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.