WASHINGTON _ A bitterly split Supreme Court issued a 5-4 order early Friday morning to allow Alabama to execute a murderer by lethal injection, but he was spared because the decision came nearly three hours after his execution warrant had expired at midnight Thursday.
Alabama authorities said they would move to set a new execution date for Christopher Price, who was convicted of the sword-and-stabbing murder of an elderly pastor in 1991.
The middle-of-the-night legal battle revealed the extraordinary divide between the court's five conservatives and four liberals over carrying out the death penalty. It appeared that the high court missed the midnight deadline after Justice Stephen G. Breyer insisted on writing a dissent to the conservative majority's order, effectively causing the execution to be delayed despite their decision to allow it.
For the second time this year, the court's conservatives acted on emergency appeals from Alabama and lifted a judge's order to allow an execution to go forward.
In doing so, the conservative majority accused the condemned man and his lawyers of waiting until the eve of the execution to raise new complaints.
They said death row inmates in Alabama were told in June that they had 30 days to elect to be executed via nitrogen hypoxia, a lethal gas, rather than through an injection. While 48 of the inmates chose this option, Price did not.
"He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time," the high court said in an order issued at 2:52 a.m. EDT Friday. The court granted the appeal by Alabama in Dunn vs. Price and lifted the stay orders issued by a federal judge in Alabama and the U.S. 11th Circuit Court of Appeals.
Breyer wrote a seven-page dissent arguing the execution should be put on hold until Alabama could decide whether it could indeed carry out an execution using nitrogen gas. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan agreed.
"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," Breyer said. "This case comes to us on the assumption that executing Christopher Lee Price using Alabama's current three-drug protocol is likely to cause him severe pain and needless suffering. Price submitted an expert declaration explaining why that is so."
Breyer continued: "Price proposed nitrogen hypoxia as an alternative method of execution. Alabama expressly authorized execution by nitrogen hypoxia in 2018, and state officials have actively worked to develop a hypoxia protocol since that time. The state is mere months away from finalizing its protocol."
A federal judge granted a motion to delay the execution for 60 days, and the appeals court in Atlanta refused to the lift that order, he noted.
Noting that the state of Alabama had sought relief from the Supreme Court at 9 p.m. EDT Thursday, Breyer said he had requested that the matter be discussed by the entire court during conference on Friday.
"I recognized that my request would delay resolution of the application and that the state would have to obtain a new execution warrant," he wrote. "But in my judgment, that delay was warranted, at least on the facts as we have them now."
Breyer's request for conference was apparently denied, but the deadline was missed anyway.
In early February, the court by the same 5-4 vote lifted a judge's order and allowed Alabama to carry out an execution by lethal injection. Then, the court's four liberals dissented because the majority rejected the inmate's plea to allow his imam to be with in the execution chamber.
Since then, the justices blocked an execution in Texas after a similar religious discrimination claim was filed. Justice Brett M. Kavanaugh issued a short opinion to explain that while the state may decide to allow only prison employees in the execution chamber, it may not allow a Christian cleric but not a cleric of another faith.
