Federal Government Announces New Execution Protocol, Sets Five Execution Dates

The U.S. Department of Justice (DOJ) has announced its intent to adopt a new fed­er­al exe­cu­tion pro­to­col using a sin­gle exe­cu­tion drug and has issued death war­rants set­ting exe­cu­tion dates for five fed­er­al death-row pris­on­ers. In a July 25, 2019 press release, the DOJ said that Attorney General William P. Barr had direct­ed the Federal Bureau of Prisons (BOP) to adopt an adden­dum to the fed­er­al exe­cu­tion pro­to­col spec­i­fy­ing that fed­er­al exe­cu­tions will be car­ried out using the drug pen­to­bar­bi­tal, in place of the pri­or three-drug pro­to­col. Federal pros­e­cu­tors also filed the pro­posed pro­to­col in fed­er­al dis­trict court in Washington, as part of a plead­ing in the long-run­ning lethal-injec­tion law­suit filed by fed­er­al death-row pris­on­ers. According to the release, the Attorney General also direct­ed the BOP to set three exe­cu­tion dates in the five-day span between December 9 and December 13, 2019 and two addi­tion­al exe­cu­tion dates on January 13 and January 15, 2020, the 90^th anniver­sary of the Rev. Dr. Martin Luther King, Jr.’s birth. 

In announc­ing these actions, Attorney General Barr said, ​“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. 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.” 

Ruth Friedman, Director of the Federal Capital Habeas Project, called the notion that ​“the fed­er­al death penal­ty is ​‘the gold stan­dard’ of cap­i­tal pun­ish­ment sys­tems” a ​“per­va­sive myth. Rather than being applied ​“only to the worst offend­ers for a nar­row class of espe­cial­ly heinous crimes involv­ing unique fed­er­al inter­ests, with high­ly skilled and well-resourced lawyers on both sides,” she said the fed­er­al death penal­ty ​“is arbi­trary, racial­ly-biased, and rife with poor lawyer­ing and junk sci­ence. Problems unique to the fed­er­al death penal­ty include over-fed­er­al­iza­tion of tra­di­tion­al­ly state crimes and restrict­ed judi­cial review. These and oth­er con­cerns, includ­ing trou­bling ques­tions about the new exe­cu­tion pro­to­col, are why there must be addi­tion­al court review before the fed­er­al gov­ern­ment can pro­ceed with any execution.” 

The death war­rants sched­ule the exe­cu­tions of Daniel Lewis Lee for December 9, 2019, Lezmond Mitchell for December 11, 2019, Wesley Ira Purkey for December 13, 2019, Alfred Bourgeois for January 13, 2020, and Dustin Lee Honken for January 15, 2020. The five cas­es involve pris­on­ers from the death-penal­ty states of Arkansas, Arizona, Missouri, and Texas, as well as one from Iowa, whose state law does not autho­rize cap­i­tal pun­ish­ment. The fed­er­al death penal­ty is autho­rized for a vari­ety of crimes that direct­ly impli­cate fed­er­al inter­ests, includ­ing ter­ror­ism and espi­onage. However, none of the pris­on­ers who are the sub­jects of the five war­rants were charged with such crimes, and only one of the 62 peo­ple on fed­er­al death row has been con­vict­ed of ter­ror­ism. No one on death row has been sen­tenced to death for a crime involv­ing trea­son or espionage. 

The exe­cu­tion war­rants assume that the fed­er­al gov­ern­ment need not com­ply with stan­dard rule­mak­ing pro­ce­dures before the pro­posed exe­cu­tion pro­to­col goes into effect. However, Death Penalty Information Center Executive Director Robert Dunham said ​“mere­ly say­ing that there is a legal pro­to­col is not the same thing as hav­ing a legal pro­to­col. Federal law is not made by exec­u­tive fiat. You have to fol­low the rules.” Paul Enzinna, who rep­re­sents James Roane and two oth­er fed­er­al death-row pris­on­ers in the lethal injec­tion law­suit told The National Law Journal the pro­to­col ​“obvi­ous­ly will be sub­ject to exam­i­na­tion in our lethal injection litigation.” 

The fed­er­al death penal­ty was insti­tut­ed in 1988. Three peo­ple have been exe­cut­ed under fed­er­al author­i­ty, with the last fed­er­al exe­cu­tion tak­ing place in 2003. The last fed­er­al death war­rant was issued for Bruce Webster on April 16, 2007. Webster’s exe­cu­tion was stayed and his death sen­tence was sub­se­quent­ly vacat­ed on June 28, 2019 when a fed­er­al dis­trict court judge found that Webster is intel­lec­tu­al­ly dis­abled, mak­ing him inel­i­gi­ble for the death penal­ty. Critics of the fed­er­al death penal­ty argue that it is plagued by many of the same prob­lems as state death-penal­ty sys­tems, includ­ing racial bias (55% of defen­dants sen­tenced to death in the last decade were peo­ple of col­or), geo­graph­i­cal arbi­trari­ness (just three states – Virginia, Texas, and Missouri – are respon­si­ble for near­ly half of all fed­er­al death-row pris­on­ers), and dis­par­i­ties in the qual­i­ty and fund­ing of defense counsel.