Supreme Court Ruling Halts Scheduled Federal Executions

The United States Supreme Court has denied an appli­ca­tion by the U.S. Department of Justice to lift a fed­er­al court injunc­tion block­ing the fed­er­al gov­ern­ment from car­ry­ing out four exe­cu­tions sched­uled for December 2019 and January 2020. The Court’s unan­i­mous rul­ing, issued Friday evening December 6, ensures that there will be no fed­er­al exe­cu­tions in 2019.

On July 25, the Department of Justice (DOJ) announced that the fed­er­al gov­ern­ment intend­ed to restart fed­er­al exe­cu­tions and that Attorney General William Barr had direct­ed the Federal Bureau of Prisons (BOP) to adopt a new pro­to­col spec­i­fy­ing that fed­er­al exe­cu­tions would be car­ried out using the drug pen­to­bar­bi­tal. Although the fed­er­al gov­ern­ment has not con­duct­ed any exe­cu­tions in six­teen years, Barr direct­ed the BOP to sched­ule five exe­cu­tions in a five-week peri­od, with the first three exe­cu­tions sched­uled over a peri­od of five days. The BOP set exe­cu­tion dates for Daniel Lewis Lee (December 9), Lezmond Mitchell (December 11), Wesley Ira Purkey (December 13), Alfred Bourgeois (January 13), and Dustin Lee Honken (January 15).

The gov­ern­men­t’s non-com­pli­ance with estab­lished rule­mak­ing pro­ce­dures and its com­pressed exe­cu­tion sched­ule set off a flur­ry of lit­i­ga­tion chal­leng­ing the legal­i­ty and con­sti­tu­tion­al­i­ty of the exe­cu­tion pro­to­col, as well as case-relat­ed lit­i­ga­tion on the con­sti­tu­tion­al­i­ty of the indi­vid­ual exe­cu­tions. Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, who is pre­sid­ing over a pre­vi­ous­ly dor­mant chal­lenge to the fed­er­al exe­cu­tion process, issued a pre­lim­i­nary injunc­tion on November 20 that would tem­porar­i­ly halt the fed­er­al exe­cu­tions pend­ing com­ple­tion of court chal­lenges to the legal­i­ty of the fed­er­al government’s exe­cu­tion process. The District Court’s rul­ing found that the government’s pro­posed exe­cu­tion process con­flict­ed with the pro­vi­sions of the fed­er­al death penal­ty statute Congress passed in 1994 and that the pris­on­ers were like­ly to pre­vail on their claim that the DOJ had ​“exceed­ed its statu­to­ry author­i­ty” in adopt­ing the protocol.

The DOJ then 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 issued on December 2, 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 legal­i­ty of the gov­ern­men­t’s exe­cu­tion pro­to­col or whether the District Court had prop­er­ly issued the injunc­tion, but held that the DOJ and the BOP had ​“not sat­is­fied the strin­gent require­ments” to vacate the injunc­tion — and per­mit exe­cu­tions — before the appeals court could rule on the mer­its of the appeal. 

Within hours of that rul­ing, the DOJ filed an appli­ca­tion in the U.S. Supreme Court ask­ing it to lift the injunc­tion. The DOJ appli­ca­tion had incor­rect­ly assert­ed that the Circuit Court had upheld the injunc­tion, the mer­its of which was still pend­ing on appeal before the cir­cuit. The Justices unan­i­mous­ly declined to vacate the injunc­tion, but direct­ed the fed­er­al appeals court to expe­di­tious­ly address the gov­ern­men­t’s appeal of the injunc­tion, writ­ing: ​“We expect that the Court of Appeals will ren­der its deci­sion with appropriate dispatch.”

Three of the jus­tices on the Court expressed their belief that the DOJ ​“is very like­ly to pre­vail [on the mer­its of its appeal] when this ques­tion is ulti­mate­ly decid­ed.” In a state­ment writ­ten by Justice Samuel Alito and joined by Donald Trump appointees Neil Gorsuch and Brett Kavanaugh, the jus­tices said they saw ​“no rea­son why the Court of Appeals should not be able to decide this case, one way or the oth­er, with­in the next 60 days. The ques­tion, though impor­tant, is straight­for­ward and has already been very ably briefed in con­sid­er­able detail” by the parties.

As the Court issued its rul­ing, a DOJ appeal of a sep­a­rate order grant­i­ng Daniel Lee a stay of exe­cu­tion was work­ing its way through the fed­er­al appeals process. On December 5, a fed­er­al dis­trict court in Indiana stayed Lee’s exe­cu­tion, find­ing there was a ​“sub­stan­tial pos­si­bil­i­ty” that he would pre­vail on a claim that fed­er­al pros­e­cu­tors had mis­led his jury about the degree of his involve­ment in a pri­or mur­der and with­held evi­dence that showed the fal­si­ty of their state­ments to the jury. The DOJ’s appeal of that exe­cu­tion stay is pend­ing in the U.S. Court of Appeals for the Seventh Circuit.

Lezmond Mitchell received a stay of exe­cu­tion on October 4 to per­mit a fed­er­al appeals court to review a claim regard­ing anti-Native American bias in his case. The DOJ did not appeal that stay.