Advertisement

SKIP ADVERTISEMENT

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

“To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system,” Justice Stephen G. Breyer wrote in his dissent.Credit...T.J. Kirkpatrick for The New York Times

WASHINGTON — The dissent, tinged with anguish and filled with bitter accusations, was not ready until almost 3 a.m. It described a rupture in the carefully tended norms of civility at the Supreme Court. And it provided a rare glimpse into ordinarily secret deliberations.

In seven angry pages, Justice Stephen G. Breyer recounted how the conservative majority on the court had refused his request to delay the execution of an Alabama inmate for a few hours so he and the other justices could discuss the matter in person at their usual Friday morning conference.

Instead, by a 5-to-4 vote in the middle of the night, the court allowed the execution to proceed, with the conservative justices in the majority and the liberals in dissent. Although that division was not unusual, the way the court got there was.

Justice Breyer’s dissent reflects that things have quickly gotten ugly at the court since the replacement of Justice Anthony M. Kennedy, who was a moderating force in capital cases, with the more conservative Justice Brett M. Kavanaugh.

The divide between the two sides has hardened in recent weeks, with conservative justices growing increasingly frustrated over what they considered excessive delays in carrying out executions. The liberal justices have in turn accused the majority of reckless haste that could give rise to executions so painful as to amount to torture.

Legal experts said the divisions in recent death penalty cases were a telling and disturbing sign about where the Supreme Court might be headed as it started to issue the term’s major decisions in the coming months.

“If the Supreme Court cares about its institutional legitimacy, and ultimate effectiveness, it will heal this long-festering wound before it attempts to persuade the country that in resolving the other thorny issues to come it has acted the way a judicial body should,” said Eric M. Freedman, a law professor at Hofstra University.

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

Late-night rulings on death penalty applications are not unheard-of, but they are seldom issued in the predawn hours. In his early morning dissent, almost certainly completed at home, Justice Breyer wrote that the court’s treatment of the case was deeply distressing.

“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.

Image
In a majority opinion, the Supreme Court said that Christopher L. Price had waited too long to raise his claim that Alabama’s method of execution could subject him to excruciating pain.Credit...Alabama Department of Corrections, via Associated Press

Mr. Price and an accomplice were convicted of using a sword and dagger to kill William Lynn, a minister, in 1991 in his home in Bazemore, Ala., 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 failed to meet the deadline. The majority said that was the end of the matter.

A Federal District Court in Alabama halted the execution on Thursday, citing new evidence. Around 9 p.m. on Thursday, Alabama officials asked the Supreme Court to allow the execution to go forward. The court 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 halted 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 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.

“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,” Attorney General Steven T. Marshall said. “They were, in effect, revictimized 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 there were substantial questions 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.”

Alan Blinder contributed reporting from Atlanta.

Follow Adam Liptak on Twitter: @adamliptak.

A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: 3 A.M. Dissent As Court Splits Over Execution. Order Reprints | Today’s Paper | Subscribe

Advertisement

SKIP ADVERTISEMENT