dissent, Breyer cited the history of Price’s case as a study in how “death sentences in the United States can be carried out in an arbitrary way.” Price had argued, Breyer wrote, and the state did not dispute, that execution by lethal injection would be likely to cause Price severe pain and unnecessary suffering. The 11th Circuit had also ruled that death by lethal nitrogen gas is both available and feasible, Breyer continued, and the state is “mere months away from finalizing its protocol.”

The only real question remaining, Breyer asserted, was whether Price could show that death by lethal nitrogen gas would be substantially less painful than death by lethal injection. The district court had concluded that Price was likely to win on this question (the key issue when Price was asking the lower court to temporarily block his execution) based on a study by the Oklahoma legislature. Price’s lawyers had originally submitted a preliminary version of that study, on which the district court first relied, but later submitted the final version.

Breyer’s dissent then turned more personal, and often sharply critical of his colleagues. Breyer explained that he had asked the other members of the court to put off acting on the state’s request so that they could discuss it at their private conference today – but they declined to do so.

Turning to the substance of the court’s order, Breyer observed that the Supreme Court “suggests that the reason” for vacating the stay of execution “is delay.” “But that suggestion is untenable,” Breyer argued, because the district court specifically indicated that Price had been “proceeding as quickly as possible on this issue since before the execution date was set.”

Breyer also questioned the court’s reliance on Price’s failure to choose lethal gas as his preferred method of execution when given the chance to do so. It is, Breyer suggested, “possible that Price was given no more than 72 hours to decide how he wanted to die” – which, if true, would not be “a reason to override” the lower courts’ decisions to put his execution on hold.

In the end, Breyer complained, “Alabama will soon subject Price to a death he alleges will cause him severe pain and needless suffering. It will do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative,” but instead because of a “minor oversight (the submission of a ‘preliminary’ version of a final report) and a significant mistake of law by the court of appeals (the suggestion that a report marked ‘preliminary’ carries no evidentiary value).” Rather than allowing the lower courts to fix these mistakes, Breyer continued, the Supreme Court is allowing the execution to go forward.

“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Although this morning’s order cleared the way for Alabama to execute Price, the state had already called off Price’s execution by the time the order was issued because the warrant for the execution expired at midnight Central Daylight Time. In a statement issued before the Supreme Court’s order was released, Alabama Attorney General Steve Marshall criticized the lower courts’ rulings as inflicting “injustice, in the form of justice delayed,” and he vowed that “Alabama will never forget victims.” The state will have to return to court to seek a new death warrant; it has not yet indicated when it plans to do so but likely will do so soon.

This post was originally published at Howe on the Court.