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

                    BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
 JEFFERSON S. DUNN, COMMISSIONER, ALABAMA
    DEPARTMENT OF CORRECTIONS, ET AL. v.
          CHRISTOPHER LEE PRICE
             ON APPLICATION TO VACATE STAY
             No. 18A1053.   Decided April 12, 2019

  The application to vacate the stay of execution, present-
ed to JUSTICE THOMAS and by him referred to the Court, is
granted, and the stays entered by the District Court for
the Southern District of Alabama and the United States
Court of Appeals for the Eleventh Circuit on April 11,
2019, are vacated. In June 2018, death-row inmates in
Alabama whose convictions were final before June 1, 2018,
had 30 days to elect to be executed via nitrogen hypoxia.
Ala. Code §15-18-82.1(b)(2). Price, whose conviction be-
came final in 1999, did not do so, even though the record
indicates that all death-row inmates were provided a
written election form, and 48 other death-row inmates
elected nitrogen hypoxia. He then waited until February
2019 to file this action and submitted additional evidence
today, a few hours before his scheduled execution time.
See Gomez v. United States Dist. Court for Northern Dist.
Of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court
may consider the last-minute nature of an application to
stay execution in deciding whether to grant equitable
relief.”).
  JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting
from grant of application to vacate stay.
  Should anyone doubt that death sentences in the United
States can be carried out in an arbitrary way, let that
person review the following circumstances as they have
been presented to our Court this evening.
2                     DUNN v. PRICE

                    BREYER, J., dissenting

   1. This case comes to us on the assumption that exe-
cuting Christopher Lee Price using Alabama’s current
three-drug protocol is likely to cause him severe pain and
needless suffering. Price submitted an expert declaration
explaining why that is so, and the State “submitted noth-
ing” to rebut his expert’s assertions. Price v. Commission-
er, Ala. Dept. of Corrections, No. 19–11268 (CA11, Apr. 10,
2019), p. 23. The Court of Appeals thus correctly held that
Price satisfied his burden to show a severe risk of pain
from lethal injection, “since the only evidence of record
supports that conclusion.” Id., at 24.
   2. Price proposed nitrogen hypoxia as an alternative
method of execution. Alabama expressly authorized exe-
cution by nitrogen hypoxia in 2018, and state officials
have actively worked to develop a hypoxia protocol since
that time. The State is mere months away from finalizing
its protocol. In light of those facts, the Court of Appeals
correctly held that nitrogen hypoxia is “available,” “feasi-
ble,” and “readily implemented” by the State. Id., at
15−22.
   3. The only remaining question was whether Price
could show that death by nitrogen hypoxia would be sub-
stantially less painful than death by the existing lethal
injection protocol. To make this showing, Price submitted
an academic study on which the Oklahoma Legislature
had relied in adopting nitrogen hypoxia as a method of
execution. That study noted that death by nitrogen hypox-
ia has been described as “painless,” “peaceful,” and unlike-
ly to cause “any substantial physical discomfort.” Record
in No. 1:19–00057 (SD Ala.), pp. 6, 9 (Dkt. 45–2). It con-
cluded that nitrogen hypoxia is “an effective and humane
alternative to the current methods of capital punishment
practiced in Oklahoma.” Id., at 2.
   Crucially, as the District Court noted, the State did not
challenge Price’s evidence on this question. It did not
question the reliability of the Oklahoma study. And it did
                 Cite as: 587 U. S. ____ (2019)            3

                     BREYER, J., dissenting

not otherwise dispute (either in the District Court or on
appeal) that nitrogen hypoxia was likely to be less painful
than the State’s lethal injection protocol. The District
Court thus correctly held that “Price is likely to prevail on
the issue of whether execution by nitrogen . . . would
provide a significant reduction in the substantial risk of
severe pain Price would incur if he were executed” by
lethal injection. Price v. Dunn, No. 1:19−00057 (SD Ala.,
Apr. 5, 2019), p. 23.
   4. The Court of Appeals found the District Court’s
determination on this question clearly erroneous. It
reached that conclusion primarily because the version of
the Oklahoma study that Price’s counsel submitted was “a
preliminary draft report that is stamped with the words
‘Do Not Cite.’ ” Price v. Commissioner, Ala. Dept. of Cor-
rections, No. 19–11268, at 24. The Court of Appeals ap-
peared to believe that a “preliminary” report could not
constitute “reliable evidence” on the effects of nitrogen
hypoxia. Id., at 24−25.
   5. It turns out, however, that a final version of the
same Oklahoma study was published and available. That
version is identical in every relevant respect to the prelim-
inary version that Price submitted. That is, the final
report also describes nitrogen hypoxia as “painless,” “hu-
mane,” and unlikely to cause “any substantial physical
discomfort,” based on exactly the same evidence discussed
in the earlier draft.
   6. Price’s counsel, realizing the error, quickly sought
to ensure the District Court would be able to consider the
final version of the report. Price filed a new motion for
preliminary injunction in the District Court, along with
the final report and additional expert declarations.
   7. The District Court found this new evidence “relia-
ble,” and noted that the State had “not submit[ted] any-
thing in contradiction.” Price v. Dunn (SD Ala., Apr. 11,
2019), p. 13 (Dkt. 49). The District Court concluded
4                      DUNN v. PRICE

