Divided Supreme Court says Alabama execution can go forward

A divided Supreme Court on Friday ruled against granting a stay of execution to an Alabama man.

In an unsigned order issued early Friday morning, the court ruled in favor of the execution taking place. The order came after Alabama officials called off the scheduled execution of Christopher Lee Price on Thursday night.

The order states that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan would have granted Price the stay. 

{mosads}In an unsigned opinion on the case, the court determined that Lee waited too long to request that nitrogen hypoxia, in which an individual breathes pure nitrogen until they suffocate, be used as his form of execution. 

But Breyer, in a blistering dissenting opinion, wrote that Price had provided expert testimony showing that there was “a severe risk of pain” from Alabama’s current use of three drugs to administer a lethal injection and that Alabama had “expressly authorized” the form of execution.

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

The justice said he had requested that the court not discuss Alabama’s application on Price’s execution until the Supreme Court’s scheduled conference on Friday, but that the court moved forward with an opinion.

Not granting an order until after midnight on Thursday would require that Price’s execution be delayed for another 30 days. Breyer argued that the “delay was warranted, at least on the facts as we have them now.”

“The Court nevertheless grants the State’s application to vacate the stay, thus preventing full discussion among the Court’s Members. In doing so, it overrides the discretionary judgment of not one, but two lower courts. Why?” Breyer wrote. 

Alabama officials had already delayed Price’s execution, and the court order wasn’t issued until after midnight Thursday, meaning that the execution would have been delayed regardless.

Breyer wrote that he believes some of the issues raised in Price’s case could have been resolved by lower courts and that the Supreme Court is overstepping in overturning stays of execution issued by those courts without the justices discussing the cases first.

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

Ginsburg, Sotomayor and Kagan joined Breyer in his dissent.

This is the Supreme Court’s second divided ruling in a death penalty case in as many weeks. 

The court last week, in an opinion authored by Justice Neil Gorsuch, ruled 5-4 against a Missouri man who argued that execution by lethal injection would cause him “excruciating pain” because of a rare medical condition.

Gorsuch wrote in the majority opinion that the Eighth Amendment does not guarantee a painless death.

But Breyer, writing a dissenting opinion in the case, found that the ruling “violates the clear command of the Eighth Amendment” protection against cruel and unusual punishment.