WASHINGTON – The Justice Department on Monday asked the Supreme Court to allow the resumption of the death penalty at the federal level after a 16-year hiatus, hours after an appeals court blocked the department’s bid to pave the way for four scheduled executions.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.
U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling.
Daniel Lewis Lee, a white supremacist convicted in Arkansas of murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. Juries also convicted the other convicts — Alfred Bourgeois, Dustin Lee Honken and Wesley Ira Purkey — for the murders of children.
In its application to the Supreme Court, the Justice Department called the district court‘s position “fundamentally flawed” and argued that the legal challengers’ case “wholly lacks merit.”
It was not immediately clear when the conservative-leaning Supreme Court would take up the case. Five of the court‘s nine justices were nominated by Republican presidents, including two named by President Donald Trump.
Attorney General William Barr, appointed by Trump earlier this year, announced in July plans to resume executions of people sentenced to death in federal cases.
Barr said at the time his department owed it to crime victims and their families to carry out sentences imposed under the U.S. criminal justice system.
Most executions in the United States have been carried out by individual states, although an increasing number of them have stopping using the death penalty.
The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.
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,” Nolan said.
How the Trump administration is fighting for the federal death penalty
The lawsuits challenging federal lethal injections, the first of which was filed in 2005, challenged the protocol on the grounds that it violated the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment by carrying a risk of severe pain.
The lawsuits also said the protocol violated a federal law called the Administrative Procedure Act because it was written in secret without public input.
Under Trump‘s Democratic predecessor, Barack Obama, the Justice Department abandoned its previous three-drug protocol because of a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July.
Barr scheduled the executions of five inmates for December and January and unveiled a protocol that involved using a single drug, pentobarbital, for lethal injections.
“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,” Barr said.
Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted.
The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued.
Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violated the Federal Death Penalty Act, and found that Barr likely had overreached his authority.
A fifth inmate whom Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.
(Reporting by Sarah N. Lynch; additional reporting by Lawrence Hurley and Makini Brice; editing by Will Dunham and Peter Cooney; Pluralist contributed to this report.)