Barr v. Lee

                  Cite as: 591 U. S. ____ (2020)            1

                           Per Curiam


                            No. 20A8

            DANIEL LEWIS LEE, ET AL.
                         [July 14, 2020]

   The application for stay or vacatur presented to THE
CHIEF JUSTICE and by him referred to the Court is granted.
The District Court’s July 13, 2020 order granting a prelim-
inary injunction is vacated.
   The plaintiffs in this case are all federal prisoners who
have been sentenced to death for murdering children. The
plaintiffs committed their crimes decades ago and have long
exhausted all avenues for direct and collateral review. The
first of their executions was scheduled to take place this af-
ternoon, with others to follow this week and next month.
To carry out these sentences, the Federal Government
plans to use a single drug—pentobarbital sodium—that “is
widely conceded to be able to render a person fully insen-
sate” and “does not carry the risks” of pain that some have
associated with other lethal injection protocols. Zagorski v.
Parker, 586 U. S. ___, ___ (2018) (Sotomayor, J., dissenting
from denial of application for stay and denial of certiorari)
(slip op., at 2).
   Hours before the first execution was set to take place, the
District Court preliminarily enjoined all four executions on
the ground that the use of pentobarbital likely constitutes
cruel and unusual punishment prohibited by the Eighth
Amendment. Vacatur of that injunction is appropriate be-
cause, among other reasons, the plaintiffs have not estab-
lished that they are likely to succeed on the merits of their
2                        BARR v. LEE

                          Per Curiam

Eighth Amendment claim. That claim faces an exceedingly
high bar. “This Court has yet to hold that a State’s method
of execution qualifies as cruel and unusual.” Bucklew v.
Precythe, 587 U. S. ___, ___ (2019) (slip op., at 12). For good
reason—“[f]ar from seeking to superadd terror, pain, or dis-
grace to their executions, the States have often sought more
nearly the opposite,” developing new methods, such as le-
thal injection, thought to be less painful and more humane
than traditional methods, like hanging, that have been uni-
formly regarded as constitutional for centuries.

Ibid. The Federal Government

followed this trend by selecting a le-
thal injection protocol—single-dose pentobarbital—that
has become a mainstay of state executions. Pentobarbital:

    • Has been adopted by five of the small number of
      States that currently implement the death penalty.

    • Has been used to carry out over 100 executions, with-
      out incident.

    • Has been repeatedly invoked by prisoners as a less
      painful and risky alternative to the lethal injection
      protocols of other jurisdictions.

    • Was upheld by this Court last year, as applied to a
      prisoner with a unique medical condition that could
      only have increased any baseline risk of pain associ-
      ated with pentobarbital as a general matter. See
      Bucklew, 587 U. S. ___.

    • Has been upheld by numerous Courts of Appeals
      against Eighth Amendment challenges similar to
      the one presented here. See, e.g., Whitaker v. Col-

862 F.3d 490

(CA5 2017); Zink v. Lombardi,

783 F.3d 1089

(CA8 2015); Gissendaner v. Commis-

779 F.3d 1275

(CA11 2015).
                   Cite as: 591 U. S. ____ (2020)                  3

                            Per Curiam

   Against this backdrop, the plaintiffs cite new expert dec-
larations suggesting that pentobarbital causes prisoners to
experience “flash pulmonary edema,” a form of respiratory
distress that temporarily produces the sensation of drown-
ing or asphyxiation. But the Government 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. The plaintiffs in this case
have not made the showing required to justify last-minute
intervention by a Federal Court. “Last-minute stays” like
that issued this morning “should be the extreme exception,
not the norm.” Bucklew, 587 U. S., at ___ (slip op., at 30).
It is our responsibility “to ensure that method-of-execution
challenges to lawfully issued sentences are resolved fairly
and expeditiously,” so that “the question of capital punish-
ment” can remain with “the people and their representa-
tives, not the courts, to resolve.” Id., at ___–___ (slip op., at
29–30). In keeping with that responsibility, we vacate the
District Court’s preliminary injunction so that the plain-
tiffs’ executions may proceed as planned.

                                                    It is so ordered.
                 Cite as: 591 U. S. ____ (2020)            1

                     BREYER, J., dissenting


                           No. 20A8

            DANIEL LEWIS LEE, ET AL.
                        [July 14, 2020]

   Today, for the first time in 17 years, the Federal Govern-
ment will execute an inmate, Daniel Lewis Lee. I have pre-
viously described how various features of the death penalty
as currently administered show that it may well violate the
Constitution. See Glossip v. Gross, 

576 U.S. 863

, 908–946
(2015) (dissenting opinion). The Federal Government’s de-
cision to resume executions renders the question of the
death penalty’s constitutionality yet more pressing.
   Given the finality and seriousness of a death sentence, it
is particularly important to ensure that the individuals sen-
tenced to death are guilty, that they received full and fair
procedures, and that they do not spend excessively long pe-
riods of time on death row. Courts must also ensure that
executions take place through means that are not inhu-
   This case illustrates at least some of the problems the
death penalty raises in light of the Constitution’s prohibi-
tion against “cruel and unusual punishmen[t].” Amdt. 8.
Mr. Lee was sentenced to death in 1999 and has now spent
over 20 years on death row. Such lengthy delays inflict se-
vere psychological suffering on inmates and undermine the
penological rationale for the death penalty. See 

Glossip, 576 U.S., at 923

–935 (BREYER, J., dissenting). Moreover,
the death penalty is often imposed arbitrarily.

Id., at 915–

2                        BARR v. LEE

                     BREYER, J., dissenting

923. Mr. Lee’s co-defendant in his capital case was sen-
tenced to life imprisonment despite committing the same
crime. Amended Judgment in Lee v. United States, No. 20–
2351 (CA 8), pp. 3–4 (July 12, 2020) (Kelly, J., dissenting
from denial of stay of execution);

id., at 5–7

(explaining that
Mr. Lee’s execution “raises real concerns about the arbi-
trary application of the death penalty”).
   Moreover, there are significant questions regarding the
constitutionality of the method the Federal Government
will use to execute him. The Government announced on
July 25, 2019, that it planned to resume federal executions,
after nearly two decades, pursuant to a new single-drug
protocol using pentobarbital. See Press Release, Dept. of
Justice, Federal Government to Resume Capital Punish-
ment After Nearly Two Decade Lapse, https://www.jus-
ment-after-nearly-two-decade-lapse.          In an opinion
preliminarily enjoining the execution of Mr. Lee and three
other plaintiffs, the U. S. District Court for the District of
Columbia explained that the “scientific evidence before [it]
overwhelmingly indicates that the [Government’s] 2019
Protocol is very likely to cause Plaintiffs extreme pain and
needless suffering during their executions.” Memorandum
Opinion in No. 19–mc–145, In the Matter of the Federal Bu-
reau of Prison’s Execution Protocol Cases, Doc. 135, pp. 9,
11 (July 13, 2020). That court also explained that Mr. Lee
and the other plaintiffs had “identified two available and
readily implementable alternative methods of execution
that would significantly reduce the risk of serious pain.”

Id., at 18.

   In short, the resumption of federal executions promises
to provide examples that illustrate the difficulties of admin-
istering the death penalty consistent with the Constitution.
As I have previously written, the solution may be for this
Court to directly examine the question whether the death
penalty violates the Constitution. See Glossip v. Gross, 576
                  Cite as: 591 U. S. ____ (2020)   3

                     BREYER, J., dissenting

U. S., at 946 (dissenting opinion).
                 Cite as: 591 U. S. ____ (2020)            1

                   SOTOMAYOR, J., dissenting


                           No. 20A8

            DANIEL LEWIS LEE, ET AL.
                        [July 14, 2020]

JUSTICE KAGAN join, dissenting.
   The Court hastily disposes of respondents’ Eighth
Amendment challenge to the use of pentobarbital in the
Federal Government’s single-drug execution protocol. In
doing so, the Court accepts the Government’s artificial
claim of urgency to truncate ordinary procedures of judicial
review. This sets a dangerous precedent. The Government
is poised to carry out the first federal executions in nearly
two decades. 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 chal-
lenges respondents bring to the way in which the Govern-
ment plans to execute them.
  Respondents’ original complaint in this case dates back
to 2005. Since then, the Government has modified its exe-
cution protocol in significant part, most recently in July
2019 when it replaced the three-drug protocol with a single
drug: pentobarbital sodium. App. to Application for Stay or
Vacatur 5a. In light of this change, respondents alleged
that the Government’s planned use of pentobarbital could
result in needless pain and suffering in violation of the
Eighth Amendment. Among other things, respondents
proffered expert evidence that the majority of those injected
2                        BARR v. LEE

                    SOTOMAYOR, J., dissenting

with pentobarbital suffer flash pulmonary edema, which
can lead to a sensation akin to drowning and “ ‘extreme
pain, terror, and panic.’ ”

Id., at 10a.

Respondents first fo-
cused their litigation efforts on the claim that the 2019 pro-
tocol exceeds statutory authority, although they also al-
leged that the protocol violated the Administrative
Procedure Act, the Controlled Substances Act, the Food,
Drug, and Cosmetic Act, and the Constitution. The Court
of Appeals issued a final ruling on the statutory-authority
claim in April 2020, expressly declining to rule on respond-
ents’ remaining claims on the ground that they were “ ‘nei-
ther addressed by the district court nor fully briefed.’ ”

Id., at 7a.

This Court denied review two weeks ago.
   On June 15, 2020, the Government announced respond-
ents’ new execution dates. Four days later, respondents
filed a joint motion for a preliminary injunction on their re-
maining claims and filed a motion for expedited discovery
the following day. The parties submitted hundreds of pages
of briefing and exhibits over two weeks. The District Court
decided this record-heavy motion within two weeks, and
during a time when two sister courts independently stayed
two of the executions. The District Court evaluated re-
spondents’ Eighth Amendment challenge and stayed their
executions to permit full consideration by the District Court
and the Court of Appeals of their claims. The Court of Ap-
peals denied the Government’s motion for a stay, noting
that respondents’ claims involve “novel and difficult consti-
tutional questions” that require the benefit of “further fac-
tual and legal development.” The court sua sponte set an
expedited briefing schedule to resolve the appeal. Mere
hours later, however, this Court now grants the Govern-
ment’s last-minute application to vacate the stay, allowing
death-sentenced inmates to be executed before any court
can properly consider whether their executions are uncon-
stitutionally cruel and unusual.
                  Cite as: 591 U. S. ____ (2020)            3

                   SOTOMAYOR, J., dissenting

   That outcome is hard to square with this Court’s denial
of a similar request by the Government seven months ago
in this very litigation. See Barr v. Roane, 589 U. S. ___
(2019). That order prohibited the Government to proceed
with executions before the Court of Appeals could address
respondents’ different, but equally serious statutory chal-
lenge to the federal execution protocol. And in a separate
statement, three Members of this Court contemplated that
respondents here would not be executed before “the merits
of their Administrative Procedure Act [APA] claim [are] ad-
judicated.” Id., at ___ (statement of ALITO, J., respecting
denial of stay or vacatur) (slip op., at 2). They maintained
that “in light of what is at stake, it would be preferable for
the District Court’s decision to be reviewed on the merits by
the Court of Appeals for the District of Columbia Circuit
before the executions are carried out.”

Ibid. These statements now

ring hollow. By overriding the
lower court’s stay, this Court forecloses any review of re-
spondents’ APA claims and bypasses the appellate court’s
review of a novel challenge to the federal execution protocol.
It does so despite the fact that, whatever may have been
true on the records presented in previous cases, see, e.g.,
Zagorski v. Parker, 586 U. S. ___ (2018), the parties here
introduced conflicting expert evidence about the likelihood
that pentobarbital causes pain and suffering before render-
ing a person insensate, which no factfinder has adjudicated.
   Once again, the Court has chosen to grant an emergency
application from the Government for extraordinary relief.
Wolf v. Cook County, 589 U. S. ___, ___ (2020) (SOTOMAYOR,
J., dissenting from grant of stay) (slip op., at 5). The dan-
gers of that practice are particularly severe here, where the
grant of the Government’s emergency application inflicts
the most irreparable of harms without the deliberation such
4                        BARR v. LEE

                    SOTOMAYOR, J., dissenting

an action warrants. See id., at ___ (slip op., at 6) (enter-
taining last-minute stay applications from the Government
“upend[s] the normal appellate process” and “force[s] the
Court to consider important statutory and constitutional
questions that have not been ventilated fully in the lower
courts, on abbreviated timetables and without oral argu-
                         *      *     *
   Today’s decision illustrates just how grave the conse-
quences of such accelerated decisionmaking can be. The
Court forever deprives respondents of their ability to press
a constitutional challenge to their lethal injections, and pre-
vents lower courts from reviewing that challenge. All of
that is at sharp odds with 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 respectfully dissent.

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