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Dunn v. Price

United States Supreme Court

April 12, 2019



         The 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.

         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.

         1. 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, 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.

         2. 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., at 15-22.

         3. The 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.

         Crucially, 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.

         4. The 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.

         5. It 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.

         6. 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.

         7. The 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.

         8. The 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).

         9. The 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' ...

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