Execution Cases Show High Court Divide On Death Penalty

By Natalie Rodriguez | July 19, 2020, 8:02 PM EDT

Federal executions resumed last week following a 17-year hiatus, greenlighted by a spate of late-night divided orders from the U.S. Supreme Court that have sparked calls from dissenting justices to revisit the constitutionality of the death penalty.

A 5-4 per curiam opinion Tuesday and a pair of similarly split orders Thursday allowed the country's first federal executions since 2003. The decisions sparked heated opposition from the court's liberal justices, who argued the executions would violate the inmates' Eighth Amendment rights against "cruel and unusual" punishment.

Last summer, Attorney General William Barr directed the Federal Bureau of Prisons to restart federal executions and adopt new protocols for using a single-drug lethal injection. The two cases the high court addressed last week had both spent decades in the appellate courts and thus were first in line for the restart of executions, but the liberal justices noted there were still concerns with the procedural history of the cases and overall questions about the constitutionality of the death penalty.

"In short, the resumption of federal executions promises to provide examples that illustrate the difficulties of administering 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," Justice Stephen Breyer wrote in a dissent.

Last month, the Supreme Court declined to hear a challenge to the federal government's new death penalty protocols.

Advocates for death row inmates have argued that the use of the injection drug, pentobarbital, creates a risk of "flash pulmonary edema," where the prisoner would feel as if they are being asphyxiated before death. Government experts have argued, however, that the respiratory condition only occurs after the prisoner has died or been rendered insensate, according to court documents.

Daniel Lewis Lee, who was sentenced to death in 1999 after being convicted of murdering an 8-year-old girl and her parents, was the first inmate executed after a 2 a.m. per curiam opinion delivered on Tuesday.

"Today, Lee finally faced the justice he deserved," Barr said in a statement that day. "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."

In the Supreme Court decision in Lee's case, the majority laid out several points for why the government's use of pentobarbital sodium was unlikely to violate the Eighth Amendment's bar on "cruel and unusual punishment."

The majority noted that the lethal injection drug had become "a mainstay" in state executions, with over 100 such executions being carried out, and that it was considered less risky and painful than other methods.

The Supreme Court majority also pointed to its own decision last year in Bucklew v Precythe, in which the justices had approved the use of pentobarbital for a state prisoner with a medical condition that could have increased the risk of pain associated with the lethal injection drug. The court found that the drug's use would not violate the prisoner's Eighth Amendment rights.

The per curiam decision Tuesday sparked a pair of dissents from the liberal wing of the court, one written by Justice Breyer and joined by Justice Ruth Bader Ginsburg, and the other by Justice Sonia Sotomayor and joined by Justices Ginsburg and Elena Kagan.

Justice Breyer raised concerns that Lee's 20 years on death row violated a requirement that those sentenced to capital punishment do not spend excessively long periods awaiting executions and that Lee's sentence raised questions of arbitrariness since a co-defendant received a lifetime prison sentence. Breyer has long argued against the constitutionality of the death penalty.

Justice Sotomayor, meanwhile, raised issues with granting the government's emergency motion to the Supreme Court to vacate a lower court stay and interfere with pending appellate court review of new challenges brought by Lee and three other similarly situated death row inmates. It was a view shared by Lee's attorney Ruth Friedman.

"It is beyond shameful that the government, in the end, carried out this execution in haste, in the middle of the night, while the country was sleeping. We hope that upon awakening, the country will be as outraged as we are," said Friedman, director of the Federal Capital Habeas Project, in a statement.

All four liberal justices also dissented to orders that allowed the execution of Wesley Ira Purkey to go forward Thursday.

Purkey had been sentenced to death in 2004 after being convicted of the rape and murder of a 16-year old girl. His attorneys had been appealing his sentence, in part based on a recent Alzheimer's diagnosis and the concern that he did not understand why he was sentenced to death.

"A modern system of criminal justice must be reasonably accurate, fair, humane and timely," Justice Breyer said in a dissent to the orders in Purkey's case. "Our recent experience with the federal government's resumption of executions adds to the mounting body of evidence that the death penalty cannot be reconciled with those values. I remain convinced of the importance of reconsidering the constitutionality of the death penalty itself."

With the orders in place, a third federal execution — of Dustin Lee Honken, an Iowa man convicted of several murders — took place Friday.

--Editing by Aaron Pelc.

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