A U.S. appeals court has rejected the Trump administration’s request to reinstate the federal death penalty after nearly two decades, setting up a Supreme Court battle over the Justice Department’s push for capital punishment.
The U.S. Court of Appeals for the District of Columbia Circuit on Monday upheld a lower court’s ruling that temporarily blocks the Justice Department’s plan to execute several people on death row.
Attorney General William Barr directed the Federal Bureau of Prisons in July to resume capital punishment at the federal level ― something the federal government has not acted on in almost 17 years ― so he could schedule five executions in December and January. The first of those executions was planned for as early as next week.
Daniel Lewis Lee, a white supremacist who was convicted of killing a family in the 1990s, was set to be executed last month when the U.S. District Court for the District of Columbia ruled that the Justice Department’s new lethal injection protocol may “exceed statutory authority.” District Judge Tanya Chutkan put a temporary hold on Barr’s plan to execute Lee and others on death row after four of them challenged the department’s new protocol, alleging the federal government was bypassing proper procedures.
In her Nov. 20 order, Chutkan said that the Federal Death Penalty Act mandates that executions be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” Lethal injection is the main method used for execution throughout the country. However, specific protocols ― such as how many drugs are involved in the execution ― vary by state.
Barr asked the D.C. Circuit for an emergency stay to be able to proceed with the executions pending appeal, arguing that the federal government in Chutkan’s opinion would have to abide by “procedures in the nearly 30 distinct lethal execution protocols used” by states instead of using lethal injection in the way the Justice Department wants to. The attorney general also argued that officials have made significant efforts to prepare for the scheduled executions.
The D.C. Circuit’s panel of three judges ― Judith W. Rogers, Thomas B. Griffith and Neomi Rao ― unanimously rejected Barr’s motion to stay or vacate Chutkan’s injunction. Rogers was appointed by President Bill Clinton, Griffith by George W. Bush and, most recently, Rao by Donald Trump.
The panel did not provide any dissents or commentary on the merits of the Justice Department’s request, saying only that it had “not satisfied the stringent requirements for a stay pending appeal.”
The Justice Department did not immediately respond to HuffPost’s request for comment, though the department filed its request to the Supreme Court on Monday night for a stay on the injunction.
An attorney for some of the people on death row praised the Monday court decision, according to The Washington Post.
“We are gratified that the Court of Appeals agreed with the District Court that there is no basis to vacate the preliminary injunction in this case,” attorney Shawn Nolan told the Post. “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.”
The Justice Department had previously put a moratorium on executions at the federal level after a shortage of sodium thiopental, an anesthetic that’s part of a three-drug cocktail used in capital punishment, as required by the Federal Execution Protocol. Barr told the Federal Bureau of Prisons to amend the protocol and replace the drug cocktail with pentobarbital, a single drug that’s been used before at the state level when shortages of sodium thiopental have resulted in governments engaging in potentially unconstitutional workarounds.
President Barack Obama ordered a review in 2014 of drugs that states were using to replace sodium thiopental after the botched execution of Clayton Lockett in Oklahoma. That state legalized execution by nitrogen gas asphyxiation the next year and authorized using either electrocution or a firing squad if that method or the traditional drugs were not readily available.
“Congress has expressly authorized the death penalty through legislation adopted by the people’s representatives in both houses of Congress and signed by the President, Barr said in a statement at the time he directed the prison bureau to schedule the five executions. “Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding.”
The last federal capital punishment took place on March 18, 2003, according to data from the Death Penalty Information Center. There are currently 62 people on federal death row.