Hunter Poindexter, Articles Editor, University of Cincinnati Law Review
Last week, the federal government executed a death row inmate for the first time in seventeen years; within three days, it executed two more inmates. The Justice Department declared last summer that it would resume the federal death penalty by lethally injecting four death row inmates convicted of murdering children. Prior to last week’s executions, the federal death penalty had been put on a “de-facto halt” since 2003. The death sentences at issue here were heavily litigated leading up to the executions, with two of the cases coming before the United States Supreme Court. Through fractured opinions, the Court allowed the federal government to move forward with the executions. Justice Stephen Breyer dissented in both cases, renewing his prior call for the Court to reexamine the constitutionality of the death penalty. This article discusses the federal government’s history with the death sentence, as well as the constitutional concerns of capital punishment which Justice Breyer posed in his dissents.
II. Recent History of the Federal Death Penalty
In 1972, the Supreme Court ruled in Furman v. Georgia that the death penalty, as administered at the time, was too arbitrarily and discriminatorily imposed to be constitutional. As a result, the Furman decision led to new legislation across the country, with a number of state governments revising their criminal codes to prevent capricious impositions of the death penalty. Four years after Furman, the Supreme Court clarified in Gregg v. Georgia that the death penalty did not violate the Constitution, so long as necessary safeguards protected against arbitrary and discriminatory sentencing. Following Gregg, several states continued to administer the death penalty. But the federal government did not reinstate the federal death penalty until twelve years after Gregg, with the passage of the Anti-Drug Abuse Act of 1988.
As a result of increasing crime in the late 1980s, the federal government passed the Federal Death Penalty Act of 1994, which expanded the federal death penalty to apply to sixty different crimes. Moreover, in 1996 President Clinton signed the Antiterrorism and Effective Death Penalty Act following the Oklahoma City Bombings, “enhancing penalties for terror-related crimes.” Even with the increased death penalty legislation, the federal government executed only three prisoners between 1988 and 2003, with all three executions occurring between 2001 and 2003. Following 2003,the federal government put an “informal moratorium” on executions for a number of reasons, including court rulings regarding the method of executions, a shortage of lethal injection drugs, and pharmaceutical manufacturers’ unwillingness to sell the drugs to the government. Although executions ceased, sixty-two inmates remained on federal death row. In June 2019 – sixteen years after the de facto moratorium went into effect – Attorney General William Barr announced that the federal government would again implement the death penalty, this time using a single-drug lethal injection of pentobarbital sodium. Additionally, the federal government intended to execute four death row inmates – Daniel Lewis Lee, Wesley Ira Purkey, Dustin Lee Honken, and Keith Dwayne Nelson. Each inmate had been convicted, among other things, of murdering children. Last week, Lee, Purkey, and Honken were executed; Nelson’s execution is scheduled for August.
III. The Court’s Role in the Resumption
Prior to the executions of Lee, Purkey, and Honken, two federal courts imposed preliminary injunctions preventing the executions. The federal government filed for emergency stays of the injunctions. The following sections discuss the events leading up to the applications for stay, as well as the Court’s decisions in both cases.
A. Barr v. Lee
Prior to his execution, Lee – along with the three other death row inmates – filed a joint motion for preliminary injunction before the United States District Court for the District of Columbia challenging the use of pentobarbital sodium as a cruel and unusual punishment in violation of the Eighth Amendment. Specifically, the inmates argued that the use of the drug could cause a flash pulmonary edema, resulting in “extreme pain, terror, and panic.” The District Court issued a preliminary injunction to allow the District Court and Court of Appeals to more fully review the inmates’ claims. Following the injunction, the federal government filed for an emergency stay with the Court of Appeals for the D.C. Circuit, asking the court to allow the executions to move forward as scheduled. However, the Court of Appeals denied the stay, instead setting an expedited briefing schedule to review the claims.
Following the Court of Appeals’ denial of stay, the Supreme Court reviewed the government’s emergency application. In an unsigned opinion, the Court vacated the District Court’s injunction, allowing the federal government to execute Lee. The opinion questioned the assertion that pentobarbital sodium would cause unnecessary pain, pointing out that several states had implemented pentobarbital sodium in lethal injections, and that the drug had been used in over 100 other executions without issue. The Court ultimately concluded that the evidence put forth by the inmates was not enough to meet the high standard “required to justify last-minute intervention by a Federal Court.”
