The recent barrage of federal executions has reignited Justice Stephen Breyer’s concerns and conclusions about the constitutionality of the death penalty. In United States v. Dustin John Higgs, Justice Breyer signed on to Justice Sonia Sotomayor’s dissent and echoed her reasoning against the Court’s decision to vacate the stay of execution issued by a January 13, 2021 order of the U.S. Court of Appeals for the Fourth Circuit. Higgs’s death on January 15, 2021 was the thirteenth federal execution since July 2020, and followers of court news will recognize the familiar argument against the death penalty that Justice Breyer advances, adjacent to Justice Sotomayor’s impassioned dissent.
In his dissent in Higgs, Justice Breyer urges readers to “[c]onsider some of the other questions that the federal death penalty cases have raised,” and discusses the constitutionality of executing a defendant even when presented with evidence that they have an intellectual disability or have filed habeas petitions raising potentially meritorious—but unresolved—issues. Additionally, Justice Breyer reflects on the dangerous consequences of executing prisoners with pentobarbital, which experts have said subjects prisoners to a “sensation of drowning akin to waterboarding.” This effect could be amplified by the lung damage caused by COVID-19, which Mr. Higgs contracted prior to his execution. (Of note, the executions at the federal prison in Terre Haute, Indiana have been called “super-spreader” events in light of the large number of people who witnessed or were involved in the executions later testing positive for COVID-19. In addition, a widespread outbreak of COVID-19 devastated federal death row shortly after the November 2020 executions took place.)
Justice Breyer does not let the constitutional issues presented by Higgs up for air, and asks:
- To what extent does the Government’s use of pentobarbital for executions risk extreme pain and needless suffering? See Lee, supra, at ___ (BREYER, J., dissenting) (slip op., at 2).
- Should a court apply contemporary diagnostic standards to determine whether an inmate is intellectually disabled at the time of his execution, such that the execution is unlawful? See Bourgeois v. Watson, ante, p. ___.
- Is a defendant’s second habeas challenge to his death sentence subject to the demanding standard for successive challenges, even though Government conduct prevented him from being able to bring those claims in his first habeas petition? See Bernard v. United States, ante, p. ___.
Given these pertinent questions, Justice Breyer asserts that “judges [must] consider and resolve challenges to an inmate’s conviction and sentence,” since death sentences are final and severe. He explains that Higgs, alongside other federal capital cases, are “examples that illustrate the difficulties of administering the death penalty consistent with the Constitution.” Justice Breyer also believes that the length of time prisoners spend on death row prior to execution (recent federal death penalty cases have taken 12 to 21 years to finalize, from conviction to completion), along with other issues, “calls into question the constitutionality of the death penalty itself.”
Simultaneously, he criticizes the rapid pace at which the Government has sought to execute federal death row prisoners, and contends that the Court unduly authorized the Government to evade the traditional appellate review process to ensure Higgs’s execution would proceed. Justice Breyer argues that, by vacating the stay of execution issued by the Fourth Circuit prior to that Circuit’s resolution of Mr. Higgs’s case, the Court significantly departed from ordinary practice. With these concerns in mind, Justice Breyer joined Justices Sotomayor and Kagan in dissenting from the Court’s decision to vacate the stay and grant the Government’s unusual application for judgment before writ of certiorari.