Federal Executions can restart after Supreme Court declines a case
By Adam Liptak
The Supreme Court on Monday let stand an appeals court ruling allowing the Trump administration to resume executions in federal death penalty cases after a 17-year hiatus. The court’s brief, unsigned order cleared the way for the executions of four men in the coming months.
Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have heard the case.
Attorney General William Barr announced last summer that the federal government would end what had amounted to a moratorium on capital punishment. There are more than 60 prisoners on death row in federal prisons.
Judge Tanya S. Chutkan, of the U.S. District Court in Washington, blocked the executions in November, saying the protocol the government planned to use did not comply with the Federal Death Penalty Act of 1994, which requires executions to be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.”
The central legal question in the case is whether the word “manner” in the 1994 law refers to the methods of execution authorized by the relevant states (like hanging, firing squad or lethal injection) or the protocols the states require (like the particular chemicals used in lethal injections, whether a doctor must be present or how a catheter is to be inserted).
In his announcement last year, Barr said the federal government would replace the three-chemical cocktail it had used in earlier executions with a single chemical, pentobarbital.
Chutkan wrote that using a uniform nationwide protocol was not authorized by the 1994 law.
All of the relevant states permit or require executions by lethal injections, but the details of their protocols vary. That meant, Chutkan wrote, that the federal protocol was at odds with the 1994 law.
In December, the Trump administration asked the Supreme Court to block Chutkan’s ruling. The court declined, but it ordered the appeals court to resolve the case “with appropriate dispatch.”
In a statement at the time, Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, said that “the government has shown that it is very likely to prevail” when the case moved forward.
In April, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated Chutkan’s ruling, though the two judges in the majority, both appointed by President Donald Trump, offered conflicting rationales for doing so.
Judge Gregory G. Katsas concluded that the 1994 law “regulates only the top-line choice among execution methods such as hanging, electrocution or lethal injection.” Judge Neomi Rao disagreed, saying the law also requires the federal government to follow execution procedures in state statutes and regulations — but not in less formal execution protocols.
The two judges agreed, however, that the executions could proceed. In dissent, Judge David S. Tatel, who was appointed by President Bill Clinton, wrote that the law “requires federal executions to be carried out using the same procedures that states use to execute their own prisoners — procedures set forth not just in statutes and regulations, but also in protocols issued by state prison officials pursuant to state law.”
In the administration’s Supreme Court brief in the case, Bourgeois v. Barr, No. 19-1348, Solicitor General Noel J. Francisco urged the court to let the executions go forward, saying the prisoners had been convicted more than 15 years ago of brutal murders of children.
Requiring the federal government to use the three-drug cocktail required in some state protocols would be odd, Francisco wrote. The combination of chemicals — sodium thiopental, a sedative; pancuronium bromide, a paralytic; and potassium chloride, which stops the heart — has been blamed for botched executions and has given rise to lawsuits from death row inmates who said it could subject them to excruciating pain.
In a 2015 dissent, Sotomayor, writing for four members of the Supreme Court, wrote that the cocktail “may well be the chemical equivalent of being burned at the stake.”
Barr recently announced new execution dates for the four prisoners, starting with Daniel Lewis Lee on July 13. Lee was convicted of murdering a family of three, including an 8-year-old girl.
“After robbing and shooting the victims with a stun gun,” Barr wrote, “Lee covered their heads with plastic bags, sealed the bags with duct tape, weighed down each victim with rocks, and threw the family of three into the Illinois bayou.”
In a Supreme Court brief, lawyers for the prisoners disputed that characterization. “The prosecution’s own evidence,” the brief said, “was that the child was murdered solely by the far more culpable co-defendant.”
Ruth Friedman, a lawyer for Lee, said the government had used “junk science and false evidence” to obtain his conviction and secure a death sentence. “In what may be an unprecedented occurrence in a capital case,” she said in a statement, “the trial judge, the lead prosecutor and the victims’ family all oppose executing Danny Lee and believe a life sentence is appropriate.”