Writing in dissent for himself and Justice Ginsburg, Justice Breyer emphasized his concerns regarding the constitutionality of imposing the death penalty on a defendant. First, Justice Breyer noted the importance of ensuring proper and fair procedure for a defendant, “given the finality and seriousness of a death sentence.” Further, he wrote that the “lengthy delays” of awaiting execution, coupled with the arbitrariness of the imposition of the death penalty weigh significantly against its constitutionality. Turning to the issue of pentobarbital, Justice Breyer relied heavily on the District Court’s findings that “the ‘scientific evidence . . . overwhelmingly indicates that the [Government’s] 2019 Protocol is very likely to cause [the inmates] extreme pain and needless suffering during their executions.” In conclusion, Justice Breyer indicated that the Court should reconsider the issue of “whether the death penalty violates the Constitution.”
Joined by Justices Ginsburg and Kagan in a separate dissent, Justice Sotomayor chided the Court’s willingness to grant the government’s request for emergency relief. Justice Sotomayor’s dissent criticized the majority for its hypocrisy; just last year in Barr v. Roane, the Court refused to allow the government to move forward with an execution until an inmate’s claims were heard on the merits, yet the majority was more than willing to do so in this case. In Roane, Justice Alito, joined by Justices Gorsuch and Kavanaugh, emphasized that “it would be preferable” for the case “to be reviewed on the merits” before the inmates were executed. Further, the Sotomayor dissent acknowledged “how grave the consequences” may be when the judiciary acts with “accelerated decisionmaking;” in this case, inmates were executed as a result of the Court’s decision.
B. Barr v. Purkey
Following Lee’s execution, the Court heard another application for emergency stay from the government. Purkey filed litigation arguing that, as a result of an Alzheimer’s diagnosis, he was unable to comprehend the reason for his execution, as required under Ford v. Wainwright. As with Lee, the District Court issued a preliminary injunction on Purkey’s execution, for which the government asked the Supreme Court to vacate. The Court granted the government’s request without providing any opinion. Writing again in dissent, Justice Breyer renewed his call for a reexamination of the constitutionality of the death penalty, while also questioning whether executing Purkey in his current mental state would effectively serve the punishment rationales for the death penalty. Furthermore, Justice Sotomayor concluded that the government did not meet its “‘especially heavy’ burden” for emergency relief, and thus the Court should have allowed further review of the merits of Purkey’s claims.
IV. Revisiting the Constitutionality of the Death Penalty
A. Glossip v. Gross
Justice Breyer’s calls for reconsideration last week were not his first. In 2015, Justice Breyer wrote a lengthy dissent describing his concerns with the constitutionality of capital punishment. In Glossip v. Gross, four death row inmates asked the Court to prevent Oklahoma from using midazolam for lethal injections, arguing that the drug would potentially cause them “severe pain.” In an opinion authored by Justice Alito, the Court rejected the inmates’ request, allowing Oklahoma to move forward with lethal injections using midazolam. Justice Breyer, however, used his dissent in Glossip to argue against the constitutionality of capital punishment, writing, “I believe it highly likely that the death penalty violates the Eighth Amendment.” To conclude his dissent, Justice Breyer asked the Court to reconsider the validity of the death penalty.
B. Reconciling the Constitution and Capital Punishment
The constitutionality of capital punishment has been long-debated, and it will likely never be resolved. However, Justice Breyer’s dissent in Glossip highlighted several areas of concern regarding the death penalty: delay, irreparable harm, and arbitrariness. Setting aside the highly polarizing topics of morality and humanity, these three issues emphasize the notion that the death penalty, as currently applied, might be flawed. The following sections discuss the idea that, although the death penalty may not be outright cruel and unusual, it may nonetheless be unconstitutional as applied in certain scenarios. It is important to note, too, that these arguments cannot be read in a vacuum; rather, as explained below, these issues are interrelated.
It is well-established that inmates may spend decades on death row waiting for their executions. As Justice Breyer wrote in Glossip, such delays may cause severe psychological trauma to an inmate. And whereas the death penalty is obviously the ultimate punishment for a crime, the added psychological torment of constantly awaiting execution may bring the punishment to the level of cruelty. Writing in concurrence in Glossip, Justice Scalia criticized this argument, writing that “[l]ife without parole is an even lengthier period than the wait on death row.” And he is right; life without parole is – well – forever, while a death sentence would seemingly have some end. The issue with Justice Scalia’s argument is that sitting in prison for life is significantly different than sitting on death row. First, a death row inmate may spend up to twenty-two hours a day in solitary confinement. Second, rather than knowing definitively that he will be in prison for the rest of his life, a death row inmate faces the everyday uncertainty of when his execution will come (if it ever does). Thus, the combined effects of solitary confinement and a general unknowing very well may lead to psychological suffering.
Justice Breyer then posed a second issue with delay: the death penalty does not serve its intended rationales when lengthy delays occur. Specifically, Justice Breyer focused his efforts on the retributive and deterrence theories of punishment. As for retribution, Justice Breyer argued that extended delays (along with the fact that an execution may never occur) may drastically reduce the feeling of justice for the victims and society. Further, Justice Breyer contended that future criminals will be less deterred from committing crime because those on death row may sit there for decades without ever facing an execution date.
