Thirteen Federal Executions Under the Trump Administration: What Was the Constitutional Price? Dan Noble

xiv

EMILY GUDWER

INTRODUCTION .....................................................................................2 Pandemic History in the United States .....................................2 United States Initial Response to COVID-19............................3 Separation of Powers Overview................................................4 STATE CASE ANALYSIS.........................................................................4 Michigan Supreme Court Rules that the EPGA is in Violation of the State of Michigan’s Constitution ................................4 Wisconsin Supreme Court Rules that Andrea Palm Overstepped her Authority When Issuing her State Order with Respect to COVID ........................................................8 Ohio Court of Common Pleas Rules that the State Health Director, Amy Acton, exceeded her Authority and Violated the Ohio State Constitution, Incidentally Creating a Separation of Powers Issue ..................................................9 Kansas Supreme Court Rules that the Legislative Coordinating Council Lacked Authority to Overrule Governor Kelly’s Order ..................................................................................10 Missouri United States District Court Judge, Stephen Clark, Acknowledges Separation of Powers Issue Relating to Missouri’s COVID-19 Stay at Home Orders......................12 CONCLUSION ......................................................................................13

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INTRODUCTION

The acute respiratory syndrome SARS-CoV-2 causes the disease known as the coronavirus or COVID-19.1 The first case of COVID19 was reported in Wuhan, China on December 31, 2019.2 In early 2020, the virus had made its way to the United States, with the first case being confirmed on January 20, 2020.3 On March 11, 2020, the World Health Organization officially declared a global pandemic, and states took immediate action.4 Before COVID-19, the United States was affected by the influenza pandemic, which stemmed from the H1N1 virus.5 In 1918 and 1919, an estimated 500 million people became infected with influenza, with 50 million infections resulting in death.6 Earlier than that, the United States was affected by the smallpox pandemic, and throughout history smallpox has taken an estimated 300 million lives in the 20th century.7 COVID-19 has proven to be an aggressive threat to a number of countries. As of November 28, 2020, there have been 268,864 confirmed deaths in the United States from COVID-19.8

Pandemic History in the United States

Looking at precedent for guidance on global pandemics, a significant historical case stands out. In Jacobson v. Massachusetts, the issue presented before the court was whether a state statute that

1. Coronavirus and COVID-19: What You Should Know, WebMD (Sept. 29, 2020), https://www.webmd.com/lung/coronavirus#:~:text=COVID%2D19%20is% 20a,to%2Dperson%20contact. 2. Michelle L. Holshue et al., First Case of 2019 Novel Coronavirus in the United States, NEJM (Mar. 5, 2020), https://www.nejm.org/doi/full/10.1056/NEJ Moa2001191. 3. Id. 4. Domenico Cucinotta & Maurizio Vanelli, WHO Declares COVID-19 a Pandemic, 91 Acta Biomed 157 (Mar. 19, 2020), https://www.mattioli1885jour nals.com/index.php/actabiomedica/article/view/9397/8659. 5. 1918 Pandemic (H1N1 virus), CDC: Centers for Disease Control and Prevention, https://www.cdc.gov/flu/pandemic-resources/1918pandemic-h1n1.html (last visited Dec. 2, 2020). 6. Id. 7. Colette Flight, Smallpox: Eradicating the Scourge, BBC (Feb. 17, 2011), https://www.bbc.co.uk/history/british/empire_seapower/smallpox_01.shtml. 8. Cumulative Confirmed Covid-19 Deaths, Our World in Data, https://our worldindata.org/explorers/coronavirusdataexplorer?facet=none&Metric=Confirme d+deaths&Interval=Cumulative&Relative+to+Population=false&Color+by+test+p ositivity=false&country=~USA.(last updated Feb. 2022).

