Department of Justice Lawyers Ask the U.S. Supreme Court to Intervene After Federal Appeals Court Refuses to Lift Injunction Against Federal Executions

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.