The Supreme Court allowed the execution of Daniel Lee in a night order. He may have been subjected to unconstitutional torture.

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

The Supreme Court order late at night was not signed, but the five conservative judges joined. The four liberal judges dissented. Most took a notably derogatory 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 their own slapdash trial for that of two lower courts and multiple medical professionals who sided with Lee, the five judges approved a hasty execution that could have been torture. In fact, the majority noted that they will no longer tolerate “last minute” requests to stop imminent executions, even if the punishment can inflict atrocious and avoidable torment. In other words, conservative judges will intervene to prevent citizens from voting safely during a pandemic, but they will not intervene to ensure that the final punishment of society is administered constitutionally.

In July 2019, Attorney General William Barr announced that he would resume federal executions sometime in 2019, after a nearly two-decade hiatus in practice. The federal government previously used a three-drug protocol for lethal injections, a method the Supreme Court upheld in 2008, finding that 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 prohibits their sale to American jails. Barr then replaced them with a single sedative, pentobarbital.

On Monday morning, the United States 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 unnecessary suffering during their executions.” Medical professionals experienced in the effects of the drug stated that “the majority of prisoners executed by injection of pentobarbital suffered sudden pulmonary edema during the procedure.” This condition “produces feelings of drowning and suffocation” resulting in “extreme pain, terror, and panic.” One expert stated 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, such as morphine or fentanyl, to ease the pain of their deaths. The Supreme Court ruled that when a method of execution presents a substantial risk of harm, prisoners can demand a less painful alternative if it is “known and available”, even if it is not expressly authorized by law. Chutkan discovered that this “simple addition to the execution procedure” could be “easily and quickly administered” to lessen the suffering of prisoners. Because unconstitutional executions inflict “irreparable harm” on prisoners without any real benefit to the government or the public, Chutkan halted the impending lethal injections.

Relatives of the victims strongly opposed Lee execution.

With impressive speed, the United States Court of Appeals for the District of Columbia Circuit upheld Chutkan’s order Monday night in a carefully reasoned opinion, then established an expedited schedule to immediately hear prisoners’ objections. . The DC Circuit saw no need to rush execution in light of such grave constitutional dilemmas. Their decision was supported by Judge Patricia Millett (a person appointed by Barack Obama), Judge David Tatel (a person named by Bill Clinton) and Judge Thomas Griffith (a person named by George W. Bush). As Griffith’s vote indicates, this order was not a liberal abolitionist exaggeration, but a diligent attempt to resolve “novel and difficult constitutional issues” quickly through “further factual and legal development”

However, just after 2 a.m., the five conservatives of the Supreme Court reversed the DC Circuit, ruled out Chutkan’s stay, and cleared the way for Lee’s execution. His short decision immediately dismissed the prisoners’ claim that pentobarbital would inflict unnecessary pain. The government, they noted, “has produced its own competing expert testimony, indicating that any pulmonary edema occurs only after the prisoner has died or has become completely insensitive.” And apparently, the mere existence of “competing” evidence made the method of execution humane enough. The Supreme Court generally considers a number of factors when deciding whether to uphold the suspension of a lower court, including irreparable damage and the public interest. However, SCOTUS completely ignored these factors in its race to authorize executions.

Why, exactly, was Barr so impatient to kill Lee? In a statement, he announced that “we owe it to the victims and their families to carry out the sentence.” However, the relatives of the victims strongly opposed Lee’s execution. At a minimum, they felt compelled to witness his death if it occurred, and filed a lawsuit to delay her death so they could attend in person, which the Justice Department successfully defeated. The chief prosecutor who tried Lee, as well as the judge who sentenced him, also oppose his execution. They find it arbitrary and unfair that Lee received capital punishment for killing a family of three when the “ringleader” of this gruesome scheme, Chevie Kehoe, received life in prison.

In her dissent, Judge Sonia Sotomayor condemned her colleagues for accepting the DOJ’s “artificial demand for urgency to cut off ordinary judicial review procedures.” This, he noted, “sets a dangerous precedent.” Most “forever deprive” prisoners of their ability “to press a constitutional challenge to their lethal injections,” the “most irreparable damage.” In doing so, the court abdicated “its role in safeguarding a sound federal judicial review.”

Although no justice set its name in the majority opinion, this cruel ruling is the practical result of Judge Brett Kavanaugh replacing Judge Anthony Kennedy. A moderate in capital punishment, Kennedy often dampened conservatives’ zeal for the death penalty, forcing them to dampen their enthusiasm for the practice to win their vote. Kavanaugh, by contrast, seems as eager as his conservative colleagues to keep the death machine moving. In 2019, he cast the fifth vote in a surprising decision that brought down decades of precedents to make it nearly impossible for inmates to challenge the lethal injections. At the same time, the court warned prisoners not to present “last minute” challenges to their executions.

But Lee’s lawsuit did not come up at the last minute. Rather, he and the other death row inmates defied their executions just after Barr announced his intention to carry them out a year ago. Two lower courts weighed the evidence and found that their claims had merit. Five Supreme Court justices reviewed their claims and decided that the “competing” testimonies gave them enough coverage to allow the executions without seeming to be sealed torture in the dead of night. As a result, at 4 am Tuesday morning, the federal government killed a man knowing full well that his last moments could be spent in unconstitutional agony.