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 90th 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.