Barr v. Lee
591 U.S. 979
SCOTUS2020Background
- Four federal prisoners (all convicted decades earlier of murdering children) exhausted direct and collateral review and faced imminent federal execution dates under a new single‑drug lethal‑injection protocol using pentobarbital sodium.
- The Federal Government adopted a single‑dose pentobarbital protocol in 2019 to resume federal executions after a long hiatus.
- Respondents alleged the protocol likely causes "flash pulmonary edema," producing sensations of drowning or asphyxiation and thus violates the Eighth Amendment; they submitted expert declarations and sought emergency injunctive relief.
- Hours before the first scheduled execution, the District Court granted a preliminary injunction, finding respondents likely to succeed on their Eighth Amendment claim and identifying alternative methods.
- The Supreme Court, per curiam, vacated the District Court’s preliminary injunction, holding respondents had not shown a likelihood of success on the merits and emphasizing the high bar for method‑of‑execution challenges and the exceptional nature of last‑minute stays.
- Justices Breyer and Sotomayor (joined by others) dissented, arguing the Court’s emergency intervention curtailed meaningful fact‑finding and appellate review and raised substantial concerns about arbitrariness, delay, and the method’s constitutionality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether use of pentobarbital in the 2019 federal protocol violates the Eighth Amendment (method‑of‑execution) | Pentobarbital likely causes flash pulmonary edema causing extreme pain and terror, so protocol is cruel and unusual | Pentobarbital renders a person insensate and any pulmonary edema occurs after insensibility or death; widely used and less risky than alternatives | Vacated injunction; plaintiffs failed to show likelihood of success on the Eighth Amendment claim |
| Whether a last‑minute preliminary injunction was appropriate before full fact‑finding and appellate review | Emergency injunction needed to prevent irreparable harm (painful executions) and allow resolution of contested, fact‑heavy claims | Last‑minute stays are exceptional; courts should not disrupt lawful executions absent a strong showing | Supreme Court emphasized high threshold for last‑minute stays and denied relief, permitting executions to proceed |
| Reliance on precedent and practice regarding pentobarbital’s constitutionality | Earlier cases do not control because new expert evidence shows substantial risk of pain with this protocol | Pentobarbital has been adopted by several states, used in many executions without incident, and repeatedly upheld by courts | Court gave weight to prior approvals and widespread use, finding plaintiffs’ novel evidence insufficient to overcome precedent |
| Procedural impact: effect of vacatur on statutory/APA claims and appellate review | Vacatur forecloses meaningful review of APA and statutory challenges and bypasses appellate fact‑finding | Government asserted urgency and finality of scheduled executions justify relief | Supreme Court’s vacatur allowed executions to proceed; dissenters argued this prematurely cut off review |
Key Cases Cited
- Bucklew v. Precythe, 139 S. Ct. 1112 (2019) (high bar for method‑of‑execution claims; Court has not held a method unconstitutional)
- Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017) (upheld pentobarbital‑based execution protocol against Eighth Amendment challenge)
- Zink v. Lombardi, 783 F.3d 1089 (8th Cir. 2015) (affirmed lethal‑injection protocol’s constitutionality)
- Gissendaner v. Commissioner, 779 F.3d 1275 (11th Cir. 2015) (rejected Eighth Amendment challenge to execution procedure)