JEFFERSON S. DUNN, COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, ET AL.
CHRISTOPHER LEE PRICE
APPLICATION TO VACATE STAY No. 18A1053.
application to vacate the stay of execution, presented to
Justice Thomas and by him referred to the Court, is granted,
and the stays entered by the District Court for the Southern
District of Alabama and the United States Court of Appeals
for the Eleventh Circuit on April 11, 2019, are vacated. In
June 2018, death-row inmates in Alabama whose convictions
were final before June 1, 2018, had 30 days to elect to be
executed via nitrogen hypoxia. Ala. Code
§15-18-82.1(b)(2). Price, whose conviction became final
in 1999, did not do so, even though the record indicates that
all death-row inmates were provided a written election form,
and 48 other death-row inmates elected nitrogen hypoxia. He
then waited until February 2019 to file this action and
submitted additional evidence today, a few hours before his
scheduled execution time. See Gomez v. United States
Dist. Court for Northern Dist. Of Cal, 503 U.S. 653, 654
(1992) (per curiam) ("A court may consider the
last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.").
Justice Breyer, with whom Justice Ginsburg, Justice
Sotomayor, and Justice Kagan join, dissenting from grant of
application to vacate stay.
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.
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,
and the State "submitted nothing" to rebut his
expert's assertions. Price v. Commissioner, Ala.
Dept. of Corrections, No. 19-11268 (CA11, Apr. 10,
2019), p. 23. The Court of Appeals thus correctly held that
Price satisfied his burden to show a severe risk of pain from
lethal injection, "since the only evidence of record
supports that conclusion." Id., at 24.
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. In light of those
facts, the Court of Appeals correctly held that nitrogen
hypoxia is "available," "feasible," and
"readily implemented" by the State. Id.,
only remaining question was whether Price could show that
death by nitrogen hypoxia would be substantially less painful
than death by the existing lethal injection protocol. To make
this showing, Price submitted an academic study on which the
Oklahoma Legislature had relied in adopting nitrogen hypoxia
as a method of execution. That study noted that death by
nitrogen hypoxia has been described as "painless,"
"peaceful," and unlikely to cause "any
substantial physical discomfort." Record in No.
1:19-00057 (SD Ala.), pp. 6, 9 (Dkt. 45-2). It concluded that
nitrogen hypoxia is "an effective and humane alternative
to the current methods of capital punishment practiced in
Oklahoma." Id., at 2.
as the District Court noted, the State did not
challenge Price's evidence on this question. It did
not question the reliability of the Oklahoma study. And it
did not otherwise dispute (either in the District Court or on
appeal) that nitrogen hypoxia was likely to be less painful
than the State's lethal injection protocol. The District
Court thus correctly held that "Price is likely to
prevail on the issue of whether execution by nitrogen . . .
would provide a significant reduction in the substantial risk
of severe pain Price would incur if he were executed" by
lethal injection. Price v. Dunn, No. 1:19-00057 (SD
Ala., Apr. 5, 2019), p. 23.
Court of Appeals found the District Court's determination
on this question clearly erroneous. It reached that
conclusion primarily because the version of the Oklahoma
study that Price's counsel submitted was "a
preliminary draft report that is stamped with the words
'Do Not Cite.'" Price v. Commissioner, Ala.
Dept. of Corrections, No. 19-11268, at 24. The Court of
Appeals appeared to believe that a "preliminary"
report could not constitute "reliable evidence" on
the effects of nitrogen hypoxia. Id., at 24-25.
turns out, however, that a final version of the same
Oklahoma study was published and available. That version is
identical in every relevant respect to the preliminary
version that Price submitted. That is, the final report also
describes nitrogen hypoxia as "painless,"
"humane," and unlikely to cause "any
substantial physical discomfort," based on exactly the
same evidence discussed in the earlier draft.
Price's counsel, realizing the error, quickly sought to
ensure the District Court would be able to consider the final
version of the report. Price filed a new motion for
preliminary injunction in the District Court, along with the
final report and additional expert declarations.
District Court found this new evidence "reliable,"
and noted that the State had "not submit[ted] anything
in contradiction." Price v. Dunn (SD Ala., Apr.
11, 2019), p. 13 (Dkt. 49). The District Court concluded
"based on the current record" that "Price has
a substantial likelihood of succeeding on the merits."
Ibid. The District Court then considered the
remaining stay factors. Notably, the District Court found
that Price had not "timed his motion in an
effort to manipulate the execution." Ibid.
"Rather, Price, the State and the [District Court] have
been proceeding as quickly as possible on this issue
since before the execution date was set." Ibid,
(emphasis added). The District Court ultimately concluded
that a 60-day stay of the execution was warranted.
State then asked the Court of Appeals to vacate the stay in
part because, in its view, the District Court did not have
jurisdiction to issue it. The Court of Appeals had not yet
issued its mandate, the appeal remained pending, and, in the
State's view, the arguments Price raised in his new
motion in the District Court were the same arguments at issue
in his pending appeal. The District Court had rejected the
argument that the pending appeal deprived it of jurisdiction;
Price, it explained, has "presented a new
motion for preliminary injunction accompanied by new
evidence." Id., at 3 (emphasis added).
Court of Appeals refused to vacate the District Court's
stay. It explained that the parties had raised
"substantial questions" about jurisdiction.
Price v. Commissioner, Ala. Dept. of Corrections,
No. 19-11268 (CA11, Apr. 11, 2019), p. 2. "In light of
the jurisdictional questions raised by the parties'