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.”