The natural solution to the problem of delay seems simple: execute inmates faster. But that easy fix cannot apply to the death penalty; this brings us to the cross-section of delay and irreparable harm. The death penalty, unlike life imprisonment, is unfixable. Once an inmate is executed, there is no other remedy for that inmate. Thus, significant habeas and appellate litigation generally occurs to ensure that (A) inmates are actually guilty of the crime for which they were convicted, and (B) that the executions will not be needlessly painful and severe. Of course, this litigation is necessary, but it nonetheless causes delay.
Although delay is inevitable, it likely does not make capital punishment facially unconstitutional. Consider, for example, the fact that death row inmates may very well face different wait-times before their executions. Assume that one prisoner faces execution after two years on death row, while another faces execution after twenty years on death row. It would seem that the argument for cruelty as a result of delay would be much stronger for the prisoner who spent two decades on death row, as opposed to two years. Therefore, Eighth Amendment challenges based on delay could effectively be reviewed by a District Court on factual grounds regarding the mental anguish a prisoner faced as a result of delay.
2. Irreparable Harm and Unreliability
Arguably the most significant concern with the death penalty is that innocent people may be put to death. As mentioned above, the death penalty is irreversible; there is no legal remedy for an individual whom the government wrongfully executes. Therefore, the need for reliable convictions in the context of the death penalty is exceedingly high. However, as Justice Breyer noted in Glossip, “There is increasing evidence . . . that the death penalty as now applied lacks . . . reliability.” A rather remarkable number of individuals on death row are later exonerated. According to Justice Breyer, a death row inmate is 130 times more likely to be exonerated than an individual facing life in prison.
This seems to be the most difficult aspect of capital punishment to reconcile with the Constitution. As Justice Scalia wrote, “it is convictions, not punishments that are unreliable.” Again, this is a true sentiment. When juries wrongfully convict a defendant, the severe punishment is a result of the wrongful conviction. While false convictions are wrong on their own, the irreparable death penalty only amplifies the issue of unreliable convictions. But how does the government remedy these unreliability concerns? First, prosecutorial oversight may curb some of these wrongful convictions. Where prosecutors are precluded – or at least discouraged – from bringing weak cases to trial, the number of wrongful convictions should naturally decrease. Moreover, efforts to prevent unreliable evidence (eyewitness identification, false confessions, etc.) from being used against a defendant will likely also lower the wrongful conviction rate.
In Glossip, Justice Breyer asserted that the death penalty is imposed “without the ‘reasonable consistency’ necessary to reconcile its use with the Constitution’s commands.” Specifically, Justice Breyer supplied factual evidence that the death penalty may be imposed differently based on gender, race, victim’s race, and location. As for the reasons behind these arbitrary sentences, Justice Breyer points to, among other things, prosecutorial power, racial and gender stereotyping, lack of adequate resources for defense counsel, and political pressures faced by state judges. Constitutional challenges to the death penalty on arbitrariness grounds likely have merit, particularly given the Court’s decision in Furman.The issue with that challenge, however, is that of Gregg. If state legislatures adjusted legislation to avoid arbitrary and capricious sentencing, would the Court be forced to again validate the constitutionality of the death penalty? This is not an easy question to answer. Maybe, to Justice Breyer’s point, there is arbitrariness inherently baked in the jury system which ultimately cannot be fixed by the legislative pen.
C. Legislation as a Tool for Change
While a number of issues regarding the death penalty come before the Judiciary, the Legislative branch of government has significant power over how a given jurisdiction imposes the death penalty. For example, twenty-two states have already outlawed the death penalty. There is currently nothing in the constitutional context which would prevent the other twenty-eight state legislatures (or the United States Congress) from enacting similar legislation. Even avoiding an outright ban on the death penalty, legislatures may also take steps to prevent the issues Justice Breyer set forth in Glossip. For example, a state legislature may pass legislation which would significantly limit the time an inmate sits on death row (notwithstanding possible Due Process concerns). Furthermore, a legislature could enact laws limiting the discretion of prosecutors or providing better resources for public defenders. These types of legislation would, short of outlawing the death penalty, begin to remedy the problems Justice Breyer posed in Glossip.
The death penalty is a polarizing topic, particularly as it relates to issues of humanity and morality; there will certainly never be a general consensus on the rightness or wrongness of its implementation. Yet, as the federal government begins again to execute inmates on death row, Justice Breyer’s calls for reconsideration bring with them significant concerns regarding the death penalty as applied today. Avoiding the moral concerns associated with capital punishment, issues of delay, irreparable harm, and arbitrary application nonetheless shed light on troubling aspects of the imposition of the death penalty. And regardless of whether the Court elects to take up such an issue in the near future, Justice Breyer’s concerns may still lead to legislative change.
