United States v. Higgs

Cite as: 592 U. S. ____ (2021) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 20–927 (20A134)
_________________

UNITED STATES v. DUSTIN JOHN HIGGS
ON PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT AND APPLICATION TO VACATE STAY
[January 15, 2021]

The petition for writ of certiorari before judgment to the
United States Court of Appeals for the Fourth Circuit is
granted. The December 29, 2020 order of the United States
District Court for the District of Maryland is reversed, and
the case is remanded to the Court of Appeals with instruc-
tions to remand to the District Court for the prompt desig-
nation of Indiana under 18 U. S. C. §3596(a).
The application to vacate stay presented to THE CHIEF
JUSTICE and by him referred to the Court is granted. The
January 13, 2021 order of the Court of Appeals granting a
stay is vacated.
JUSTICE KAGAN would deny the petition for writ of certi-
orari before judgment and the application.
JUSTICE BREYER, dissenting.
Last July the Federal Government executed Daniel Lee.
Lee’s execution was the first federal execution in seventeen
years. The Government’s execution of Dustin Higgs tonight
will be its thirteenth in six months. I wrote in July that
“the resumption of federal executions promises to provide
examples that illustrate the difficulties of administering
the death penalty consistent with the Constitution.” Barr
v. Lee, 591 U. S. ___, ___ (2020) (dissenting opinion) (slip
op., at 2). The cases that have come before us provide sev-
eral of those examples.
I agree with much of what JUSTICE SOTOMAYOR says in
2 UNITED STATES v. HIGGS

BREYER, J., dissenting

greater detail about many of these cases. The present case
concerns an inmate infected with COVID–19 at the Federal
Correctional Institution in Terre Haute, Indiana. He ar-
gues, and the District Court agreed, that COVID–19 caused
him significant lung damage and that, as a result, execut-
ing him by injection of pentobarbital will “subject [him] to a
sensation of drowning akin to waterboarding.” In re Fed-
eral Bureau of Prisons’ Execution Protocol Cases, No. 1:19–
mc–145, Doc. 394, p. 3 (D DC, Jan. 12, 2021). He also ar-
gues that (for complex legal reasons) it is now too late for
the Federal Government to obtain an order changing the
state law designated to govern his execution from that of
Maryland (which is where he was sentenced but which has
since abolished the death penalty) to that of Indiana (which
maintains the death penalty).
Consider some of the other questions that the federal
death penalty cases have raised. To what extent does the
Government’s use of pentobarbital for executions risk ex-
treme pain and needless suffering? See Lee, supra, at ___
(BREYER, J., dissenting) (slip op., at 2). Has an inmate
demonstrated a sufficient likelihood that she is mentally in-
competent—to the point where she will not understand the
fact, meaning, or significance of her execution? See Mont-
gomery v. Warden, ante, p. ___; Barr v. Purkey, 591 U. S.
___, ___ (2020) (SOTOMAYOR, J., dissenting from grant of va-
catur) (slip op., at 1). Should a court apply contemporary
diagnostic standards to determine whether an inmate is in-
tellectually 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 suc-
cessive challenges, even though Government conduct pre-
vented him from being able to bring those claims in his first
habeas petition? See Bernard v. United States, ante, p. ___.
Can a defendant’s second habeas challenge include a claim
that his trial counsel was constitutionally inadequate
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BREYER, J., dissenting

