US federal death penalty protocol faces fresh legal scrutiny

Published Jul 31, 2019

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Washington – Plans by President Donald

Trump's administration to resume executions of inmates sentenced

to death for federal crimes is set to face a stiff court

challenge, but a judge's decision on the legality of its new

protocol for lethal injections may come too late for five men

scheduled to die starting in December.

Attorney-General William Barr's July 25 announcement of a

single-drug protocol for executing federal prisoners

jump-started a long-running civil lawsuit challenging the

Justice Department's capital punishment procedures as a

violation of the US Constitution and a federal law governing

how regulations are enacted.

None of the seven federal death row inmates who are

plaintiffs in the lawsuit were among the five selected by Barr

for execution, though the legal questions raised in the

litigation are directly relevant to those men.

The eventual ruling in the suit could come after scheduled

new round of executions is carried out on the five men, who were

convicted of murder and other charges. The last federal execution took place in 2003.

"It doesn't make a whole lot of sense for them to go ahead

and execute five people while we're litigating the legality of

the method they're using," Paul Enzinna, lead counsel for the

seven plaintiffs in the case pending before US District Judge

Tanya Chutkan in Washington, told Reuters.

The lawsuit, filed in 2005, has asserted that the Justice

Department's death penalty protocol runs afoul of the

Constitution's Eighth Amendment ban on cruel and unusual

punishment by carrying a risk of severe pain as well as a law

called the Administrative Procedure Act because it was written

in secret without the required public input.

Enzinna said he is planning on Thursday to file a response

for Chutkan, an appointee of Democratic former President Barack

Obama, to review after the Justice Department last week notified

the court of its new protocol as part of the case.

The plaintiffs are expected to demand answers about how

federal executions will be carried out, whether inmates are at

risk of a painful death that would amount to cruel and unusual

punishment and why the new procedures were devised behind closed

doors without public dialogue.

The seven plaintiffs have had their executions put on hold

by the court pending a resolution of the litigation. The case

had remained largely dormant since 2011 after the department

abandoned its previous three-drug protocol because of a shortage

of one of the drugs, an anesthetic called sodium thiopental.

The death penalty policy disclosed last week was the

administration's latest announcement appealing to Trump's

conservative political base as he seeks re-election in 2020.

Barr, a Trump appointee who took office in February,

effectively brought the litigation back to life with his

disclosure that his department had approved a new protocol that

calls for using the barbituate sedative pentobarbital for all

lethal injections rather than a three-drug combination.

The five inmates scheduled for execution are Daniel Lewis

Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois and

Dustin Lee Honken.

Some of their lawyers said they were blindsided by Barr's

announcement, and accused Barr's department of improperly

dodging judicial review by carefully selecting death row inmates

known to be outside the pending litigation.

"If they really wanted to explore and give oversight, and

throw some sunshine on this process, they would have done what

the court expected them to do," said Ruth Friedman, who is

helping represent Lee as director of the Federal Capital Habeas

Project, part of the Federal Defender program that provides

lawyers in certain death penalty cases when defendants cannot

afford counsel.

"Instead, they are hoping to obviate that litigation,"

Friedman added.

Justice Department spokesman Wyn Hornbuckle declined to

comment on the case because it "remains in active litigation,"

instead citing Barr's comments last week noting that the U.S.

Congress has "expressly authorized" use of the death penalty.

When the case was filed 14 years ago, it focused on the

Justice Department's process for using three drugs to carry out

lethal injections including questions about how staff members

were trained to carry out executions, how drugs were obtained,

what pain they might inflict and how they would be administered.

Friedman said lawyers for the five inmates scheduled to die

are "scrambling" to figure out their legal strategy in light of

Barr's new protocol.

"None of them had any idea that their clients were about to

be told they were going to be executed," Friedman said.

Enzinna said some of the five could try to intervene in the

civil case so they can be added as plaintiffs, or file their own

challenge on similar grounds. Celeste Bacchi, a federal public

defender who represents Mitchell, said both those options are

being considered.

Reuters

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