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.

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