Alabama yesterday finally achieved justice for the murder of Bill Lynn. Previously, the Supreme Court had effectively given murderer Christopher Price a stay by waiting too long to vacate the stays erroneously granted by lower federal courts. See prior posts here and here.
Justice Breyer wrote a dissent more notable for what it does not say than what it says.
The first notable set of omissions is anything at all about the victim or the facts of the crime. Does Justice Breyer know what Price did? Does he care? Does it matter at all to him that this is a long-overdue and richly deserved sentence for an atrocious crime? Perhaps, but there is no sign of that in the opinion.
Part I of the opinion, for four Justices, restates the argument that Price should be given a stay to litigate the merits of nitrogen hypoxia versus Alabama's current method, which is the old three-drug protocol with midazolam substituted for barbiturates as the first drug. In response to the state's argument that it gave all its death row inmates the option to elect nitrogen, many did, and Price did not until long after the deadline, Justice Breyer merely cites his own prior opinion that "there is reason to believe" he did not have a realistic time to make the election.
But we have known all along, and Justice Thomas pointed out previously, that Price "was represented throughout this time period by a well-heeled Boston law firm." The fact that the warden only gave the prisoners 72 hours notice of their right to make the election is irrelevant if Price's lawyers knew of the new law earlier than that and advised him of it. Did they? It has been a month and half, plenty of time to find out. Yet Justice Breyer would delay this execution yet again on nothing more than what the court had in its hurried consideration a month and a half ago.
Part II of the opinion is a single paragraph, and it is joined only by Justice Ginsburg. Justice Breyer says, "This case demonstrates once again the unfortunate manner in which death sentences are often--perhaps inevitably--carried out in this country." This case is about carrying out a lethal injection execution with midazolam instead of thiopental or pentobarbital. And whose fault is that, Justice Breyer, and why don't you say? It is the fault of (1) the opponents of the death penalty who pressured American and European drug companies into refusing to sell the barbiturates for executions and blocking their distributors from doing so; (2) the D.C. Circuit, which wrongly interpreted the FDCA and upheld an injunction forcing the FDA to block imports from Asia, in considerable tension with Supreme Court precedent; and (3) the Obama Administration Department of Justice, which failed to petition for certiorari from this wrong decision. The people not at fault are those seeking to carry out justice in this case.
"We have here an illustration of why I believe, as I have previously argued, that the Court should reconsider the constitutionality of the death penalty in an appropriate case." No, Justice Breyer, we have here an illustration of why the Supreme Court should stop inventing obstructions of justice that are not really in the Constitution or laws and start dismantling existing ones, mostly its own precedents but also, as in this case, a few lower court ones as well.
I think that the nitrogen invention could backfire, because under the alternative method test it could provide legal arguments to those wanting to outlaw lethal injection as cruel and unusual, and in many states, there will not be the majorities needed to change the statutory method of execution. So, because of abolitionist obstructionism, any more attempt to make the death penalty "more humane" must to be abandoned.
As Justice Thomas pointed out in Price v. Dunn, a U.S. district court not in Oregon, but in Alabama, found that execution by nitrogen was not available, but that "petitioner was likely to prevail on the question whether [this method] 'would provide a significant reduction in the substantial risk of severe pain' as compared to execution by lethal injection."
So, imagine what a circuit divisible by three could decide if hypoxia was successfully applied in other states. Or what could be decided by some state supreme courts based on their state constitutions, without a recourse to the U.S. Supreme Court.
Instead, states should manage to:
- Have the ban on foreign drugs lifted; and/or
- Manufacture their own execution drugs and sell them to other states. Even a single state doing that would be far more efficient for the whole country, and the recent DOJ opinion sustaining that FDA lacks jurisdiction over this matter can only help. That would also avoid having to hide from where come the drugs, and thus prevent any "transparency" lawsuit (or suit by the manufacturer for not being told to what end the drugs will be used).
"No, Justice Breyer, we have here an illustration of why the Supreme Court should stop inventing obstructions of justice that are not really in the Constitution or laws and start dismantling existing ones, mostly its own precedents but also, as in this case, a few lower court ones as well."
This quote violates the lese-majeste rules governing the criticism of liberal jurists.