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In overnight orders, justices allow federal execution to proceed

In the early hours this morning, after a flurry of last-minute filings, a divided Supreme Court cleared the way for federal executions to resume for the first time in nearly 20 years. According to news reports, the federal government then moved quickly to carry out an execution that had been scheduled for Monday afternoon, executing Daniel Lewis Lee at a federal prison in Indiana shortly after 8 a.m. EDT this morning.

The battle over the federal government’s efforts to resume executions has been a hard-fought one for the last few months. Late last month, the justices declined to intervene in the dispute over the new lethal-injection protocol that the Department of Justice devised in order to avoid problems obtaining the drugs that have historically been used to put inmates to death. The court denied a request by four federal death-row inmates, including Lee, to review a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that upheld the new federal regulations for carrying out the death penalty. The decision by a divided three-judge panel had overturned a ruling by U.S. District Judge Tanya Chutkan, who held that federal law requires the government to carry out executions using precisely the same protocol as the state where the execution takes place.

Lee was scheduled to be executed Monday at 4 p.m. EDT for the 1996 murders of William and Nancy Mueller and Nancy’s daughter, eight-year-old Sarah Powell. After stealing approximately $50,000 worth of cash, guns and ammunition from the Muellers to fund a white supremacist movement, Lee and his accomplice shot the Muellers with a stun gun, placed plastic bags over their heads, and threw them into a bayou.

On July 10, a federal district court in Indiana put the execution on hold. The postponement came at the request of Earlene Peterson, the 80-year-old mother of Nancy Mueller, and other family members of the victims. The family members have long said Lee should not be executed, but they insisted that, if he were going to be executed, they wanted to attend the execution. In their request for a postponement, they argued that traveling to the prison to attend Lee’s execution during the COVID-19 pandemic would risk their health. The U.S. Court of Appeals for the 7th Circuit lifted the district court’s stay on July 12, prompting Peterson and the other family members to seek emergency relief at the Supreme Court on Monday.

In a 29-page filing, Peterson asked the justices to reinstate the district court’s order blocking Lee’s execution until her right “to safely travel and attend the execution during the resurgent pandemic can be adequately considered.” Peterson suffers from congestive heart failure, while Monica Veillette, Nancy Mueller’s niece, has chronic asthma. They would have “faced substantial risks from the unprecedented COVID-19 pandemic had they traveled to attend the execution as matters now stand,” Peterson wrote, particularly when a staff member at the prison who has tested positive for COVID-19 was at the death chamber after he was exposed to the virus.

Peterson contended that the Supreme Court should intervene because it was likely to eventually grant review to weigh in on whether the federal government can “disregard the rights of crime victims and their families to attend the execution.” They are not trying, Peterson stressed, to “dictate the Attorney General’s choice of a date for an execution.” Instead, Peterson argued, the district court’s decision simply would require the government to “consider the danger to close family members of the victims from traveling and attending an execution to which they have already been invited.” And “if Lee’s execution goes forward” as scheduled, when she cannot safely attend, Peterson concluded, she and her family members “will effectively be denied their right to attend.” By contrast, Peterson observed, there was no reason why the government had to go forward with Lee’s execution; there was no deadline, and it did not explain why a delay would cause any problems.

Lee also filed his own request on Monday asking the Supreme Court to put his execution on hold to give the justices time to review his appeal, which raised Sixth Amendment arguments and other issues. In a petition for review, Lee urged the justices to weigh in on whether federal laws governing post-conviction relief would allow him to challenge the adequacy of his trial lawyer.

Also on Monday, Chutkan again put the scheduled executions on hold. She concluded that Lee and other inmates with upcoming execution dates were likely to succeed on their claim – the standard for temporary relief – that the federal government’s lethal-injection protocol violates the Eighth Amendment’s ban on cruel and unusual punishment. Among other things, she noted, the “scientific evidence before the court overwhelmingly indicates that the” protocol “is very likely to cause Plaintiffs extreme pain and needless suffering during their executions.” Moreover, she added, the inmates identified two other options that would reduce the risk of such serious pain: giving the inmate a dose of either pain medication or an anti-anxiety medication before the execution begins; or execution by firing squad. In the government’s emergency appeal from Chutkan’s order, the D.C. Circuit late on Monday rejected the government’s request to allow the executions to go forward and ordered the appeal to be fast-tracked.

