Last week the federal government performed its first execution in over 17 years when it put Daniel Lewis Lee to death, using lethal objection. Mr. Lee was convicted of murdering an Arkanasas family in a 1990s plot to build a whites-only nation in the Pacific Northwest.
The U.S. Supreme Court received an application for a stay or vacatur one day after the District Court issued an order granting a preliminary injunction. A few hours before the execution was scheduled, the District Court enjoined four executions on the ground that the use of a single drug, pentobarbital sodium, constitutes cruel and unusual punishment by the Eighth Amendment. The plaintiffs cited new expert declarations that pentobarbital causes the recipient to experience "flash pulmonary edema," a form of respiratory distress that may produce the sensation of drowing or asphyxiation. The Government countered that such experiences occurs only after the person had died or been rendered fully insensate.
Of course, prisoners have sought stays of execution for many years. What is important here is the fact that the Court was split - as usual - in a 5-4 decision. Justice Breyer, who was joined by Justice Ginsburg, dissented, writing that we must ensure prisoners receive full and fair procedures, and furthermore, they do not spend an excessively long time on death row. As a third consideration, Justice Breyer indicated that the courts have the responsibility to ensure the executions are not inhumane.
Justice Breyer noted Mr. Lee was sentenced to death in 1999 and spent over 20 years on death row, a delay that can "inflict severe psychological suffering on inmates and undermine the penological rationale for the death penalty." Mr. Lee's co-defendant, who was identified as the perpetrator who did the actual killing, was sentenced to lfie imprisonment. He also noted the District Court concluded the scientific evidence "overwhelmingly" indicated the method of killing would cause "extreme pain and needless suffering." He pointed out there were other available and alternative methods that would reduce that risk.
Justice Sotomayor, joined by Justices Ginsburg and Kagan, also dissented, but expanded the reasons, focusing on the procedures employed by the Government to seek emergency relief. She wrote, "Yet because of the Court's rush to dispose of this litigation in an emergency posture, there will be no meaningful judicial review of the grave, fact-heavy challenges respondents bring to the way in which the Government plans to execute them."
On June 15, 2020, the Government scheduled new execution dates. Four days later, the respondents filed a motion for a preliminary injunction, as well as a motion for expedited discovery, submitting hundreds of pages of briefing and exhibits. The District Court stayed the executions to permit full consideration of the claims after two sister courts had independently stayed two of the executions. The Court of Appeals denied the Government's motion for a stay, because the "novel and difficult constitutional questions" required "further factual and legal development." The District Court set an expedited briefing schedule to resolve the appeal. Then the U.S. Supreme Court stepped in to grant the Government's last-minute application to vacate the stay allowing for the executions to take place before a proper consideration of the respondents' claims.
Justice Sotomayor noted the Court had previously denied a similar request by the Government seven months ago, when it prohibited the executions before the Court of Appeals could address respondents' challenge to the federal execution protocol, including challenges to the merits of respondents' Administrative Procedure Act (APA) claim. The Court's decision "forecloses any review of respondents' APA claims and bypasses the appellate court's review of a novel challenge to the federal execution protocol," noting there was conflicting expert evidence that pentobarbital causes pain and suffering before the person is rendered insenstate, a claim that has never been adjudicated. Justice Sotomayor focused on the use of an emergency application from the Government for extraordinary relief, which inflicts "the most irreparable of harms without the deliberation such an action warrants."
Justice Sotomayor concluded:
Today's decision illustrates just how grave the consequences of such accelerated decisionmaking can be. The Court forever deprives respondents of their ability to press a constitutional challenge to their lethal injunctions, and prevents lower courts from reviewing that challenge. all of that is at sharp odds from this Court's own ruling mere months earlier. In its hurry to resolve the Government's emergency motions, I fear the Court has overlooked not only its prior ruling, but also its role in safeguarding robust federal judicial review. I respectfuly dissent."
When I was young, I was in favor of the death penalty as a means of punishment but many years ago I changed my opinion and felt that it should be abolished. That decision came after years of reading about criminal cases involving prosecutorial misconduct where evidence favorable to the defendant was concealed or never explored. Since man and by extension the Government and its army of lawyers are imperfect, then mistakes will happen, and these mistakes, whether intentional or negligent, increase the risk that innocent people will be executed. I also believe that employing the death penalty imposes psychological damage on those employing it. I would never be willing to put someone to death myself, so why should I ask others. In Mr. Lee's case, even the family of the victims objected to executing him. And who knows what value that person might bring to the world, even from a prison cell. Execution does not seem a civilized way of dealing with crime and the fact that a man can sit on death row for decades seems cruel. Or the method employed produces pain, making the Government itself a cruel killer. We should rise above that as most other countries have.
Finally, the use of emergency procedures to avoid a full and meaningful review, when several lower courts felt there was "overwhelming" evidence by experts of the inhuman method of execution and wanted a full review and adjudication, seems riddled with problems. Why are we in such a rush to execute federal prisoners when we have not done so for 17 years?