In a brief order entered this afternoon, the Supreme Court allowed the execution of an Alabama inmate to go forward. The state had asked the court to intervene after the U.S. Court of Appeals for the 11th Circuit put the execution on hold; the ruling means that the execution of Jeffrey Borden can proceed as scheduled tomorrow evening.

Borden was sentenced to death for the murders of his estranged wife and her father on Christmas Eve 1993. He shot Cheryl Borden in the back of her head in front of their children; he then shot his father-in-law in the back as he attempted to run to safety. Borden’s challenge to his execution has been a common one in death-penalty cases in recent years: He argues that the three-drug protocol that the state plans to use to execute him violates the Constitution’s bar on cruel and unusual punishment. In particular, he contends, the first drug in that protocol – midazolam – will sedate him but cannot guarantee that he will not feel excruciating pain from the drugs that follow.

A federal district court in Alabama dismissed his claims, but the 11th Circuit reversed and ordered the district court to order an evidentiary hearing. Last week the court of appeals put the execution on hold to give the lower court enough time to consider Borden’s claims. That prompted Alabama to go to the Supreme Court on Monday, where it told the justices that “Alabama has already carried out four executions using this protocol. Any questions concerning three-drug midazolam protocols have effectively been answered.”

Three justices – Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – indicated that they would have denied the state’s request, leaving Borden two justices short of the support that he needed to block his execution.

UPDATE: After the Supreme Court’s order, Borden returned to the 11th Circuit to seek a new stay. That court rejected his motion, but it did so “without prejudice,” which would allow Borden to seek a stay of execution in the district court after the mandate issues in his case on October 5 — which, Borden’s attorneys indicate, they intend to do.

This post was originally published at Howe on the Court.

Posted in Featured, What's Happening Now

Recommended Citation: Amy Howe, Divided court opens door for Alabama execution (UPDATED), SCOTUSblog (Oct. 4, 2017, 5:09 PM),