# William P. Barr, Attorney General. Et Al. v. Daniel Lewis Lee, Et Al/Dissent Breyer

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Breyer, J., dissenting
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]
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
Today, for the first time in 17 years, the Federal Government will execute an inmate, Daniel Lewis Lee. I have previously 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 decision to resume executions renders the question of the death penalty's constitutionality yet more pressing.
Given the finality and seriousness of a death sentence, it is particularly important to ensure that the individuals sentenced to death are guilty, that they received full and fair procedures, and that they do not spend excessively long periods of time on death row. Courts must also ensure that executions 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 prohibition 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 inflict severe 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 co-defendant 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 denial 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 significant 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-government-resume-capital-punishment-after-nearly-two-decade-lapse. In an opinion preliminarily enjoining the execution of Mr. Lee and three other plaintiffs, the U. S. District Court for the District of Columbia explained that the "scientific evidence before [it] overwhelmingly indicates that the [Government's] 2019 Protocol is very likely to cause Plaintiffs extreme pain and needless suffering during their executions." 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). That court also explained that Mr. Lee and the other plaintiffs had "identified two available and readily implementable alternative methods of execution that would significantly reduce the risk of serious pain." Id., at 18.
In short, the resumption of federal executions promises to provide examples that illustrate the difficulties of administering 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, ​U. S., at 946 (dissenting opinion).