Shortly before 4 p.m. EDT, when Lee’s execution was scheduled to take place, the federal government came to the Supreme Court, asking the justices to block Chutkan’s order or lift it altogether. In a filing signed by Acting U.S. Solicitor General Jeffrey Wall, the government complained about the last-minute nature of the order, writing that the justices “should not permit such tactics.” But more broadly, the government continued, Chutkan’s order was meritless and highly unlikely to survive on appeal. The order, the government argued, “turns on a profound misunderstanding of this Court’s Eighth Amendment jurisprudence.” It also “would produce the implausible results that huge numbers of recent state executions have violated the Constitution” and “would convert courts into precisely the kinds of boards of inquiry refereeing battles of the experts this Court has repeatedly made clear they are not,” the government said.

At approximately 2 a.m. EDT, the Supreme Court issued a trio of rulings. In an unsigned three-page opinion, by a vote of 5-4, the justices granted the government’s request to lift Chutkan’s order and allow the executions to proceed. Stressing that the inmates’ claim that the government’s lethal-injection protocol violates the Eighth Amendment “faces an exceedingly high bar,” the court explained that the inmates had not shown that they are likely to succeed on that claim. The Supreme Court, the opinion noted, “has yet to hold that a State’s method of execution qualifies as cruel and unusual,” in all likelihood because states have generally tried to make their methods of execution more humane, rather than more painful. And although the inmates have presented evidence suggesting that pentobarbital, the drug that the federal government has selected for its lethal-injection protocol, will cause the inmate to experience “a form of respiratory distress that temporarily produces the sensation of drowning or asphyxiation,” the government has countered that such a condition occurs only after the inmate has become unconscious or dies. The court emphasized that “last-minute intervention” like Chutkan’s Monday-morning order “should be the extreme exception, not the norm.” “It is our responsibility,” the court concluded, “‘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.’”

Justice Stephen Breyer dissented from the court’s ruling, in an opinion joined by Justice Ruth Bader Ginsburg. Lee’s case, Breyer argued, “illustrates at least some of the problems the death penalty raises in light of the Constitution’s prohibition against ‘cruel and unusual punishment.’” Lee spent over 20 years on death row, Breyer noted, which can cause “severe psychological suffering” and “undermine the penological rationale for the death penalty.” “Moreover,” Breyer continued, “the death penalty is often imposed arbitrarily”: Lee’s accomplice received a life sentence even though he committed the same crime. And there are “significant questions” regarding the constitutionality of the lethal-injection protocol that the federal government has adopted for the executions of Lee and other federal prisoners. Because “the resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution,” Breyer reiterated his view that the “solution may be for this Court to directly examine the question whether the death penalty violates the Constitution.”

Justice Sonia Sotomayor also filed a dissenting opinion, which was joined by Ginsburg and Justice Elena Kagan. She warned that the majority had set a “dangerous precedent” by granting the government’s request to allow the executions to proceed. In accepting the government’s “artificial claim of urgency to truncate ordinary procedures of judicial review,” Sotomayor cautioned, “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.” She noted that when the Supreme Court denied a government request to allow executions to go forward late last year, three of her colleagues – Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh – observed that “in light of what is at stake, it would be preferable for” the D.C. Circuit to review the district court’s decision on the merits before the federal government could carry out the executions. And more broadly, Sotomayor noted that the court was again granting what she described as “an emergency application from the Government for extraordinary relief,” resulting in “the most irreparable of harms without the deliberation such an action warrants.”

At the same time that the court granted the government’s request to lift the stay that Chutkan imposed, it also denied – in brief orders, without any noted dissents – the requests by Peterson and Lee to postpone Lee’s execution. According to CNN, Lee was pronounced dead at 8:07 a.m. EDT in Terre Haute, Indiana.

The justices did not act on a separate request by the government to allow the execution of Wesley Purkey, scheduled for Wednesday afternoon, to go forward. The 7th Circuit put Purkey’s execution on hold earlier this month.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, In overnight orders, justices allow federal execution to proceed, SCOTUSblog (Jul. 14, 2020, 11:00 AM),