where the defendant failed to raise that claim in his first
habeas proceeding only because his first habeas counsel
was also constitutionally inadequate? See Purkey, supra,
at ___ (BREYER, J., dissenting from grant of vacatur) (slip
op., at 3). Does the Federal Government have to follow state
requirements for how much advance notice an inmate re-
ceives for her execution? See Rosen v. Montgomery, ante,
p. ___. These are but a few of the many death-penalty-
related questions (some technical, some not) that courts
must consider, even though the result of this consideration
is often delay—perhaps for many years. See Glossip v.
Gross, 576 U. S. 863, 926–929 (2015) (BREYER, J., dissent-
ing).
None of these legal questions is frivolous. What are
courts to do when faced with legal questions of this kind?
Are they simply to ignore them? Or are they, as in this case,
to “hurry up, hurry up”? That is no solution. Higgs’ case
illustrates this dilemma. The District Court ruled against
the Government and the Government appealed. The
Fourth Circuit denied the Government’s request to dis-
pense with oral argument “in light of the novel legal issues
presented” and set oral argument for January 27. App. to
Pet. for Cert. 29a. The Circuit then stayed the execution
pending further order. Order in No. 20–18 (Jan. 13, 2021).
The Government now seeks certiorari before judgment, an
extraordinary remedy that is to be granted only upon a
showing that “the case is of such imperative public im-
portance as to justify deviation from normal appellate prac-
tice.” This Court’s Rule 11. Given the finality and severity
of a death sentence, it is particularly important that judges
consider and resolve challenges to an inmate’s conviction
and sentence. How just is a legal system that would execute
an individual without consideration of a novel or significant
legal question that he has raised?
Yet, to consider these questions, some of which (such as
mental competency) may not arise until a few weeks before
4 UNITED STATES v. HIGGS

BREYER, J., dissenting

an execution, takes time. That time means delay. The re-
cent federal executions are again illustrative. The Federal
Government executed Lee 21 years after his conviction;
Brandon Bernard 20 years after his conviction; Alfred Bour-
geois 16 years after his conviction; Wesley Purkey 16 years
after his conviction; and Lisa Montgomery 12 years after
her conviction. Today, the Government executes Higgs 20
years after his conviction. The longer the delay, the weaker
the basic penological justifications for imposing the death
penalty in the first place become, and the greater the psy-
chological suffering inflicted on the death row inmate. I re-
main convinced that this dilemma arises out of efforts to
impose the death penalty. Together with other problems
that I have previously described, it calls into question the
constitutionality of the death penalty itself. See Glossip,
supra, at 945–946 (BREYER, J., dissenting).
But this case involves a procedural issue. The Fourth
Circuit issued a stay of the execution and has not yet re-
solved the Government’s appeal. It is rare for us to consider
a question before the Circuit has decided it. And I would
not depart from ordinary practice here. Consequently, I
dissent.
 Cite as: 592 U. S. ____ (2021) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 20–927 (20A134)
_________________

UNITED STATES v. DUSTIN JOHN HIGGS
ON PETITION FOR WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT AND APPLICATION TO VACATE STAY
[January 15, 2021]

JUSTICE SOTOMAYOR, dissenting.
After seventeen years without a single federal execution,
the Government has executed twelve people since July.
They are Daniel Lee, Wesley Purkey, Dustin Honken,
Lezmond Mitchell, Keith Nelson, William LeCroy Jr.,
Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred
Bourgeois, Lisa Montgomery, and, just last night, Corey
Johnson. Today, Dustin Higgs will become the thirteenth.
To put that in historical context, the Federal Government
will have executed more than three times as many people
in the last six months than it had in the previous six dec-
ades.
This unprecedented rush of federal executions has pre-
dictably given rise to many difficult legal disputes. One
source of confusion has been the Federal Death Penalty Act
(FDPA), which Congress enacted in 1994 to guide the impo-
sition and implementation of federal death sentences. Pub.
L. No. 103–322, Tit. VI, §60002(a), 108 Stat. 1959 (codified
as amended at 18 U. S. C. §3591 et seq.). Prior to last July,
the Federal Government had executed just three people
since the enactment of the FDPA, two in 2001 and one in
2003. Many questions about the FDPA remain unan-
swered.
Another source of uncertainty has been the Department
2 UNITED STATES v. HIGGS

