Trump Administration Asks Supreme Court to Allow Federal Executions

December 3, 2019 Updated: December 3, 2019

The Trump administration appealed to the Supreme Court late Dec. 2 after an appeals court panel rejected plans to resume federal executions.

The U.S. Court of Appeals for the District of Columbia Circuit panel declined to overturn a decision by a federal district judge who recently ruled that the Department of Justice’s plan to execute four convicted murderers with a lethal injection of pentobarbital appeared to violate the Federal Death Penalty Act.

“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,” Judge Tanya S. Chutkan, an Obama-appointee, wrote in the ruling.

Solicitor General Noel Francisco filed the appeal, which named Attorney General William Barr and a host of other officials, including Bureau of Prisons Assistant Director Nicole English, as applicants in the case.

Francisco argued against Chutkan’s view that the Federal Death Penalty Act not only requires the federal government to carry out executions in the same manner as the law of the state in which the sentence was imposed but also that the government needed to comply with all “additional procedural details” of the State’s execution 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,” he added.

Francisco said the pending executions of the four murderers, each of whom killed at least one child, should be carried out in a timely manner.

Solicitor General nominee Noel Francisco speaks during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington on May 10, 2017. (Mark Wilson/Getty Images)
A directional sign in seen in a file photograph near the entrance to the grounds of the U.S. Federal Prison in Terre Haute, Ind. (Tim Boyle/Getty Images)

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 said.

Barr announced on July 25 that he directed the Federal Bureau of Prisons to adopt an addendum to the Federal Execution Protocol, clearing the way for the government to resume capital punishment.

“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President,” Barr said in a statement.

“Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The addendum replaced the three-drug mix that was used in federal executions with pentobarbital. “Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment,” according to the department.

The first execution was scheduled for Dec. 9. Danny Lee was convicted of killing a family in Arkansas, including an 8-year-old girl. If carried out, it would be the first federal execution in 16 years.

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