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required mandatory vaccinations during the smallpox pandemic abridged the defendant’s constitutional rights.9 The defendant argued the 14th Amendment of the United States Constitution provides “that no State shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”10 The Supreme Court ruled that the state’s authority to enact this type of statute stems from what is commonly known as the state’s police power.11 The court explained:

Although this court has refrained from any attempt to define the limits of that power, yet it has distinctly recognized the authority of a State to enact quarantine laws and “health laws of every description;” indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other States. According to settled principles the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.12

United States Initial Response to COVID-19

As states started to react to the COVID-19 pandemic, governors across the country declared a state of emergency and issued stay-athome orders to protect public health. However, soon after, citizens started to retaliate, claiming that their individual rights were being violated with the continuous state of emergency orders: stay-at-home orders, limitations on gatherings, tight restrictions on travel, mandatory mask requirements, etc. Some citizens across the country claimed that, under the First Amendment of the United States Constitution, these orders violated their right to speech, assembly, and association. Other citizens claimed state orders violated their liberty and bodily autonomy guaranteed under the Fourteenth Amendment.

While there were numerous cases relating to the alleged violations of citizens’ constitutional rights, there were also challenges making their way to the state court systems. Such challenges

9. Jacobson v. Cmmw. of Massachusetts, 197 U.S. 11, 24 (1905). 10. Id. at 7–8. 11. Id. at 24–25. 12. Id. at 25.

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involved the separation of powers doctrine and whether governors or state officials had the authority to issue, implement, and extend certain state orders. The central issue in many of these cases was whether these individuals overstepped their governmental role. During a crisis such as COVID-19, these issues may seem minor –but we must not be ignorant as to the impact of such violations on our individual liberties. These essential rights depend on each branch of government to adhere to their own responsibilities and position of authority.

Separation of Powers Overview

Separation of powers is the divide between the three branches of government: legislative, executive, and judicial.13 By dividing the government into three branches, it provides a checks and balances system to ensure that the federal and state governments do not abuse or overstep their authority.14 Each branch must act independently and depend on one another to perform their responsibilities.15 As a result, each branch is able to hold one another accountable, providing that the power and control does not lie in the hands of one branch; thus, creating government equality.

Contrary to what some may think, a strict separation of powers is more, not less, important during a time of crisis. Just because an emergency policy is painful or unpopular does not necessarily mean it is illegal. But emergency power is not unlimited. And policies must be enacted in a proper way, compliant with the checks and balances inherent in the separation of powers.16

STATE CASE ANALYSIS

Michigan Supreme Court Rules that the EPGA is in Violation of the State of Michigan’s Constitution

Michigan’s governor, Gretchen Whitmer, has generated a significant amount of media attention for the various executive orders

13. Separation of Powers – An Overview, NCSL: National Conference of State Legislatures (May 1, 2019), https://www.ncsl.org/research/about-state-legislatures /separation-of-powers-an-overview.aspx. 14. Id. 15. Id. 16. Glenn Roper, Government should uphold separation of powers during COVID-19, Pacific Legal Foundation (July 20, 2020), https://pacificlegal.org /uphold-separation-of-powers-during-covid-19/.

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she issued and the scope of her state of emergency during the COVID-19 pandemic. Governor Whitmer initially declared a state of emergency on March 10, 2020.17 She then issued a stay-at-home order on March 24, 2020.18 On April 7, both chambers of the Legislature adopted Senate Concurrent Resolution No. 24 (2020), validating the Governor’s state of emergency declaration, and setting an expiration date of April 30, 2020, consistent with the Emergency Management Act (EMA).19

On April 9, Governor Whitmer issued EO 2020-42, rescinding EO 2020-21. Whitmer expressed that COVID-19 “continued to be aggressive and a threat to public health.”20 EO 2020-42 extended her stay-at-home order until April 30, 2020.21 “On April 24, 2020, the Governor issued EO 2020-59, rescinding EO 2020-42.”22 Michigan’s stay-at-home order was extended until May 15, 2020, pursuant to EO 2020-59.23

