The first execution to be carried out by the federal government in more than 17 years appeared to be nearing again Tuesday after a sharply-divided Supreme Court stepped in during the overnight hours to clear away a lower court injunction that blocked the Trump administration’s plan.
Just after 2 A.M. Tuesday, the justices issued a 5-4 decision overturning a lower-court order issued on Monday that halted the new federal lethal injection protocol on the grounds that it posed an unacceptable risk that the condemned prisoners would suffer severe pain or distress.
The justices divided along ideological lines, with all of the court’s Republican appointees voting to allow the executions to proceed and all the Democratic appointees signaling their dissent.
The high court decision capped off a night of emotional extremes for the death row prisoners, victims’ families, legal advocates, and activists who gathered at the Terre Haute, Ind., prison where the executions are set to take place.
The Supreme Court’s intervention came less than three hours after a powerful federal appeals court issued a ruling that could have delayed the planned executions for more than a month.
The unsigned opinion explaining the Supreme Court’s majority’s rationale noted the prevalence of the one-drug lethal injection method the federal government embraced for the upcoming executions and expressed disfavor for the last-ditch legal maneuvering that led to the executions being called off at about 11 A.M. Monday, about five hours before inmate Daniel Lee, 47, was set to die at the Indiana prison.
Calling the pentobarbital-based method “a mainstay of state executions,” the high court’s majority said it strongly doubted claims by a prisoner’s medical expert that the approach could cause still-conscious inmates to suffer “flash pulmonary edema,” sometimes described as inducing a sense of drowning and panic.
“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,” the majority opinion said.
The justices early-morning decision itself appeared to have been delayed then hastily released, since it misstated the timing of the injunction blocking the executions. “‘Last-minute stays’ like that issued this morning ‘should be the extreme exception, not the norm,’” the per curiam opinion said, quoting a similar ruling issued in a Missouri state execution case last year.
The court’s Democratic appointed justices penned two dissents. Justice Stephen Breyer, who has become the court’s most outspoken skeptic of the constitutionality of the death penalty, said he was deeply troubled by the fact that the first inmate to be executed has been on death row since 1999
“Such lengthy delays inflict severe psychological suffering on inmates and undermine the penological rationale for the death penalty,” Breyer wrote, joined by Justice Ruth Bader Ginsburg. “The resumption of federal executions promises to provide examples that illustrate the difficulties of administering the death penalty consistent with the Constitution….The solution may be for this Court to directly examine the question whether the death penalty violates the Constitution.”
Justice Sonia Sotomayor’s dissent took a somewhat different tack, faulting the court’s majority for seeking to quickly brush the legal challenge aside so that executions can proceed. She also reiterated her view that the court has become too deferential to the Justice Department’s claims of a need for an emergency order.
“Once again, the Court has chosen to grant an emergency application from the Government for extraordinary relief,” Sotomayor wrote. “The dangers 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 an action warrants.”
It was not immediately clear when the government would proceed with the execution of Lee, who was sentenced to death for the brutal 1996 murder of a family of three in Arkansas as part of what prosecutors described as a robbery aimed at raising funds for a white supremacist organization. Spokespeople for the Bureau of Prisons and the Justice Department did not immediately respond to request for comment early Tuesday.
Justice Department lawyers had suggested they could proceed with Lee’s execution Tuesday but that further delays would be problematic. A lawyer for Lee sent a letter to authorities Monday night disputing their authority to immediately reschedule his execution.
However, the D.C. Circuit issued an order late Monday night that seemed to reject the government's strident claims that legal arguments against the planned single-drug execution method were entirely “meritless“ and transparently aimed at stalling the process.
A few hours before the Supreme Court ruling, a three-judge panel of the D.C. Circuit unanimously turned down the Justice Department's request for an emergency stay of U.S. District Court Judge Tanya Chutkan's injunction.
"Resolution of the merits of the inmates’ claim ... involves 'novel and difficult constitutional questions' that require 'the benefit of further factual and legal development,'" the panel's order said, quoting an earlier circuit precedent.
The appeals judges dealing with the emergency application included two Democratic appointees, David Tatel and Patricia Millett, and one GOP appointee, Thomas Griffith.
Acting Solicitor General Jeffrey Wall had argued repeatedly that the Supreme Court's rejection last year of a Missouri inmate's challenge to the single-drug execution method rendered frivolous the inmates' arguments against the federal government's use of a similar protocol.
But the appeals court said it was "not persuaded" that the 2019 ruling controlled the outcome of the present lawsuits arguing that the method the federal government is planning to use could cause inmates extreme pain and distress in violation of the Constitution's ban on cruel and unusual punishment.
Another execution, scheduled for Wednesday at the same Indiana prison, is on hold due to a stay issued by a separate, unanimous 7th Circuit panel on July 2. Wesley Purkey, 68, was convicted for the 1998 rape and murder of a 16-year-old girl in Missouri. Purkey also dismembered, burned, and dumped her body in a septic pond, according to evidence in the case.
The appeals court panel that halted Purkey’s execution cited his claims that his lawyers failed to raise key arguments at his trial and in a post-trial challenge.
On Saturday, the Justice Department filed an emergency application with the Supreme Court to lift the stay in Purkey’s case so that his execution could proceed as scheduled. No ruling on that application had emerged by Tuesday morning
A third execution is scheduled for Friday at Terre Haute and a fourth for late next month.
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