A string of recent headline-making death penalty cases has revealed a bitter and unusually public divide at the U.S. Supreme Court. The division has emerged between the Court’s liberal and conservative wings over the administration of the death penalty and the way that the Court reaches decisions about whether to allow executions to proceed. These cases, all of which were litigated by the Project’s pro bono lawyers, have the potential to shape the future of death penalty jurisprudence for years to come.
Given the gravity of the issue presented here, I think [the Majority's] decision profoundly wrong.
On February 7th, the Supreme Court took the unusual step of intervening in the warrant-stage case of Alabama death row prisoner Domineque Ray, reversing a lower court stay and clearing the path for the execution to proceed. Ray, represented by long-time pro bono counsel from Plews Shadley Racher & Braun in partnership with attorneys from the federal defender’s office, had requested that a spiritual advisor be present with him in the execution chamber, as permitted by state statute. Once his execution date was set, Ray, a devout Muslim, requested that his imam be present for the execution. On January 23rd, the warden denied the request, indicating that only the Christian chaplain on staff would be allowed in the execution chamber. Five days later, Ray’s counsel filed a lawsuit alleging that the actions of the prison violated the First Amendment’s Establishment Clause. A panel of the U.S. Court of Appeals for the 11th Circuit found that this claim had merit, unanimously voting to grant a stay of execution to allow time for the Court to hear the case.
The next day, in a three-sentence order, a bare majority of the U.S. Supreme Court reversed the decision, lifting the stay and allowing the execution to proceed that same evening. The majority’s sparse decision noted that the execution date was set on November 6th and that the First Amendment challenge was not filed until January 28th—suggesting that Ray had waited too long to raise the claim.
Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor, wrote an impassioned dissent, setting forth the facts of the case and declaring the majority decision “profoundly wrong.” Justice Kagan noted that the complaint was filed only days after Ray learned that his imam would not be allowed in the execution chamber. They also observed that the prison had refused to provide a copy of its execution protocols to Ray’s counsel in advance of that decision, making it impossible for him to have known in advance that his request would be denied. She expressed concern not only about the substantive constitutional issues implicated by the case, but also about the abbreviated process used by the majority to dispose of the case. Her opinion concluded, “Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date. I respectfully dissent.”
There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness.
Although Ray was executed later that night, his death surprisingly did not mark an end to the Court’s discussion of his case. On April 1st, the Court issued its decision in Bucklew v. Precythe, a case with no obvious connection to the Ray decision. Bucklew, represented by pro bono counsel from Sidley Austin, had challenged the state of Missouri’s lethal injection protocol as it applied to his unique medical condition, a rare and debilitating vascular disorder. He argued that execution by lethal injection would subject him to extended suffering, in violation of the Eighth Amendment’s prohibition on cruel and unusual punishment.
In a 5-4 decision authored by Justice Gorsuch, the Court denied relief to Bucklew, finding among other things that he had failed to propose an “available” alternative method of execution or to show that execution by lethal injection would cause significantly more suffering than an alternative. The majority also repeatedly criticized Bucklew for filing his challenge shortly before a previous scheduled execution date. Without clarifying the legal significance of its observations to Bucklew’s situation, where no execution date was currently set, the majority opined that “Last-minute stays should be the extreme exception, not the norm . . ..”
Using this passing observation as a hook, both the majority and dissenting opinions devoted substantial space to continue the ongoing argument about the execution of Domineque Ray. In a lengthy footnote, the majority revisited Ray’s facts and attempted to provide reasoning for its prior ruling. Writing in dissent, Justices Breyer and Sotomayor each revisited the Ray decision as well. Justice Sotomayor wrote that the majority’s decision in Ray represented a “misuse [of] its equitable powers.” She was also highly critical of the Court's majority for opining on issues related to the Ray case and last-minute stays of execution, describing this as "not only inessential but also wholly irrelevant to its resolution of any issue before us." Addressing the substance of the Majority's comments, she wrote, "There are higher values than ensuring that executions run on time. If a death sentence or the manner in which it is carried out violates the Constitution, that stain can never come out. Our jurisprudence must remain one of vigilance and care, not one of dismissiveness."
