By Lawrence Hurley
WASHINGTON (Reuters) – The U.S. Supreme Court’s internal divisions over the death penalty were on full display again on Monday in fresh wrangling over how the justices handled recent attempts by two convicted murderers in Alabama and Texas to put off their executions.
In both cases, there are signs that tensions over the death penalty – especially skepticism by the court’s conservative majority over last-minute bids by death row inmates to block executions – are coming to a boil after simmering for years.
In the Alabama case, Justice Clarence Thomas, one of the nine-member court’s five conservatives, wrote a 14-page opinion defending its middle-of-the-night April 12 decision to pave the way for the execution of Christopher Price, 46. The court’s order was released too late for Price’s scheduled execution to be carried out, and he remains on death row.
Minutes later, the court issued a new opinion by conservative Justice Samuel Alito criticizing its March 28 decision to issue a stay of execution for Texas inmate Patrick Murphy after the state had blocked a Buddhist spiritual adviser from accompanying him to the execution chamber.
Thomas, whose opinion was joined by Alito and fellow conservative Justice Neil Gorsuch, took aim at liberal Justice Stephen Breyer, a frequent critic of the death penalty. Breyer wrote a dissenting opinion from the Price decision that was joined by the court’s three other liberals.
Price had a weak legal argument, Thomas wrote, meaning “it is difficult to see his litigation strategy as anything other than an attempt to delay his execution. Yet four members of the court would have countenanced his tactics without a shred of legal support.”
The death penalty remains a controversial issue in the United States even as public support for it has declined since the 1990s, according to opinion polls. The number of U.S. executions and the number of people sentenced to death have both declined in recent years. Many other rich nations have stopped using the death penalty.
Thirty of the 50 U.S. states and the federal government have the death penalty on the books but some of those states, including California, have imposed moratoriums. The vast majority of executions are carried out by a handful of states. There were 25 U.S. executions carried out last year.
‘NO CONSTITUTIONAL WAY’
Breyer is the court’s most vocal death penalty critic, questioning its constitutionality and arguing that it is imposed arbitrarily and differently in various parts of the country, often with long delays. Breyer wrote last month that if prisoners cannot be executed quickly without violating their rights “it may be that … there simply is no constitutional way to implement the death penalty.”
The court last month reversed two lower court decisions that delayed Price’s execution so he could proceed with his request to be executed by lethal gas instead of lethal injection. The Thomas opinion on Monday was issued as the court rejected Price’s underlying appeal.
Price was convicted and sentenced to death in 1993 in the 1991 killing of William Lynn, a minister, in his home in Bazemore, Alabama.
In the Texas case, Alito said Murphy waited too long to bring his claim and that the court’s action to delay his execution would encourage others to bring similar last-ditch actions. Murphy, a Buddhist, had argued his religious rights under the Constitution were violated by the state.
“This court receives an application to stay virtually every execution; these applications are almost all filed on or shortly after the scheduled execution date; and in the great majority of cases, no good reason for the late filing is apparent,” Alito wrote.
Alito said Murphy’s religious claim might have merit, but prisoners must file such lawsuits “well before their scheduled executions.”
Texas has already changed its policy. It previously allowed Christians and Muslims to be accompanied by their religious advisers. Now, no religious advisers are let in the execution chamber.
Murphy was serving a 50-year sentence for aggravated sexual assault when he and six other inmates broke out of prison in 2000 and went on a rampage in which a police officer was killed.
A month before its Murphy decision, the court voted 5-4 to allow an Alabama execution to proceed and denied a request by the condemned inmate, a Muslim, for an imam’s presence in the execution chamber. Alito voted to deny both requests.
Gorsuch complained about last-minute execution challenges when the court ruled on April 1 against Missouri death row inmate Russell Bucklew, who had sought to die by lethal gas rather than lethal injection because of a rare medical condition. Gorsuch said the Constitution’s ban on cruel and unusual punishment “does not guarantee a prisoner a painless death.”
(Reporting by Lawrence Hurley; Editing by Will Dunham)