Chemerinsky: In death do they part—SCOTUS justices show divisions over capital cases
Erwin Chemerinsky. Photo by Jim Block.
Some of the court’s most interesting actions this term have occurred not in decisions published after briefing and oral arguments but in orders in death penalty cases concerning whether to stay executions.
There has been an ongoing series of exchanges among the justices that reflect their deep divisions regarding capital punishment and the more general ideological schism in a court that is clearly split between five conservative and four liberal justices.
Dunn v. Ray
On Feb. 7, in a 5-4 ruling, the court reversed the Atlanta-based 11th U.S. Circuit Court of Appeal’s stay of an execution in Dunn v. Ray. Domineque Ray, a Muslim, wanted to have his clergy member, an imam, with him at the time of the execution. Although Alabama would allow a Christian clergy member to be present at an execution, it refused Ray’s request.
The 11th Circuit concluded that there was a substantial likelihood that the prison’s policy violates the First Amendment’s Establishment Clause and stayed Ray’s execution so it could consider his claim on its merits.
The court reversed, and in a brief order stated: “Because Ray waited until Jan. 28, 2019, to seek relief, we grant the state’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit.”
Justice Elena Kagan—joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor—wrote a strong dissent. She explained that the clearest command of the Establishment Clause is that the government cannot discriminate among religious faiths. Alabama was doing exactly that by allowing a Christian, but not a Muslim or Jewish condemned individual to have a clergy member at the execution.
Kagan expressly disagreed with the majority that Ray had waited too long to file his objection, explaining “there is no reason Ray should have known, prior to Jan. 23, that his imam would be granted less access than the Christian chaplain to the execution chamber.” She also stressed that the Court of Appeals stay of the execution could be overturned only for abuse of discretion and that standard was not met.
Murphy v. Collier
About six weeks later, on March 28, the court granted a stay of execution to Patrick Henry Murphy, a Buddhist who objected to Texas putting him to death without a clergy member of his faith being present. In a brief order, the court said that “the state may not carry out Murphy’s execution … unless the state permits Murphy’s Buddhist spiritual adviser or another Buddhist reverend of the state’s choosing to accompany Murphy in the execution chamber during the execution.”
It was stated that Justices Clarence Thomas and Neil M. Gorsuch dissented, though they did not write an opinion at that time. Justice Brett Kavanaugh wrote an opinion concurring in the grant of the application for the stay. He stressed that the state was engaged in impermissible discrimination based on religion: “What the state may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.”
Can this be reconciled with what happened in Dunn v. Ray? In a footnote, Kavanaugh simply said: “I conclude that Murphy made his request to the state in a sufficiently timely manner, one month before the scheduled execution.” This seems to indicate that at least for Kavanaugh there is a new principle of timeliness that is being created, though not defined by the court.
Bucklew v. Precythe
A few days later, on April 1, the court, after briefing and oral argument, decided Bucklew v. Precythe. Russell Bucklew, who had been sentenced to death, argued that the method of lethal injection used by Missouri would cause him great pain and suffering because he suffered from a medical condition, cavernous hemangioma, which causes vascular tumors to grow in his head, neck and throat.
He contended that the protocol for lethal injection could cause these to rupture and for him to then suffocate on his own blood.
The court split along ideological lines, 5-4, and ruled against Bucklew. Gorsuch wrote for the majority. He said that the test for whether a method of execution “is whether the state’s chosen method of execution cruelly superadds pain to the death sentence, a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the state has refused to adopt without a legitimate penological reason.”
The court said that Bucklew failed to meet this burden. The court also expressed disdain for late attempts to halt executions and said: “[l]ast-minute stays should be the extreme exception.”
Breyer wrote for the four dissenters and strongly objected to allowing an execution where there was a substantial risk of serious pain. In his dissent, he went back to Dunn v. Ray, and in a paragraph about that ruling declared: “It might be possible to end delays by limiting constitutional protections for prisoners on death row. But to do so would require us to pay too high a constitutional price.”
