People For the American Way

Confirmed Judges, Confirmed Fears: Kavanaugh and Gorsuch Vote Again to Authorize Prisoner’s Painful Execution

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Confirmed Judges, Confirmed Fears: Kavanaugh and Gorsuch Vote Again to Authorize Prisoner’s Painful Execution

“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.

In a bizarre sequel to an April order in which the Court reversed two lower courts and authorized the immediate execution of Christopher Price, Trump-appointed Supreme Court Justices Neil Gorsuch and Brett Kavanaugh joined a 5-4 May order in Price v. Dunn that refused to grant a short stay so that a scheduled trial could take place on Price’s claim that his execution by lethal injection would cause him needless and “excruciating pain” and that an alternative was available. Although the earlier order had rejected Price’s claim, it had not come in time for Alabama to immediately carry out the execution, which resulted in another request to the Court to stay the execution. But the 5-4 majority including Kavanaugh and Gorsuch again refused.

The majority’s May 30 order in Price was unsigned and contained no explanation, but Justice Breyer’s dissent for himself and the three other moderate justices explained what happened. Price had earlier contended that execution by lethal injection would cause him severe pain in violation of the Eighth Amendment’s ban on cruel and unusual punishment, and requested the alternative of execution by nitrogen hypoxia. As Breyer had explained in his dissent to the Court’s April order, two lower courts had agreed that the execution should be stayed to allow full consideration of Price’s claim, but the 5-4 majority had disagreed, apparently based on the state’s claim that Price had not chosen the nitrogen hypoxia alternative last year and that this alternative would not necessarily be less painful. The Court’s April order had not come in time for the original execution to proceed then, so it had to be rescheduled.

In the meantime, Breyer explained, the parties had engaged in discovery, and the state now “no longer” disputes that nitrogen hypoxia would be “virtually painless.” In addition, “considerable expert testimony” was presented to support Price’s contention that lethal injection would cause him “excruciating pain,” and the federal district court had scheduled a trial for June 10 to resolve the issue. But the state had reset Price’s execution for May 30, so Price sought a brief stay.

Once again, however, the 5-4 majority refused, ignoring Breyer’s concern that the Court was “leaving an important and potentially meritorious Eighth Amendment claim unresolved” despite the fact that “a trial to resolve it is just days away.” Alabama in fact executed Price by lethal injection later on May 30. As with the April order, the case could well have come out differently if Justice Kennedy, rather than his successor Justice Kavanaugh, were still on the Court.