The Supreme Court said early Friday that the execution of Alabama death row inmate Christopher Lee Price can go forward in the fourth major death penalty case this year that has justices feuding openly.
However, the court’s action came after Price’s death warrant expired in Alabama at midnight central time Thursday. This means that Alabama will have to apply to the state courts for a new execution date for Price before he can be put to death.
The order further unmasked the tension building between the newly solidified conservative majority on the court that wants to stop inmates from making last minute appeals and liberals who think the justices should defer to lower courts when it comes to specific facts in individual death penalty cases.
Justice Stephen Breyer, joined by the three other liberal justices on the high court, penned a furious dissent, released at 2:51 AM, ET.
“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 wrote.
Price had argued that Alabama’s lethal injection protocol would cause him severe pain and asked that the state use lethal gas as an alternative. Two lower courts agreed Thursday to put the execution on hold.
But after Alabama Attorney General Steve Marshall petitioned the Supreme Court, the majority agreed to lift the stay of execution. The court said that Price had waited too long to make his claim.
In the unsigned order, the majority said that death row inmates in Alabama had the choice back in 2018 to elect to “be executed via nitrogen hypoxia” but that Price did not do so.
“He then waited until February 2019 to file this action and submitted additional evidence today, a few hours before his scheduled execution time,” the majority held.
According to the state, Price and an accomplice wielded a sword and a knife in 1991 and stabbed Bill Lynn, a minister, to death.
“On December 22, 1991, Bill Lynn was wrapping Christmas gifts for his grandchildren when he was ambushed outside his home, slashed and stabbed with a sword dozens of times,” Marshall said in a statement.
“His killer has dodged his death sentence for the better part of three decades by employing much the same strategy he has pursued tonight – desperately clinging to legal maneuverings to avoid facing the consequences of his heinous crime.”
In his dissent, Breyer said that the case had become tangled in procedural matters and that two lower courts had agreed to put the execution on hold in an attempt to understand better the circumstances of the case.
Breyer said that he had asked his colleagues to take no action until Friday when the justices could discuss the issue at their regularly scheduled closed-door conference. But, he said, the majority refused and in doing so it “overrides the discretionary judgment of not one, but two lower courts.”
“To proceed in this matter in the middle of the night without giving all Members of this Court the opportunity for discussion tomorrow morning, is I believe, unfortunate,” he said.
“Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering.”
In early February, the court’s 5-4 conservative majority allowed the execution of Domineque Ray, who claimed his religious rights were violated because he could not have an imam with him in the execution chamber. The Alabama prison allows a Christian chaplain in the room, but officials blocked the imam arguing that only prison employees could be present in the chamber for security concerns.
But it then sided with a Texas inmate, who said the state was violating his religious freedom because it refused to allow his Buddhist spiritual adviser into the chamber because the state only allowed Christian and Muslim chaplains who were employees of the prison.
And last week, a 5-4 court cleared the way for the execution of Missouri inmate Russell Bucklew, who had made a similar argument as Price.
In that case, Justice Neil Gorsuch, writing for the conservatives on the court, held that the Eight Amendment “does not demand the avoidance of all risk of pain” in carrying out executions.
CNN’s Madeline Holcombe contributed to this report