CRUEL AND UNUSUAL: THE SUPREME COURT’S FAILURE TO PROTECT DEATH ROW PRISONERS DURING THE GOVERNMENT’S RECENT RUSH OF EXECUTIONS
By: Julia Potach, Volume 105 Staff Member
On July 14, 2020, the federal government executed death row prisoner, Daniel Lewis Lee, and carried out its first federal execution in 17 years. One year earlier, former Attorney General William Barr cleared the way for the government to resume executions when he directed the Federal Bureau of Prisons to adopt an Addendum to the Federal Execution Protocol, replacing the three-drug lethal injection combination with a single drug to execute death row prisoners. After Lee’s execution, the government moved at an unprecedented rate to execute others on death row. Over the course of only six months, the government executed 13 prisoners, all in the face of significant criticism from the legal community and human rights organizations and in the midst of a global pandemic. Yet these executions could not have happened without the support of various actors including the Supreme Court which dismissed concerns about the new single drug protocol as well as final appeals brought by prisoners, allowing all 13 scheduled executions to proceed.
This Post begins by examining the Supreme Court’s role in allowing the government to resume executions and carry them out at such a fast pace. Next, this Post discusses concerns that the legal process in these executions was rushed and justice was not served. This Post concludes by arguing that the Biden administration should adopt policy changes to end, or at least limit, federal executions.
I. THE SUPREME COURT GREEN-LIGHTS EXECUTIONS
In Barr v. Lee, the Supreme Court vacated an order by the U.S. District Court for the District of Columbia which granted a preliminary injunction to enjoin executions of federal
prisoners. The Court observed that “this Court has yet to hold that a State’s method of execution qualifies as cruel and unusual” and reasoned that state executions use the same drug when administering death sentences, minimizing petitioners’ claims that the drug can cause respiratory distress when injected. In a 5-4 opinion, the Court concluded that the petitioners were unlikely to succeed in their claim that pentobarbital sodium, the lethal injunction drug that the government would use in their executions, constituted cruel and unusual punishment prohibited by the Eight Amendment. The dissenting judges, however, took issue with both how the death penalty may violate the Constitution and the majority’s urgency to allow the execution to go forward before judicial review of the petitioners claims could be completed.
After Barr v. Lee, the Supreme Court considered various final appeals to intervene and stop individual executions. For example, Corey Johnson challenged his execution on various grounds including that he had contracted COVID-19, he had an intellectual disability, and that he should be able to seek a sentencing reduction under a 2018 prison-reform law. The Court, however, denied both appeals within hours and the government executed him. Similarly, in United States v. Higgs, the Supreme Court allowed Dustin Higgs’ execution to go forward despite similar challenges to his execution and a stay from the Court of Appeals. While the majority in Higgs vacated the stay, the dissenting Justices again raised serious concerns about the rush to execute Higgs, and others on death row, and unanswered legal questions in his case.
II. ADVOCATES OBJECT TO EXECUTIONS
Like some of the dissenting justices, advocates have criticized the government’s pace of executions and the judicial process that prisoners have received leading up to their executions. For example, advocates have pointed out the unprecedented nature of the government’s executions which is particularly alarming considering nationwide trends that show declining use of the death penalty. Advocates also argue that none of the executions would have been carried out “in an administration that respected the judicial process and allowed the courts to meaningfully consider whether the executions were even legal.” Some have gone as far to say that the Department of Justice “disregarded the rule of law to rush through an execution,” emphasizing the lack of judicial process received by prisoners and how quickly the government scheduled executions after court rulings. Despite this lack of process that advocates describe, the Supreme Court did not intervene on behalf of prisoners.
At the same time, advocates question the timing of the executions as the country struggles to contain the COVID-19 pandemic which has disproportionately affected incarcerated people. Advocates contend that a COVID-19 outbreak among death row prisoners, for example, is “the result of the super spreader executions that the government has rushed to undertake in the heart of a global pandemic.” Conducting executions during a pandemic places staff, prisoners, and attorneys alike at risk. Additionally, advocates have criticized the government’s decision to carry out executions for prisoners who themselves are infected with COVID-19. They argue that administering the lethal injection drug to someone with COVID-19 lung damage will result in severe pain. Yet despite these objections, the executions continued.
III. WHAT COMES NEXT?: THE BIDEN ADMINISTRATION AND FEDERAL EXECUTIONS
The Biden administration has already expressed its opposition to the death penalty but it’s time for President Biden to take concrete action to end federal executions in order to prevent Constitutionally questionable executions to continue. President Biden can and should act now by using his executive powers to reverse Trump policies related to executions and further limit federal use of the death penalty. While President Biden doesn’t have the power to eliminate the death penalty alone, he should support legislation to do so.
President Biden should begin dismantling the federal death penalty by taking several executive actions. First, the Biden administration should rescind the Addendum to the Federal Execution Protocol, which allowed executions to resume with the controversial single drug injection. Next, President Biden should institute a formal moratorium on all federal executions to prevent the government from carrying out any death penalty sentences under his administration. These actions will effectively end the use of the death penalty for the next four years. Yet, the Biden administration must go further to ensure that those on death row are not unlawfully executed under future administrations. President Biden should both direct the Justice Department to stop seeking the death penalty in new cases and pardon those currently on death row of their death sentences. Such action would severely limit a new administration from quickly resuming executions.
At the same time, President Biden must support congressional efforts to pass legislation to end the federal death penalty once and for all. President Biden should support passage of the Federal Death Penalty Prohibition Act, which would prohibit the imposition of the death penalty for violations of federal law and require re-sentencing of those currently on death row. Furthermore, President Biden doesn’t have to limit his congressional support to legislation involving the federal death penalty. Instead, he should also support any efforts of Congress to incentivize states to end their own use of the death penalty.
The recent rush of federal executions has laid bare what many advocates have argued for years—the death penalty is unjust and inhumane. Our legal system has failed to protect the rights of death row prisoners despite serious concerns about both the single-drug method employed in executions and judicial process received by prisoners. However, President Biden has the power to end federal executions for the foreseeable future and support Congress in efforts to permanently abolish the death penalty. It’s too dangerous for President Biden to merely pause federal executions while leaving future administrations with the tools to quickly resume use of the death penalty.
 Hailey Fuchs, Government Carries Out First Federal Execution in 17 Years, N.Y. Times (July 14, 2020), https://www.nytimes.com/2020/07/14/us/politics/daniel-lewis-lee-execution-crime.html [https://perma.cc/3BVP-UDPW].
 See Press Release, Department of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse [https://perma.cc/ZNY7-2KJ5].
 See DPIC Analysis: Federal Executions Spree Out of Step with U.S. Death Penalty Trends and Attitudes, Death Penalty Information Center (Sept. 3, 2020), https://deathpenaltyinfo.org/news/dpic-analysis-federal-execution-spree-out-of-step-with-u-s-death-penalty-trends-and-attitudes [https://perma.cc/66DE-K6DK] (“The federal government has never carried out more than five executions in civilian courts in any year since the start of World War II.”).
 See Barbara Campbell, U.S. Executes During Higgs in 13th and Final Execution Under Trump Administration, NPR (Jan. 16, 2021), https://www.npr.org/2021/01/16/957559566/u-s-executes-dustin-higgs-in-13th-and-final-execution-under-trump-administration [https://perma.cc/U72G-2FWW]; Carrie Johnson, U.S. to Continue Executions Through Transition in Break with Precedent, NPR (Nov. 24, 2020), https://www.npr.org/2020/11/24/938093614/u-s-to-continue-executions-through-transition-in-break-with-precedent [https://perma.cc/MM2Y-PZQP].
 See Isaac Arnsdorf, Inside Trump and Barr’s Last-Minute Killing Spree, ProPublica (Dec. 23, 2020), https://www.propublica.org/article/inside-trump-and-barrs-last-minute-killing-spree [https://perma.cc/W2R4-EJ6V] (“It could not have happened without the help of Justice Department lawyers; officials at the Bureau of Prisons; two professors who endorsed the government’s injection method; conservative Supreme Court justices who dismissed final appeals; and Trump himself, who encouraged the executions and declined to commute them.”).
 140 S. Ct. 2590 (2020).
 Id. at 2591 (quoting Bucklew v. Precythe, 139 S. Ct. 1112, 1124 (2019).
 Id. at 2591–92.
 See id. (Breyer, J., dissenting).
 See id. (Sotomayor, J., dissenting).
 See e.g., United States v. Higgs, 141 S. Ct. 645 (2021).
 Kalvis Golde, Court Allows Execution of Corey Johnson to Proceed After COVID-19 Diagnosis, SCOTUS Blog (Jan. 14, 2021), https://www.scotusblog.com/2021/01/court-allows-execution-of-corey-johnson-to-proceed-after-covid-19-diagnosis/ [https://perma.cc/L76A-RB6N].
 See 141 S. Ct. 645 (2021).
 See id. (Breyer, J., dissenting); (Sotomayor, J., dissenting).
 See Emily Lever, Federal Death Row Executions Raise Red Flags For Advocates, Law360 (Dec. 20, 2020), https://www.law360.com/articles/1332254/federal-death-row-executions-raise-red-flags-for-advocates [https://perma.cc/L377-HPUX].
 See id.
 Cate Stetson and Ruth Friedman, The Justice Department’s Shameful Rush to Federal Executions, N.Y. Times (July 17, 2020), https://www.nytimes.com/2020/07/17/opinion/justice-department-federal-execution.html [https://perma.cc/PZ69-XSS6].
 See Adam Liptack, ‘Expedited Spree of Executions’ Faced Little Supreme Court Scrutiny, N.Y. Times (Jan. 1, 2021), https://www.nytimes.com/2021/01/18/us/executions-death-penalty-supreme-court.html [https://perma.cc/FP66-9MN3].
 See Lever, supra note 16.
 See Campbell, supra note 4.
 See id.
 See Juana Summers, ‘End This Cruelty’: Progressives Call On Biden To Work To Stop Executions, NPR (Dec. 30, 2020), https://www.npr.org/2020/12/30/950105746/end-this-cruelty-progressives-call-on-biden-to-work-to-stop-executions [https://perma.cc/Q3B2-9QFP].
 See id.
 See id.
 H.R. 262, 117th Congress (2021).
 Press Release, Rep. Ayanna Pressley, Pressley, Durbin, Colleagues Announce Plans to Reintroduce Bill to End Federal Death Penalty (Jan. 11, 2021), https://pressley.house.gov/media/press-releases/pressley-durbin-colleagues-announce-plans-reintroduce-bill-end-federal-death [https://perma.cc/CM7T-LN6H].