Federal Court Stays Four Executions, Ruling Newly-Adopted Federal Execution Protocol Likely Unlawful

By December 9, 2019 No Comments

On November 20, 2019, the US District Court for the District of Columbia issued a preliminary injunction barring the Federal Government from carrying out four executions scheduled for December 2019 and January 2020. Judge Tanya S. Chutkan’s order granted the four individuals with scheduled execution dates – Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken – the opportunity to pursue their legal challenge to the government’s newly-adopted protocol.

Earlier this year, on July 25, 2019, the Department of Justice (DOJ) announced that the federal government intended to resume federal executions. Attorney General William P. Barr directed the Federal Bureau of Prisons (BOP) to adopt a new protocol specifying that federal executions would be carried out using a single drug – pentobarbital. In her ruling, Chutkan held that the newly-adopted federal execution protocol likely conflicts with the provision in the Federal Death Penalty Act (FDPA) which requires that capital sentences be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” The district court rejected the DOJ’s argument that using a single drug in a state that has a three-drug-protocol was permissible, writing that there was “no statute that gives the BOP or DOJ the authority to establish a single implementation procedure for all federal executions.”

On December 2, 2019, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously denied the government’s emergency motion to stay or vacate the district court’s injunction. The panel held that the DOJ has “not satisfied the stringent requirements” for a stay pending appeal. The government’s application to stay the injunction was subsequently also rejected by the United States Supreme Court on December 6, 2019.

In a separate decision in October 2019, the US Court of Appeals for the Ninth Circuit blocked the execution of the fifth individual with a federal execution date, Lezmond Mitchell who was set to be executed on December 11, 2019. The stay will allow time for the court to hear Mitchell’s claim that he was not allowed to question jurors for racial bias.