Toward the end of his dissenting opinion, Breyer left little doubt that there are four votes on the court to declare the death penalty unconstitutional: “And it may be that, as our Nation comes to place ever greater importance upon ensuring that we accurately identify, through procedurally fair methods, those who may lawfully be put to death, there simply is no constitutional way to implement the death penalty.”
Sotomayor wrote a separate dissent objecting to the majority’s discussion of “last minute stays” of executions. She said that the majority’s statement “could be read to intimate that late-occurring stay requests from capital prisoners should be reviewed with an especially jaundiced eye. Were those comments to be mistaken for a new governing standard, they would effect a radical reinvention of established law and the judicial role.”
All of this prompted a response in a footnote in Gorusch’s majority opinion defending the earlier ruling in Dunn v. Ray. Speaking of that case, Gorsuch stated: “Yet although he had been on death row since 1999, and the state had set a date for his execution on Nov. 6, 2018, he waited until Jan. 23, 2019—just 15 days before the execution—to ask for clarification. He then brought a claim 10 days before the execution and sought an indefinite stay. This delay implicated the ‘strong equitable presumption’ that no stay should be granted.”
It is obviously unusual for the court in one case to be discussing another from a couple of months earlier. But the story doesn’t stop there.
Murphy v. Collier again
On May 13, the court issued additional opinions in Murphy v. Collier. Justice Samuel A. Alito wrote an opinion dissenting from the grant of the stay which had occurred on March 28. Interestingly, he had not been listed as a dissenter when the stay was granted. Alito described the stay as “seriously wrong” and spoke of the “strong equitable presumption against the grant of such relief when the applicant unreasonably delayed in raising the underlying claims.” Alito then went on to discuss Dunn v. Ray and defended the court’s refusal to allow a “last minute” stay of execution and said that “Murphy’s stay application, like Ray’s, should have been denied.”
This provoked an opinion from Kavanaugh, joined by Chief Justice John G. Roberts Jr., also issued on May 13. Kavanaugh noted that the stay of execution in Murphy v. Collier caused Texas to change its policy to allow all being put to death by the state to have a clergy of member of their religion present at an execution and thus “the Court’s stay facilitated the prompt resolution of a significant religious equality problem with the state’s execution protocol.”
Kavanaugh then went on to explain why he saw Dunn v. Ray as different from Murphy v. Collier. He said that Dunn v. Ray had not been presented as an “equal treatment case” and besides, that it was a petition filed five days before the execution while in Murphy v. Collier it was presented 30 days before the execution.
Lessons to learn
All of this is unusual: a recent ruling being argued over in other cases, justices releasing opinions weeks after the initial ruling, the split among the conservative justices. What might be learned from all of this?
The five conservative justices are expressing strong hostility to what they perceive as “last minute” efforts to stop executions. The liberal justices see this as creating new, unjustified barriers to enforcing the Constitution. This disagreement is likely to manifest itself repeatedly in death penalty cases.
The deeper division is over capital punishment. There are four justices who believe that the death penalty is cruel and unusual punishment. But the majority clearly sees it as constitutional and wants to lessen judicial obstacles to its implementation. And given the stakes, truly life and death, the justices on both sides are writing with a passion that is relatively unusual for Supreme Court opinions.
ABA Journal: “Tension in the Court: Public collegiality belies behind-the-scenes debates”
ABAJournal.com: “SCOTUS allows execution of Muslim prisoner to go forward without his imam present in 5-4 decision”
ABAJournal.com: “SCOTUS blocks execution of man denied Buddhist adviser; decision was different in Muslim case”
ABAJournal.com: “SCOTUS to hear inmate’s claim that rare medical condition would make execution particularly painful”
ABAJournal.com: “Supreme Court liberals criticize majority’s ‘middle of the night’ decision lifting execution stay”
ABAJournal.com: “Joined by 2 other justices, Thomas rejects liberal colleagues’ criticism in case of death-row inmate”