Garrett Epps: The machinery of death is back on the docket
The Eleventh Circuit panel held, first, that Ray had brought his claim as soon as he found out about the policy (which Alabama had kept secret until a few weeks before his execution) and, second, that he was likely to win on his religious-freedom claim. Prudence and comity, if not simple humanity, would have counseled that the Supreme Court stay out of the case at that point. But the Court lifted the stay, claiming that Ray had waited too long to raise his claim. He was executed immediately afterward.
The general dismay this decision stirred wasn’t quieted when, on March 20, the Court ruled the other way on an indistinguishable set of facts: In Texas, a Buddhist inmate’s pleas for a cleric of his faith were met by the rule that only a prison chaplain could be present in the execution chamber (Texas had a Christian minister and a Muslim imam but no Buddhist). Lest anyone think that the pro-death justices were going wobbly, however, Gorsuch and Thomas both dissented from the stay, and Kavanaugh suggested that Texas should just exclude all spiritual advisers from the death chamber. On April 3, Texas followed the suggestion; problem solved!
Then, on April 1, the Court’s majority rejected a timely plea from a Missouri inmate that his rare health condition—fragile, blood-filled tumors in his face, neck, and mouth—would make lethal injection agonizing. In his opinion for the five-justice majority, Gorsuch was flippant: “The Eighth Amendment does not guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to many people, including most victims of capital crimes.”
Gorsuch repeated Alito’s claim of a few years back that the lack of painless execution drugs is due to “pressure from anti–death penalty advocates.” (In fact, sodium thiopental, the drug he was discussing, is now made only in Europe, and under EU law can’t be exported to the U.S. or anywhere else for use in executions.) He also inveighed against lawyers’ pleas for “last minute stays.” (Bucklew’s case was first brought in 2012.) And in a snarling footnote, he insisted that the Alabama Muslim-chaplain case had been rightly decided; true, the state kept its protocol secret, but, Gorsuch, without the slightest hint of irony, suggested Domineque Ray should have been able to figure it out by using a lawyer’s skill of carefully construing a state statute that made no mention of the issue.
Garrett Epps: Is it cruel and unusual to execute a man with dementia?
Next, on April 12, the five-justice majority rejected an appeal by Christopher Lee Price, an Alabama inmate who was seeking execution by lethal gas—a method approved by the state of Alabama and apparently close to implementation—instead of lethal injection. The inmate’s appeal had originally been rejected largely because his lawyer filed the wrong copy of a scientific paper on the pain level of gas execution, one marked “preliminary” rather than “final.” (The “final” report contained the identical finding about pain levels.) A district court, having seen the final report, stayed the execution, but the Eleventh Circuit gave the green light and the Supreme Court did the same.