Cite as: 591 U. S. ____ (2020) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A9
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v.
WESLEY IRA PURKEY
ON APPLICATION FOR STAY OR VACATUR
[July 16, 2020]
The application for stay or vacatur presented to THE
CHIEF JUSTICE and by him referred to the Court is granted.
The District Court’s July 15, 2020 order granting a prelim-
inary injunction is vacated.
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
Two days ago, the Federal Government conducted its first
execution in nearly two decades. Today, it will conduct its
second. Both cases have come before us with the defend-
ants pointing to what I believe are serious legal defects of a
kind that have long plagued the administration of the death
penalty in the United States. See Glossip v. Gross, 576
U. S. 863, 908–948 (2015) (BREYER, J., dissenting).
The first case, that of Daniel Lewis Lee, revealed the in-
herent arbitrariness of the death penalty. Lee was sen-
tenced to death and his codefendant to life even though the
two men committed the same crime. See Barr v. Lee, ante,
at 2 (BREYER, J., dissenting); see also Glossip, 576 U. S., at
917 (“40 years of further experience [since Gregg v. Georgia,
429 U. S. 1301 (1976)] make it increasingly clear that the
death penalty is imposed arbitrarily”). Lee’s case also im-
plicated the problem of excessive delay and the risk of se-
vere and unnecessary suffering brought about by the Gov-
ernment’s chosen method of execution. Lee, ante, p. ___
(BREYER, J., dissenting). Today’s case, that of Wesley
2 BARR v. PURKEY
BREYER, J., dissenting
Purkey, raises similar problems.
Consider the problem of delay. See Lackey v. Texas, 514
U. S. 1045 (1995) (Stevens, J., memorandum respecting de-
nial of certiorari). Daniel Lee’s execution took place more
than 20 years after his trial. See Lee, ante, at 1 (BREYER,
J., dissenting). Wesley Purkey was sentenced to death over
16 years ago for a crime committed six years before that.
See United States v. Purkey, No. 4:01–cr–00308, Doc. No.
505 (WD Mo., Jan. 23, 2004); United States v. Purkey, 428
F. 3d 738, 745 (CA8 2005). Purkey is now 68 years old, frail,
and suffering from Alzheimer’s disease and other psychiat-
ric conditions. See Report of Dr. Bhushan Agharkar, in No.
1:19–cv–03570, Doc. No. 1–1 (D DC, filed Nov. 26, 2019);
Report of Dr. Jonathan DeRight, in No. 1:19–cv–03570–
TSC, Doc. No. 1-3 (D DC, filed Nov. 26, 2019). He has un-
dergone many years of what this Court has called the “im-
mense mental anxiety” of confinement on death row await-
ing an uncertain date of execution. In re Medley, 134 U. S.
160, 172 (1890) (referring to period of four weeks); see also
Glossip, 576 U. S., at 926–929 (BREYER, J., dissenting).
The delay itself undermines the penological rationales for
the death penalty: deterrence and retribution. Id., at 929–
933; see also Lee, ante, at 1 (BREYER, J., dissenting). I have
previously explained that prolonged delays likely reduce
the death penalty’s deterrent effect. See Glossip, 576 U. S.,
at 930–932 (dissenting opinion). And after so many years
have passed, executing the offender may not serve the in-
terest in retribution either. In Lee’s case, for example, the
victims’ relatives explained that Lee’s execution would only
“ ‘bring [the] family more pain.’ ” Demillo, Victims’ Rela-
tives Most Vocal Opponents of Man’s Execution, Washing-
ton Post, July 13, 2020; see also Robertson, She Doesn’t
Want Her Daughter’s Killer To Be Put To Death. Should
the Government Listen?, N. Y. Times, Oct. 29, 2019. And
Purkey alleges that, in the years since his sentencing, his
mental condition has deteriorated to the point where he no
Cite as: 591 U. S. ____ (2020) 3
BREYER, J., dissenting
longer understands why he is being executed. See Com-
plaint ¶¶ 20–108, in No. 1:19–cv–03570, Doc. No. 1, ¶¶ 20–
108 (D DC, filed Nov. 26, 2019). We have “question[ed] the
retributive value of executing a person” under such circum-
stances. Ford v. Wainwright, 477 U. S. 399, 409 (1986).
