If the Republican Party’s who-cares-if-grandma-dies response to the coronavirus hasn’t convinced you that the “pro-life” label is absurd when applied to the GOP, then maybe this will: This morning, President Donald Trump’s government executed the first federal prisoner in 17 years. And it did so with the blessing of the Supreme Court, which is paving the way for more and more executions.
Since 2003, the federal government has had a de facto moratorium on the death penalty. Even though some federal convicts have been sentenced to death during this time (such as Dylann Roof, for his terrorist attack on Charleston’s Emanuel African Methodist Episcopal Church in 2015), the federal government hasn’t carried out a death sentence because of safety concerns about the drugs used as part of the execution.
That is, until last July, when Attorney General William Barr announced that the federal government would get back to murdering people because it has found a new drug to use in executions that is widely available — pentobarbital. According to Barr, this drug caused less pain and was used by 14 different states in more than 200 executions since 2010. He also said that courts had repeatedly upheld its use against challenges that it was cruel and unusual punishment under the Eighth Amendment.
This morning, Daniel Lewis Lee was the first victim of the federal government’s newfound zeal to kill its citizens. There’s no doubt that the 1996 crime he was convicted of was horrific — he murdered a couple and their eight-year-old daughter, and has been on death row since 1999. At the time, he was a self-described white supremacist, though he has disavowed those beliefs now. This morning, when he was executed in Indiana, Lee’s last words were: “I didn’t do it. I’ve made a lot of mistakes in my life, but I’m not a murderer. You’re killing an innocent man.”
The last-minute legal wrangling over Lee’s execution met its match with the Chief Justice John Roberts Supreme Court. There were two different avenues of appeal — Lee’s lawyers were arguing that the new drug being used by the federal government was cruel and unusual punishment because of the harm it did to the person being executed in the moments before death, and Lee’s victims’ family’s lawyers argued that they were being denied an opportunity to witness his execution because of coronavirus travel restrictions.
In an unsigned opinion issued today, the Supreme Court’s five conservative justices rejected the appeal. They expanded on a little-known 2019 case in which the same five conservatives rejected a challenge to a similar method of execution, writing that “this Court has yet to hold that a State’s method of execution qualifies as cruel and unusual.” In other words, the court’s conservatives have yet to meet an execution method they think is problematic. To the contrary, the court today praised states (and, by implication, the federal government) for choosing methods of execution, including the new federal method, that are “thought to be less painful and more humane than traditional methods, like hanging.”
The four liberals dissented. Justices Stephen Breyer, writing for himself and Justice Ruth Bader Ginsburg, wrote separately that they believed it was time for the Supreme Court to reconsider whether the death penalty was constitutional at all. Justice Sonia Sotomayor, writing for herself and Justices Ginsburg and Elena Kagan, tore into the court’s conservatives for acting “hastily” with their “rush to dispose of this litigation.” She said that there were legitimate concerns with Lee’s arguments about the method of execution and that the federal courts should have time to hear them. Her opinion concluded with harsh words, saying that the court acted to “inflict the most irreparable of harms without the deliberation such an action warrants.”
The court’s action this morning is another exhibit in how different the court is now that Bret Kavanaugh has replaced Anthony Kennedy. Though the court has continued (for now) to rule in favor of LGBTQ plaintiffs and strike down burdensome abortion restrictions, its death-penalty jurisprudence is one of the key differences with Kennedy off of the court. Particularly toward the end of his tenure as a justice, Kennedy was expressing more and more concerns about the constitutionality of the death penalty. He had reined in its use against minors, those with intellectual disabilities, and those who committed crimes other than murder. He never called for the death penalty’s general constitutionality to be reconsidered, but he was a tempered voice among the court’s nonliberal justices on the issue of state-sanctioned murder.
Without Kennedy on the court, the death penalty is full steam ahead, as today’s execution indicates. The court’s new conservative majority has no qualms rushing to judgment to allow the government to execute people, even in the face of serious constitutional challenges.
Today’s execution, with the Supreme Court’s blessing, is further proof that claims that Chief Justice Roberts is presiding over a liberal court are flat out wrong. Without Justice Kennedy to slow down the machinery of death, we are likely to see the court’s conservative justices bless an ever-increasing number of executions.