Gorsuch’s First Major Vote Breaks Tie to Allow Arkansas Execution

Judge Neil Gorsuch / Getty Images


New Supreme Court Justice Neil Gorsuch cast the deciding vote Thursday to permit Arkansas to proceed with the execution of Ledell Lee.

The state intends to carry out at least three more executions before its supply of a controversial execution drug expires, Bloomberg reported.

Gorsuch joined the right of the court–Justices Roberts, Thomas, and Alito–as well as Republican-appointed swing-vote Anthony Kennedy in voting to allow the execution to go forward. The court's liberal wing–Justices Ginsburg, Breyer, Sotomayor, and Kagan–dissented, each voting to grant at least one of the stays.

"Apparently the reason the state decided to proceed with these eight executions is that the ‘use by' date of the state's execution drug is about to expire," wrote Justice Breyer in explaining his vote. "That factor, when considered as a determining factor separating those who live from those who die, is close to random."

Lee's execution was one of several halted by lower courts that were subsequently allowed to go forward by the Supreme Court. Justice Samuel Alito, who is responsible for emergency appeals from Arkansas, initially ordered a temporary hold to allow consideration of new filings by Lee.

Lee, who had consistently maintained his innocence, was seeking DNA tests that his lawyers said could prove his claim.

The court had earlier in the week declined to step in and overturn the Arkansas Supreme Court's stay of execution in the case of two condemned men whose cases bear resemblance to an Alabama case the Supreme Court will soon consider.

Initially, Arkansas had intended to put Lee and seven other men to death in the span of just 11 days, racing against the clock of the expiration of one of the drugs in the state's chemical execution cocktail. The pace prompted several legal challenges, resulting in the executions being stayed by lower courts. Gorsuch and his colleagues' votes overrode these stays, rejecting arguments that the pace and manner of Arkansas' executions made them unjust.

The potentially expiring drug is the powerful sedative Midazolam, which has drawn criticism because of its involvement in several botched executions, notably the death of Clayton Lockett in Oklahoma in 2014. The drug can allegedly cause torturous executions, with condemned prisoners visibly twisting and contorting in pain.

The Supreme Court examined the use of Midazolam in the 2015 case Glossip v. Gross, ultimately ruling that its use did not violate the Eight Amendment's prohibition on "cruel and unusual punishment." Nonetheless, the condemned men's attorneys argued that the use of Midazolam might lead to an unnecessarily painful death, especially given the rate at which the executions were to be carried out. According to journalists present, Lee exhibited no visible response after the lethal injection was administered.

Lee was convicted and sentenced to death for the 1993 murder of Debra Reese, who he robbed, strangled, and beat to death with a tire iron. Lee's family members were present at the execution, and said they believed Lee deserved to be executed for his crime.

Lee was pronounced dead at 11:56 PM CDT on Thursday. He is the first inmate Arkansas has executed since 2005.

Charles Fain Lehman

Charles Fain Lehman   Email Charles | Full Bio | RSS
Charles Fain Lehman is a staff writer for the Washington Free Beacon. He writes about policy, covering crime, law, drugs, immigration, and social issues. Reach him on twitter (@CharlesFLehman) or by email at lehman@freebeacon.com.

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