U.S. Supreme Court Declines to Hear Execution Protocol Case, Removing Barrier to Resumption of Federal Executions

The U.S. Supreme Court has declined to hear a challenge to the federal execution protocol, removing a potential major obstacle to the Department of Justice’s (DOJ) plan to resume federal executions after a 17-year hiatus. The decision leaves in place an April 2020 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that lifted an injunction that had halted federal executions. The Department has scheduled four executions in July and August.

The Court offered no explanation for its denial, though Justices Sonia Sotomayor and Ruth Bader Ginsburg noted they would have granted the prisoners’ petition for a writ of certiorari. The prisoners are challenging the circuit court’s splintered 2-1 ruling, which their petition said “flouted precedent and upended key principles of administrative law rooted in the separation of powers.” The decision “raises more questions than it resolves about how to conduct federal executions,” the prisoners argued. The challenge centered on whether DOJ complied with federal administrative law in issuing its execution protocol and whether the Department’s promulgation of a single federal protocol satisfies the statutory requirements of the Federal Death Penalty Act, which mandates that the federal government carry out its executions in the manner employed by the state in which the federal prisoner was sentenced to death.

While the prisoners’ petition for review was still pending before the Supreme Court, the Department of Justice set four execution dates. Three prisoners – Daniel Lee, Wesley Purkey, and Dustin Honken, whom DOJ unsuccessfully attempted to execute in December 2019 and January 2020 —are scheduled for execution over a five-day period beginning July 13. A fourth prisoner – Keith Nelson – is scheduled for execution on August 28.

The federal government has carried out only three executions since the federal death penalty was reinstated in 1988, most recently in 2003. Lawyers for the four prisoners say their cases are emblematic of major flaws in the federal death penalty, including inadequate representation, the use of junk science, arbitrariness, insufficient appellate review, and federal overreach into cases typically handled by states.

“A pervasive myth is that the federal death penalty is ‘the gold standard’ of capital punishment systems,” said Ruth Friedman, Director of the Federal Capital Habeas Project and an attorney for Daniel Lee. “This is false. The federal death penalty is arbitrary, racially-biased, and rife with poor lawyering and junk science.”

Friedman said the federal death penalty also has its own distinct set of issues, including federal overreach into crimes traditionally handled in state court and restricted appellate review of capital convictions and death sentences. “Despite these problems, and even as people across the country are demanding that leaders rethink crime, punishment, and justice, the government is barreling ahead with its plans to carry out the first federal executions in 17 years,” Friedman said. ”Given the unfairness built into the federal death penalty system and the many unanswered questions about both the cases of the men scheduled to die and the government’s new execution protocol, there must be appropriate court review before the government can proceed with any execution.”