The Consistently Inconsistent U.S. Supreme Court in Matters of Life or Death
By Drew Findling, NACDL President
May 2019 Issue of The Champion
There is no question that the death penalty is inherently flawed. Its arbitrary, racially biased application cannot be reconciled with our notions of equal justice and the freedom from cruel and unusual punishment. These flaws have been front and center in recent months. The U.S. Supreme Court has considered various cases in which the justices have had to deal with the manner and method of executions. The resulting opinions have drawn wide criticism, both by its own members and by commentators, for the seemingly arbitrary way the Court ruled on several petitions for stays of execution. Justice Breyer’s dissent in Dunn v. Price¹ begins by highlighting one of the most substantial criticisms of the death penalty: “Should anyone doubt that death sentences 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.” These recent decisions illustrate how the continued use of the death penalty will inevitably invite arbitrary results and fails to serve any legitimate sentencing purpose.
On Feb. 7, 2019, the Supreme Court vacated a stay of execution for a Muslim Alabama man, Domineque Ray, who was denied access to an Imam during his execution.² The correctional facility in question, Holman Correctional Facility, regularly allows Christian chaplains to be present at executions. The majority’s decision is based solely on the grounds that Ray waited until Jan. 28, 2019, to seek relief.³ As the dissent points out, Ray’s request for an Imam was not denied until Jan. 23, 2019, and he would have no reason to know his request would not have been allowed until the warden made the decision on Jan. 23. But then, a little over a month later, the Supreme Court reversed course and granted a stay of execution in Murphy v. Collier,⁴ where a Buddhist Texas man was denied access to a Buddhist spiritual advisor to be present in the execution room and where the Texas policy allows a Christian or Muslim advisor in the execution room.
These two similar cases, with vastly divergent opinions, have drawn extensive criticism⁵ because the only distinctions between these cases is the timing of their petitions and the religious beliefs of the men. In both systems, the State has in place mechanisms for a spiritual leader of one religion to be present in the execution chamber, but not the religion of the petitioner. Such policies clearly disregard the denominational neutrality of the Establishment Clause. This is just another area of death penalty jurisprudence in which the Court makes arbitrary distinctions between cases to reach diametrically opposed results for different defendants. Taking away Ray’s access to a spiritual advisor in his last moments because of the timing of his petition completely disregards Ray’s humanity and the incredibly serious, final nature of his sentence.
In Bucklew v. Precythe,⁶ a Missouri man sentenced to death challenged Missouri’s use of a single injection of pentobarbital to carry out executions. Russell Bucklew suffers from a medical condition known as cavernous hemangioma, which would create a substantial risk that, once the pentobarbital was injected, Bucklew would “experience choking and an inability to breathe for up to four minutes.”⁷ The Court, citing Baze v. Rees,⁸ denied Bucklew relief, reasoning that the Eighth Amendment “does not demand the avoidance of all risk of pain in carrying out executions,” and the Eighth Amendment “does not come into play unless the risk of pain associated with the State’s method is substantial when compared to a known and available alternative.”⁹ However, the burden associated with this showing is untenable for an inmate, as it requires the following:
First, an inmate must show that his proposed alternative method is not just theoretically “feasible” but also “readily implemented.” This means the inmate’s proposal must be sufficiently detailed to permit a finding that the State could carry it out “relatively easily and reasonably quickly.”¹⁰
It is absurd to put the burden on an incarcerated, convicted defendant to show what “better” methods of execution are “feasible”; but, in Dunn v. Price,¹¹ an Alabama man was actually in the position to make that showing. Alabama is currently in the process of implementing an alternative system to its current lethal injection protocol by using nitrogen hypoxia gas instead of the current three-drug injection. In Dunn, the lower court found that the nitrogen hypoxia method was available, feasible, and readily implemented.¹² Despite all this, the Supreme Court granted the application to vacate the stay of execution because Christopher Price did not elect to be executed via nitrogen hypoxia within 30 days of the implementation of the Alabama law allowing for execution by nitrogen hypoxia.¹³ The majority makes no reference to the pain lethal injection would likely cause Price, the availability of nitrogen hypoxia, or the findings of the Eleventh Circuit that “Price, the State, and the [district court] have been proceeding as quickly as possible on this issue since before the execution date was set,”¹⁴ but rather simply vacated the stay on the sole ground that Price delayed his application for a stay of execution. Justice Breyer states at the conclusion of his dissent:
