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Split High Court Votes for Ala. Execution, Nixes Stay (1)

April 12, 2019, 1:14 PMUpdated: April 12, 2019, 4:37 PM

In the middle of the night, U.S. Supreme Court justices broke down along the usual 5-4 line to rule against a death row inmate in the latest battle in their capital punishment war.

“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,” Justice Stephen G. Breyer began his dissent for the four Democratic-appointees, lambasting the majority’s order vacating execution stays granted by lower courts to Christopher Lee Price.

Giving some behind the scenes views at the back-and-forth between the justices last night, Breyer sharply criticized the majority’s decision to rule against Price in what he viewed as a rushed fashion, arguing that it “calls into question the basic principles of fairness that should underlie our criminal justice system.”

“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,” Breyer concluded. The justices are scheduled meet in their private conference Friday to discuss pending petitions seeking high court review.

The majority’s order, entered around 3 a.m. EDT, will allow Alabama officials to execute Price despite his objections to the state’s lethal injection protocol on grounds of cruel and unusual punishment. Lethal injection as a means of carrying out executions has caused controversy across the country, due in part to unknowns surrounding the impact of the drugs used.

The middle-of-the-night order also overturns two orders, from an Alabama trial court and the federal appeals court that covers the region, that gave Price a temporary reprieve as he sought to press his claim that execution by “nitrogen hypoxia"—being gassed to death—would be more humane.

But Price waited too long to bring his claim, the unsigned order from the majority said, espousing a familiar reasoning of late at the Supreme Court, which Breyer derided as “untenable” here.

Though the order was unsigned, the fact that four justices publicly dissented necessarily means that it was Chief Justice John G. Roberts Jr., along with Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh voting to allow the execution. Five votes are required for such a maneuver.

But the order came too late to execute Price last night, with state officials calling it off before midnight, at which point the death warrant expired. They’ll need to get a new one now.

Breyer’s dissent “appears to be laying down a marker: the Court should discuss death penalty stays at conference,” said Josh Blackman, a professor at South Texas College of Law Houston who closely follows the Supreme Court.

The majority “rejected that overture because, I suspect, the additional delay would further slow down a process riddled with delays,” Blackman said.

Price was convicted and sentenced to death in 1993 for a murder that a state appeals court called “unnecessarily torturous, pitiless, conscienceless, extremely wicked, and shockingly evil.”

The 5-4 breakdown at the high court followed its split ruling April 1 in Bucklew v. Precythe, where the same majority ruled against a Missouri inmate pressing a similar claim to Price’s.

The justices were likewise divided on recent requests from Muslim and Buddhist prisoners to have spiritual advisers with them in the execution chamber, with the majority voting allow the latter but not the former.

The case is Dunn v. Price, U.S., 18A1053, stays vacated 4/12/19.

(Adds snapshot, comment from Blackman, more detail and background on case and dissent. )

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at