 Hailey Fuchs, Government Carries Out First Federal Execution in 17 Years, New York Times (July 14, 2020), https://www.nytimes.com/2020/07/14/us/politics/daniel-lewis-lee-execution-crime.html?auth=login-email&login=email.
 Jessica Schneider, David Shortell, Chandelis Duster, Dustin Lee Honken: US Government executes 3rd federal inmate this week, CNN (July 17, 2020), https://www.cnn.com/2020/07/17/politics/dustin-lee-honken-federal-execution/index.html.
 Executions Scheduled for Four Federal Inmates Convicted of Murdering Children, United States Department of Justice (June 15, 2020),https://www.justice.gov/opa/pr/executions-scheduled-four-federal-inmates-convicted-murdering-children.
 408 U.S. 238, 239-40 (1972).
 Constitutionality of the Death Penalty in America, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/constitutionality-of-the-death-penalty-in-america.
 428 U.S. 153, 186-98 (1976).
 Federal Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty.
 Andrew Cohen, Two of the Oklahoma City Bombing’s Lasting Legacies, Brennan Center (April 21, 2015), https://www.brennancenter.org/our-work/policy-solutions/two-oklahoma-city-bombings-lasting-legacies
 Executions Under the Federal Death Penalty, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty/executions-under-the-federal-death-penalty.
 US federal executions halted over ‘potentially unlawful’ method, BBC News (November 21, 2019), https://www.bbc.com/news/world-us-canada-50499770; Jonathan Allen, Special Report: How the Trump administration secured a secret supply of execution drugs, Reuters (July 10, 2020), https://www.reuters.com/article/us-usa-executions-specialreport/special-report-how-the-trump-administration-secured-a-secret-supply-of-execution-drugs-idUSKBN24B1E4
 Jonathan Allen, Special Report: How the Trump administration secured a secret supply of execution drugs, Reuters (July 10, 2020), https://www.reuters.com/article/us-usa-executions-specialreport/special-report-how-the-trump-administration-secured-a-secret-supply-of-execution-drugs-idUSKBN24B1E4
 Id.; See also Executions Scheduled for Four Federal Inmates Convicted of Murdering Children, United States Department of Justice (June 15, 2020),https://www.justice.gov/opa/pr/executions-scheduled-four-federal-inmates-convicted-murdering-children.
 See Barr v. Lee,2020 U.S. LEXIS 3571; See also Barr v. Purkey, 2020 U.S. LEXIS 3576.
 Barr v. Lee,2020 U.S. LEXIS 3571, at *4 (Sotomayor, J., dissenting).
 Id. at *5.
 Id. at *5-6.
 Id. at *6.
 Id. at *1.
 Id. (per curiam).
 Id. (Breyer, J., dissenting).
 Id. at *2.
 Id. at *3 (quoting Memorandum Opinion in No. 19–mc–145, In the Matter of the Federal Bureau of Prison’s Execution Protocol Cases, Doc. 135, pp. 9, 11 (July 13, 2020)).
 Id. at *3.
 Id. at *6-7 (Sotomayor, J., dissenting).
 Barr v. Roane,140 S. Ct. 353 (2019) (statement by Alito, J. respecting the denial of stay or vacatur).
 Id. at *8.
 Barr v. Purkey, 2020 U.S. LEXIS 3576 *3 (Breyer, J., dissenting).
 Id. at *1.
 Id. at *1 (per curiam).
 Id. at *2-6 (Breyer, J., dissenting).
 Id. at *13-14 (Sotomayor, J., dissenting).
 135 S. Ct. 2726, 2731 (2015).
 Id. at 2776-77 (Breyer, J., dissenting).
 Id. at 2777.
 Id. at 2764.
 Id. at 2765.
 Id. at 2748 (Scalia, J., concurring).
 Id. at 2765 (Breyer, J., dissenting).
 Id. at 2767 (Breyer, J., dissenting).
 Id. at 2767-69. The retributive theory is the idea that a criminal deserves to be punished because he committed a crime. The deterrence theory is focused on the premise that punishment discourages the criminal and others from committing future crime.
 Id. at 2756.
 Id. at 2756-57.
 Id. at 2757.
 Id. at 2747 (Scalia, J., concurring).
 Id. at 2760 (quoting Kennedy v. Louisiana, 554 U.S. 407, 420 (2008)) (Breyer, J., dissenting).
 Id. at 2760-64.
 Id. at 2761-62.
 Facts about the Death Penalty, Death Penalty Info. Ctr. (Updated July 17, 2020), https://files.deathpenaltyinfo.org/documents/pdf/FactSheet.f1595023050.pdf.