Justices spar over death penalty (Corrected)

Tensions over the death penalty resurfaced today at the Supreme Court. The justices declined to take up two petitions for review filed by death-row inmates in Alabama and Tennessee, in orders accompanied by opinions that were sometimes biting. The justices also took the unusual step of issuing new opinions relating to their decision in March to put the execution of a Texas inmate on hold.

In the early morning hours on April 12, the Supreme Court cleared the way for Alabama to execute Christopher Price, who was on death row for the brutal 1991 murder of Bill Lynn, a minister who had been putting together Christmas presents for his grandchildren. The lower courts had put Price’s execution on hold to give them more time to consider his claim that the state’s plan to execute him by lethal injection would violate the 8th Amendment’s ban on cruel and unusual punishment. Instead, Price contended, he should be executed using lethal nitrogen gas.

Justice Stephen Breyer dissented from the court’s order overturning the stay of execution, in a highly personal and often scathing opinion that criticized his colleagues for (among other things) not waiting to act until after the justices met for their private conference the next day.

Although the justices vacated the stay of execution, the state had already postponed Price’s execution because the death warrant expired at midnight on April 12. Today the justices denied review of Price’s petition for certiorari, and Justice Clarence Thomas took the opportunity to write a statement – joined by Justices Samuel Alito and Neil Gorsuch – concurring in the denial.

If Breyer’s dissent in April had been sharply critical of his colleagues, turnabout was fair play for Thomas today. Describing Breyer’s complaint that Price’s death sentence “was being carried out in an arbitrary way” and that the justices had “deviated from basic principles of fairness,” Thomas was unequivocal: “There is nothing of substance to these assertions.” Later on, Thomas dismissed Breyer’s contention that Price’s execution should be delayed because Price had raised “substantial” legal questions, stressing that Breyer’s “rationale does not withstand even minimal legal scrutiny.”

Thomas seemed to question whether Breyer was in fact even “serious” in suggesting that the justices should wait until the next day to discuss Price’s case. If he was, Thomas retorted, “it should be obvious that emergency applications ordinarily cannot be scheduled for discussion at weekly (or sometimes more infrequent) Conferences,” because it would only give inmates even more of an incentive to challenge their executions.

Even more broadly, Thomas suggested, Breyer’s approach would “harm victims.” In this case, Bill Lynn’s widow was at the prison and “waited for hours with her daughters to witness” Price’s execution, “but was forced to leave without closure.”

The justices also denied review in another case involving a Tennessee death-row inmate, Abu-Ali Abdur’Rahman, who is scheduled to be executed next year. Abdur’Rahman and other prisoners, including Donnie Johnson, whose execution is scheduled for May 16, were challenging the use of state secrecy laws in their challenge to Tennessee’s lethal-injection protocol. Justice Sonia Sotomayor dissented from the denial of review, lamenting that “the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement.”

The justices also revived the dispute over the court’s decision in late March to block Texas from executing a Buddhist inmate who wanted to have his spiritual adviser in the execution chamber with him. That move came after the justices cleared the way for Alabama to execute a Muslim inmate who wanted to have an imam with him at his execution. Justice Brett Kavanaugh wrote a statement at the time concurring in the decision to block the Texas execution, and today Justice Samuel Alito wrote a dissent from the order that was joined by Thomas and Gorsuch.

Characterizing the order blocking the execution as “seriously wrong,” Alito explained that he was writing because “inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases.” First, he noted, Murphy and his lawyers could have started to litigate the issue of whether Murphy’s spiritual adviser could be with him as early as 2013 – but at the very least “should have been spurred to action when, in November of last year, his execution date was set.” “Instead,” Alito complained, “his lawyers waited three months before writing to the Texas Department of Criminal Justice. How can that be justified?”

Alito acknowledged that Murphy had raised “serious questions” under both the Constitution and the Religious Land Use Institutionalized Persons Act. “But they are not simple,” he continued, “and they require a careful consideration of the legitimate interests of both prisoners and prisons.” Therefore, he concluded, inmates should file such claims “well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Kavanaugh wrote a new statement, joined by Chief Justice John Roberts, “to respectfully add two points.” Kavanaugh first noted that, after the court put Murphy’s execution on hold, Texas changed its policy and “now allows all religious ministers only in the viewing room and not in the execution room.” “Put simply,” Kavanaugh emphasized, the court’s actions allowed the state to resolve the “significant religious equality problem” and “should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.”

Kavanaugh also suggested that there were differences between Murphy’s case and that of Domineque Ray, the Muslim inmate whose request for a stay was denied. He concluded by acknowledging that “both the facts and the religious equality claim in Murphy’s case were highly unusual,” and he agreed with Alito that inmates should “raise any potentially meritorious claims in a timely manner.”

[Disclosure: Abu-Ali Abdur’Rahman and Donnie Johnson were my clients while I was practicing law, but I no longer represent either of them and I am not involved in this case. Goldstein & Russell, whose attorneys contribute to this blog in various capacities, has represented both individuals, but is not involved in this case.]

This post was originally published at Howe on the Court.

An earlier version of this post indicated that Abdur’Rahman’s execution was scheduled for May 16. His execution is scheduled for next year; Johnson’s is scheduled for May 16.