                  Cite as: 587 U. S. ____ (2019)             1

                     BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
 CHRISTOPHER LEE PRICE v. JEFFERSON S. DUNN,
   COMMISSIONER, ALABAMA DEPARTMENT OF
            CORRECTIONS, ET AL.
                 ON APPLICATION FOR STAY
               No. 18A1238.   Decided May 30, 2019

   The application for stay of execution of sentence of death
presented to JUSTICE THOMAS and by him referred to the
Court is denied. The applications for leave to file the
application for stay and the response under seal with
redacted copies for the public record are granted.
   JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
and with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN
join as to all but Part II, dissenting from denial of applica-
tion for stay.
   Christopher Lee Price seeks to be executed by nitrogen
hypoxia rather than Alabama’s current lethal injection
protocol. He claims that executing him by lethal injection
will violate his Eighth Amendment right not to be subject-
ed to cruel and unusual punishment. A trial on this claim
is scheduled to begin on June 10—only 11 days from to-
day. He has asked this Court to temporarily stay his
execution to allow the trial to proceed. I would grant his
application.
                             I
  As I explained the last time this case was before us, the
Court of Appeals for the Eleventh Circuit has held that
nitrogen hypoxia is an available, feasible, and readily
implemented alternative in Alabama. See Dunn v. Price,
587 U. S. ___, ___ (2019) (BREYER, J., dissenting from
grant of application to vacate stay) (slip op., at 2); see also
Price v. Comm’r, Dept. of Corrections, 920 F. 3d 1317,
2                       PRICE v. DUNN

                      BREYER, J., dissenting

1326−1329 (CA11 2019), cert denied, 587 U. S. ____
(2019). That holding is the law of the case. And although
the State previously disputed whether nitrogen hypoxia
would be less painful than lethal injection, it appears that
the State no longer does so. The parties have conducted
discovery in the weeks since our last decision, and the
State’s expert does not dispute that death by nitrogen
hypoxia is virtually painless.
   From my perspective, then, there are two remaining
questions. The first is whether Price will experience
severe pain if executed by lethal injection. Price has
presented considerable expert testimony supporting his
claim that midazolam, the initial drug in the protocol, is
too weak a sedative to prevent him from feeling the excru-
ciating pain that the remaining two drugs will cause him.
See, e.g., Record in No. 19−12026 (CA11), 3 Tab K, pp.
47−60 (testimony of Dr. Zivot). The District Court has
agreed to hold a trial to resolve this factual issue, and
nothing in this Court’s prior order vacating the stays
speaks to this question.
   The second question is whether, even if Alabama’s lethal
injection protocol will cause Price severe pain and even if a
painless alternative method is available, we should none-
theless decline to stay his execution because he failed to
select nitrogen hypoxia in time. I recognize that the Court
relied on this reasoning in vacating the prior stays of
execution. See Dunn v. Price, 587 U. S. ___. As I previ-
ously stated, however, there is reason to believe that Price
had no more than 72 hours to decide whether to die by
nitrogen hypoxia. See id., at ___ (opinion of BREYER, J.)
(slip op., at 5). If that is so, I cannot agree that his failure
to make the selection within the 30-day statutory window
amounted to unreasonable delay.
   Nor do I believe there is any other basis for concluding
that Price engaged in undue delay. Ibid. (noting the Dis-
trict Court’s finding that Price has been “ ‘proceeding as
                  Cite as: 587 U. S. ____ (2019)              3

                      BREYER, J., dissenting

quickly as possible on this issue since before the execution
date was set’ ” (emphasis omitted)). I therefore continue to
believe that the Court’s prior decision in this case was
misguided. For the same reasons I expressed before, I
would grant Price’s request for a stay and allow the trial
on his Eighth Amendment claim to proceed as planned.
                               II
  By allowing Price’s execution to proceed, the Court
leaves an important and potentially meritorious Eighth
Amendment claim unresolved, even though a trial to
resolve it is just days away. I understand, of course, that
the State has a significant interest in carrying out lawfully
imposed punishments. But “ensuring that executions run
on time” is not the only legal value at stake, Bucklew v.
Precythe, 587 U. S. ___, ___ (2019) (SOTOMAYOR, J., dis-
senting) (slip op., at 5), and the Court, I believe, has disre-
garded important procedural values in this case. This
case demonstrates once again the unfortunate manner in
which death sentences are often—perhaps inevitably—
carried out in this country. We have here an illustration
of why I believe, as I have previously argued, that the
Court should reconsider the constitutionality of the death
penalty in an appropriate case. See Glossip v. Gross, 576
U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1).