SOTOMAYOR, J., dissenting

of Justice’s (DOJ) announcement of a new execution proto-
col (the 2019 Protocol). Whereas the previous protocol pre-
scribed a three-drug cocktail for use in executions, the 2019
Protocol calls for a single drug: pentobarbital. Difficulty in
obtaining the required drugs had contributed to the Gov-
ernment’s nearly two-decade hiatus in carrying out execu-
tions. The Government surely knew the 2019 Protocol
would face further litigation.
Against this backdrop of deep legal uncertainty, the DOJ
did not tread carefully. Simultaneous with the announce-
ment of the 2019 Protocol, it scheduled five executions;
eight would follow in the months to come. This rapid pace
required those facing execution to fast-track challenges to
their sentences. Rather than permit an orderly resolution
of these suits, the Government consistently refused to post-
pone executions and sought emergency relief to proceed be-
fore courts had meaningful opportunities to determine if
the executions were legal.
Throughout this expedited spree of executions, this Court
has consistently rejected inmates’ credible claims for relief.
The Court has even intervened to lift stays of execution that
lower courts put in place, thereby ensuring those prisoners’
challenges would never receive a meaningful airing. The
Court made these weighty decisions in response to emer-
gency applications, with little opportunity for proper brief-
ing and consideration, often in just a few short days or even
hours. Very few of these decisions offered any public expla-
nation for their rationale.
This is not justice. After waiting almost two decades to
resume federal executions, the Government should have
proceeded with some measure of restraint to ensure it did
so lawfully. When it did not, this Court should have. It has
not. Because the Court continues this pattern today, I dis-
sent.
 Cite as: 592 U. S. ____ (2021) 3

SOTOMAYOR, J., dissenting

I
The Government will execute Dustin Higgs tonight. In
2001, the United States District Court for the District of
Maryland sentenced Higgs to death for his involvement in
the kidnapping and killing of three people. The FDPA re-
quires that a federal death sentence be “implement[ed]” “in
the manner prescribed by the law of the State in which the
sentence is imposed.” 18 U. S. C. §3596(a). If that State
does not allow the death penalty, the FDPA directs courts
to designate an alternate State that does. Executions were
legal in Maryland in 2001, so the District Court’s Judgment
and Order did not designate an alternate State. See App.
to Pet. for Cert. 18a–21a. Maryland has since abolished the
death penalty, however, so the Government cannot imple-
ment the death sentence in accordance with Maryland law
as the FDPA requires.
In August 2020, the Government asked the District Court
to amend its Judgment and Order to designate Indiana,
where Higgs and all other federal death-row prisoners are
imprisoned, as the alternate State. Consistent with its cur-
rent practice, the Government set an execution date before
the District Court could rule. The District Court denied the
Government’s motion, holding that the court had no author-
ity to modify its original judgment. See 2020 WL 7707165,
*4 (D Md., Dec. 29, 2020) (“The Government’s initial, ex-
traordinary request that the Court amend its original judg-
ment and sentence is something that the Court plainly can-
not do”). The Government appealed to the Court of Appeals
for the Fourth Circuit, which scheduled oral argument for
January 27, 2021. Unwilling to wait, the Government asks
this Court to grant certiorari and summarily reverse the
District Court without normal briefing or argument, and di-
rect the District Court to designate Indiana as the Govern-
ment requested.
Ordinarily, this Court grants petitions for certiorari be-
fore judgment only “upon a showing that the case is of such
4 UNITED STATES v. HIGGS

SOTOMAYOR, J., dissenting

imperative public importance as to justify deviation from
normal appellate practice and to require immediate deter-
mination in this Court.” This Court’s Rule 11. The Govern-
ment falls far short of meeting this strict standard.
Whether district courts can amend final orders and judg-
ments in this situation is an open and novel question on
which none of the courts of appeals have spoken. After fail-
ing to act since Higgs’ sentence was imposed in 2001, the
Government gives no compelling reason why it suddenly
cannot wait a few weeks while courts give his claim the con-
sideration it deserves. Certainly, there is no “imperative
public importance” behind the Government’s request. I
would deny the Government’s petition.
II
Sadly, it is not surprising that the Court grants this ex-
traordinary request. Over the past six months, this Court
has repeatedly sidestepped its usual deliberative processes,
often at the Government’s request, allowing it to push for-
ward with an unprecedented, breakneck timetable of exe-
cutions. With due judicial consideration, some of the Gov-
ernment’s arguments may have prevailed and some or even
many of these executions may have ultimately been allowed
to proceed. Others may not have been. Either way, the
Court should not have sanctioned these executions without
resolving these critical issues. The stakes were simply too
high.
A
Even after thirteen federal executions in six months,
basic, recurring questions about the FDPA and the 2019
Protocol remain unanswered. For example, what does it
mean to “implement[ ]” a federal death sentence “in the
manner prescribed by the law of the State”? 18 U. S. C.
§3596(a). Answers run the gamut. Some judges believe the
FDPA merely requires following the State’s “top-line choice
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SOTOMAYOR, J., dissenting

