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The Supreme Court’s Unconscionable Rush to Kill a Prisoner

In allowing the government to kill a man amid a pandemic, the court's conservatives have declared their fealty to the death penalty.

Scott Olson/Getty Images
A protester outside the prison in Terre Haute, Indiana, where Daniel Lewis Lee was executed.

The federal government ended its 13-year moratorium on executions on Tuesday morning by killing Daniel Lewis Lee at the federal death chamber in Terre Haute, Indiana. Lewis is the first in a series of federal prisoners slated to die in the next few days as part of a renewed push by the Trump administration to carry out death sentences at the federal level, even as the practice falls out of favor nationwide.

While the Trump administration is responsible for restarting this type of capital punishment, the Supreme Court bears ultimate responsibility for every execution carried out in the United States. The modern American death penalty exists only because the court effectively abolished the practice in 1972 and then revived it under certain conditions in 1976. Legislatures may write sentencing laws, prosecutors may seek death sentences, and juries may decide whether to hand them down. But it’s the nine justices—or any particular five of them—who truly make executions possible in America, and it’s the justices who have determined its scope for the past several years.

Lee’s case shows how the high court has worked in recent years to facilitate executions rather than scrutinize them. The court’s conservative majority is openly hostile to death-penalty lawyers who bring late-stage challenges that might delay scheduled executions. The justices have steadily prioritized the state’s desire to kill a certain prisoner on a certain date over the prisoner’s ability to have his claims heard in court. In doing so, the Supreme Court has turned the rights guaranteed by the Eighth Amendment into a privilege it can suspend at will.

Lee’s case shows just how far the government is willing to go to ensure that a prisoner is executed, even amid a pandemic. The Justice Department has chosen to resume federal executions with defendants who were convicted of particularly heinous crimes, a category that includes Lee. A federal jury convicted him in 1999 for murdering William and Nancy Mueller and their eight-year-old daughter Sarah in Arkansas in 1996. Federal prosecutors told the courts that Lee, who belonged to a white supremacist gang at the time, and his co-conspirators had planned to steal guns from the family in a plot to create a white ethnic enclave in the Pacific Northwest. Chevie Kehoe, the plot’s orchestrator, received a life sentence.

Members of Nancy Mueller’s family urged the Justice Department not to execute Lee, noting that it was Kehoe who had actually killed Sarah after Lee refused. “As a supporter of President Trump, I pray that he will hear my message: the scheduled execution of Danny Lee for the murder of my daughter and granddaughter is not what I want and would bring my family more pain,” Earlene Peterson, the mother and grandmother of two of the victims, said in a statement. Peterson and other family members had filed a lawsuit to delay the execution, citing their inability to attend because of the coronavirus pandemic, but were rejected by a federal appeals court.

In what would be the final challenge to his execution, Lee’s lawyers argued that the single-drug cocktail of pentobarbital sodium would place him at an unconstitutional risk for sudden pulmonary edema, which would create a sensation of drowning as he died. They produced testimony from a medical expert who concluded the federal government’s method would lead to “excruciating suffering” as Lee died. As an alternative, they proposed that Lee be executed by firing squad or by adding fentanyl to the lethal injection because it was less likely to be painfully botched.

The Justice Department urged the district court to reject Lee’s claims about pentobarbital sodium and cited other excerpts who concluded the edema was a post-mortem effect. But on Monday, Judge Tanya Chutkan issued a temporary stay on Lee’s pending execution to resolve the dispute. The D.C. Circuit Court of Appeals rejected the government’s efforts to overturn that stay late Monday night and imposed an accelerated timetable to consider the case. In the early hours of Tuesday morning, however, the Supreme Court intervened in a 5-4 ruling to overturn Chutkan’s stay of execution.

The court’s unsigned order brushed aside the testimony offered by Lee’s medical expert and noted that pentobarbital was already widely used in executions. The Justice Department, the majority 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.” Instead of letting the lower courts consider or resolve the factual dispute, which might have involved delaying the execution, the conservative justices simply decided it in the government’s favor.

The majority went on to chastise the lawyers and the judges for delaying the execution at all. “‘Last-minute stays’ like that issued this morning ‘should be the extreme exception, not the norm,’” they wrote, quoting from Bucklew v. Precythe, an execution-method case decided last year. “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 punishment’ can remain with ‘the people and their representatives, not the courts, to resolve.’”

The order provoked a sharp response from the court’s liberals. Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, repeated his past calls to revisit the constitutionality of American capital punishment. “In short, the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution,” he wrote. “As I have previously written, the solution may be for this Court to directly examine the question whether the death penalty violates the Constitution.” Breyer first raised those concerns in his 2015 dissent in Glossip v. Gross, where the court all but foreclosed legal challenges to execution methods.

Justice Sonia Sotomayor, writing for herself, Ginsburg, and Justice Elena Kagan, took aim at the majority for its extreme deference to the Justice Department. “This sets a dangerous precedent,” she wrote. “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 challenges respondents bring to the way in which the Government plans to execute them.”

Death-penalty cases have always provoked an unusual level of discord on the high court. Three of the justices who voted to revive capital punishment in 1976 later renounced their votes and called for its abolition. One of them, Justice Harry Blackmun, announced his change of heart in a 1994 case with a lengthy, emotive dissent where he said he would no longer “tinker with the machinery of death.” When Breyer wrote his dissent in Glossip questioning the death penalty’s constitutionality, Justice Antonin Scalia wrote in a concurring opinion that Breyer “does not just reject the death penalty, he rejects the Enlightenment.”

With Anthony Kennedy’s retirement from the Court in 2018, the balance of power has tipped decidedly in favor of the death penalty. Justice Samuel Alito asked during oral arguments in Glossip whether the court should “countenance what amounts to a guerrilla war against the death penalty” by challenging execution methods; his opinion in Glossip made it all but impossible for plaintiffs to do so. And in Dunn v. Ray last year, the justices rejected a Muslim prisoner’s religious freedom claim on factually inaccurate grounds so the state could meet its execution date. Kagan, dissenting in that case, called her colleagues’ maneuver “profoundly wrong.”

The high court’s approach is a boon to President Trump, an enthusiastic supporter of executions, and his administration as it seeks to carry them out. “Today, Lee finally faced the justice he deserved,” Attorney General Bill Barr said in a statement. “The American people have made the considered choice to permit capital punishment for the most egregious federal crimes, and justice was done today in implementing the sentence for Lee’s horrific offenses.” As I noted last year, Barr’s decision effectively makes every American citizen responsible for the premeditated taking of human life.

Thanks to the Supreme Court, Americans may doubt whether the federal government is wielding that immense power responsibly. “Over the four hours it took for this reckless and relentless government to pursue these ends, Daniel Lewis Lee remained strapped to a gurney: a mere 31 minutes after a court of appeals lifted the last impediment to his execution at the federal government’s urging, while multiple motions remained pending, and without notice to counsel, he was executed,” Ruth Friedman, Lee’s lawyer, said in a statement. The next execution is scheduled for Thursday night.