Post-Midnight Decision on Alabama Execution Highlights Deeply Divided Supreme Court

In a contentious ruling issued in the early morning hours of April 12, 2019, the U.S. Supreme Court vacated a stay of execution issued by lower federal courts and cleared the way for Alabama to execute Christopher Price (pictured). The Court’s 5-4 decision, issued after 2:00 a.m. Eastern time, came after Alabama had postponed Price’s execution minutes before the midnight Central time expiration of his death warrant, with the lower court stay of execution still in effect. Joined by the three other liberal and moderate justices, Justice Breyer authored a scathing dissent that exposed sharp divisions in the Court over the manner in which it considers execution-related challenges in death-penalty cases.

Scheduled to be executed April 11, Price challenged Alabama’s lethal-injection protocol as unnecessarily torturous and –as required by Supreme Court case law – proposed an alternative method of execution. Price selected nitrogen hypoxia, the alternative method of execution made available in Alabama’s death-penalty statute. The Alabama Attorney General’s office opposed Price’s motion, arguing that lethal gas was not available to Price because he had failed to select it during the 30-day window created when Alabama added lethal gas to its execution statute. The district court agreed and denied Price’s claim, prompting an appeal to the U.S. Court of Appeals for the Eleventh Circuit. The circuit court ruled that once Alabama had codified lethal gas as an alternative method of execution under its statute, it could not claim that gas was unavailable to execute Price. However, the circuit court rejected Price’s stay motion, saying he had failed to meet the additional burden imposed by the U.S. Supreme Court that he prove that execution by nitrogen hypoxia would significantly reduce the risk of unnecessarily severe pain during the execution.

Following the 11th Circuit’s ruling, Price returned to the district court with uncontroverted affidavits from medical experts who said nitrogen gas posed a significantly reduced risk of severe pain compared to the state’s lethal-injection protocol. Based on this evidence, the federal district court granted Price a stay of execution. Later in the day, without ruling on the merits of the district court’s order, the 11th Circuit imposed its own stay of execution to consider jurisdictional issues presented by the district court stay. Alabama then filed an emergency motion in the U.S. Supreme Court seeking to vacate the stay, leading to the overnight ruling by the Court.

In a one-paragraph order vacating the stay, the majority said that Price had not timely selected lethal gas during a 30-day window created when Alabama added lethal gas to its execution statute and then waited until February 2019 to challenge the state’s method of execution. As a result, the majority viewed Price’s lawsuit and pre-execution filings as untimely. Justice Stephen Breyer – joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan – wrote an impassioned dissent. “Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” he wrote, “let that person review the … circumstances as they have been presented to our Court this evening.” Breyer highlighted the uncontested evidence presented in the courts below: that Alabama’s lethal injection protocol will likely cause Price “severe pain and needless suffering”; that lethal gas is a readily available method, and that lethal gas is likely less painful than Alabama’s lethal injection protocol. Breyer also criticized the majority’s substitution of its judgment for the district court’s finding that Price had been “proceeding as quickly as possible on this issue since before the execution date was set” and was not attempting “to manipulate the execution.” Breyer expressed deep concern for the majority’s insistence on vacating a stay despite his request to consider the issue at a prescheduled conference to be attended by all the justices that morning. “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Breyer wrote.

Alabama has not yet set a new execution date.

(Ivana Hrynkiw, Execution called off for Christopher Price; SCOTUS decision allowing it came too late, al.com, April 11, 2019 (updated April 12, 2019); Lawrence Hurley, Bitter divisions on death penalty in U.S. top court exposed in Alabama showdown, Reuters, April 12, 2019; Adam Liptak, Over 3 A.M. Dissent, Supreme Court Says Alabama Execution May Proceed, New York Times, April 12, 2019.) Read the U.S. Supreme Court’s order and Justice Breyer’s dissent here. See Lethal Injection and U.S. Supreme Court.