among execution methods such as hanging, electrocution,
or lethal injection.” In re Fed. Bureau of Prisons’ Execution
Protocol Cases, 955 F. 3d 106, 113 (CADC 2020) (Execution
Protocol Cases I) (Katsas, J., concurring). Others read the
FDPA to incorporate nearly all state execution protocols,
including those details that precede the execution itself.
See Order in In re Fed. Bureau of Prisons’ Execution Proto-
col Cases, No. 20–5361, at 4–5 (CADC, Dec. 10, 2020) (en
banc) (per curiam) (Execution Protocol Cases II) (Wilkins,
J., dissenting); see also Execution Protocol Cases I, 955
F. 3d, at 149, 151 (Tatel, J., dissenting).1 This Court has
yet to say which interpretation is correct. See Mitchell v.
United States, 591 U. S. ___, ___ (2020) (SOTOMAYOR, J., re-
specting denial of application for stay) (slip op., at 2) (call-
ing for the Court to “address this issue in an appropriate
case”). Worse, the Court has actively prevented lower
courts from providing definitive answers themselves. Just
four days ago, the D. C. Circuit granted Lisa Montgomery a
stay of her execution so it could decide this issue en banc.
See Order in Montgomery v. Rosen, No. 21–5001 (Jan. 11,
2011) (en banc). This Court vacated that stay without ex-
planation. Montgomery was executed hours later.
Another outstanding question concerns the FDPA’s pro-
vision that “[a] sentence of death shall not be carried out
upon a person who is [intellectually disabled].” 18 U. S. C.
§3596(c). Alfred Bourgeois and Corey Johnson presented
substantial evidence that they were intellectually disabled

——————
1 Other judges and courts have taken different positions along this

spectrum. See Execution Protocol Cases I, 955 F. 3d, at 134 (Rao, J., con-
curring); Order in Montgomery v. Rosen, No. 21–5001, pp. 7–8 (CADC,
Jan. 11, 2021) (Millett, J., dissenting); United States v. Vialva, 976 F. 3d
458, 462 (CA5 2020) (per curiam); LeCroy v. United States, 975 F. 3d
1192, 1198 (CA11 2020) (“Whatever that phrase means, we are confident
that it does not extend to ensuring a lawyer’s presence at execution”);
United States v. Mitchell, 971 F. 3d 993, 996–997 (CA9 2020) (per cu-
riam); Peterson v. Barr, 965 F. 3d 549, 554 (CA7 2020).
6 UNITED STATES v. HIGGS

SOTOMAYOR, J., dissenting

under modern diagnostic standards. Lower courts, how-
ever, held that these inmates were barred from challenging
their executions on this ground because they had previously
been denied relief under outdated diagnostic standards.
See 28 U. S. C. §2255(h). Yet there are compelling reasons
to believe that the FDPA directs courts to evaluate intellec-
tual disability based on the standards prevailing at the time
of the execution. See Bourgeois v. Watson, 592 U. S. ___,
___–___ (2020) (SOTOMAYOR, J., dissenting from denial of
certiorari and application for stay) (slip op., at 2–4); Order
in United States v. Johnson, No. 20–15, pp. 4–5 (CA4, Jan.
14, 2021) (Wynn, J., dissenting from denial of rehearing en
banc); Order in United States v. Johnson, No. 20–15, p. 7
(CA4, Jan. 12, 2021) (Motz, J., concurring in part in denial
of stay). On that view, prior proceedings relying on obsolete
medical standards do not preclude consideration of whether
an individual “is” intellectually disabled at the time of his
execution. 18 U. S. C. §3596(c). This Court should have
answered this consequential question before allowing the
Government to execute Bourgeois and Johnson. Their exe-
cutions may well have been illegal.
The Court has also allowed executions to proceed in the
face of significant challenges to the 2019 Protocol’s method
of execution. A federal district court found that Daniel Lee,
Wesley Purkey, and Keith Nelson were likely to succeed in
showing that the 2019 Protocol violates the Eighth Amend-
ment because pentobarbital causes fluid to rapidly accumu-
late in the lungs, resulting in “ ‘extreme pain, terror and
panic.’ ” See In re Federal Bureau of Prisons’ Execution Pro-
tocol Cases, 471 F. Supp. 3d 209, 218–219 (DC 2020). Ac-
cordingly, the District Court preliminarily enjoined execu-
tions under the 2019 Protocol. Id., at 225. This Court
vacated the injunction and allowed the executions to move
forward, concluding that the Government’s “competing ex-
pert testimony” rendered a “last-minute” stay inappropri-
ate. Barr v. Lee, 591 U. S. ___, ___ (2020) (per curiam) (slip
 Cite as: 592 U. S. ____ (2021) 7

