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`
`1
`
`Cite as: 587 U. S. ____ (2019)
`
`BREYER, J., dissenting
`SUPREME COURT OF THE UNITED STATES
`JEFFERSON S. DUNN, COMMISSIONER, ALABAMA
`DEPARTMENT OF CORRECTIONS, ET AL. v.
`CHRISTOPHER LEE PRICE
`ON APPLICATION TO VACATE STAY
`No. 18A1053. Decided April 12, 2019
` The application to vacate the stay of execution, present-
`ed 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 be-
`came 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.
`
`
`
`

`

`2
`
`
`DUNN v. PRICE
`
`BREYER, J., dissenting
` 1. This case comes to us on the assumption that exe-
`cuting 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 noth-
`ing” to rebut his expert’s assertions. Price v. Commission-
`er, 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 exe-
`cution 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,” “feasi-
`ble,” 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 sub-
`stantially 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 hypox-
`ia has been described as “painless,” “peaceful,” and unlike-
`ly to cause “any substantial physical discomfort.” Record
`in No. 1:19–00057 (SD Ala.), pp. 6, 9 (Dkt. 45–2). It con-
`cluded 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
`
`
`
`

`

`
`
`3
`
`Cite as: 587 U. S. ____ (2019)
`
`BREYER, J., dissenting
`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 Cor-
`rections, No. 19–11268, at 24. The Court of Appeals ap-
`peared 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 prelim-
`inary version that Price submitted. That is, the final
`report also describes nitrogen hypoxia as “painless,” “hu-
`mane,” 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 “relia-
`ble,” and noted that the State had “not submit[ted] any-
`thing in contradiction.” Price v. Dunn (SD Ala., Apr. 11,
`2019), p. 13 (Dkt. 49). The District Court concluded
`
`
`
`

`

`4
`
`
`DUNN v. PRICE
`
`BREYER, J., dissenting
`“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. Nota-
`bly, 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 argu-
`ments at issue in his pending appeal. The District Court
`had rejected the argument that the pending appeal de-
`prived 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. Com-
`missioner, Ala. Dept. of Corrections, No. 19–11268 (CA11,
`Apr. 11, 2019), p. 2. “In light of the jurisdictional ques-
`tions raised by the parties’ motions,” it stayed Price’s
`execution until further order of the court. Id., at 3.
` 10. Shortly before 9 p.m. this evening, the State filed an
`application to the Justice of this Court who is the Circuit
`Justice for the Eleventh Circuit. It was later referred to
`the Conference. I requested that the Court take no action
`until tomorrow, when the matter could be discussed at
`Conference. I recognized that my request would delay
`resolution of the application and that the State would
`have to obtain a new execution warrant, thus delaying the
`
`
`
`

`

`
`
`5
`
`Cite as: 587 U. S. ____ (2019)
`
`BREYER, J., dissenting
`execution by 30 days. But in my judgment, that delay was
`warranted, at least on the facts as we have them now.
`During the pendency of our consideration, the State called
`off this evening’s scheduled execution.
` The Court nevertheless grants the State’s application to
`vacate the stay, thus preventing full discussion among the
`Court’s Members. In doing so, it overrides the discretion-
`ary judgment of not one, but two lower courts. Why? The
`Court suggests that the reason is delay. But that sugges-
`tion is untenable in light of the District Court’s express
`finding that Price has been “proceeding as quickly as
`possible on this issue since before the execution date was
`set.” Order, at 13 (Dkt. 49) (emphasis added). Surely the
`District Court is in a better position than we are to gauge
`whether Price has engaged in undue delay.
` The Court also points out that Price did not elect nitro-
`gen hypoxia within 30 days of the legislature authorizing
`this method of execution on June 1, 2018. State law ap-
`peared to provide death row inmates only until June 30,
`2018, to make the election. See 2018 Ala. Laws Act 2018–
`353. Yet based on the limited information before us, it
`appears no inmate received a copy of the election form
`(prepared by a public defender) until June 26, and the
`State makes no representation about when Price received
`it other than that it was “before the end of June.” Brief for
`Appellee in No. 19−11268 (CA11), p. 9. Thus, it is possible
`that Price was given no more than 72 hours to decide how
`he wanted to die, notwithstanding the 30–day period
`prescribed by state law. That is not a reason to override
`the lower courts’ discretionary determination that the
`equitable factors warrant a stay.
` The State also argues that the District Court lacked
`jurisdiction to entertain Price’s new motion for a prelimi-
`nary injunction. But as the Court of Appeals appeared to
`recognize, that jurisdictional question is a substantial one,
`the answer to which is by no means clear. See Order, No.
`
`
`
`

`

`6
`
`
`DUNN v. PRICE
`
`BREYER, J., dissenting
`19–11268 (CA11, Apr. 11, 2019), pp. 2−3; cf. 16A C. Wright
`& A. Miller, Federal Practice & Procedure §3949.1 (4th
`ed.) (“An interlocutory appeal ordinarily suspends the
`power of the district court to modify the order subject to
`appeal, but does not oust district-court jurisdiction to
`continue with proceedings that do not threaten the orderly
`disposition of the interlocutory appeal”). To resolve it with
`minimal briefing on an extraordinarily compressed time-
`line would be deeply misguided.
` What is at stake in this case is the right of a condemned
`inmate not to be subjected to cruel and unusual punish-
`ment in violation of the Eighth Amendment. At a mini-
`mum, “before acting irretrievably” to vacate a stay and
`allow a potentially cruel execution to proceed, the Court
`should decide whether the District Court did in fact lack
`jurisdiction to issue the stay. See Bowersox v. Williams,
`517 U. S. 345, 347 (1996) (GINSBURG, J., dissenting from
`grant of application to vacate stay of execution). “Appreci-
`ation of our own fallibility . . . demand[s] as much.” Ibid.
`* * *
` Alabama will soon subject Price to a death that he alleg-
`es 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). These mistakes could be easily reme-
`died by simply allowing the lower courts to consider the
`final version of the report. Yet instead of allowing the
`lower courts to do just that, the Court steps in and vacates
`the stays that both courts have exercised their discretion
`
`
`
`

`

`
`
`7
`
`Cite as: 587 U. S. ____ (2019)
`
`BREYER, J., dissenting
`to enter. To proceed in this way calls into question the
`basic principles of fairness that should underlie our crimi-
`nal justice system. To proceed in this matter in the mid-
`dle of the night without giving all Members of the Court
`the opportunity for discussion tomorrow morning is, I
`believe, unfortunate.
`
`
`
`

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