Purkey’s case also raises serious problems of proper pro-
cedure. See Purkey v. United States, —- F. 3d —- (CA7
2020). Simplifying the problem, imagine that a death-sen-
tenced defendant’s trial or sentencing suffered from his
lawyer’s constitutionally inadequate performance. Suppose
too that his lawyer in his initial habeas proceeding was
himself inadequate because he failed to raise the trial law-
yer’s initial constitutional inadequacy. Can the defendant
bring the matter up in a later habeas proceeding, say, a pro-
ceeding where he now has a better lawyer? He can some-
times do so where a state conviction is at issue. See Mar-
tinez v. Ryan, 566 U. S. 1 (2012); Trevino v. Thaler, 569
U. S. 413 (2013). But can he do so where, as here, a federal
conviction is at issue? In my view, the question, as pre-
sented here, is difficult. On the one hand, we ought not to
have a procedural system where challenges to a conviction
can go on endlessly. On the other hand, is it consistent with
criminal justice principles to allow the execution of a de-
fendant whose conviction rests upon the constitutional in-
adequacy of a lawyer, when no court has ever adjudicated
that inadequacy?
The question reflects the heightened need for reliability
in the death penalty context. See Glossip, 576 U. S., at 909–
910 (BREYER, J., dissenting). The risk of error that we may
accept as necessary to the functioning of the system more
generally is less tolerable when the punishment is, by defi-
nition, irreparable. Yet the requisite opportunities to chal-
lenge and then correct errors necessarily entail delay that,
in turn, undercuts the penological rationale for the death
penalty. In this context, it is especially difficult to reconcile
the competing values of finality and accuracy.
4 BARR v. PURKEY
BREYER, J., dissenting
I have written about these matters before. See, e.g., Price
v. Dunn, 587 U. S. ___ (2019) (opinion dissenting from de-
nial of application for stay); Jordan v. Mississippi, 585 U. S.
___ (2018) (opinion dissenting from denial of certiorari);
McGehee v. Hutchinson, 581 U. S. ___ (2017) (opinion dis-
senting from denial of application for stay of execution);
Reed v. Louisiana, 580 U. S. ___ (2017) (opinion dissenting
from denial of certiorari); Sireci v. Florida, 580 U. S. ___
(2016) (same); Tucker v. Louisiana, 578 U. S. ___ (2016)
(same); Boyer v. Davis, 578 U. S. ___ (2016) (same). I repeat
them here in summary form because the Federal Govern-
ment has resumed executions after a 17-year hiatus. And
the very first cases reveal the same basic flaws that have
long been present in many state cases. That these problems
have emerged so quickly suggests that they are the product
not of any particular jurisdiction or the work of any partic-
ular court, prosecutor, or defense counsel, but of the pun-
ishment itself. A modern system of criminal justice must
be reasonably accurate, fair, humane, and timely. Our re-
cent experience with the Federal Government’s resumption
of executions adds to the mounting body of evidence that
the death penalty cannot be reconciled with those values. I
remain convinced of the importance of reconsidering the
constitutionality of the death penalty itself.
Cite as: 591 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 20A9
_________________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL. v.
WESLEY IRA PURKEY
ON APPLICATION FOR STAY OR VACATUR
[July 16, 2020]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
In a matter of hours, the Government plans to put to
death Wesley Purkey, a 68-year-old federal inmate who has
Alzheimer’s disease and, according to a recent in-person
evaluation by a forensic psychiatrist, “lack[s] a rational un-
derstanding of the basis for his execution.” Complaint in
No. 1:19–cv–3570 (D DC), Exh. 1, Doc. No. 1–1, p. 12
(Purkey Psychiatric Report). Due to these developments
and rapid deteriorations in Purkey’s mental state, his coun-
sel filed an action in the United States District Court for
the District of Columbia. The complaint alleges that under
Ford v. Wainwright, 477 U. S. 399 (1986), Purkey is men-
tally incompetent to be executed and, at minimum, is enti-
tled to an evidentiary hearing to evaluate his mental com-
petence before the Government proceeds with his
execution. The District Court below preliminarily enjoined
Purkey’s execution, finding that the evidence Purkey has
put forth thus far established a likelihood of success on the
merits of his claims. The Government now seeks a stay or
vacatur of that preliminary injunction.