SOTOMAYOR, J., dissenting

op., at 3). Lee and Purkey, however, did not file their claims
at the last minute. They did so shortly after the DOJ an-
nounced the new protocol and scheduled their executions.
Nelson raised his claim before his execution was even an-
nounced. It was the Government, not the inmates, who
charged ahead with conducting executions under the chal-
lenged protocol, creating an “artificial claim of urgency to
truncate ordinary procedures of judicial review.” Id., at ___
(SOTOMAYOR, J., dissenting) (slip op., at 1). The Court con-
doned the Government’s tactics and granted a stay.
This Court repeated this error just this week. On Decem-
ber 16, 2020, both Corey Johnson and Dustin Higgs tested
positive for COVID–19. They quickly moved to enjoin their
executions, arguing that lung damage caused by the virus
substantially increased the likelihood they would suffer tor-
turous effects if executed with pentobarbital. The District
Court held an evidentiary proceeding and agreed. In re
Federal Bureau of Prisons’ Execution Protocol Cases, ___
F. Supp. 3d ___, ___–___, 2021 WL 106576, *5–*9 (DDC,
Jan. 12, 2021). This time, the Court of Appeals stayed the
injunction, relying on this Court’s flawed decision in Lee.
Order in Roane v. Rosen, No. 21–5004, p. 4 (CADC, Jan. 13,
2021) (Katsas, J., concurring). This Court left that ruling
in place, again allowing these executions to proceed despite
the District Court’s careful fact-finding and the risk of need-
less and significant pain.
B
The issues left unresolved during this saga do not end
with the FDPA and 2019 Protocol. Many other challenges
deserved this Court’s review. None were granted. While I
cannot catalogue all these claims here, some particularly
troubling ones bear mention.
Consider again Corey Johnson. In addition to the claim
already discussed, Johnson sought a reduction of his death
sentence under the First Step Act of 2018, Pub. L. No. 115–
8 UNITED STATES v. HIGGS

SOTOMAYOR, J., dissenting

391, 132 Stat. 5194. The District Court denied Johnson’s
motion, concluding that his death sentence was for a crime
that was not a “covered offense.” See United States v. John-
son, No. 3:92–cr–68 (ED Va., Nov. 19, 2020). The Fourth
Circuit denied a stay pending appeal. See Order in United
States v. Johnson, Nos. 20–15, 21–1, 21–2 (Jan. 12, 2021).
Judge Motz dissented from the denial of stay based on
Johnson’s First Step Act claim, explaining that the applica-
tion of the definition of “covered offense” “present[s] diffi-
cult and important issues necessitating adequate consider-
ation by this court.” Id., at 9.
Judge Motz was right. In fact, the courts of appeals
have divided on the proper way to interpret the statute’s
“covered offense” definition.2 When Johnson sought a stay,
this Court had already granted certiorari to resolve a split
implicating this question. See Pet. for Cert. in No. 20-5904.
Rather than granting Johnson a stay and holding his case
for reconsideration in light of this, the Court allowed the
Government to execute Johnson without any appellate
court ruling on the merits of his claims.
Consider next Brandon Bernard. Bernard, who was only
eighteen when he committed the crimes for which he was
executed, raised credible allegations that the Government
secured his death sentence by withholding exculpatory evi-
dence and eliciting knowingly false testimony in violation
of Brady v. Maryland, 373 U. S. 83 (1963), and Napue v.
Illinois, 360 U. S. 264 (1959). But Bernard never received
consideration of those claims on the merits. Instead, the
Court of Appeals for the Fifth Circuit held that, even
though Bernard could not have known about the sup-
pressed evidence when he filed his first habeas petition,
——————
2 Compare United States v. Smith, 954 F. 3d 446, 449–450 (CA1 2020)

