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Supreme Court won’t let Justice Department immediately resume federal executions after hiatus

By: The Washington Post , Mark Berman and Robert Barnes//December 9, 2019

Supreme Court won’t let Justice Department immediately resume federal executions after hiatus

By: The Washington Post , Mark Berman and Robert Barnes//December 9, 2019

WASHINGTON – The Supreme Court on Friday refused to let the Justice Department immediately resume federal executions, denying the government’s request to bypass a lower-court ruling that the department likely exceeded its powers by adopting a new lethal injection protocol.

The order denying the stay will allow a federal appeals court to review the ruling blocking the executions.

No dissents were recorded, but three justices – Samuel Alito Jr., Neil Gorsuch and Brett Kavanaugh – included a statement saying they respected the decision while urging the appeals court to move quickly in deciding the case.

“The Government has shown that it is very likely to prevail when this question is ultimately decided,” wrote Alito, who was joined by two of his fellow conservatives on the court. But “in light of what is at stake,” he added, “it would be preferable” for the order to be reviewed before the executions are carried out.

The court’s action puts on hold a series of executions that the government had planned for next week and next month. In his statement, Alito also suggests that the appeals court should be able to decide the case within 60 days, writing that the high court’s order Friday “is without prejudice” to the idea of the Trump administration filing another appeal if the lower-court ruling remains in place by then.

When the Justice Department announced in July its plans to resume federal executions, Attorney General William Barr said in a statement that “we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”

The department also unveiled a new lethal injection protocol, one that involves a single drug – pentobarbital – rather than the three-drug procedure it had previously used. It planned to use this protocol in five executions scheduled for December and January, the federal government’s first since 2003.

But last month, U.S. District Judge Tanya Chutkan of the District of Columbia issued an injunction blocking four scheduled executions. (The fifth execution, also scheduled for the same period, was separately stayed by another court for different reasons.)

Chutkan wrote that she was halting the executions to allow the inmates to proceed with their arguments that the new lethal-injection protocol “very likely exceeds” powers granted by the Federal Death Penalty Act.

Under that act, she wrote, federal executions must be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.” If the state does not have the death penalty, a court must select another state that has one, wrote Chutkan, who was nominated by President Barack Obama.

Shawn Nolan, one of the attorneys for the men facing execution, praised the high court’s move Friday, saying that multiple courts have now agreed the protocol “must be fully adjudicated before it can be used to carry out executions.”

“The courts have made clear that the government cannot rush executions in order to evade judicial review of the legality and constitutionality of its new execution procedure,” Nolan said in a statement.

The Justice Department, meanwhile, said it would keep pushing to carry out the sentences.

“While we are disappointed with the ruling, we will argue the case on its merits in the District of Columbia Circuit and, if necessary, the Supreme Court,” Kerri Kupec, a department spokeswoman, said in a statement. “The Department of Justice is committed to upholding the rule of law and to carrying forward sentences imposed by our justice system.”

Lethal injection is the primary method of execution nationwide. But amid intense pushback from pharmaceutical companies opposing the use of their products to carry out death sentences, states have struggled to obtain the drugs required.

Some states have rewritten their lethal-injection procedures, while others have looked to methods including the electric chair, a firing squad and nitrogen gas.

The four death-row inmates with blocked executions were convicted in Texas, Missouri, Indiana and Iowa. Both Texas and Missouri use pentobarbital for executions, while Indiana uses a three-drug protocol. Iowa has no death penalty, but in that case, the courts selected Indiana – where federal executions are carried out – as its death-penalty state.

Chutkan concluded that using lethal injection – and even using the same single drug – alone is not enough, writing that there were “inconsistencies” between the federal protocol and some state procedures, such as the specific directives regarding how to insert the IVs that deliver the fatal drugs.

The Justice Department called Chutkan’s reasoning “meritless” and contended the “manner” of execution refers to the type of execution – such as a lethal injection or an electrocution – rather than each specific detail. If anything, it said, the one-drug protocol it was implementing was described by even those opposed to the death penalty as “more humane.”

But a panel of the U.S. Court of Appeals for the District Circuit said the department had not met the high barrier necessary to scrap Chutkan’s injunction while an appeal was pending.

Washington lawyer Catherine Stetson, representing the inmates, said it would be absurd for the Supreme Court to allow the executions without allowing their appeals.

“The imminent harm . . . is self-evident and incapable of remediation: They will be executed over the next six weeks pursuant to an unlawful protocol that they were deprived of a full opportunity to challenge,” Stetson wrote.

She added that would “result in the government winning its appeal – without a full briefing – on mootness grounds.”

Stetson noted that the government had waited eight years to develop its new protocol, so there was no reason to allow it to move ahead with executions only months after the announcement.

In its July announcement, the federal government identified five individuals to be executed: Daniel Lewis Lee on Dec. 9; Lezmond Mitchell on Dec. 11; Wesley Ira Purkey on Dec. 13; Alfred Bourgeois on Jan. 13, and Dustin Honken on Jan. 15.

Mitchell’s execution was stayed in October by a federal appeals court.

Lee’s execution, the first on the schedule, was also briefly stayed by another judge until an appeals court vacated that order.

Lee was convicted of killing a family of three, including Sarah Powell, an 8-year-old girl, and her mother, Nancy Mueller. A federal judge in Indiana on Thursday granted him a stay of execution after Lee argued in court filings that, among other things, he had received ineffective counsel.

James Patrick Hanlon, a U.S. District Judge for the Southern District of Indiana nominated last year by President Donald Trump, wrote in an opinion that he was blocking the execution because Lee had “demonstrated substantial grounds upon which to challenge the legality of his execution.”

The Justice Department appealed, asking the U.S. Court of Appeals for the 7th Circuit to vacate Hanlon’s order and let it proceed with Lee’s execution. A three-judge panel agreed and, shortly before the Supreme Court’s order, vacated Lee’s stay without any recorded dissents. The panel concluded that Lee’s “likelihood of success is slim.”

While the Trump administration has repeatedly invoked victims and their families in arguing for the executions, some victims’ relatives in Lee’s case have pushed back against its plans.

Earlene Peterson, Powell’s grandmother and Mueller’s mother, issued a statement asking the administration not to kill Lee. She instead asked that he be sentenced to life in prison without the possibility of parole, a sentiment echoed by some of their other relatives, saying it was unfair that Lee was sentenced to death while an accomplice received a life sentence.

Barr and the Justice Department have not publicly commented on those appeals.

In the case challenging the lethal-injection protocol, Solicitor General Noel Francisco told the Supreme Court that each man was convicted of crimes of “staggering brutality, including in each case the murder of a child.”

He said none would benefit from the appeals that have been launched, even if successful.

The men “are not contesting their guilt, their death sentences, or their execution by lethal injection,” Francisco wrote.

“Their asserted injury therefore is not that they will be wrongfully executed. Nor, in contrast to many recent drug-protocol cases, is the asserted injury before this court that respondents will be subjected to unwarranted pain during execution. “

“Rather,” Francisco continued, “the only harm respondents assert is that they will not receive a purported statutory entitlement to execution in compliance with certain state procedures.”

The appeals are simply meant to throw the resumption of executions off-track, he wrote.

“The result of denying the government’s request for relief now would be that, in all likelihood, the United States will not be able to enforce the sentences against respondents for at least many months and more likely years, after the D.C. Circuit appeal and any ensuing proceedings in this court have run their course,” he wrote.


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