On July 25, 2019, U.S. Attorney General William Barr announced the federal government’s intention to restart executions after a sixteen-year hiatus by scheduling five federal capital prisoners to be executed between December 2019 and January 2020. At the same time, Attorney General Barr also announced that he had directed the Bureau of Prisons (BOP) to adopt an “addendum” to its execution protocol that altered the specific drugs to be used in the executions. In November, a federal court issued an injunction halting the scheduled executions, and on December 6, 2019, three days before the first execution was scheduled to take place, the U.S. Supreme Court refused the Government’s request to overturn the lower courts’ decisions and allow the executions to proceed.
There have only been three federal executions carried out since 1977, the last of which took place in 2003. Since 2005, litigation challenging the federal government’s execution protocol has been pending in the U.S. District Court for the District of Columbia. Although none of the five men scheduled for execution via the July 25 order were initially parties to this litigation, four sought and were granted leave to intervene in the proceedings this fall.
The origins of the litigation date back to 1993, during Attorney General William Barr’s first tenure at the U.S. Department of Justice (DOJ). At that time, the DOJ promulgated and adopted a federal rule specifying a uniform method and place for federal executions. In 1994, however, Congress passed the Federal Death Penalty Act (FDPA), superseding the 1993 DOJ rule, which stated instead that federal executions were to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.” Bills were subsequently introduced to amend the FDPA and to clarify this language to allow the DOJ and BOP to specify a uniform procedure for carrying out federal executions, but these bills were not passed. This left the 1993 rule and the 1994 law in conflict over how federal executions were to be carried out.
After litigation challenging the federal government protocol commenced in 2005, the Government produced various documents outlining the execution process that the BOP would use. These documents cited the 1993 DOJ rule for authority, rather than the provisions contained within the FDPA. In 2011, the DOJ announced that because of manufacturers’ embargoes on selling their products for use in executions, it did not have the drugs required to carry out its most recently specified execution plan, issued in 2008. The BOP indicated to the court that it planned to amend the execution protocol again, and the court stayed the litigation. No new plan was announced until Attorney General Barr’s sudden announcement in July 2019 that executions would resume using pentobarbital in a single-drug lethal injection procedure.
Several of the prisoners scheduled for execution brought swift challenges to the new protocol. On November 20, 2019, the district court granted a preliminary injunction against the Government. The court held that the prisoners had demonstrated a substantial likelihood of success on their claim that the newly announced protocol was inconsistent with the FDPA, the governing statute. The prisoners argued that under the FDPA, the “manner” in which the executions were to be carried out should be the same as that of the state in which the prisoners were convicted. The court rejected arguments from the DOJ that the Government’s protocol need only take the same form of execution—lethal injection. Siding with the prisoners on this issue, the court looked to documents showing Congress’s recognition that the FDPA would require the federal government to carry out executions according to the procedure specified by the state in which the condemned prisoner was convicted and sentenced.
Because the court found that the plaintiffs were likely to succeed on the merits of this claim, the opinion did not reach other claims that were also raised, such as whether the BOP had the power to adopt a new execution protocol without allowing the public to weigh in on the proposed change through notice-and-comment rulemaking. In addition, the prisoners also alleged that the adoption of the addendum on the same day that the execution dates were announced allowed no opportunity to sufficiently examine the new proposed method of execution for constitutional defects under the Eighth Amendment and that the rushed manner of announcing the dates and the new protocol violated the prisoners’ due process rights under the Fourteenth Amendment.
On December 2, 2019, the D.C. Circuit Court of Appeals denied the Government an emergency motion for a “stay pending appeal” of the district court ruling enjoining the executions. The Government then sought review of the injunction directly from the U.S. Supreme Court, which declined to overturn the lower court’s decision. Justice Alito, joined by Justices Gorsuch and Kavanaugh, issued a separate statement, saying that “[t]he Government has shown that it is very likely to prevail when this question is ultimately decided.” Despite indicating apparent agreement with the Government on the merits of the case, however, the Justices noted that “it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.”
Without setting a specific deadline, the Court’s denial of the Government’s application noted its expectation that the lower courts would resolve the merits of the challenge with “appropriate dispatch.”