The United States Law Week

Federal Executions on Hold While Defendants Challenge Protocol (3)

Nov. 21, 2019, 2:17 PMUpdated: Nov. 21, 2019, 11:40 PM

Federal death row inmates received a temporary reprieve when a judge in Washington, D.C., preliminarily prohibited their executions, throwing a wrench—for now at least—into the Trump administration’s plans to resume federal executions after a decade-plus hiatus.

“This decision prevents the government from evading accountability and making an end-run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” said Shawn Nolan, a federal defender in Pennsylvania representing one of the men facing execution.

“By granting the preliminary injunction, the court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method,” Nolan said.

The Department of Justice said that it would appeal the Nov. 20 ruling to the U.S. Court of Appeals for the District of Columbia Circuit.

The first federal execution in over 15 years, of Daniel Lee Lewis, was set for Dec. 9. He was one of several federal prisoners facing the death chamber after Attorney General William Barr in July ordered the Justice Department to resume executions.

In a Nov. 15 speech to the conservative-leaning Federalist Society, Barr lamented what he characterized as judicial overreach into executive prerogatives.

Under the Federal Death Penalty Act, federal executions are to follow the death penalty protocols of the state in which the inmate was convicted.

DOJ, however, adopted a new protocol using a single drug, pentobarbital sodium, in lethal injections, rather than following state protocols.

The new federal protocol’s uniform procedure approach “very likely exceeds the authority provided by the FDPA,” the opinion by Tanya S. Chutkan of the U.S. District Court for the District of Columbia said.

The FDPA says that the U.S. Marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.”

It provides “no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” Chutkan said.

Granting the preliminary injunction, she found that the inmates will suffer irreparable harm if their executions aren’t enjoined; there isn’t a pressing need to conduct the executions as scheduled; and there’s no public interest in executing them before they can legitimately challenge the protocol.

Chutkan’s opinion is a matter of “straightforward statutory construction,” said Robert Dunham, executive director of the Death Penalty Information Center. “The language of the statute is clear,” he said.

DOJ’s attempt to start using the death penalty again comes as more states move away from the ultimate punishment, Dunham said. He noted that this will be the fifth year in a row with fewer than 30 executions nationwide.

Wilmer Cutler Pickering Hale & Dorr LLP was among the firms representing the inmates.

The case is In re Fed. Bureau of Prisons’ Execution Protocol Cases, D.D.C., No. 19-mc-145 (TSC), 11/20/19.

(Updates paragraph four with Justice Department filing on notice of appeal. )

To contact the reporters on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com; Jordan S. Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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