Barr v. Lee

Unless and until the Supreme Court decides that the use of single-dose Pentobarbital as the Federal Government’s lethal injection protocol constitutes cruel and unusual punishment in violation of the Eighth Amendment, that proposition will not support a preliminary injunction of scheduled executions.

Hours before the scheduled executions of four prisoners, who had been sentenced to death for murdering children, the District Court preliminarily enjoined all four executions reasoning that that using Pentobarbital probably constitutes cruel and unusual punishment, violating the Eighth Amendment. On application for vacatur, the Supreme Court vacated the District Court’s order. The Court reasoned that, because the prisoners did not establish that they were likely to meritoriously succeed on their Eighth Amendment claims, vacatur of the District Court’s injunction was appropriate and the executions should proceed as planned. In addition to the fact that the lethal injection protocol was upheld in 2019, the Court explained that Pentobarbital was adopted by five of the States that still implement the death penalty,  was used in 100 executions, without incident, was repeatedly invoked as less risky and painful alternative, by prisoners, than the lethal injection protocols in other jurisdictions, and numerous Courts of Appeals have upheld its use against similar Eighth Amendment challenges. VACATED.