U.S. federal death penalty protocol faces fresh legal scrutiny
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[August 01, 2019]
By Sarah N. Lynch
WASHINGTON (Reuters) - 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
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 U.S. 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
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 U.S. District Judge Tanya Chutkan in Washington, told
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.
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President Donald Trump and U.S. Attorney General William Barr attend
the 38th Annual National Peace Officers Memorial Service on Capitol
Hill in Washington, U.S., May 15, 2019. REUTERS/Carlos Barria/File
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
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
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
"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.
(Reporting by Sarah N. Lynch; Editing by Will Dunham)
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