Federal appeals court lifts lower court opinion blocking federal executions

The 2-1 ruling is a win for the Department of Justice, but the appeals court noted that there are still other issues that need resolution, suggesting that the executions will remain on hold while litigation continues.

The case comes after the Trump administration announced last July that it would reinstate the federal death penalty after a nearly two-decade lapse, and the two judges in the majority — Gregory Katsas and Neomi Rao — were both appointed by President Donald Trump.

Attorney General William Barr’s move to reinstate the federal death penalty underscored the stark law and order philosophy of the Trump administration. At the time, he directed the head of the Bureau of Prisons to execute five inmates he said represented the “worst criminals.”

The Bureau of Prisons adopted a new lethal injection protocol consisting of a single drug, pentobarbital.

The federal inmates involved in the appeal are Daniel Lewis Lee, who killed a family of three, including an 8-year-old girl; Wesley Ira Purkey, who raped and murdered a 16-year-old girl; Alfred Bourgeois, who tortured and killed his own 2-year-old daughter; and Dustin Lee Honken, who shot and killed five people, including two young girls.

A district judge blocked the executions from going forward, holding that the protocol conflicts with the Federal Death Penalty Act, which requires adherence to a state’s method of execution. US District Judge Tanya S. Chutkan of the District of Columbia Circuit put the executions on hold, ruling that a delay would not hurt the government, particularly because it has waited several years to announce a new protocol.

Chutkan said the public interest is not served by “executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions.”

Lawyers for the inmates argued that the government is trying to push the issue forward even though it took eight years to create a new execution protocol.

“From the moment it announced the protocol on July 25, 2019, the government has rushed the process in order to carry out executions without meaningful judicial review of the legality and constitutionality of the new execution procedures,” said Cate Stetson, a lawyer for the inmates.

In the opinion, the appeals court nodded to the timeline.

“We do share the government’s concern about further delay from multiple rounds of litigation,” the court held, “But the government did not seek immediate resolution of all the plaintiffs’ claims, including the constitutional claims and the claim that the protocol and addendum are arbitrary and capricious under the APA,” the court said and emphasized that “several claims” are pending at the lower court level.

“The one thing all the judges agree on is that there are other significant factual and legal issues that the district court still needs to resolve,” said Robert Dunham of the Death Penalty Information Center.

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