Attorney General William Barr had announced in July that federal executions would resume, with the first execution scheduled at the time for Dec. 9. The executions would involve a single lethal drug, pentobarbital sodium, replacing the three-drug procedure that had been used in federal executions previously. The last federal execution was in 2003.
But in late November, a federal judge ordered the upcoming executions scheduled for December to January 2020, which involved four federal death-row inmates, to be put on hold.
Judge Tanya S. Chutkan, an Obama-appointee, wrote in her ruling (pdf) that the government needs to use whatever methods the states use for executions under the 1994 Federal Death Penalty Act, which requires that executions be met “in the manner prescribed by the law of the state in which the sentence is imposed.”
The high court’s Friday decision to reject the Trump administration’s appeal means that four inmates have won temporary reprieves. The federal executions are likely to remain on hold for at least several months, while the appeals court in Washington undertakes a full review of Chutkan’s ruling.
Supreme Court justices told the appeals court in Washington to act with “appropriate dispatch.”
In a separate statement of opinion (pdf), Justice Samuel Alito said the appeals court should be able to rule within 60 days. Justices Neil Gorsuch and Brett Kavanaugh joined Alito’s opinion.
“[I]n light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out,” Alito wrote.
He added, “The government has shown that it is very likely to prevail when this question is ultimately decided.”
Justice Department spokeswoman Kerri Kupec said the legal fight would continue. “While we are disappointed with the ruling, we will argue the case on its merits in the D.C. Circuit and, if necessary, the Supreme Court,” she said in a statement.
Disagreement Over Halt of Federal Executions
Chutkan had ruled that the Federal Death Penalty Act requires the federal government to carry out executions in the same manner as the law of the state in which the sentence was imposed. The government also needed to comply with all “additional procedural details” of the execution protocol in a given state, such as what chemicals are used in that injection, or how the catheter is inserted.
As such, Chutkan wrote, Barr’s move to approve the execution procedure to be applied nationwide appeared to violate the 1994 Act. She also said that the inmates’ legal challenges need to be completed first.
“Plaintiffs have clearly shown that absent injunctive relief, they will suffer the irreparable harm of being executed under a potentially unlawful procedure before their claims can be fully adjudicated,” she wrote.
Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” he said.
In response, the Trump administration appealed to the Supreme Court on the same day. Solicitor General Noel Francisco, who filed the appeal on behalf of the administration, wrote that the word “manner” as stated in the 1994 Act only refers to the “mode of execution,” not the protocol.
“The district court’s holding is meritless. For virtually the entire history of the United States, beginning with the Crimes Act of 1790, federal statutory references to the ‘manner’ of imposing the death penalty have been understood to refer only to the ‘mode of execution,’” Francisco wrote (pdf). “Under the court’s reasoning, a State could effectively veto a federal execution simply by making unavailable state officials or resources that are required by state law for the execution. Even an otherwise-cooperative state could prevent a federal execution by declining to disclose certain execution procedures or drug sources.”
The plaintiffs’ charge that they shouldn’t be executed with the pentobarbital injection doesn’t make sense because the lethal cocktail mix used by some states has been acknowledged as causing greater pain, Francisco said.
“The balance of equities thus militates strongly in favor of setting aside the order below and allowing the executions to proceed as scheduled, as this Court has summarily done on other occasions when lower courts unjustifiably enjoined or stayed executions,” he wrote.
Following the appeal, 14 states across the country filed a joint brief to the Supreme Court on Dec. 4, to support the administration. The states were Arizona, Alabama, Arkansas, Georgia, Idaho, Indiana, Kansas, Louisiana, Missouri, Nebraska, Ohio, South Carolina, Texas, and Utah.
The four death row inmates that had been scheduled for execution by lethal injection all were convicted in federal courts of murder.
Danny Lee was the first inmate slated for execution at 8 p.m. on Dec. 9. Lee was convicted of killing a family of three, including an 8-year-old.
Wesley Ira Purkey, who raped and murdered a 16-year-old girl and killed an 80-year-old woman, was scheduled to be executed on Dec. 13. Purkey’s lawyers say he should be spared because he has dementia. The man has a separate lawsuit pending in a federal court in Washington, D.C.
Then in January, executions had been scheduled for Alfred Bourgeois, who tortured, molested, and then beat his two-and-a-half-year-old daughter to death, and Dustin Lee Honken, who killed five people, including two children.
A fifth inmate, Lezmond Mitchell, has had his execution blocked by the federal appeals court in San Francisco over questions of bias against Native Americans. Mitchell beheaded a 63-year-old woman and her 9-year-old granddaughter.
The Associated Press contributed to this report.