Arthur’s lethal injection was scheduled for Thursday evening, but uncertainty about what would happen stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.
Supreme Court Justice Clarence Thomas — the justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order.
Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.
Roberts wrote that four of the other justices had voted in favor of staying the execution. While it takes five justices to overturn a lower court ruling, it takes only four to accept a case.
“To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote.
Justices Thomas and Samuel Alito would have rejected the request, the court’s order stated. The order only mentioned how seven justices responded and did not explain the absence of an eighth justice’s stance.
Roberts’s decision to become the so-called “courtesy” vote came three months after Justice Stephen G. Breyer acted similarly when the court issued a stay in a case involving a transgender Virginia teen suing his school board over a bathroom policy. Breyer had said he was joining the court’s conservative justices to maintain the status quo while the justices considered whether to hear the case (which they accepted earlier this week).
According to the court’s order in the death penalty case, the stay of execution in Alabama would remain in place until the justices decide whether to consider the case. If they decide against it, the stay will be terminated.
“We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.
Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair.
According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker.
In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.
Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method.
Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.
Strange criticized the justices for their action late Thursday.
“With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”
On Thursday night, a spokesman for the Alabama Department of Corrections told the Associated Press that the state delayed Arthur’s scheduled execution for several hours at the request of the Supreme Court while the higher court was weighing his appeals.
There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.
Nearly all of the executions this year have been carried out in two states, Texas and Georgia. Alabama, Florida and Missouri are the only other states to put inmates to death.
Alabama’s death-penalty protocol has received increased scrutiny in the wake of a Supreme Court ruling in January striking down Florida’s death-penalty system. The Supreme Court has sent a few Alabama death-penalty cases back to lower courts for review this year, remanding them due to the Florida case.
In September, the Alabama Supreme Court ruled that the state’s death penalty system was constitutional and unaffected by the Florida ruling. Meanwhile, Florida lawmakers rewrote their death penalty statute after the Supreme Court ruling, but the Florida Supreme Court struck down the new setup last month and said it is still unconstitutional, and it still remains unclear what will happen to nearly 400 death-row inmates there.
An Alabama inmate had argued in January that his state’s death penalty system was “virtually identical” to the Florida setup, which had been struck down because judges, rather than juries, could make a decision about imposing death sentences. The Supreme Court did not agree, and that inmate was executed in the first lethal injection in Alabama since 2013.
The Supreme Court in May was also asked to weigh in after a federal appeals court stayed an execution in Alabama. In that case, the evenly divided court — which is still down to eight justices — was split, which left in place the stay that prevented Alabama from executing Vernon Madison, who was sentenced to death for the 1985 killing of Julius Schulte, a police officer.
This story, first published Thursday night, has been updated early Friday with the full Supreme Court order and again later Friday morning with more detail.