Federal Government Conducts Sixth and Seventh Executions Amid Continuing Litigation Over COVID-19 and the Legality of Its Execution Protocol

The fed­er­al gov­ern­ment con­duct­ed its sixth and sev­enth exe­cu­tions in ten weeks on September 22 and 24, putting William Emmett LeCroy (pic­tured) and Christopher Vialva to death amid con­tin­u­ing chal­lenges to the fed­er­al exe­cu­tion pro­to­col and to car­ry­ing out exe­cu­tions dur­ing the COVID-19 pan­dem­ic. As the fed­er­al appeal courts set aside LeCroy’s exe­cu­tion chal­lenges, Vialva’s law­suit chal­leng­ing the legal­i­ty of the fed­er­al exe­cu­tion pro­to­col remained pend­ing in the U.S. Supreme Court. After the Court denied Vialva’s stay appli­ca­tion and peti­tion for review, his exe­cu­tion moved for­ward on September 24.

The fed­er­al government’s resump­tion of exe­cu­tions has been com­pli­cat­ed by con­cerns that the exe­cu­tion pro­to­col adopt­ed by the Department of Justice in 2019 vio­lates the U.S. Constitution and fed­er­al statutes and reg­u­la­to­ry pro­ce­dures. A fed­er­al law­suit about the exe­cu­tion pro­to­col pre­vent­ed the gov­ern­ment from restart­ing exe­cu­tions in December 2019 and result­ed in sev­er­al pre­lim­i­nary injunc­tions in sum­mer of 2020. Each of those injunc­tions was lat­er dis­solved, either by the fed­er­al cir­cuit courts of appeal or by the U.S. Supreme Court, allow­ing the fed­er­al exe­cu­tions to take place.

The week­end before the lat­est exe­cu­tions, Judge Tanya Chutkan of the U.S. District Court for the District of Columbia issued sev­er­al rul­ings in the fed­er­al death-row pris­on­ers’ exe­cu­tion pro­to­col law­suit. On September 20, 2020, the dis­trict court grant­ed the death-row pris­on­ers’ motion for par­tial sum­ma­ry judg­ment on their claim that the fed­er­al exe­cu­tion pro­to­col vio­lates the Food, Drug, and Cosmetic Act (FDCA), hold­ing that the government’s use of pen­to­bar­bi­tal in fed­er­al exe­cu­tions vio­lates the FDCA’s pre­mar­ket­ing, label­ing, and pre­scrip­tion require­ments. However, the court denied the pris­on­ers’ motion for a pre­lim­i­nary injunc­tion, rul­ing that the pris­on­ers had not shown they would suf­fer irrepara­ble harm as a result of the vio­la­tion. In refus­ing to halt future exe­cu­tions, the court relied heav­i­ly on the fact that appel­late courts had reversed all of the pre­vi­ous injunc­tions it had issued in the pris­on­ers’ favor. 

The dis­trict court’s denial of relief also set the stage for fed­er­al exe­cu­tions to con­tin­ue pur­suant to an exe­cu­tion pro­to­col that the court has deemed illegal.

The dis­trict court also grant­ed the gov­ern­ment sum­ma­ry judg­ment on the rest of the pris­on­ers’ Administrative Procedure Act claims and dis­missed the remain­ing claims. The court reserved judg­ment on an Eighth Amendment claim brought by Norris Holder chal­leng­ing the appli­ca­tion of the exe­cu­tion pro­to­col based on facts spe­cif­ic to his case.

The same day, the dis­trict court denied a sep­a­rate motion by LeCroy seek­ing to halt his exe­cu­tion based on argu­ments that the fed­er­al exe­cu­tion pro­to­col vio­lates the Federal Death Penalty Act and Article II of the U.S. Constitution, which requires that the President ​“take care that the laws be faithfully executed.” 

LeCroy had also sought to have his exe­cu­tion resched­uled because the fed­er­al government’s choice to put him to death dur­ing the COVID-19 pan­dem­ic denied him access to coun­sel for crit­i­cal pre-exe­cu­tion lit­i­ga­tion and clemen­cy pro­ceed­ings. The plead­ings explained that LeCroy’s lead coun­sel had pre-exist­ing med­ical con­di­tions that placed him at high risk of death or severe COVID-19 ill­ness, and as a result was unable to meet with LeCroy as he faced immi­nent exe­cu­tion or attend the exe­cu­tion. Shortly before 7:30 p.m. Eastern, 1 – 1/​2 hours after the exe­cu­tion was sched­uled to begin, the U.S. Supreme Court denied LeCroy’s appli­ca­tion for stay of exe­cu­tion on this issue. Following an addi­tion­al unex­plained hour-long delay after the wit­ness­es were assem­bled, LeCroy’s exe­cu­tion went for­ward, and he was declared dead at 9:06 p.m. Eastern.

The legal­i­ty of the fed­er­al exe­cu­tion pro­to­col remained an issue in Vialva’s case. Vialva asked the U.S. Supreme Court to stay his exe­cu­tion to review the deci­sion of the U.S. Court of Appeals for the Fifth Circuit deny­ing his chal­lenge to the fed­er­al exe­cu­tion pro­to­col. His peti­tion for review request­ed an injunc­tion against his exe­cu­tion, argu­ing that the fed­er­al gov­ern­ment vio­lat­ed the Federal Death Penalty Act and the tri­al court’s order in set­ting his execution date.