PHOTO: Supreme Court justices

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.

THERE’S a scene in the classic 1979 film “And Justice for All” where lawyer Arthur Kirkland, played by Al Pacino, tells a client who’s been jailed for a crime he didn’t commit that even though new evidence clears him, the judge won’t let him out.

The client, desperate, asks why. “There’s a law,” says Kirkland. “It says that evidence must be submitted within a certain time period. And ours came in three days late.”

The audience is meant to be suitably shocked.



Fast-forward to last week in the real world. A man named Christopher Lee Price soon will be executed by the state of Alabama because his lawyer—in the words of Friday’s order from the U.S. Supreme Court—“submitted additional evidence today, a few hours before his scheduled execution time.”

In other words, he made his claim too late.

One needn’t be a fan of capital punishment to recognize that if a death penalty is going to exist, there must come a time when the courts stop issuing stays and let the punishment proceed.

But in this case, the “additional evidence” to which the majority made reference was the final version of an academic study. Price’s lawyer had previously submitted a preliminary copy labeled “do not cite,” and the U.S. Court of Appeals had decided, oddly, that the label meant that report was not “reliable evidence.” In response, the lawyer obtained the final version, which read exactly the same way. That was the new evidence.

The study in question involves the most humane way to kill the condemned man. And it has a history.

Back in 2014, the state of Oklahoma made headlines when it badly botched the execution of a man named Clayton Lockett. The sedatives didn’t work right, and a later investigation found that his death was “prolonged and apparently agonizing.”

Lockett was a bad apple. He shot a 19-year-old woman and buried her alive. The sort of person, one might say, for whom capital punishment is designed. But we should still care how it’s done. One measure of civilization is its ability to treat criminals better than they treat their victims.

The Oklahoma legislature, understanding this precept, decided last year to switch to nitrogen hypoxia as a “more humane” means of execution. The apparent basis was this study. Rather than face an intravenous injection of toxic substances, the condemned man will inhale nitrogen, probably through a mask, and will get dizzy and pass out, never to wake.

Alabama followed Oklahoma in adopting nitrogen inhalation, but has not yet developed a protocol to implement it. Price missed the state’s deadline for electing to be killed by the new method rather than the old, but that’s not hard to understand: It’s difficult to make a choice when the state itself hasn’t decided how the new method will be carried out.

Several months later, however, Price filed papers to challenge his scheduled execution by lethal injection, arguing in essence that if nitrogen inhalation is truly more humane, then its pending availability in Alabama means that the state should no longer be allowed to use lethal injection. This is the lawsuit that the justices rejected in the wee hours of Friday morning.

Let’s be clear. Price, too, is evidently a bad apple. Several news accounts of the Supreme Court’s action have said simply that he was convicted of using a sword to kill an Alabama pastor. True, but less than complete.

The details of his crime are worse. Price and an accomplice targeted the pastor, arriving at his house dressed all in black. The pastor and his wife had just returned from an evening church service. She had retired for the night; he was downstairs wrapping presents.

Price and his partner cut the telephone lines and apparently the power. When the pastor went outside to see what was going on, he was attacked with a sword and mortally wounded. His wife grabbed a gun and fired a warning shot, but then ran out of bullets. The men beat her severely. They searched the house and then fled.

As I said: a bad apple.

But if we’re going to have capital punishment, all of the challenges will be from bad apples. Justice Stephen Breyer, in a dissenting opinion joined by three of his colleagues, argued that the high court should at least discuss the matter before vacating the stay of execution.

“To proceed in this way,” he wrote, “calls into question the basic principles of fairness that should underlie our criminal justice system.” Just as bad, he concluded, was “to proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussing.”

We can argue long and hard over the morality of the death penalty. But if we’re going to have one, we should do our best not to impose it in ways that give the impression that we’re rushing the condemned to the death chamber.

There are some issues worth taking the time to debate. The most humane way to kill is surely one of them.

Stephen L. Carter, a Bloomberg Opinion columnist, is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. This commentary was distributed by the Tribune Content Agency, LLC.

Stephen L. Carter, a Bloomberg Opinion columnist, is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall.  This commentary was distributed by the Tribune Content Agency, LLC.

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