Such a stay is available “only under extraordinary cir-
cumstances.” Ruckelshaus v. Monsanto Co., 463 U. S. 1315,
1316 (1983) (Blackmun, J., in chambers); see also Mary-
land v. King, 567 U. S. 1301, 1302 (2012) (ROBERTS, C. J.,
in chambers) (listing stay factors). Accordingly, “[w]hen a
2 BARR v. PURKEY
SOTOMAYOR, J., dissenting
matter is pending before a court of appeals, it long has been
the practice of Members of this Court to grant stay applica-
tions only ‘upon the weightiest considerations.’ ” Fargo
Women’s Health Org. v. Schafer, 507 U. S. 1013, 1014
(1993) (O’Connor, J., concurring) (quoting O’Rourke v. Lev-
ine, 80 S. Ct. 623, 624 (1960)). Given the District Court’s
thorough analysis, and the serious questions that court
raised, I do not believe the Government has carried its “es-
pecially heavy” burden here. Packwood v. Senate Select
Comm. on Ethics, 510 U. S. 1319, 1320 (1994) (Rehnquist,
C. J., in chambers).
The Government devotes much of its application to argu-
ing that Purkey’s complaint alleges “core habeas” claims
that he was required to bring in his district of confinement,
the Southern District of Indiana, rather than the district in
which several federal officers responsible for his execution
are located, the District of Columbia. See, e.g., Application
for Stay or Vacatur 22. That is not clearly correct: When an
individual advances a Ford claim, “the only question raised
is not whether, but when, his execution may take place.”
Ford, 477 U. S., at 425 (Powell, J., concurring) (emphasis
deleted). That seems to make Purkey’s allegations more
akin to a method-of-execution claim than a “core habeas”
claim challenging the validity of his death sentence. In any
event, the Government’s objection here is not that Purkey
failed to raise a valid claim prohibiting his execution. In-
stead, the Government quibbles principally with the venue
in which Purkey filed that claim. In this posture, that pro-
test does not reflect an “extraordinary circumstanc[e ]” that
justifies overturning a preliminary injunction. Ruckel-
shaus, 463 U. S., at 1316. Nor does it support this Court’s
decision to shortcut judicial review and permit the execu-
tion of an individual who may well be incompetent.
Importantly, the Government does not appear to dispute
that Purkey may advance his competency claims in a
U. S. C. §2241 proceeding filed in the Southern District of
Cite as: 591 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
Indiana. It identifies no procedural barriers to such a suit.
Indeed, the Government proposed that the District Court
below transfer the case to the Southern District of Indiana
because, in the Government’s view, that is “the appropriate
forum for [Purkey’s] habeas action.” Defendant’s Motion to
Dismiss in No. 1:19–cv–3570 (D DC), Doc. No. 18, p. 46; see
also Defendant’s Opposition to Plaintiff’s Renewed Motion
in No. 1:19–cv–3570 (D DC), Doc. No. 26, p. 10 (noting the
Government’s argument to “transfer the case to the South-
ern District of Indiana”). 1 It is thus undisputed that there
is a District Court in which Purkey may properly pursue his
Ford claim and his request for a competency hearing.
Even if Purkey’s suit advanced habeas claims properly
pursued through a §2241 petition in his district of confine-
ment, it would be far from clear that the District Court be-
low lacked authority to issue a preliminary injunction while
it considered Purkey’s arguments more fully. As the Dis-
trict Court explained, it appears that “the question of the
proper location for a habeas petition is best understood as
a question of personal jurisdiction or venue” rather than of
subject-matter jurisdiction. Rumsfeld v. Padilla, 542 U. S.
426, 451 (2004) (Kennedy, J., concurring); see also Order in
No. 1:19–cv–3570 (D DC), Doc. No. 36, p. 9. Whether
Purkey should have filed in the District of Columbia or the
Southern District of Indiana, it would be passingly strange
to maintain, in the final hours before his capital sentence is
——————
1 To be sure, the Government maintains that if Purkey’s claims
sounded in habeas, the District Court below would have lacked jurisdic-
tion over a necessary party to the habeas proceeding: the warden of the
federal prison in Indiana where he is confined. Application for Stay or
Vacatur 16–17. But the Government does not argue that any such juris-
dictional problem would have persisted had Purkey simply filed his com-
plaint in the Southern District of Indiana or if his case were to be trans-
ferred to that District. And the Government acknowledged below that
“[a]t least one of the John Doe defendants” in this litigation was “the
warden of [Purkey’s] prison.” Defendant’s Motion to Dismiss in No. 1:19–
cv–3570 (D DC), Doc. No. 18, p. 43.
4 BARR v. PURKEY
SOTOMAYOR, J., dissenting
to be carried out, that his selection of venue should auto-
matically prevent him from developing what the District
Court found to be a likely meritorious Ford claim and re-
quest for a competency hearing. At a minimum, the Gov-
ernment has not carried its “especially heavy” burden of
demonstrating that its “core habeas” argument presents a
jurisdictional impediment to the District Court’s prelimi-
nary injunction.