(the Fair Sentencing Act must modify any penalty in the statute of con-
viction, such as 21 U. S. C. §841), with United States v. Jones, 962 F. 3d
1290, 1298 (CA11 2020) (the Act must modify the penalty for the defend-
ant’s actual violation).
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SOTOMAYOR, J., dissenting

those claims were subject to the general bar on second-or-
successive habeas petitions. United States v. Bernard, 820
Fed. Appx. 309 (2020) (per curiam); see also 28 U. S. C.
§2255(h)(1).
As Bernard correctly argued, the Fifth Circuit’s ruling
cannot be reconciled with this Court’s decision in Panetti v.
Quarterman, 551 U. S. 930 (2007), which held that the bar
on second-or-successive petitions does not apply to claims
that were not ripe when an inmate filed his first-in-time pe-
tition. Bernard v. United States, 592 U. S. ___, ___ (2020)
(SOTOMAYOR, J., dissenting) (slip op., at 4). Indeed, the
Fifth Circuit’s rule makes no sense, as it “perversely re-
wards the Government for keeping exculpatory information
secret until after an inmate’s first habeas petition has been
resolved.” Id., at ___ (slip op., at 5). Unmoved, this Court
denied Bernard’s petition for a writ of certiorari and appli-
cation for a stay, leaving this dangerous precedent in place
and, again, condoning the Government’s tactics.
Finally, consider Wesley Purkey and Lisa Montgomery,
whose executions this Court allowed even though the dis-
trict courts concluded they were likely to succeed in show-
ing that they had no “ ‘rational understanding’ of why the
State want[ed] to execute [them].” See Madison v. Ala-
bama, 586 U. S. ___, ___ (2019) (slip op., at 17) (quoting
Panetti, 551 U.S., at 958). Wesley Purkey suffered from
Alzheimer’s disease. Thousands of pages of evidence sug-
gested that he earnestly and steadfastly believed that the
Government planned to execute him in retaliation for his
“protracted jailhouse lawyering” to expose prison abuses.
Electronic Case Filing in No. 1:19–cv–3570 (DDC), Doc. 1-
18, p. 12; see also Barr v. Purkey, 591 U. S ___, ___–___
(2020) (SOTOMAYOR, J., dissenting) (slip op., at 4–5). The
District Court therefore preliminarily enjoined Purkey’s ex-
ecution. Skipping over the Court of Appeals, the Govern-
ment sought immediate relief from this Court, which va-
cated the injunction without comment.
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SOTOMAYOR, J., dissenting

Lisa Montgomery likewise made a “substantial threshold
showing” to the District Court that she was incompetent to
be executed. See Electronic Case Filing in No. 2:21–cv–20
(SD Ind.), Doc. 17, p. 15. Based on expert evidence that
Montgomery was experiencing a dissociative psychotic
state, the District Court concluded that her “current mental
state is so divorced from reality that she cannot rationally
understand the government’s rationale for her execution.”
Id., at 18. These findings with respect to Purkey and Mont-
gomery raised significant questions as to whether their ex-
ecutions comported with the Constitution. We will never
have definitive answers to those questions because this
Court sanctioned their executions anyway.
III
There is no matter as “grave as the determination of
whether a human life should be taken or spared.” Gregg v.
Georgia, 428 U. S. 153, 189 (1976) (opinion of Stewart, Pow-
ell, and Stevens, JJ.). That decision is not something to be
rushed or taken lightly; there can be no “justice on the fly”
in matters of life and death. See Nken v. Holder, 556 U. S.
418, 427 (2009). Yet the Court has allowed the United
States to execute thirteen people in six months under a
statutory scheme and regulatory protocol that have re-
ceived inadequate scrutiny, without resolving the serious
claims the condemned individuals raised. Those whom the
Government executed during this endeavor deserved more
from this Court. I respectfully dissent.