Supreme Court Update: Dunn v. Price (No. 18A1053)

April 12, 2019 Supreme Court Update

Greetings, Court Fans!

One of the big narratives of OT2018 has been growing divisiveness between the Justices over the death penalty, attributable in no small part to the departure of Justice Kennedy, who regularly served as the swing vote in such cases (often, though not always, siding with the Court’s more liberal wing). While the Court’s April 1st decision in Bucklew v. Pettigrew (2019) certainly falls in that category, much of the conflict has been seen in the Court’s resolution of stay orders, some of which we’ve covered previously. Well, at 3am this morning, the divisions only deepened, with the five conservative Justices lifting two lower courts’ stay of execution for Alabama death-row inmate Christopher Lee Price in Dunn v. Price (No. 18A1053), over a dissent from the Court’s liberal Justices that accused the majority of needlessly rushing to act in the middle of the night.

The unsigned majority decision provides little context or analysis. It notes that in 2018, all Alabama death-row inmates were offered until June 30 to elect to be executed via nitrogen hypoxia. Price did not do so, despite being provided the election form. Instead, in February 2019, he challenged the State’s chosen method for his execution, an execution scheduled for last night. The Court further noted that Price was still submitting evidence on the issue yesterday. The last-minute nature of his request and his failure to elect nitrogen hypoxia back in June were apparently enough for five Justices (you can guess whom) to lift the stay and allow his execution to go forward, notwithstanding his claim that the execution protocol would cause him severe pain and therefore violate the Eighth Amendment.

The dissenters offered a whole lot more background in a sharp seven-page opinion authored by Justice Breyer. While it is certainly not the first dissent from a denial of a stay of execution to accuse the majority of participating in a procedural injustice, you will rarely see a dissent do so quite as explicitly. As Justice Breyer stated right at the beginning: “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.” He then proceeded to set forth those circumstances in minute detail.

After his April 11th execution date was set, Price submitted an expert’s declaration that Alabama’s current three-drug protocol for carrying out executions was likely to cause him severe pain and needless suffering. The State did not submit any evidence to rebut this. Consistent with the rule the Court set forth in Baze v. Rees (2008), which was further explicated in Bucklew, Price proposed a viable alternative: nitrogen hypoxia. Since Alabama had authorized this method in 2018 and had nearly finished developing its hypoxia protocol, the lower courts had found this method was plainly feasible. This left only the question of whether Price could show that death by nitrogen hypoxia would be less painful than the existing three-drug protocol. In support of his stay application in the District Court, he submitted an academic study the Oklahoma Legislature had relied on in adopting nitrogen hypoxia as that state’s chosen method of execution, which opined that death by hypoxia was entirely painless. Since Alabama again did not challenge that evidence, the District Court concluded that Price was entitled to a stay, which it entered on April 5.

Here, things get a bit complicated. On April 10 (i.e., Wednesday), the Eleventh Circuit found that the District Court had clearly erred in finding death by hypoxia painless, because the version of the Oklahoma study Price had filed in the District Court was a draft report that contained the words “Do Not Cite” on it. But when the Eleventh Circuit vacated the District Court’s stay on this ground, Price’s attorney immediately found the final report (which reached the same conclusion) and filed a new stay application in the District Court, which granted another stay yesterday. In doing so, the District Court explicitly found that Price had been acting in good faith and as diligently as possible since even before his April 11 execution date had been set. Alabama asked the Eleventh Circuit to vacate the District Court’s stay that same day, arguing that the District Court had no authority to act, because the Eleventh Circuit had not yet issued its mandate from its April 10 decision. The Eleventh Circuit denied the State’s request, concluding that this was too uncertain an issue to be resolved in time for Price’s execution that night.

Shortly before 9 pm last night, Alabama filed an application with the Supreme Court to lift the stay, which was referred by the Justice who oversees the Eleventh Circuit (Justice Thomas) to the full court. Justice Breyer asked the Court to take no action until today (April 12) so the Justices could discuss the matter at today’s scheduled conference. This would obviously prevent Alabama from executing Price on April 11, requiring it to get a new execution warrant and thus delaying the execution by at least 30 days. Before the Court had time to act, Alabama called off the execution. But the Court nonetheless vacated the stay, without waiting until conference on the 12th. What gives?

Justice Breyer also addressed the majority’s grounds for lifting the stay. First, regarding the claim that Price had waited too long, Justice Breyer observed that the District Court had expressly found that Price was acting diligently and had filed his application for a stay of execution even before the execution had been scheduled. Why should the Court second guess the district court, which had overseen the case from the beginning? As to Price’s failure to elect nitrogen hypoxia as a method of execution in 2018, Justice Breyer noted that according to the evidence in the record, Price was given at most 72 hours to decide whether to elect execution by hypoxia. In his view, that was no reason to override the District Court’s finding that equitable factors favored a stay. Last of all, the State’s application was based mostly on the jurisdictional question—namely whether the District Court had authority to act at all when the Eleventh Circuit’s mandate had not issued—and Justice Breyer found that a sufficiently meaty issue that it should not be decided through the last-minute briefing of a death-penalty stay application.

Adding this all together, Justice Breyer accused the Court of acting in a way that “calls into question the basic principles of fairness that should underlie our criminal justice system.” After all, Price seemed to have met the requirements of Baze: He showed that the State’s chosen method of execution would cause him needless pain, he provided a feasible alternative, and he seemed to have established that this method would likely be painless. Why should the Court not let the lower courts work out this issue, particularly since Alabama had by now called off the April 11 execution date. As Justice Breyer concluded in understated fashion: “To proceed in this manner in the middle of the night without giving all members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Although the majority did not deign to answer any of Justice Breyer’s critiques, its decision in Dunn stands as yet another example of its bristling at last-minute challenges to executions. In the view of the conservative Justices—set forth most explicitly in Glossip v. Goss (2015)—because the death penalty itself is constitutional, it “necessarily follows that there must be a [constitutional] means of carrying it out.” These Justices have no patience for late-stage challenges to execution protocols, which they believe are cooked up by the abolitionist bar. The liberal Justices, on the other hand, are unconcerned with any tactical maneuvering by the capital defense bar (at least considering the stakes), and bristle at the majority’s insistence on keeping what Justice Blackmun called the “machinery of death” moving efficiently at all costs. As Justice Sotomayor argued in Bucklew, “[t]here are higher values than ensuring that executions run on time.” In past years, Justice Kennedy might be found on either side of this divide, but now that he has been replaced by Justice Kavanaugh, the battle lines appear to have been drawn for the near future.

That’s all we have for this week. The Court will be back in action next week, with three days of oral-argument scheduled (and perhaps more opinions). Until then.

Dave and Tadhg