The bitter battle over the death penalty continued Monday at the U.S. Supreme Court with the highly unusual release of explanatory statements from the court's conservatives as to why they reached such apparently contradictory decisions in two death cases in February and March.
On Feb. 7, the court ruled by a 5-to-4 vote that Alabama could go ahead with its execution of a Muslim prisoner convicted of murder. The newly energized five-man conservative majority overruled the temporary stay put in place by the lower court because Alabama only allowed a Christian minister in the execution room and refused to allow the condemned man's Imam to be present.
The decision was widely condemned by religious groups on the left and right. Not to mention the blistering dissent from the court's liberals, who called the decision "profoundly wrong."
Then, just seven weeks later, the court stayed the execution of a Buddhist Texas death-row inmate, who similarly claimed that he was denied the right to have his spiritual adviser with in the death chamber. This time only two justices — Clarence Thomas and Neil Gorsuch — noted their dissents.
The two apparently conflicting decisions were so puzzling that they left even the lawyers involved in the cases scratching their heads.
A pre-dawn dissent
Then two weeks later, the court was again deeply and emotionally divided in a death case that had the members of the court up late into the pre-dawn hours. Justice Stephen Breyer wrote a dissent for the court's liberals that castigated the conservative majority for refusing to block an execution even after the state had decided it was too late to go forward with it.
"To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system," Breyer wrote. "To proceed in this matter in the middle of the night without giving all Members of the Court the opportunity for discussion tomorrow morning is, I believe, unfortunate."
The case that provoked the late-night fury involved not the spiritual adviser question or the death penalty itself, but the method of execution. Christopher Price, convicted of a brutal murder, wanted to be executed in Alabama by nitrogen gas, instead of lethal injection, which he maintained would cause him severe pain and needless suffering.
As it happens, Alabama had authorized execution by nitrogen gas in 2018, and state officials were close to finalizing the nitrogen gas protocol. The only remaining question was whether Price could meet the criteria of recent Supreme Court decisions requiring that he show that death by nitrogen gas would be substantially less painful than death by lethal injection. And the 11th Circuit Court of Appeals found that he had met that burden of proof.
But, as the scheduled date of execution neared, a jurisdictional question arose, and on April 11, two hours before the scheduled execution, Price's lawyers appealed to the Supreme Court to stay the execution and grant review of the issues in the case.
Breyer then asked that no action be taken on the case until the justices could discuss the matter at their conference the next day. He acknowledged that the delay would mean the execution would have to be rescheduled for at least 30 days later.
Court refuses to block execution even when Alabama cancels it
But even as all this was taking place, the state of Alabama was throwing in the towel, canceling the execution, in the face of the ongoing litigation.
The conservatives on the high court, however, were undaunted. They refused to grant the stay, even though Price's execution had already been temporarily put on hold by the state. And, on Monday of this week, the court refused to grant further review of the case.
Monday's announcement gave conservatives a chance to explain their decision in the Price case and in the apparently conflicting decisions in the Muslim and Buddhist execution cases.
Apparently stung by public criticism of their actions, the court's conservatives released a series of explanatory opinions. In Monday's Price opinion, Justice Thomas, joined by Justices Samuel Alito, and Gorsuch wrote to rebut Justice Breyer's 3 a.m. dissent from April 12. Thomas related the brutal details of Price's crimes and then went on to challenge the 11th Circuit's finding that Alabama could have planned to execute Price by nitrogen gas instead of lethal injection.
"Even if all the equipment were available on Amazon.com," as Price alleged, said Thomas, "many details remained unanswered, particularly regarding the actual process of administering the gas and, critically, the safety of the state employees administering it."
Conservative justices accuse defense lawyers of deliberate delays
But the ultimate point Thomas wanted to make was that, in his view, Price's lawyers had played the system, deliberately delaying at every turn, in order to prevent the execution from going forward.
Price's "strategy is no secret, for it is the same strategy adopted by many death-row inmates with an impending execution: bring last-minute claims that will delay the execution, no matter how groundless," he said.
"Perhaps those who oppose capital punishment will celebrate the last-minute cancellation of lawful executions. But ... by enabling the delay of petitioner's execution on April 11, we worked a 'miscarriage of justice' on the State of Alabama, [and the victims of the crime.]"
Thomas' mantra of deliberate delay by death penalty lawyers was echoed in two other opinions, both relating to the stay of execution that the court granted in the case of the Buddhist death row inmate on March 28.
Justice Alito, who had not previously noted his dissent, released a 14-page dissent from the court's decision to grant a stay of execution in the case of the Buddhist, Patrick Henry Murphy.
Alito said that Murphy's lawyers should have known six years ago what the protocol was in Texas, and should have challenged it then. And even if they didn't know in 2013, he said, they certainly should have known by the time Murphy's execution date was set last November.
Murphy's lawyers did, in fact, seek permission for his spiritual adviser to be present in the execution chamber, and they blamed the state for foot dragging on a reply. Alito found that explanation wanting.
"By the time they got around to filing in federal court, it was March 26, two days before the scheduled execution date," Alito said. "If the tactics of Murphy's attorneys in this case are not inexcusably dilatory, it is hard to know what the concept means."
Alito observed that the court receives an application to stay virtually every execution. And, he said, these stay applications "are almost all filed on or shortly before the scheduled execution date; and in the great majority of cases, no good reason for the late filing is apparent. By countenancing the dilatory litigation in this case, the Court, I fear, will encourage this damaging practice."
Justice Brett Kavanaugh wrote separately for himself and Chief Justice John Roberts to distinguish between the Texas case involving the Murphy, the Buddhist, whose execution was temporarily blocked by the court, and the Alabama case involving the Muslim, Domineque Hakim Ray, whose execution was allowed to go forward.
Murphy, he said, made the proper equal-treatment claim in court, while Ray's lawyers did not, leaving it to the appeals court to come up with that argument. And, disagreeing with Alito, Kavanaugh noted that 30 days before his scheduled execution, Murphy properly requested that his spiritual adviser be allowed in the execution room, and that the state dragged its feet in providing a timely reply.
This was the second time Kavanaugh has opined on the Murphy case. When the court granted the stay of execution in March, Kavanaugh wrote a short concurring opinion in which he said that "in equal treatment cases of this kind," the government has two choices. Either allow all inmates to have a religious adviser of their faith in the execution room or allow all inmates to have a religious adviser only in the viewing room, but not the execution room. And he noted that states have a strong security interest in controlling the execution chamber.
On Monday, weighing in again, Kavanaugh was joined this time by the chief justice, Kavanaugh noted that five days after the March 28 stay of execution, Texas "changed its unconstitutional policy" to allow all religious ministers only in the viewing room and not in the execution room.
"Put simply, this Court's stay facilitated the prompt resolution of a significant religious equality problem with the State's execution protocol," he wrote. And that, he added, "should alleviate any future litigation delays or disruptions that otherwise might have occurred."
Maybe. But with tempers high on the subject of the death penalty, disagreements profound, and the issue centering literally on life and death, the reality is that the justices of the Supreme Court will likely be back in combat soon on this subject.