Barr v. Lee

Summary

The District Court’s order preliminarily enjoining the executions of four federal prisoners is vacated.

Text

PRELIMINARY PRINT 
Volume 591 U. S. Part 2 
Pages 979–986 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
July 14, 2020 
Page Proof Pending Publication
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 
[email protected], of any typographical or other formal errors.

Page Proof Pending Publication
OCTOBER TERM, 2019 979 
Per Curiam 
BARR, ATTORNEY GENERAL, et al. v. LEE et al. 
on application for stay or vacatur 
No. 20A8. Decided July 14, 2020 
The District Court preliminarily enjoined four federal executions—hours 
before the frst was scheduled—on the ground that the single drug pro-
tocol of pentobarbital the Government plans to use to carry out the 
executions likely constitutes cruel and unusual punishment prohibited 
by the Eighth Amendment. The Government presented an application 
for stay or vacatur to The Chief Justice , which was referred by him 
to the Court. 
Held: Vacatur of the District Court's injunction is appropriate because the 
prisoners have not established a likelihood of success on the merits of 
their Eighth Amendment claim. The Court has never concluded that a 
State's execution method qualifes as cruel and unusual. Bucklew v. 
Precythe, 587 U. S. 119, 133. The Federal Government here selected a 
lethal injection execution protocol that has become a mainstay of state 
executions and has been used to carry out more than 100 executions. 
Pentobarbital has been thought to be less painful and more humane than 
traditional methods of execution, and “does not carry the risks” of pain 
that some have associated with other lethal injection protocols. Zagor-
ski v. Parker, 586 U. S. –––, ––– (Sotomayor , J., dissenting from denial 
of application for stay and denial of certiorari). The drug's use has 
been upheld by numerous Courts of Appeals against Eighth Amendment 
challenges similar to the one presented here. Against this backdrop, 
the federal prisoners present new expert declarations suggesting that 
pentobarbital will cause the sensation of drowning or asphyxiation, a 
suggestion challenged by the Government's experts. No justifcation 
exists here for last-minute intervention by a federal court. 
Preliminary injunction vacated. 
Per Curiam. 
The application for stay or vacatur presented to The 
Chief Justice and by him referred to the Court is granted. 
The District Court's July 13, 2020 order granting a prelimi-
nary injunction is vacated. 
The plaintiffs in this case are all federal prisoners who 
have been sentenced to death for murdering children. The 
plaintiffs committed their crimes decades ago and have long

Page Proof Pending Publication
980 BARR v. LEE 
Per Curiam 
exhausted all avenues for direct and collateral review. The 
frst of their executions was scheduled to take place this af-
ternoon, with others to follow this week and next month. 
To carry out these sentences, the Federal Government plans 
to use a single drug—pentobarbital sodium—that “is widely 
conceded to be able to render a person fully insensate” and 
“does not carry the risks” of pain that some have associated 
with other lethal injection protocols. Zagorski v. Parker, 
586 U. S. –––, ––– (2018) (Sotomayor , J., dissenting from de-
nial of application for stay and denial of certiorari). 
Hours before the frst execution was set to take place, the 
District Court preliminarily enjoined all four executions on 
the ground that the use of pentobarbital likely constitutes 
cruel and unusual punishment prohibited by the Eighth 
Amendment. Vacatur of that injunction is appropriate be-
cause, among other reasons, the plaintiffs have not estab-
lished that they are likely to succeed on the merits of their 
Eighth Amendment claim. That claim faces an exceedingly 
high bar. “This Court has yet to hold that a State's method 
of execution qualifes as cruel and unusual.” Bucklew v. 
Precythe, 587 U. S. 119, 133 (2019). For good reason—“[f]ar 
from seeking to superadd terror, pain, or disgrace to their 
executions, the States have often sought more nearly the 
opposite,” developing new methods, such as lethal injection, 
thought to be less painful and more humane than traditional 
methods, like hanging, that have been uniformly regarded as 
constitutional for centuries. Ibid. The Federal Govern-
ment followed this trend by selecting a lethal injection proto-
col—single-dose pentobarbital—that has become a mainstay 
of state executions. Pentobarbital: 
• Has been adopted by fve of the small number of States 
that currently implement the death penalty. 
• Has been used to carry out over 100 executions, with-
out incident. 
• Has been repeatedly invoked by prisoners as a less pain-
ful and risky alternative to the lethal injection protocols 
of other jurisdictions.

Page Proof Pending Publication
Cite as: 591 U. S. 979 (2020) 981 
Breyer, J., dissenting 
• Was upheld by this Court last year, as applied to a pris-
oner with a unique medical condition that could only 
have increased any baseline risk of pain associated with 
pentobarbital as a general matter. See Bucklew, 587 
U. S. 119. 
• Has been upheld by numerous Courts of Appeals against 
Eighth Amendment challenges similar to the one pre-
sented here. See, e. g., Whitaker v. Collier, 862 F. 3d 
490 (CA5 2017); Zink v. Lombardi, 783 F. 3d 1089 (CA8 
2015); Gissendaner v. Commissioner, 779 F. 3d 1275 
(CA11 2015). 
Against this backdrop, the plaintiffs cite new expert decla-
rations suggesting that pentobarbital causes prisoners to ex-
perience “fash pulmonary edema,” a form of respiratory dis-
tress that temporarily produces the sensation of drowning or 
asphyxiation. But the Government has produced competing 
expert testimony of its own, indicating that any pulmonary 
edema occurs only after the prisoner has died or been ren-
dered fully insensate. The plaintiffs in this case have not 
made the showing required to justify last-minute interven-
tion by a Federal Court. “Last-minute stays” like that is-
sued this morning “should be the extreme exception, not the 
norm.” Bucklew, 587 U. S., at 150. It is our responsibility 
“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 re-
solve.” Ibid. In keeping with that responsibility, we va-
cate the District Court's preliminary injunction so that the 
plaintiffs' executions may proceed as planned. 
It is so ordered. 
Justice Breyer , with whom Justice Ginsburg joins, 
dissenting. 
Today, for the frst time in 17 years, the Federal Govern-
ment will execute an inmate, Daniel Lewis Lee. I have pre-

982 BARR v. LEE 
Breyer, J., dissenting 
viously described how various features of the death penalty 
as currently administered show that it may well violate the 
Constitution. See Glossip v. Gross, 576 U. S. 863, 908–946 
(2015) (dissenting opinion). The Federal Government's deci-
sion to resume executions renders the question of the death 
penalty's constitutionality yet more pressing. 
Given the fnality and seriousness of a death sentence, it 
is particularly important to ensure that the individuals sen-
tenced to death are guilty, that they received full and fair 
procedures, and that they do not spend excessively long peri-
ods of time on death row. Courts must also ensure that exe-
cutions take place through means that are not inhumane. 
This case illustrates at least some of the problems the 
death penalty raises in light of the Constitution's prohibi-
tion against “cruel and unusual punishmen[t].” Amdt. 8. 
Mr. Lee was sentenced to death in 1999 and has now spent 
over 20 years on death row. Such lengthy delays infict se-
vere psychological suffering on inmates and undermine the 
penological rationale for the death penalty. See Glossip, 576 
U. S., at 923–935 (Breyer , J., dissenting). Moreover, the 
death penalty is often imposed arbitrarily. Id., at 915–923. 
Mr. Lee's codefendant in his capital case was sentenced 
to life imprisonment despite committing the same crime. 
Amended Judgment in Lee v. United States, No. 20–2351 
(CA 8), pp. 3–4 (July 12, 2020) (Kelly, J., dissenting from de-
nial of stay of execution); id., at 5–7 (explaining that 
Mr. Lee's execution “raises real concerns about the arbitrary 
application of the death penalty”). 
Moreover, there are signifcant questions regarding the 
constitutionality of the method the Federal Government will 
use to execute him. The Government announced on July 25, 
2019, that it planned to resume federal executions, after nearly 
two decades, pursuant to a new single-drug protocol using 
pentobarbital. See Press Release, Dept. of Justice, Federal 
Government to Resume Capital Punishment After Nearly 
Two Decade Lapse, https://www.justice.gov/opa/pr/federal-
Page Proof Pending Publication

Cite as: 591 U. S. 979 (2020) 983 
Sotomayor, J., dissenting 
government-resume-capital-punishment-after-nearly-two -
decade-lapse. In an opinion preliminarily enjoining the exe-
cution of Mr. Lee and three other plaintiffs, the U. S. District 
Court for the District of Columbia explained that the “scien-
tifc evidence before [it] overwhelmingly indicates that the 
[Government's] 2019 Protocol is very likely to cause Plaintiffs 
extreme pain and needless suffering during their execu-
tions.” Memorandum Opinion in No. 19–mc–145, In the 
Matter of the Federal Bureau of Prisons' Execution Proto-
col Cases, Doc. 135, pp. 9, 11 (July 13, 2020). That court also 
explained that Mr. Lee and the other plaintiffs had “identi-
fed two available and readily implementable alternative 
methods of execution that would signifcantly reduce the risk 
of serious pain.” Id., at 18. 
In short, the resumption of federal executions promises to 
provide examples that illustrate the diffculties of adminis-
tering 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. See Glossip v. Gross, 576 
U. S., at 946 (dissenting opinion). 
Justice Sotomayor, with whom Justice Ginsburg and 
Justice Kagan join, dissenting. 
The Court hastily disposes of respondents' Eighth Amend-
ment challenge to the use of pentobarbital in the Federal 
Government's single-drug execution protocol. In doing so, 
the Court accepts the Government's artifcial claim of ur-
gency to truncate ordinary procedures of judicial review. 
This sets a dangerous precedent. The Government is poised 
to carry out the frst federal executions in nearly two dec-
ades. Yet because of the Court's rush to dispose of this liti-
gation in an emergency posture, there will be no meaningful 
judicial review of the grave, fact-heavy challenges respond-
ents bring to the way in which the Government plans to exe-
cute them. 
Page Proof Pending Publication

984 BARR v. LEE 
Sotomayor, J., dissenting 
I 
Respondents' original complaint in this case dates back to 
2005. Since then, the Government has modifed its execu-
tion protocol in signifcant part, most recently in July 2019 
when it replaced the three-drug protocol with a single drug: 
pentobarbital sodium. App. to Application for Stay or Vaca-
tur 5a. In light of this change, respondents alleged that the 
Government's planned use of pentobarbital could result in 
needless pain and suffering in violation of the Eighth 
Amendment. Among other things, respondents proffered 
expert evidence that the majority of those injected with pen-
tobarbital suffer fash pulmonary edema, which can lead to a 
sensation akin to drowning and “ `extreme pain, terror, and 
panic.' ” Id., at 10a. Respondents frst focused their litiga-
tion efforts on the claim that the 2019 protocol exceeds statu-
tory authority, although they also alleged that the protocol 
violated the Administrative Procedure Act, the Controlled 
Substances Act, the Food, Drug, and Cosmetic Act, and the 
Constitution. The Court of Appeals issued a fnal ruling on 
the statutory-authority claim in April 2020, expressly declin-
ing to rule on respondents' remaining claims on the ground 
that they were “ `neither addressed by the district court nor 
fully briefed.' ” Id., at 7a. This Court denied review two 
weeks ago. 
On June 15, 2020, the Government announced respondents' 
new execution dates. Four days later, respondents fled a 
joint motion for a preliminary injunction on their remaining 
claims and fled a motion for expedited discovery the follow-
ing day. The parties submitted hundreds of pages of 
briefng and exhibits over two weeks. The District Court 
decided this record-heavy motion within two weeks, and dur-
ing a time when two sister courts independently stayed two 
of the executions. The District Court evaluated respond-
ents' Eighth Amendment challenge and stayed their execu-
tions to permit full consideration by the District Court and 
the Court of Appeals of their claims. The Court of Appeals 
Page Proof Pending Publication

Cite as: 591 U. S. 979 (2020) 985 
Sotomayor, J., dissenting 
denied the Government's motion for a stay, noting that re-
spondents' claims involve “novel and diffcult constitutional 
questions” that require the beneft of “further factual and 
legal development.” The court sua sponte set an expedited 
briefng schedule to resolve the appeal. Mere hours later, 
however, this Court now grants the Government's last-
minute application to vacate the stay, allowing death-
sentenced inmates to be executed before any court can prop-
erly consider whether their executions are unconstitutionally 
cruel and unusual. 
II 
That outcome is hard to square with this Court's denial of 
a similar request by the Government seven months ago in 
this very litigation. See Barr v. Roane, 589 U. S. ––– (2019). 
That order prohibited the Government to proceed with exe-
cutions before the Court of Appeals could address respond-
ents' different, but equally serious statutory challenge to the 
federal execution protocol. And in a separate statement, 
three Members of this Court contemplated that respondents 
here would not be executed before “the merits of their Ad-
ministrative Procedure Act [APA] claim [are] adjudicated.” 
Id., at ––– (statement of Alito, J., respecting denial of stay 
or vacatur). They maintained that “in light of what is at 
stake, it would be preferable for the District Court's decision 
to be reviewed on the merits by the Court of Appeals for the 
District of Columbia Circuit before the executions are car-
ried out.” Ibid. 
These statements now ring hollow. By overriding the 
lower court's stay, this Court forecloses any review of re-
spondents' APA claims and bypasses the appellate court's 
review of a novel challenge to the federal execution protocol. 
It does so despite the fact that, whatever may have been 
true on the records presented in previous cases, see, e. g., 
Zagorski v. Parker, 586 U. S. ––– (2018), the parties here 
introduced conficting expert evidence about the likelihood 
that pentobarbital causes pain and suffering before ren-
Page Proof Pending Publication

986 BARR v. LEE 
Sotomayor, J., dissenting 
dering a person insensate, which no factfinder has 
adjudicated. 
III 
Once again, the Court has chosen to grant an emergency 
application from the Government for extraordinary relief. 
Wolf v. Cook County, 589 U. S. –––, ––– (2020) (Sotomayor , 
J., dissenting from grant of stay). The dangers of that prac-
tice are particularly severe here, where the grant of the Gov-
ernment's emergency application inficts the most irrep-
arable of harms without the deliberation such an action 
warrants. See id., at ––– (entertaining last-minute stay ap-
plications from the Government “upend[s] the normal appel-
late process” and “force[s] the Court to consider important 
statutory and constitutional questions that have not been 
ventilated fully in the lower courts, on abbreviated time-
tables and without oral argument”). 
* * * 
Today's decision illustrates just how grave the conse-
quences of such accelerated decisionmaking can be. The 
Court forever deprives respondents of their ability to press 
a constitutional challenge to their lethal injections, and pre-
vents lower courts from reviewing that challenge. All of 
that is at sharp odds with this Court's own ruling mere 
months earlier. In its hurry to resolve the Government's 
emergency motions, I fear the Court has overlooked not only 
its prior ruling, but also its role in safeguarding robust fed-
eral judicial review. I respectfully dissent. 
Page Proof Pending Publication

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 591 U. S. Part 2 Pages 979–986 OFFICIAL REPORTS OF THE SUPREME COURT July 14, 2020 Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court …

• #2

  The District Court's July 13, 2020 order granting a prelimi- nary injunction is vacated. The plaintiffs in this case are all federal prisoners who have been sentenced to death for murdering children. The plaintiffs committed their crimes decades ago and have long Page Proof Pending Publication 980 BARR v. LEE P…

• #3

  Breyer, J., dissenting • Was upheld by this Court last year, as applied to a pris- oner with a unique medical condition that could only have increased any baseline risk of pain associated with pentobarbital as a general matter. See Bucklew, 587 U. S. 119. • Has been upheld by numerous Courts of Appeals against …

• #4

  procedures, and that they do not spend excessively long peri- ods of time on death row. Courts must also ensure that exe- cutions take place through means that are not inhumane. This case illustrates at least some of the problems the death penalty raises in light of the Constitution's prohibi- tion against “cruel…

• #5

  In short, the resumption of federal executions promises to provide examples that illustrate the diffculties of adminis- tering 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 th…

• #6

  that they were “ `neither addressed by the district court nor fully briefed.' ” Id., at 7a. This Court denied review two weeks ago. On June 15, 2020, the Government announced respondents' new execution dates. Four days later, respondents fled a joint motion for a preliminary injunction on their remaining claims …

• #7

  lower court's stay, this Court forecloses any review of re- spondents' APA claims and bypasses the appellate court's review of a novel challenge to the federal execution protocol. It does so despite the fact that, whatever may have been true on the records presented in previous cases, see, e. g., Zagorski v. Park…