Under the EMA, Governor Whitmer requested that the Legislature extend Michigan’s state of emergency on April 27, 2020 – the Legislature declined Whitmer’s request.24 The Legislature disagreed with the governor and “sought to reopen Michigan businesses subject to precautionary measures recommended by the Centers for Disease Control and Prevention.”25 On April 30, 2020, Governor Whitmer vetoed 2020 SB 858, which was submitted by the Legislature for her approval.26 In May of 2020, a dispute between Governor Whitmer and the Legislature arose, questioning Whitmer’s authority to “issue, implement, and extend those emergency-based [executive orders].”27 In House of Representatives and Senate v. Governor, the Legislature claimed that Whitmer violated the EMA, the EPGA, the State of Michigan’s Constitution, and the Separation of Powers Clause.28

17. H.R. and Sen. v. Gov., 333 Mich. App. 325, 336 (Mich. App. 2020) (rev ’d

in part sub nom. H.R. v. Gov.). 18. Id. 19. Id. at 335. 20. Id. 21. Id. 22. Id. 23. Id. 24. Id. 25. Id. 26. Id. 27. Id. at 330. 28. Id. at 329.

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The Court of Appeals found that under the Emergency Powers of the Governor Act (EPGA), Whitmer’s declaration of a state of emergency, the extensions, and her related executive orders fell within the scope of her authority.29 Furthermore, the court held that the “EPGA does not violate the Separation of Powers Clause.”30 Lastly, the court declined to address EMA and stated that by ruling on EPGA, the EMA matters were moot.31

More recently, on October 2, 2020, the Supreme Court of Michigan issued a decision that Whitmer did not hold the power to declare a “state of emergency” after April 30, 2020, under the EMA.32 The court found the EPGA was unconstitutional under the State of Michigan and the EPGA could no longer provide Governor Whitmer emergency powers.33

Under the Michigan Constitution of 1963, “the powers of government are divided into three branches: legislative, executive and judicial.”34 Furthermore, no person shall overstep or exercise any power not belonging to them, unless provided in the Michigan Constitution.35 “The legislative power of the State of Michigan is vested in a senate and a house of representatives;” they possess the power to make the laws.36 The executive power lies in the governor, who possesses the power to carry out the laws made by legislation.37

The Michigan Legislature implemented the EPGA in 1945.38 This Act states that during a public crisis or public emergency, when public safety is imperiled, the governor may proclaim a state of emergency; furthermore, this act authorizes the governor to prescribe penalties for any violation.39

Concerning the EPGA, the Legislature asserted its intent was “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or

29. Id. at 365. 30. Id. at 359. 31. Id. 32. In re Certified Questions From U.S. Dist. Ct., W. Dist. of Michigan, S. Div., 506 Mich. 332, 372 (Mich. 2020). 33. Id. at 373. 34. Mich. Const. art. III, § 2. 35. Mich. Const. art. II, § 9. 36. Mich. Const. art. IV, § 1. 37. Id. at 367. 38. Id. at 331. 39. Id.

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actual public crisis or disaster.”40 The court found that the power that the governor was granted under the EPGA is exclusive, not inclusive.41

The emergency powers that are granted to the governor under the EPGA may be exercised until the governor declares “that the emergency no longer exists.”42 Contrary to the EPGA, in 1976 the Legislature enacted the EMA to “provide for planning, mitigation, response, and recovery from natural and human-made disasters within and outside” the State of Michigan.43 Furthermore, with respect to the duration of the governor’s emergency powers, the EMA provides that “if a governor wishes to extend an existing state of disaster or emergency beyond 28 days, the Legislature must approve the extension by resolution.”44 The EPGA provides the governor with emergency powers, including police powers which lie with the legislature, for an indefinite duration.45 However, the EMA provides the governor with the power to declare a state of emergency limited to 28 days.46 When comparing the governor’s state of emergency powers under the EPGA and the EMA there is a colossal conflict between the two acts.47