Alabama will soon subject Price to a death that he alleges will cause him severe pain and needless suffering. It can do so not because Price failed to prove the likelihood of severe pain and not because he failed to identify a known and readily implemented alternative, as this Court has recently required inmates to do. Instead, Alabama can subject him to that death due to a minor oversight (the submission of a “preliminary” version of a final report) and a significant mistake of law by the court of appeals (the suggestion that a report marked “preliminary” carries no evidentiary value). … To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.¹⁵
The basic principles of fairness and the right to be free from cruel and unusual punishment have taken a back seat to a rigid adherence to procedure with no regard for humanity. For Price, this means he will likely be subjected to a painful execution despite the availability of a painless, feasible alternative. Forty-eight other Alabama inmates sentenced to death will not be subjected to the same, solely because they completed a form in June 2018. This result is fundamentally unjust. Beyond that, when reduced to its most basic form, the question before the Court was whether one way of killing a person was not painful enough to make the State find a less painful way. It is a callous inquiry that cannot be correctly answered because every execution is inherently inhumane. There is no acceptable way for the State to kill a person.
These issues will continue to plague the legal system as long as the death penalty remains in effect. Regardless of the manner of execution or who is allowed to be in the room when it occurs, the result remains indefensibly barbaric. The cruel and arbitrary nature of the death penalty can never truly be eliminated except through its abolition.
This litany of recent cases highlights what NACDL and defense attorneys across the country have espoused for years: the only solution is the elimination of the death penalty. NACDL has continually called on governors and state legislatures to institute moratoria and pass legislation abolishing the death penalty.¹⁶ As the Washington Supreme Court held when it found the death penalty unconstitutional, the death penalty “fails to serve any legitimate penological goal.”¹⁷ We have seen some recent success in the fight against the death penalty, namely the New Hampshire Legislature passing a bill in April 2019 outlawing the death penalty,¹⁸ and California’s March 2019 moratorium (at the time California had the largest number of inmates on death row of any state).¹⁹ However, these incremental positive developments and the recent inconsistent appellate decisions are a stark reminder that we must keep our foot on the pedal and not rest until the United States is free of the death penalty.
- Dunn v. Price, №18A1053, 2019 WL 1575043 (S. Ct. April 12, 2019).
- Dunn v. Ray, 139 S. Ct. 661 (2019).
- Murphy v. Collier, 139 S. Ct. 1111 (2019).
- Jon Healey, If You’re a Non-Christian Facing Execution in Alabama, God Help You. Because the Supreme Court Won’t, Feb. 8, 2019, available at https://www.latimes.com/opinion/enterthefray/la-ol-supreme-court-christian-execution-20190208-story.html; Alan Cross, Does Alabama Support Religious Liberty? Feb. 10, 2019, available at https://www.nytimes.com/2019/02/10/opinion/alabama-domineque-ray-death-row.html.
- Bucklew v. Precythe, 139 S. Ct. 1112 (2019).
- Id. at 1122.
- 553 U.S. 35 (2008).
- Bucklew, 139 S. Ct. at 1125.
- Id. at 1129.
- Dunn v. Price, №18A1053, 2019 WL 1575043 (S. Ct. April 12, 2019).
- Price, 2019 WL 1575043 at *2.
- Id. at *3.
- NACDL Board Resolution 2/26/2000, available at https://www.nacdl.org/criminal-defense/death-penalty.
- State v. Gregory, 427 P.3d 621, 627 (Wash. 2018).
- New Hampshire Senate Passes Death Penalty Repeal with Veto-Proof Majority, April 17, 2019, available at https://eji.org/news/new-hampshire-senate-passes-death-penalty-repeal-with-veto-proof-majority.
- Tim Arango, California Death Penalty Suspended; 737 Inmates Get Stay of Execution, March 12, 2019, available at https://www.nytimes.com/2019/03/12/us/california-death-penalty.html.
© 2019, National Association of Criminal Defense Lawyers. All rights reserved. This article originally appeared in The Champion magazine and is reprinted with permission.