Washington District Court Enjoins U.S. Government From Carrying Out Federal Executions

A fed­er­al judge in Washington has issued a pre­lim­i­nary injunc­tion bar­ring the United States gov­ern­ment from car­ry­ing out four exe­cu­tions sched­uled for December 2019 and January 2020. The opin­ion, issued November 20, 2019, tem­porar­i­ly halts the fed­er­al exe­cu­tions pend­ing com­ple­tion of court chal­lenges to the government’s exe­cu­tion process and is a major blow to the Trump administration’s plan to resume car­ry­ing out the fed­er­al death penal­ty after a sixteen-year hiatus.

The U.S. Department of Justice (DOJ) appealed the dis­trict court’s order on November 21, and Attorney General William P. Barr (pic­tured) told the Associated Press that he would take the case to the U.S. Supreme Court, if necessary.

On July 25, the Department of Justice announced that the fed­er­al gov­ern­ment intend­ed to restart fed­er­al exe­cu­tions and that 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. Barr also direct­ed the BOP to sched­ule five exe­cu­tions in a five-week peri­od, set­ting 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 pris­on­ers sought to stay their exe­cu­tions on a vari­ety of pro­ce­dur­al and con­sti­tu­tion­al grounds. However, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia, found it nec­es­sary to address only one: whether the Department of Justice had legal author­i­ty to uni­lat­er­al­ly estab­lish a fed­er­al exe­cu­tion pro­to­col. Judge Chutkan ruled that it did not. In a fif­teen-page opin­ion, she wrote 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. 

Chutkan is pre­sid­ing over a 14-year-old law­suit that chal­lenges the U.S. government’s exe­cu­tion pro­ce­dures. An injunc­tion has long been in place pre­vent­ing the gov­ern­ment from exe­cut­ing the pris­on­ers who brought that suit. The five pris­on­ers whom DOJ select­ed for exe­cu­tion were not par­ties to the suit, lead­ing to crit­i­cism that the Trump admin­is­tra­tion had cho­sen them as an end-run around judi­cial over­sight of its pro­posed exe­cu­tion pro­to­col. Four of the pris­on­ers moved to join the lit­i­ga­tion and sought to enjoin their exe­cu­tions until the case could be resolved. The fifth fed­er­al pris­on­er, Lezmond Mitchell, did not join the law­suit. A fed­er­al appeals court stayed Mitchell’s exe­cu­tion on October 4 so it could com­plete review of an appeal that was already before the court when his death war­rant was signed. 

In grant­i­ng the pre­lim­i­nary injunc­tion, Chutkan wrote that, with­out it, the pris­on­ers ​“will suf­fer the irrepara­ble harm of being exe­cut­ed under a poten­tial­ly unlaw­ful pro­ce­dure before their claims can be ful­ly adju­di­cat­ed.” She reject­ed the government’s argu­ment that it would be harmed by fur­ther delay­ing the exe­cu­tions, say­ing that ​“the pub­lic is not served by short-cir­cuit­ing legit­i­mate judi­cial process, and is great­ly served by attempt­ing to ensure that the most seri­ous pun­ish­ment is imposed lawfully.”

Shawn Nolan, one of the lawyers for Honken, praised the order: ​“By grant­i­ng the pre­lim­i­nary injunc­tion, the court has made clear that no exe­cu­tion should go for­ward while there are still so many unan­swered ques­tions about the government’s new­ly announced execution method.”

The pre­lim­i­nary injunc­tion was issued on the same day that an Indiana fed­er­al court denied Purkey’s peti­tion for habeas cor­pus and request for a stay of exe­cu­tion. Purkey had argued he had been pro­vid­ed inef­fec­tive rep­re­sen­ta­tion at tri­al, and pre­sent­ed exten­sive mit­i­gat­ing evi­dence of a child­hood filled with phys­i­cal, men­tal, and sex­u­al abuse, includ­ing expert tes­ti­mo­ny detail­ing how this abuse affect­ed his lat­er behav­ior. His peti­tion said that nei­ther the jury nor any court had ever con­sid­ered this evi­dence because of his tri­al lawyer’s fail­ure to inves­ti­gate. The Indiana court denied the peti­tion on pro­ce­dur­al grounds with­out address­ing the mer­its of Purkey’s claims.