The Supreme Court of Michigan concluded that the EPGA was in violation of the Constitution of Michigan when it allowed the governor to exercise plenary police powers indefinitely – which was an unlawful delegation of legislative power to the executive branch, creating a separation of powers issue.48 Therefore, after April 30, 2020, Governor Whitmer no longer possessed authority to declare a state of emergency due to the COVID-19 pandemic under the EMA –which is still valid under the State of Michigan’s constitution.49

40. Id. at 332. 41. Id. 42. Id. at 336. 43. Emergency Mgmt. and Homeland Sec. Div. Michigan State Police, Michigan Emergency Management Act (June 2018), https://www.michigan.gov /documents/mspemd-Act_390_of_1976_7125_7.pdf. 44. H.R. and Sen. v. Gov., 333 Mich. App. 325, 336 (Mich. App. 2020) (rev ’d in part sub nom. H.R. v. Gov.). 45. In re Certified Questions From U.S. Dist. Ct., W. Dist. of Michigan, S. Div., 506 Mich. 332, 364 (Mich. 2020). 46. Id. at 342. 47. Id. at 356. 48. Id. at 372-73. 49. Id.

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Wisconsin Supreme Court Rules that Andrea Palm Overstepped her

Authority When Issuing her State Order with Respect to COVID

Wisconsin’s governor, Tony Evers, took immediate action by issuing a stay-at-home order in response to COVID-19.50 However, on April 16, 2020, Andrea Palm, the Department of Health and Services Secretary, issued Emergency Order 28.51 This specific order directed that all citizens of Wisconsin were “to stay home or at their place of residence with certain limited exceptions approved by Palm or risk punishment by up to 30 days imprisonment, or up to $250 fine, or both.”52

In early May, the Wisconsin Supreme Court ruled in Wisconsin Legislature v. Palm that Andrea Palm had overstepped her legal authority relating to Emergency Order 28.53 The Supreme Court expressed that they were not concluding that Palm did not possess authority to act during COVID-19.54 More specifically, the court stated that “Palm must follow the law that is applicable to state-wide emergencies.”55 The court further stated that “Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02 upon which Palm claims to rely.”56

This case is a prime example of a separation of powers issue resulting from state response to the COVID-19 pandemic. In Rebecca Grassl Bradley’s concurring opinion, she stated:

The secretary-designee of the Department of Health Services exceeded her powers by ordering the people of Wisconsin to follow her commands or face imprisonment for noncompliance. In issuing her order, she arrogated unto herself the power to make the law and the power to execute it, excluding the people from the lawmaking process altogether. The separation of powers embodied in our constitution does not permit this. Statutory law being subordinate to the constitution, not even the people’s representatives in

50. Wisconsin Legis. v. Palm, 942 N.W.2d 900, 905 (Wis. 2020). 51. Id. at 906. 52. Id. 53. Id. at 918. 54. Id. at 905. 55. Id. 56. Id.

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the legislature may consolidate such power in one person.57

Not only was this a significant move on Wisconsin’s part because they were one of the first states to have a stay-at-home order overruled, but at this time, the Coronavirus was rapidly spreading, and Wisconsin was one of the only states that did not have precautionary measures set in place to protect the state’s citizens once Palm’s order was overturned. It is vital to note that had Evers worked directly with the state’s Legislature to implement restrictions and create a proactive plan with respect to the above-referenced order, there would likely have been a different outcome in Wisconsin Legislature v. Palm, and a significant difference in the number of transmissions and deaths due to COVID-19 once the order was no longer in place.58

Ohio Court of Common Pleas Rules that the State Health Director,

Amy Acton, exceeded her Authority and Violated the Ohio State

Constitution, Incidentally Creating a Separation of Powers Issue

Ohio faced a similar separation of powers issue as Wisconsin. In Rock House Fitness, Inc. v. Acton, the plaintiffs sought a declaratory judgment ruling that Amy Acton, who is the State Health Director, violated the Ohio Constitution when issuing her stay-at-home orders relating to COVID-19.59 Judge Eugene A. Lucci ruled in favor of the plaintiffs.60 The plaintiffs argued that Acton’s order exceeded her authority “by legislating and directing public policy, rather than administering public policy,” violating separation of powers.61

Acton was granted certain authority under R.C. 3701.13, which provides in part: [t]he department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may

57. Id. at 920. 58. Glen Roper, Government should uphold separation of powers during COVID-19, Pacific Legal Foundation (July 20, 2020), https://pacificlegal .org/uphold-separation-of-powers-during-covid-19/. 59. Rock House Fitness, Inc. v. Acton, No. 20CV000631, 2020 WL 3105522, at *1 (Ohio Com.Pl.). 60. Id. at *5. 61. Id. at *2.

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declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established.62

It further provides that the department of health can implement orders or regulations to prevent the advancement of a transmissible or infectious disease.63

Acton ordered “non-essential businesses and operations must cease,” which would be effective on March 23, 2020, and all citizens were ordered to stay at their place of residence, with strict exceptions for those engaged in “essential activities, essential government functions, or to operate essential businesses.”64

After analyzing various definitions of the terms incorporated in Ohio’s statute, the Ohio Court concluded that Acton was quarantining all citizens of Ohio for much longer than 14 days and Acton did not possess the appropriate authority to “close all businesses, including the plaintiffs’ gyms which she deem[ed] nonessential for a period of two months.”65 The Ohio Court further stated, “she has acted in an impermissibly, unreasonable, and oppressive manner and without any procedural safeguards.”66 Similar to Andrea Palm, Amy Acton was not without power to act during a pandemic; Acton, however, created a separation of powers issue when failing to follow statutory language and acting beyond her authority, kindred to Andrea Palm.

Kansas Supreme Court Rules that the Legislative Coordinating

Council Lacked Authority to Overrule Governor Kelly’s Order

Kansas’s governor, Laura Kelly, “proclaimed a state of disaster emergency” in response to COVID-19 on March 12, 2020.67 The Legislative Coordinating Council (LCC) sought to revoke one of Kelly’s orders and she brought action against the Legislative Coordinating Counsel, the Kansas House of Representatives, and the Kansas Senate.68 Kelly had the authority to declare a state of disaster

62. Id. at *3 (emphasis added). 63. Id. 64. Id. at *2. 65. Id. at *4. 66. Id. 67. Kelly v. Legis. Coordinating Council, 460 P.3d 832, 835 (Kan. 2020). 68. Id. at 834.

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emergency under K.S.A. 48-924(b).69 The Legislature then extended Kelly’s declaration to May 1, 2020.70

On April 7, Governor Kelly used her K.S.A. 2019 Supp. 48925(b) powers to issue Executive Order 20-18, relating to her March 12th emergency proclamation.71 Executive Order 20-18 stated that mass gatherings – defined as any event, private or public, that would result in 11 people or more in a “confined or enclosed space” at one time – were currently prohibited to stop the spread of COVID-19.72 The following day, the LCC revoked Order 20-18 by a 5-2 vote.73

The Kansas Supreme Court held that the LCC did not have the authority to “act on behalf of the Legislature;” therefore, they did not have the power to overrule Kelly’s Order pursuant to clear statutory language.74 The LCC’s claim was that HCR 5025 granted power to the LCC to represent “Legislature when the Legislature was not in session.”75 However, HCR 5025 states that the governor must “apply to the State Finance Council for authorization for a one-time extension of a state of disaster emergency.”76

That language in section 1 of the resolution parallels K.S.A. 48924(b)(3). The resolution then states:

(2) following such State Finance Council action, the Legislative Coordinating Council, representing the Legislature when the Legislature is not in session pursuant to K.S.A. 46-1202: (A) Is authorized to ratify a declaration, terminate a state of disaster emergency, revoke an order or proclamation or assume any other power granted to the legislature pursuant to K.S.A. 48-924 or K.S.A. 2019 Supp. 48-925.77

In a nutshell, the State Finance Council must first take action before the LCC is provided authority under HCR 5025(2).78 Subsection (2) of HCR 5025(2) explicitly states, “following such State Finance Council action” and considering the State Finance Council did not take action, HCR 5025 could not provide the LCC authority to overrule Kelly’s executive order.79 When the LCC

69. Id. at 835. 70. Id. at 836. 71. Id. at 837. 72. Id. 73. Id. 74. Id. at 839. 75. Id. 76. Id. at 838. 77. Id. 78. Id. at 839. 79. Id.

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revoked Kelly’s order, it resulted in a significant separation of powers issue.

Missouri United States District Court Judge, Stephen Clark,

Acknowledges Separation of Powers Issue Relating to Missouri’s COVID-19 Stay at Home Orders

In Missouri, United States District Court Judge, Stephen R. Clark, denied plaintiffs’ motion in SH3 Health Consulting, LLC, et al., v. St. Louis County Executive Dr. Sam Page, et al., in which they claimed that the state orders were unconstitutional when their businesses were temporarily shut down due to Missouri’s stay at home orders.80 The plaintiffs sought a temporary restraining order, preventing the defendants from enforcing the orders.81 Judge Clark quoted Jacobson v. Massachusetts, a historical case, stating that the orders do not violate the constitution because they have “a real and substantial relation to the goal of stemming the tide of the publichealth pandemic, and they are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”82

Judge Clark spoke on behalf of the separation of powers issue that arose in this case. He expressed his sympathy with respect to the hardships that each business owner will face due to the stay-at-home orders; however, he stated that “the decisions of whether, when, and how to exercise emergency powers amidst a global pandemic belong not to the unelected members of the judicial branch but to the elected officials of the executive branch.”83

Furthermore, Clark quoted the Federalist Papers, stating that the separation of powers requires that each branch of government “stay in their lane” and even though Clark sits in a position of power and has the authority of judicial review, it does not mean he can override judgments made by other branches of government.84 “When courts substitute their judgment for judgements made by the executive or legislative branches, courts exceed their authority, veritably swerving into the lanes of the other branches, and violating the Constitutional separation of powers.”85 This case provides a very transparent

80. SH3 Health Consulting, LLC v. Page, 459 F. Supp. 3d 1212, 1217 (E.D. Mo. 2020). 81. Id. 82. Id. 83. Id. at 1220. 84. Id. 85. Id.

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simplification of how important it is for each branch of government to refrain from acting beyond their issued authority – even during a pandemic, respecting the people and their liberties and providing an equal, sustained government.

CONCLUSION

A separation of powers issue can arise in a variety of different ways, as evidenced through the multiple cases we have encountered during COVID-19. Without the separation of powers, our country would result in corruption and loss of control by the people. The structure and establishment of the separation of powers creates the checks and balances that are essential to providing the people a strong, uniform government, ensuring government power is distributed equally. In short, the separation of powers provides and protects individual liberty.

COVID-19 has had a disastrous impact on, not only the United States of America, but the world, in a variety of different aspects. “By the time the coronavirus is placed under control, which could be months or even years from now, its effect on constitutional jurisprudence . . . will likely be profound.”86

Even during a time of crisis, we must look to the founding fathers for guidance and respect what they have put in place for us, the people of America, and what each state’s constitution expresses. James Madison brilliantly stated, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”87

86. John Curran, Jake Gardener & Jeffery Ding, COVID-19 and the Constitution: How the Bill of Rights Is Being Tested by the Coronavirus (May 29, 2020), https://www.law.com/newyorklawjournal/2020/05/29/covid-19-and-the-con stitution-how-the-bill-of-rights-is-being-tested-by-the-coronavirus/. 87. The Federalist Papers, No. 47, p. 139 (2d ed. 1981).

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DAN NOBLE

INTRODUCTION ...................................................................................16 BACKGROUND.....................................................................................18 Cruel and Unusual Punishment Jurisprudence ......................18 Executions Administered by Lethal Injection..........................22 Challenging a Lethal Injection Method on VIII Amendment Grounds ..............................................................................24

ANALYSIS 25 The D.C. District Court Found the Prisoners Were Likely to Succeed on Their VIII Amendment Claim and Granted Their Preliminary Injunction..............................................25 The Supreme Court Granted Certiorari Before this Decision Made its Way Through the Appellate System and Vacated the Injunction Establishing Precedent for the Remaining Prisoners’ Claims.................................28 Following Lee, the Next Prisoner Was Executed Before His Legal Claims Were Fully Adjudicated. .................30 The Compounded Version of Pentobarbital Likely Caused Unnecessary Pain and Suffering That Was Downplayed by Those in the Execution Chambers. .....................................31 CONCLUSION.. ....................................................................................33

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INTRODUCTION

In July of 2019, Attorney General William Barr announced that the federal government would resume executing prisoners on death row after “a nearly two-decade lapse.”1 The Department of Justice proposed an addendum to a 10-year-old execution protocol.2 The Federal Execution Protocol replaced the three-drug method of execution with a single-dose injection of pentobarbital.3

The announcement sent shockwaves through the legal community. AG Barr listed the names of selected prisoners on death row and the scheduled dates for their executions.4 Most of the names Attorney General Barr listed had been on death row for 15 to 20 years.5 The prisoners all had one thing in common: they had committed heinous and violent crimes.6 All of whom had been convicted of murdering vulnerable members of society.7 On its face, the decision by AG Barr appeared to be based on seeking justice for the victims’ families.8 However, the Republican Party has long favored the death penalty, most recently President Donald Trump, who was particularly fond of resuming federal executions.9 President Trump made it part of his Presidential campaign in 2016 when he announced, “Death penalty all the way.”10 Resuming federal executions reminded critics of Trump’s 1989 call to execute teenagers who were wrongly convicted of murder in New York.11

1. Press Release, DOJ, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, (July 25, 2019), https://www.justice.gov /opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decadelapse. 2. Id. 3. Id. 4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 9. Issac Arnsdorf, Inside Trump and Barr’s Last-Minute Killing Spree, ProPublica, (Dec. 23, 2020, 5:53 PM EDT), https://www.propublica.org/article/ inside-trump-and-barrs-last-minute-killing-spree. 10. Id. 11. Rebecca Morin,’They Admitted their Guilt’: 30 Years of Trump’s Comments About the Central Park Five, USA TODAY (last updated June 20, 2019, 6:14 AM), https://www.usatoday.com/story/news/politics/2019/06/19/whattrump-has-said-central-park-five/1501321001/.

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The only issue that could have thwarted the Trump Administration’s plan was the creation of its version of pentobarbital to carry out the executions. Prisoners on death row began filing lawsuits and appeals in an attempt to stay their executions.12 These were viable legal challenges that did not appear to be a frivolous attempt to stall or delay their executions. The prisoners presented plausible medical evidence that an injection of pentobarbital could cause flash-pulmonary edema.13 Pulmonary edema interrupts breathing when the lungs become filled with fluid.14 This can cause the prisoner to feel “‘sensations of drowning and asphyxiation’ resulting in ‘extreme pain, terror[,] and panic.’”15

Fast forward a year, no prisoners were executed. Litigation continued over the new protocol, there was competing medical testimony as to whether the new drug was inflicting unnecessary pain and anguish on the prisoners, and the COVID-19 pandemic had disrupted the judicial system. The Trump Administration saw its chance to make a statement on behalf of the conservative-leaning population of America slipping away.

The election was approaching, and the challenger, current President Joe Biden, had already pledged to be against the death penalty. Luckily, the majority of the Supreme Court, with three Trump appointees, cleared the way for the executions. What followed was 13 executions in six months, which was an unprecedented spree of federal executions in United States’ history.16 The majority of the executions were carried out after the November 2020 election.17 An almost unimaginable move by a Presidential Administration during a lame-duck period.

Death penalty advocates may argue this was overdue justice. But the reality is these were hastily carried out executions motivated by political interests. This leads one to question whether these executions deserved more attention from the U.S. Supreme Court.

12. In Re Federal Bureau of Prisons’ Execution Protocol Cases, 471 F. Supp. 3d 209, 216 (D.D.C. 2020). 13. Id. at 217. 14. Id. at 218. 15. Id. 16. Arnsdorf, supra note 9. 17. Id.

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BACKGROUND

The death penalty has long been a part of our Nation’s history. Its origins can be traced back to England, where torture and imprisonment were the preferred methods of achieving societal and governmental goals. Indeed, legal and historical scholars believe the cruel and unusual portion of the VIII Amendment was a way for the U.S. to prevent similar methods of punishment from occurring in the young country.18 The constitutional guard against cruel and unusual punishment has long been intertwined with controversies surrounding methods of administering the death penalty.

Cruel and Unusual Punishment Jurisprudence

“[N]or cruel and unusual punishments inflicted.”19 This simple phrase has been the subject of several landmark United States Supreme Court cases attempting to interpret the amendment and application to executing prisoners.

Beginning with In re Kemmler, the petitioner was convicted of murder, and he was sentenced to death under a New York statute.20 His appeal went to the Supreme Court, challenging the constitutionality of electrocution as a method for administering death.21 The Court agreed with the New York courts that determined a method for administering the death penalty is not assumed to be cruel because it is new and unusual.22 This case established the principle that if the legislature has a “humane purpose” for choosing the execution method, then it is not unconstitutional if it is unusual.23 Further, the Court stated, “[p]unishments are cruel when they involve torture or lingering death; but the punishment of death is not cruel within the meaning of that word as used in the constitution.”24

The Supreme Court was not challenged with an VIII Amendment case involving capital punishment until the mid-Twentieth Century. The next landmark case, Weems v. U.S., was one of the first notable cases to overturn a statutory punishment because it was excessive for

18. Furman v. Georgia, 408 U.S. 238, 319 (1972) (Marshall, J., concurring). 19. U.S. Const. amend. VIII. 20. In re Kemmler, 136 U.S. 436, 439 (1890). 21. Id. at 437. 22. Id. at 443. 23. Furman, 408 U.S. at 323 (Marshall, J., concurring). 24. Kemmler, 136 U.S. at 447.

2022] FEDERAL EXCLUSIONS 19

the crime committed.25 The Court provided that the VIII Amendment and the Constitution cannot be viewed “only of what has been, but of what may be.”26 The Court acknowledged that the legislature, such as purporting punishment to crime, is enacted in response to crimes that have been committed.27 However, the Court went on to say it is vital that a principle, such as the prohibition of administering cruel and unusual punishment, “[B]e capable of wider application than the mischief which gave it birth.”28 The Court stated further, “The clause of the Constitution . . . may be therefore progressive, and is not fastened to the obsolete, but may acquire meaning as public opinion becomes enlightened by humane justice.”29 These court opinions serve as important dicta for future courts tasked with applying the VIII Amendment to capital punishment cases.

The next landmark case backtracked the zealous principles stated in Weems. In State of La. ex rel. Francis v. Resweber, the Court was required to address if it was cruel and unusual punishment to execute a prisoner after a failed execution attempt.30 The petitioner was convicted of murder and sentenced to death.31 However, on the date of his execution, the electricity did not kill him.32 For an unknown reason, the electrical current that coursed through his body did not result in death, and he challenged a second execution attempt on VIII Amendment and V Amendment double-jeopardy grounds.33

The Court did not find any constitutional violation by executing the prisoner a second time.34 It said, “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.”35 The decision appeared to align with the reasoning of In re Kemmler, that the method chosen by the legislature is deemed to be humane; a rare

25. Weems v. U.S., 217 U.S. 349, 382 (1910). 26. Id. at 373. 27. Id. 28. Id. at 373. 29. Id. at 378. 30. State of La. ex rel. Francis v. Resweber, 329 U.S. 459, 460 (1947). 31. Id. at 459. 32. Id. at 473. 33. Id. at 461. 34. Id. 35. Id. at 464.