The Supreme Court’s Late-Night Death Penalty Decision Isn’t Just Cruel. It’s Legally Indefensible.

The five conservative justices abdicated their duty to ensure that executions comply with the Constitution.

A police officer marches a man in an orange jumpsuit away from the building. Above, on the Supreme Court steps, protesters stand behind a banner that reads STOP EXECUTIONS.
Randy Gardner is removed by police while wearing his executed brother’s prison jumpsuit during an anti–death penalty protest at the Supreme Court in D.C. on Jan. 17, 2017. Brendan Smialowski/Getty Images

By a 5–4 vote, the Supreme Court allowed the Trump administration to execute Daniel Lee in a brief order issued at 2 a.m. on Tuesday. An executioner killed Lee with an overdose of pentobarbital sodium shortly after 8 a.m., in the first federal execution since 2003.* According to his attorney, Ruth Friedman, Lee remained strapped to a gurney for four hours while the Department of Justice sought the green light from the Supreme Court. The government then executed him without first notifying Friedman that her client would be killed.

The Supreme Court’s late-night order was unsigned, but joined by all five conservative justices. All four liberal justices dissented. The majority took a remarkably dismissive stance toward Lee’s claim that the government’s method of execution would constitute cruel and unusual punishment in violation of the Eighth Amendment. Substituting its own slapdash judgment for that of two lower courts and multiple medical professionals who sided with Lee, the five justices approved a hasty execution that may have amounted to torture. Indeed, the majority signaled that it will no longer tolerate “last-minute” requests to halt impending executions—even if the punishment may inflict egregious and avoidable torment. In other words, the conservative justices will intervene to prevent citizens from voting safely during a pandemic, but they will not step in to ensure that society’s ultimate punishment is administered constitutionally.

In July 2019, Attorney General William Barr announced that he would resume federal executions sometime in 2019, following a near–two decade pause on the practice. The federal government previously used a three-drug protocol for lethal injections, a method the Supreme Court upheld in 2008, finding it did not create a “substantial risk of severe pain.” But the drugs in that protocol are difficult to obtain today, because many manufacturers refuse to supply them for lethal injections, and international law forbids their sale to U.S. prisons. So Barr replaced them with a single sedative, pentobarbital.

On Monday morning, U.S. District Court Judge Tanya S. Chutkan blocked four executions, including Lee’s. In a meticulous ruling, Chutkan noted that pentobarbital “is very likely to cause Plaintiffs extreme pain and needless suffering during their executions.” Medical professionals with expertise in the drug’s effects testified that “the majority of inmates executed via pentobarbital injection suffered flash pulmonary edema during the procedure.” This condition “produces sensations of drowning and asphyxiation” resulting in “extreme pain, terror and panic.” One expert declared that it is a “virtual medical certainty that most, if not all, prisoners will experience excruciating suffering” when killed with pentobarbital.

To avoid this torture, Lee and his fellow plaintiffs requested a more humane method of execution. They asked for a dose of an opioid, like morphine or fentanyl, to dull the pain of their deaths. The Supreme Court has ruled that when a method of execution presents substantial risk of harm, prisoners may demand a less painful alternative if it is “known and available,” even if it’s not expressly authorized by law. Chutkan found that this “simple addition to the execution procedure” could be “easily and quickly administered” to diminish the prisoners’ suffering. Because unconstitutional executions impose the ultimate “irreparable harm” on prisoners with no real benefit to the government or the public, Chutkan halted the impending lethal injections.

With impressive speed, the U.S. Court of Appeals for the District of Columbia Circuit upheld Chutkan’s order late Monday night in a carefully reasoned opinion, then set an expedited schedule to promptly hear the prisoners’ objections. The D.C. Circuit saw no need to rush the execution in light of such grave constitutional quandaries. Its decision was supported by Judge Patricia Millett (a Barack Obama appointee), Judge David Tatel (a Bill Clinton appointee), and Judge Thomas Griffith (a George W. Bush appointee). As Griffith’s vote indicates, this order was no abolitionist liberal overreach, but a diligent attempt to resolve “novel and difficult constitutional questions” promptly through “further factual and legal development”

Just after 2 a.m., however, the Supreme Court’s five conservatives reversed the D.C. Circuit, threw out Chutkan’s stay, and cleared the way for Lee’s execution. Their curt decision dismissed out of hand the prisoners’ assertion that pentobarbital would inflict needless pain. The government, they noted, “has produced competing expert testimony of its own, indicating that any pulmonary edema occurs only after the prisoner has died or been rendered fully insensate.” And apparently, the mere existence of “competing” testimony made the execution method sufficiently humane. The Supreme Court typically considers a number of factors when deciding whether to uphold a lower court’s stay, including irreparable harm and the interest of the public. Yet SCOTUS completely ignored these factors in its dash to authorize the executions.

Why, exactly, was Barr so impatient to put Lee to death? In a statement, he announced that “we owe it to the victims and their families to carry forward the sentence.” Yet the victims’ family members staunchly opposed Lee’s execution. At a minimum, they felt obligated to witness his death if it was to occur, and they filed a lawsuit seeking to delay it so they could attend in person—which the Justice Department successfully defeated. The lead prosecutor who tried Lee, as well as the judge who sentenced him, also oppose his execution. They find it arbitrary and unjust that Lee received a capital sentence for killing a family of three when the “ringleader” of this gruesome plan, Chevie Kehoe, received life in prison.

In her dissent, Justice Sonia Sotomayor condemned her colleagues for accepting the DOJ’s “artificial claim of urgency to truncate ordinary procedures of judicial review.” This, she noted, “sets a dangerous precedent.” The majority “forever deprives” prisoners of their ability “to press a constitutional challenge to their lethal injections,” the “most irreparable of harms.” By doing so, the court abdicated “its role in safeguarding robust federal judicial review.”

Although no justice affixed his name to the majority opinion, this callous ruling is the practical result of Justice Brett Kavanaugh replacing Justice Anthony Kennedy. A moderate on capital punishment, Kennedy often tempered the conservatives’ zeal for the death penalty, forcing them to tone down their enthusiasm for the practice to win his vote. Kavanaugh, by contrast, appears just as keen as his conservative colleagues to keep the machinery of death in motion. In 2019, he cast the fifth vote in a startling decision that knocked down decades of precedent to make it nearly impossible for inmates to challenge lethal injections. At the same time, the court warned prisoners not to file “last-minute” challenges to their executions.

But Lee’s lawsuit did not arise at the last minute. To the contrary, he and the other death row inmates challenged their executions just after Barr announced his intent to carry them out a year ago. Two lower courts weighed the evidence and found that their claims had merit. Five Supreme Court justices looked over their lawsuits and decided that “competing” testimony gave them enough cover to permit the executions without looking like they rubber-stamped torture in the dead of night. As a result, shortly after 8 a.m. on Tuesday morning, the federal government killed a man knowing full well that his final moments might be spent in unconstitutional agony.

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Correction, July 15, 2020: This article initially misstated that Lee was executed at 4 a.m. on Tuesday. He was executed shortly after 8 a.m.