The U.S. Supreme Court ruled early Tuesday the federal government can carry out its first executions in 17 years, dismissing a lower court injunction calling for the judicial system to have more time to review whether the method of execution violates constitutional protections against cruel and unusual punishment.
Lawyers for the two men whose executions were scheduled for later this week and one set to die next month argued that pentobarbital, the powerful sedative used in the procedure, could cause a type of respiratory distress with the sensation of drowning or suffocating.
The Supreme Court’s 5-4 majority rejected that argument, saying the drug has been adopted by individual states that carry out their own executions and that more than 100 people have been put to death that way “without incident.”
“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 majority wrote. “The plaintiffs in this case have not made the showing required to justify last-minute intervention by a Federal Court.”
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg and Justice Elena Kagan, said in a dissenting opinion that the majority had accepted the government’s “artificial claim of urgency” and rushed the review process.
“Today’s decision illustrates just how grave the consequences of such accelerated decision making can be,” Kagan said. “The Court forever deprives respondents of their ability to press a constitutional challenge to their lethal injections, and prevents lower courts from reviewing that challenge.”
Justice Stephen Breyer, also joined by Ginsburg, suggested in his dissent that the court may need to examine the constitutionality of the death penalty itself.
Lee was originally scheduled to be executed Monday afternoon, but the lower court issued its injunction hours before that happened. It is not clear when his execution will be rescheduled. Lee was convicted of murdering a family of three, including an 8-year-old girl, in 1996.
The execution of Wesley Ira Purkey is scheduled for Wednesday, followed by the execution of Dustin Lee Honken on Friday.
Keith Dwayne Nelson is scheduled to be put to death August 28.
The federal government has executed three people since reinstating the death penalty in 1988, with the last happening in 2003.