The Government’s remaining contentions are even less
persuasive. In particular, the Government has not come
close to showing that the District Court erred in finding
Purkey likely to succeed on the merits of his Ford claim and
his request for a competency hearing. As noted, a forensic
psychiatrist who conducted an in-person evaluation of
Purkey in late 2019 averred that “[i]n [his] opinion, to a rea-
sonable degree of medical certainty, at the time of the eval-
uation, Mr. Purkey lacked a rational understanding of the
basis for his execution.” Purkey Psychiatric Report 11–12;
see also ibid. (“He lacks a true understanding or rationality
that the murder is the basis for his execution”). There is
extensive evidence that Purkey earnestly and steadfastly
believes that the Government plans to execute him not as
punishment for murder, but in retaliation for his “pro-
tracted jailhouse lawyering” to expose prison abuses. Com-
plaint in No. 1:19–cv–3570 (D DC), Exh. 15, Doc. No. 1–18,
p. 12; see also, e.g., Purkey Psychiatric Report 12 (“Mr.
Purkey has a fixed belief that he is going to be executed in
retaliation for his legal work, to prevent him from being a
hassle for the government. This prevents him from having
a rational understanding of the purpose of his execution”).
Purkey even believes his counsel to be “part of the conspir-
acy against him and his efforts to litigate against the
prison.” Complaint in No. 1:19–cv–3570 (D DC), Exh. 5,
Doc. No. 1–1, p. 16. Consistent with such evidence, individ-
uals have described Purkey’s history of delusions, halluci-
nations, and paranoia. See, e.g., Purkey Psychiatric Report
Cite as: 591 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
9. And in 2019, Purkey was diagnosed with Alzheimer’s
disease. Complaint in No. 1:19–cv–3570 (D DC), Exh. 3,
Doc. No. 1–1, pp. 1, 8–9. That is just a small snapshot of
the thousands of pages of evidence Purkey has already put
forth.
Against that extensive body of evidence, the Government
principally maintains that the forensic psychiatrist, who
unequivocally opined that Purkey lacked a rational under-
standing of the basis for his execution, was confused. See
Application for Stay or Vacatur 24. According to the Gov-
ernment, the psychiatrist misinterpreted Purkey’s failure
to understand the reason for the scheduling of his execution
as an inability to grasp the basis for his execution alto-
gether. But even a cursory review of the psychiatrist’s re-
port reveals no such muddling of concepts. While the psy-
chiatrist acknowledged that Purkey could “recite the fact
that his execution is for the murder of Jennifer Long,” the
psychiatrist continued that Purkey “lacks rational under-
standing of that fact” and can only “parro[t]” it “rather than
hav[e] a rational understanding” of it. Complaint in No.
1:19–cv–3570 (DDC), Exh. 1, Doc. No. 1–1, p. 13.
The Government then insists that, even accepting as true
Purkey’s evidence of “a history of mental illness” and “par-
anoid delusional thinking,” such evidence “does not demon-
strate incompetency under Ford.” Application for Stay or
Vacatur 27 (internal quotation marks omitted). But the
question before the District Court at the preliminary-in-
junction stage was not whether Purkey conclusively is una-
ble to comprehend the basis for his punishment. Instead,
the District Court needed only conclude that Purkey would
be likely to succeed in establishing a “ ‘substantial thresh-
old showing’ ” of incompetence to warrant a competency
hearing, Panetti v. Quarterman, 551 U. S. 930, 949 (2007)
(quoting Ford, 477 U. S., at 426), or his actual incompetence
to be executed. On this record, the District Court correctly
concluded that Purkey met this preliminary burden. The
6 BARR v. PURKEY
SOTOMAYOR, J., dissenting
Government’s cursory arguments regarding the ultimate
merits of Purkey’s claims do not reveal this case to be an
“extraordinary” one justifying the Court’s second-guessing
of the District Court’s highly factbound assessment.
Ruckelshaus, 463 U. S., at 1316.
Finally, there can be no serious dispute that the remain-
ing equitable considerations at issue heavily favor Purkey.
Although the Government and the family members of the
victim have a legitimate interest in punishing the guilty,
that interest must be measured against Purkey’s and the
public’s interest in ensuring that such punishment com-
ports with the Constitution. At the same time, proceeding
with Purkey’s execution now, despite the grave questions
and factual findings regarding his mental competency,
casts a shroud of constitutional doubt over the most irrevo-
cable of injuries.
* * *
Because the Government has not satisfied its “especially
heavy” burden of showing justification for staying or vacat-
ing the District Court’s preliminary injunction, Packwood,
510 U. S., at 1320, I respectfully dissent.