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The John Roberts Death Machine


The Supreme Court stepped in to override a bipartsian, unanimous DC Circuit panel to allow a federal prisoner to be tortured to death:

By a 5–4 vote, the Supreme Court allowed the Trump administration to execute Daniel Lee in a brief order issued at 2 a.m. on Tuesday. An executioner killed Lee with an overdose of pentobarbital sodium shortly after 8 a.m., in the first federal execution since 2003.* According to his attorney, Ruth Friedman, Lee remained strapped to a gurney for four hours while the Department of Justice sought the green light from the Supreme Court. The government then executed him without first notifying Friedman that her client would be killed.

The Supreme Court’s late-night order was unsigned, but joined by all five conservative justices. All four liberal justices dissented. The majority took a remarkably dismissive 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 its own slapdash judgment for that of two lower courts and multiple medical professionals who sided with Lee, the five justices approved a hasty execution that may have amounted to torture. Indeed, the majority signaled that it will no longer tolerate “last-minute” requests to halt impending executions—even if the punishment may inflict egregious and avoidable torment. In other words, the conservative justices will intervene to prevent citizens from voting safely during a pandemic, but they will not step in to ensure that society’s ultimate punishment is administered constitutionally.


Although no justice affixed his name to the majority opinion, this callous ruling is the practical result of Justice Brett Kavanaugh replacing Justice Anthony Kennedy. A moderate on capital punishment, Kennedy often tempered the conservatives’ zeal for the death penalty, forcing them to tone down their enthusiasm for the practice to win his vote. Kavanaugh, by contrast, appears just as keen as his conservative colleagues to keep the machinery of death in motion. In 2019, he cast the fifth vote in a startling decision that knocked down decades of precedent to make it nearly impossible for inmates to challenge lethal injections. At the same time, the court warned prisoners not to file “last-minute” challenges to their executions.

But Lee’s lawsuit did not arise at the last minute. To the contrary, he and the other death row inmates challenged their executions just after Barr announced his intent to carry them out a year ago. Two lower courts weighed the evidence and found that their claims had merit. Five Supreme Court justices looked over their lawsuits and decided that “competing” testimony gave them enough cover to permit the executions without looking like they rubber-stamped torture in the dead of night. As a result, shortly after 8 a.m. on Tuesday morning, the federal government killed a man knowing full well that his final moments might be spent in unconstitutional agony.

I recommend reading both dissents. Sotomayor/Kagan are good on the indefensibility of the haste to torture Lee to death. Breyer/Ginsburg are good on how the Trump DOJ singling out Lee for execution demonstrates how arbitrary and capricious the death penalty is: Lee’s co-defendant is currently serving a life sentence for committing the exact same crime. Killing Lee accomplishes absolutely nothing, and torturing him to death is neither moral nor constitutional. The death penalty is unsalvageable.

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