The U.S. Department of Justice (DOJ) has asked the United States Supreme Court to lift a fed­er­al dis­trict court injunc­tion that is cur­rent­ly block­ing the gov­ern­ment from car­ry­ing out four sched­uled exe­cu­tions. The fed­er­al pros­e­cu­tors’ December 2, 2019 fil­ing came with­in hours of a rul­ing by a unan­i­mous fed­er­al appeals pan­el in Washington that had refused to vacate the injunc­tion. The first of the fed­er­al exe­cu­tions is sched­uled for 8:00 a.m. (Eastern time) on Monday, December 9.

On July 25, Attorney General William Barr announced that the fed­er­al gov­ern­ment intend­ed to resume exe­cu­tions after a 16-year hia­tus, start­ing with five exe­cu­tions between December 9 and January 15. The announce­ment said that Barr had direct­ed the Federal Bureau of Prisons to adopt a new exe­cu­tion pro­to­col and set the exe­cu­tion dates, although the gov­ern­ment had made no attempt to com­ply with fed­er­al rule­mak­ing pro­ce­dures and a 14-year-old legal chal­lenge to the government’s exe­cu­tion prac­tices was pend­ing in the fed­er­al courts in Washington.

The five fed­er­al pris­on­ers tar­get­ed by the death war­rants sought to stay their exe­cu­tions on a vari­ety of pro­ce­dur­al and con­sti­tu­tion­al grounds. Lezmond Mitchell, sched­uled to be exe­cut­ed on December 11, received a stay of exe­cu­tion to com­plete review of an appeal that was already under­way in his case before his death war­rant was signed. The oth­er four pris­on­ers — Daniel Lee, Wesley Purkey, Alfred Bourgeois, and Dustin Honken — sought to join the on-going fed­er­al exe­cu­tion law­suit and asked U.S. District Court Judge Tanya S. Chutkan to halt their exe­cu­tions pend­ing full judi­cial review of their chal­lenges to the legal­i­ty and con­sti­tu­tion­al­i­ty of the government’s pro­posed exe­cu­tion plan. 

On November 20, Judge Chutkan issued a pre­lim­i­nary injunc­tion on the basis of one of their claims, say­ing that the Department of Justice exceed­ed its statu­to­ry author­i­ty” in uni­lat­er­al­ly estab­lish­ing a fed­er­al exe­cu­tion pro­to­col and that the pris­on­ers were like­ly to pre­vail on their claim that the DOJ had unlaw­ful­ly adopt­ed the pro­to­col. The court reserved judg­ment on the oth­er issues raised by the prisoners.

The DOJ filed an emer­gency appli­ca­tion in the United States Court of Appeals for the District of Columbia Circuit, ask­ing the appeals court to vacate or stay enforce­ment of the injunc­tion. In an unsigned order, Judges Judith W. Rogers, Thomas B. Griffith, and Neomi Rao — appoint­ed by Presidents Bill Clinton, George W. Bush, and Donald Trump, respec­tive­ly — unan­i­mous­ly declined to dis­turb the injunc­tion. The one-page order did not address the indi­vid­ual argu­ments pre­sent­ed by the DOJ and the pris­on­ers, but stat­ed sim­ply that Appellants [DOJ and the Bureau of Prisons] have not sat­is­fied the strin­gent require­ments for a stay pend­ing appeal.” 

In a state­ment respond­ing to the Circuit Court’s order, Shawn Nolan, one of the lawyers rep­re­sent­ing the fed­er­al death-row pris­on­ers, said, We are grat­i­fied that the Court of Appeals agreed with the District Court that there is no basis to vacate the pre­lim­i­nary injunc­tion in this case. 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.”

The DOJ quick­ly appealed the deci­sion to the U.S. Supreme Court. In its Supreme Court plead­ing, the DOJ called Chutkan’s inter­pre­ta­tion of the law implau­si­ble” and said her order was a flawed injunc­tion against the imple­men­ta­tion of law­ful exe­cu­tions.” The Court is expect­ed to rule before the first of the sched­uled exe­cu­tions. A rul­ing in favor of the pris­on­ers would tem­porar­i­ly halt their exe­cu­tions until the dis­trict court can ful­ly review the var­i­ous chal­lenges to the fed­er­al exe­cu­tion plan. If the Court vacates the injunc­tion, the pris­on­ers are expect­ed to return to the District Court to ask it to issue anoth­er pre­lim­i­nary injunc­tion based upon the oth­er pend­ing chal­lenges to the fed­er­al exe­cu­tion process.

Citation Guide
Sources

Sarah N. Lynch, Trump admin­is­tra­tion asks top court to allow it to resume fed­er­al exe­cu­tions, Reuters, December 2, 2019; Mark Berman, Justice Dept. asks Supreme Court to let fed­er­al exe­cu­tions pro­ceed after appeals court denial, The Washington Post, December 2, 2019; Tim Ryan, DC Circuit Refuses to Lift Block on Federal Executions, Courthouse News Service, December 22019.

Read the DOJ fil­ing in In re Federal Bureau of Prisons’ Execution Protocol Cases.