Over 3 A.M. Dissent, Supreme Court Says Alabama Execution May Proceed

A bitterly divided Supreme Court ruled early Friday morning that the execution of an Alabama death row inmate could proceed. The vote was 5 to 4.

Justice Stephen G. Breyer’s anguished dissent, issued around 3 a.m., said the majority had denied his request that the execution be delayed so that the justices could discuss the matter at their scheduled private conference on Friday morning. That was a rare glimpse into deliberations that are ordinarily secret.

The dispute among the justices lasted long enough that Alabama officials called off the execution of the inmate, Christopher L. Price, which had been scheduled for Thursday night. They said a new execution date will be set.

“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Justice Breyer wrote. “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.”

The majority, in a brief unsigned opinion, said Mr. Price had waited too long to raise his claim that Alabama’s method of execution, a lethal injection of three chemicals, could subject him to excruciating pain. Mr. Price asked to be executed using nitrogen gas, a method allowed by Alabama law.

RELATED | Alabama: Christopher Lee Price granted 60-day stay over nitrogen execution request

The case is the latest example of an increasingly rancorous divide on the Supreme Court over the death penalty, with conservative justices frustrated over what they considered excessive delays in carrying out executions. The liberal justices, on the other hand, have accused the majority of reckless haste that could give rise to pain amounting to torture.

The replacement of Justice Anthony M. Kennedy, who was a moderating force in capital cases, with the more conservative Justice Brett M. Kavanaugh has hardened the divide between the two sides. This term’s major cases will be decided in the coming months and similar angry splits are likely.

Mr. Price and an accomplice were convicted of using a sword and dagger to kill William Lynn, a minister, in his home in Bazemore, Ala., in 1991 while he was preparing Christmas presents for his grandchildren. The pastor’s wife, Bessie Lynn, was badly wounded in the attack but survived. Mr. Price admitted to participating in robbing the couple but claimed that only his accomplice had harmed them.

In June, Alabama gave death row inmates 30 days to choose nitrogen hypoxia, which deprives the body of oxygen, as the way they would be executed, and Mr. Price had failed to do so. The majority said that was the end of the matter.

Lower courts entered stays of execution on Thursday, citing new evidence and questions about jurisdiction. Around 9 p.m. on Thursday, Alabama officials asked the Supreme Court to lift the stays. It agreed about six hours later.

Earlier this month, in rejecting a challenge from a Missouri inmate about how he was to be put to death, Justice Neil M. Gorsuch, writing for a five-justice majority, said “courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay.”

That decision followed a 5-to-4 ruling in February to allow the execution of a Muslim inmate in Alabama after his request to have his imam be present was denied, with the majority saying he should have asked sooner. In dissent, Justice Elena Kagan wrote that the majority was “profoundly wrong.” In March, the court stayed the execution of a Buddhist inmate in Texas in similar circumstances, over two noted dissents, with the majority apparently satisfied that the request had been timely.

In his seven-page dissent on Friday, Justice Breyer reviewed the proceedings in Mr. Price’s case and said undue haste had undermined justice. Justices Kagan, Ruth Bader Ginsburg and Sonia Sotomayor joined his dissent in the case, Dunn v. Price, No. 18A1053.

“Should anyone doubt that death sentences in the United States can be carried out in an arbitrary way,” Justice Breyer wrote, “let that person review the following circumstances as they have been presented to our court this evening.”

He said his colleagues had turned away his request to discuss the matter in person. Late-night rulings on death penalty stay applications are not unheard-of, but they are seldom issued in the predawn hours.

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“I requested that the court take no action until tomorrow, when the matter could be discussed at conference,” he wrote, referring to a private meeting that is regularly scheduled for most Friday mornings during the court’s term. “I recognized that my request would delay resolution of the application and that the state would have to obtain a new execution warrant, thus delaying the execution by 30 days.

“But in my judgment, that delay was warranted, at least on the facts as we have them now,” Justice Breyer wrote.

Alabama officials expressed outrage over the delay after the death warrant expired.

“Tonight, in the middle of National Crime Victims’ Rights Week, the family of Pastor Bill Lynn was deprived of justice,” said Attorney General Steven T. Marshall. “They were, in effect, re-victimized by a killer trying to evade his just punishment.”

Mr. Marshall complained that Mr. Price had long “dodged his death sentence for the better part of three decades by employing much the same strategy he has pursued tonight — desperately clinging to legal maneuverings to avoid facing the consequences of his heinous crime.” He vowed that Mr. Lynn’s “day of justice will come.”

In his dissent, Justice Breyer wrote that a brief delay to allow the Supreme Court to discuss the matter was warranted.

There were substantial questions, he wrote, about whether Mr. Price had acted too slowly in choosing nitrogen gas.

“What is at stake in this case,” Justice Breyer wrote, “is the right of a condemned inmate not to be subjected to cruel and unusual punishment in violation of the Eighth Amendment.”

Source: New York Times, Adam Liptak, April 12, 2019

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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde