# William P. Barr, Attorney General. Et Al. v. Daniel Lewis Lee, Et Al/Opinion of the Court

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* Dissenting Opinions Breyer Sotomayor
Per Curiam
SUPREME COURT OF THE UNITED STATES
No. 20A8
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v. DANIEL LEWIS LEE, ET AL.
ON APPLICATION FOR STAY OR VACATUR
[July 14, 2020]
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 preliminary 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 exhausted all avenues for direct and collateral review. The first of their executions was scheduled to take place this afternoon, 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 denial of application for stay and denial of certiorari) (slip op., at 2).
Hours before the first 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 because, among other reasons, the plaintiffs have not established 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 qualifies as cruel and unusual." Bucklew v. Precythe, 587 U. S. ___, ___ (2019) (slip op., at 12). 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 Government followed this trend by selecting a lethal injection protocol—single-dose pentobarbital—that has become a mainstay of state executions. Pentobarbital:
* Has been adopted by five of the small number of States that currently implement the death penalty.
* Has been used to carry out over 100 executions, without incident.
* Has been repeatedly invoked by prisoners as a less painful and risky alternative to the lethal injection protocols of other jurisdictions.
* Was upheld by this Court last year, as applied to a prisoner 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. ___.
* Has been upheld by numerous Courts of Appeals against Eighth Amendment challenges similar to the one presented 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 declarations suggesting that pentobarbital causes prisoners to experience "flash pulmonary edema," a form of respiratory distress 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 rendered fully insensate. The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court. "Last-minute stays" like that issued this morning "should be the extreme exception, not the norm." Bucklew, 587 U. S., at ___ (slip op., at 30). 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 resolve." Id., at ___–___ (slip op., at 29–30). In keeping with that responsibility, we vacate the District Court's preliminary injunction so that the plaintiffs' executions may proceed as planned.
It is so ordered.