Justice Breyer echoed this sentiment in his separate dissent, writing that Ray had “raised a serious constitutional question” and that the majority’s attempt to “end delays by limiting constitutional protections . . . would require us to pay too high a constitutional price.”
To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system.
Ten days later, on April 11th, the divide between the justices boiled over as Justice Breyer issued unprecedented public statements about his dissatisfaction with the Court’s process for evaluating applications for a stay of execution. Christopher Price, an Alabama death row prisoner represented by long-time pro bono counsel from Ropes & Gray, had raised a claim that execution by the state’s current three-drug lethal injection protocol would cause needless suffering. He had proposed as an alternative death by nitrogen hypoxia, which the state had authorized as a permissible means of execution in 2018. A federal district court found that Price would likely be able to show that nitrogen hypoxia was significantly less painful than execution by lethal injection. Although Price filed his original petition in February, a minor clerical error resulted in the “preliminary” rather than “final” version of a study being submitted as evidence. Days before Price’s scheduled execution, the 11th Circuit Court of Appeals overturned the district court’s decision as a result of this error, but Price’s counsel quickly refiled with the correct report attached. This time both the district court and the court of appeals agreed that he had shown a substantial likelihood of success and issued a stay of execution.
For five members of the Supreme Court, however, the correction of this clerical error “just 48 hours before the execution” was too late. Referencing its observation in Bucklew about the timing of applications for stays of execution, the majority vacated the stay in the early morning hours of April 12th, even though the execution warrant had already expired and Alabama had announced that it could not go forward with the execution and would have to reset the date.
This series of actions prompted an unusually candid dissent, authored by Justice Breyer and joined by Justices Sotomayor, Ginsburg, and Kagan. Given the 9 p.m. filing time of the State’s appeal, Justice Breyer had requested that his colleagues defer a decision until the next morning when the case could be discussed during the Court’s regularly scheduled conference. He expressed dismay that his colleagues refused to do so, especially since the execution warrant had already expired, writing that the Court’s action “calls into question the basic principles of fairness that should underlie our criminal justice system.”
The Bucklew, Ray, and Price decisions have drawn intense scrutiny from the media and the public, calling into question both the rulings themselves and the process used by the Court to make execution-night decisions. The Bucklew decision drew significant criticism from commentators who saw “malignant flaws” in the Court’s reasoning and described the decision as “cruel.” Meanwhile, the Ray decision provoked outrage across the political spectrum from those who saw the State’s refusal to allow a Muslim prisoner the same rights as a Christian prisoner as a “grave violation of the First Amendment” and compared it to “Dred Scott, Plessy v. Ferguson, Korematsu, and the Chinese Exclusion Act cases.” The exposure of the internal tensions among the Court has also received significant coverage, with some describing the justices as “feuding openly” over the death penalty.
A Note on Pro Bono Counsel
In all this, it would be easy to overlook the role of the pro bono law firms who represent Ray, Bucklew, and Price, along with their public defender partners. These remarkable attorneys collectively have devoted more than three decades to these cases, donating their time, skills, and law firm resources to fight to protect their clients’ most fundamental constitutional rights and uphold the integrity of the criminal justice system. Without their tireless efforts, the profoundly important issues in these cases would never have reached any court, let alone the public consciousness, and could not serve as catalysts for future change. The Project is extraordinarily proud of the pro bono attorneys who have struggled through these remarkably difficult cases, fighting for access to justice for their clients and simultaneously shaping the national conversation about the death penalty. If, as predicted by some, law students 100 years from now will be reading about these cases, so too should they read about the lawyers who gave a voice to their clients and brought to light these troubling issues with the administration of the death penalty in the United States.