`Cite as: 587 U. S. ____ (2019)
`BREYER, J., dissenting
`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
`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.


`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
` 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


`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


`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


`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.


`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


`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.

This document is available on Docket Alarm but you must sign up to view it.

Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.


A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.

Access Government Site

We are redirecting you
to a mobile optimized page.

Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket