![handle is hein.journals/uchidial89 and id is 1 raw text is: 02/01/21 U. Chi. L. Rev. Online *1
WILLFULLY BLIND TO THE MACHINERY OF DEATH: THE STATE OF
EXECUTION CHALLENGES AFTER BARR V. LEE
Jay Clayton
The Supreme Court has never invalidated a [ ] chosen procedure for
carrying out a sentence of death as the infliction of cruel and unusual
punishment. From the firinsqua, to the electric chair, to an
assortment of lethal injection protocols, it has consistently rejected
Eighth Amendment challenges to methods of execution.
Moreover, in recent years the Court has placed an additional hurdle in
front of death row prisoners challenging their executions. Even
assuming that the planned method of execution is unconstitutionally
painful, the Court held in Glossi _Gross (2015) that a prisoner must
identify an alternative method of execution that is feasible, readily
implemented, and ... significantly reduce[s] a substantial risk of
severe pain.1 In other words, a planned method of execution does not
violate the Eighth Amendment unless the death row prisoner can
establish both that the method poses a substantial risk of severe pain
and that this pain is intolerable in comparison to known and available
alternatives.
Given this background, the Supreme Court's opinion last summer in
Barr vLee (2020), vacating U.S. District Court Judge Tanya S.
Chutkan's uling that the federal government's planned execution
protocol constituted cruel and unusual punishment, may come as no
surprise. As five members of the Court reasoned in a brief, per curiam
opinion issued in the middle of the night, the planned method of
execution-a single-drug protocol consisting of a massive dose of the
sedative pentobarbital sodium-was similar to execution protocols
adopted by multiple states and upheld against Eighth Amendment
challenge by several courts of appeals. Additionally, the Court had
previously rejected a challenge to the use of pentobarbital in the
execution of a prisoner with a unique medical condition in Bcklew v.
PL rcv /he (2019). Perhaps even more astoundingly, the district court
issued its opinion on the morning of the first scheduled execution. A
more last-minute reprieve would be hard to find.
Indeed, both proponents and critics of the Supreme Court's death
penalty jurisprudence have generally agreed that the result in Lee was
inevitable. The government, for example, argued in its briefing that
Bucklew controlled, and Deputy Attorney General Jeffrey A. Rosen
later took to the pages of the New York Times to call the plaintiffs'
1 This language stems from an earlier opinion, Baze _v.s (2008); however,
it did not carry a majority of the Court until Glossip.](ViewImageLocal?handle=hein.journals/uchidial89&div=1&collection=&method=preview&ext=.png&size=3)
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