                     BREYER, J., dissenting

“based on the current record” that “Price has a substantial
likelihood of succeeding on the merits.” Ibid. The District
Court then considered the remaining stay factors. Nota-
bly, the District Court found that Price had not “timed his
motion in an effort to manipulate the execution.” Ibid.
“Rather, Price, the State and the [District Court] have
been proceeding as quickly as possible on this issue since
before the execution date was set.” Ibid. (emphasis added).
The District Court ultimately concluded that a 60–day
stay of the execution was warranted.
   8. The State then asked the Court of Appeals to vacate
the stay in part because, in its view, the District Court did
not have jurisdiction to issue it. The Court of Appeals had
not yet issued its mandate, the appeal remained pending,
and, in the State’s view, the arguments Price raised in his
new motion in the District Court were the same argu-
ments at issue in his pending appeal. The District Court
had rejected the argument that the pending appeal de-
prived it of jurisdiction; Price, it explained, has “presented
a new motion for preliminary injunction accompanied by
new evidence.” Id., at 3 (emphasis added).
   9. The Court of Appeals refused to vacate the District
Court’s stay. It explained that the parties had raised
“substantial questions” about jurisdiction. Price v. Com-
missioner, Ala. Dept. of Corrections, No. 19–11268 (CA11,
Apr. 11, 2019), p. 2. “In light of the jurisdictional ques-
tions raised by the parties’ motions,” it stayed Price’s
execution until further order of the court. Id., at 3.
   10. Shortly before 9 p.m. this evening, the State filed an
application to the Justice of this Court who is the Circuit
Justice for the Eleventh Circuit. It was later referred to
the Conference. I requested that the Court take no action
until tomorrow, when the matter could be discussed at
Conference. I recognized that my request would delay
resolution of the application and that the State would
have to obtain a new execution warrant, thus delaying the
                 Cite as: 587 U. S. ____ (2019)            5

                     BREYER, J., dissenting

execution by 30 days. But in my judgment, that delay was
warranted, at least on the facts as we have them now.
During the pendency of our consideration, the State called
off this evening’s scheduled execution.
   The Court nevertheless grants the State’s application to
vacate the stay, thus preventing full discussion among the
Court’s Members. In doing so, it overrides the discretion-
ary judgment of not one, but two lower courts. Why? The
Court suggests that the reason is delay. But that sugges-
tion is untenable in light of the District Court’s express
finding that Price has been “proceeding as quickly as
possible on this issue since before the execution date was
set.” Order, at 13 (Dkt. 49) (emphasis added). Surely the
District Court is in a better position than we are to gauge
whether Price has engaged in undue delay.
   The Court also points out that Price did not elect nitro-
gen hypoxia within 30 days of the legislature authorizing
this method of execution on June 1, 2018. State law ap-
peared to provide death row inmates only until June 30,
2018, to make the election. See 2018 Ala. Laws Act 2018–
353. Yet based on the limited information before us, it
appears no inmate received a copy of the election form
(prepared by a public defender) until June 26, and the
State makes no representation about when Price received
it other than that it was “before the end of June.” Brief for
Appellee in No. 19−11268 (CA11), p. 9. Thus, it is possible
that Price was given no more than 72 hours to decide how
he wanted to die, notwithstanding the 30–day period
prescribed by state law. That is not a reason to override
the lower courts’ discretionary determination that the
equitable factors warrant a stay.
   The State also argues that the District Court lacked
jurisdiction to entertain Price’s new motion for a prelimi-
nary injunction. But as the Court of Appeals appeared to
recognize, that jurisdictional question is a substantial one,
the answer to which is by no means clear. See Order, No.
6                      DUNN v. PRICE

                     BREYER, J., dissenting

19–11268 (CA11, Apr. 11, 2019), pp. 2−3; cf. 16A C. Wright
& A. Miller, Federal Practice & Procedure §3949.1 (4th
ed.) (“An interlocutory appeal ordinarily suspends the
power of the district court to modify the order subject to
appeal, but does not oust district-court jurisdiction to
continue with proceedings that do not threaten the orderly
disposition of the interlocutory appeal”). To resolve it with
minimal briefing on an extraordinarily compressed time-
line would be deeply misguided.
   What is at stake in this case is the right of a condemned
inmate not to be subjected to cruel and unusual punish-
ment in violation of the Eighth Amendment. At a mini-
mum, “before acting irretrievably” to vacate a stay and
allow a potentially cruel execution to proceed, the Court
should decide whether the District Court did in fact lack
jurisdiction to issue the stay. See Bowersox v. Williams,
517 U. S. 345, 347 (1996) (GINSBURG, J., dissenting from
grant of application to vacate stay of execution). “Appreci-
ation of our own fallibility . . . demand[s] as much.” Ibid.
                            ***
   Alabama will soon subject Price to a death that he alleg-
es will cause him severe pain and needless suffering. It
can do so not because Price failed to prove the likelihood of
severe pain and not because he failed to identify a known
and readily implemented alternative, as this Court has
recently required inmates to do. Instead, Alabama can
subject him to that death due to a minor oversight (the
submission of a “preliminary” version of a final report) and
a significant mistake of law by the Court of Appeals (the
suggestion that a report marked “preliminary” carries no
evidentiary value). These mistakes could be easily reme-
died by simply allowing the lower courts to consider the
final version of the report. Yet instead of allowing the
lower courts to do just that, the Court steps in and vacates
the stays that both courts have exercised their discretion
                 Cite as: 587 U. S. ____ (2019)           7

                    BREYER, J., dissenting

to enter. To proceed in this way calls into question the
basic principles of fairness that should underlie our crimi-
nal justice system. To proceed in this matter in the mid-
dle of the night without giving all Members of the Court
the opportunity for discussion tomorrow morning is, I
believe, unfortunate.
