« Intriguing (mostly procedural) criminal justice issues up for SCOTUS arguments as 2019 winds down | Main | Council on Criminal Justice releases new report on "Trends in Correctional Control by Race and Sex" »

December 2, 2019

DC Circuit denies Justice Department's motion to stay or vacate preliminary injunction now blocking scheduled federal executions

As noted in this post from 10 days ago, a federal district judge last month blocked the scheduled executions of four condemned federal prisoners via this 15-page order based on the contention that the Justice Department's planned execution protocol "exceeds statutory authority."  Not surprisingly, the Justice Department sought review in the DC Circuit, and today via this three-sentence order a panel of judges denied the motion to stay or vacate the lower court's preliminary injunction.  This Reuters article reports on the ruling and its context:

A U.S. appeals court on Monday dealt another setback to plans by President Donald Trump’s administration to resume the death penalty at the federal level after a 16-year hiatus, denying a Justice Department bid to pave the way for four scheduled executions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit denied the department’s request to overturn a judge’s decision that at least temporarily stalled plans for executing four convicted murderers. The first was scheduled to die on Dec. 9.

U.S. District Judge Tanya Chutkan last month issued a stay putting on hold the planned executions until a long-running legal challenge to the department’s lethal injection protocol can be resolved. The appeals court found that the administration had “not satisfied the stringent requirements” to block Chutkan’s ruling....

The last federal execution took place in 2003. Since then, protracted litigation over the drugs historically used in lethal injection executions prevented the government from continuing the practice.

Shawn Nolan, a lawyer for the men facing federal execution, welcomed the court’s ruling. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure,” Nolan said....

Under Trump’s Democratic predecessor Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them, an anesthetic called sodium thiopental. The legal fight fell dormant during Obama’s tenure but was revived in July. Barr scheduled the executions of five inmates for December and January and unveiled a new protocol that involved using a single drug, pentobarbital, for lethal injections.

Four of the five inmates have joined the 2005 lawsuit. They have argued that a U.S. law called the Federal Death Penalty Act requires the federal government to follow the “manner” of execution prescribed in the state where an inmate was convicted. The law, as a result, prevents the federal government from creating a single nationwide execution protocol, they argued. Chutkan ruled that the condemned inmates were likely to succeed on their claims that the protocol violates the Federal Death Penalty Act, and found that Barr likely had overreached his authority.

Daniel Lewis Lee, a white supremacist convicted in Arkansas for murdering a family of three, was scheduled to be the first of the inmates to be executed, at a federal prison in Indiana on Dec. 9. A fifth inmate who Barr had ordered executed, Lezmond Mitchell, won a stay of execution from another federal appeals court in October.

The panel of the DC Circuit ruling her was made up of Circuit Judges Rogers, Griffith, and Rao.  Given the composition of this panel (which includes a recent appointee of Prez Trump), I suspect the Justice Department will not bother with seeking en banc review and instead will press its case to SCOTUS (as Attorney General Barr promised to do, if needed).  Assuming the Justice Department gets its papers to SCOTUS before the end of this week, the Justices should be able to rule on the matter in some manner before the first scheduled execution on Dec. 9.  Interesting times.

Prior related posts:

December 2, 2019 at 06:15 PM | Permalink


Ignore the lawless courts and execute anyway . . . .

By the by, did anyone read the joke oral argument today---apparently, the case is mooted because NY State passed some law that allows New Yorkers to take guns only directly to and from out of state shooting ranges---so apparently, a NYC gun owner can transport his gun through NYC to a New Jersey shooting range, but only if he comes right back (coffee breaks excepted). So if he decides to visit the Delaware Water Gap on the way back to NYC, he or she violates the law.

Posted by: federalist | Dec 2, 2019 11:28:13 PM

Are you really urging Prez Trump and AG Barr to go forward with an execution even if SCOTUS does not vacate the injunction? I ask not only to see if you are serious and also to remind others that some (serious?) people might want Trump to be even more lawless than he seems inclined to be.

Posted by: Doug B. | Dec 3, 2019 3:37:09 PM

Okay, this is interesting, I decided to read the actual statute in question and 18 U.S.C. § 3597 (https://www.law.cornell.edu/uscode/text/18/3597) directly contemplates the U.S. Marshals (who are technically charged with supervising the execution process) using state facilities to carry out an execution. 18 U.S. Code § 3596 also allows for the use of some other state's execution process if the state of conviction does not allow for execution. I'm not sure whether that is only not allowed de jure or would also include not allowed de facto.

However I'm also not sure how eager states that contemplate executing their own prisoners would be to handle federal inmates.

Posted by: Soronel Haetir | Dec 4, 2019 12:14:02 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB