The filing said that allowing the federal government to proceed with putting the men to death would allow the Justice Department to implement a new execution protocol that a lower court deemed last month to be “without authority and unlawfully issued.”
The men’s response came days after the Justice Department filed an application asking the Supreme Court to allow it to resume the federal executions by getting rid of the injunction handed down by the U.S. District Court for the District of Columbia, escalating the Trump administration’s push to resume the federal death penalty. The Dec. 2 filing was signed by Solicitor General Noel Francisco.
The Justice Department did not respond to HuffPost’s request for comment.
Attorney General William Barr directed the Federal Bureau of Prisons in July to resume the federal death penalty so that he could schedule executions in December and January for five men: Daniel Lewis Lee, Wesley Purkey, Alfred Bourgeois, Dustin Lee Honken and Lezmond Mitchell. Mitchell is not part of the prisoners’ lawsuit against the Justice Department, and the U.S. Court of Appeals for the 9th Circuit ruled in October to stay his execution pending resolution of his appeal.
The federal government has not carried out capital punishment in nearly 17 years, but Barr argued that the Justice Department owes it to victims to execute the inmates. Lee’s execution would have been the first, scheduled for next Monday, but it was stayed Thursday, and the victims’ family has said that a life sentence is more appropriate.
Lee, a white supremacist convicted of killing a family in the 1990s, was initially scheduled to be executed in November when District Judge Tanya Chutkan imposed a preliminary injunction on Barr’s plan to execute him and the others on death row. Chutkan’s injunction put a temporary hold on the executions while the four prisoners legally challenge the Justice Department’s new protocol, alleging that it is trying to bypass proper procedures.
Lee’s execution was moved to Dec. 9, but a federal court in Indiana granted him a stay in order to allow him time to legally challenge his sentence.
“The judge found a significant possibility that the Government was aware of, and failed to disclose, evidence undermining a key basis for his death sentence, a sentence which the victims’ family, the trial judge and the lead trial prosecutor vehemently oppose,” Lee’s attorney Morris Moon said in a statement. “Counsel for Mr. Lee are grateful that the Court recognized the unfairness of Mr. Lee’s death sentence and look forward to proving his claims in this Court.”
In her order, Chutkan said that the Federal Death Penalty Act requires that executions be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.” Though lethal injection is the primary method for carrying out the death penalty in the U.S., specific protocols ― such as the type and number of drugs involved ― can differ by state.
“The public interest is not served by executing individuals before they have had the opportunity to avail themselves of legitimate process,” Chutkan wrote in her Nov. 20 order.
Barr then asked the U.S. Court of Appeals for the District of Columbia Circuit for an emergency stay so he could proceed with the executions pending appeal, arguing that his department, under Chutkan’s perspective, would have to abide by “procedures in the nearly 30 distinct lethal execution protocols used” by states instead of just using lethal injection in the way Barr wants.
But the appeals court’s panel of three judges unanimously rejected Barr’s motion to lift the injunction, saying that the Justice Department had “not satisfied the stringent requirements for a stay pending appeal.” The judges ― Judith W. Rogers, Thomas B. Griffith and Neomi Rao ― gave no commentary on the merits of the department’s appeal.
In its filing with the U.S. Supreme Court ― which came on the same day as the appeals court ruling ― the Justice Department argued that Chutkan’s interpretation of the law is “implausible” and that her ruling is a “flawed injunction against the implementation of lawful executions.”
The filing also stressed the significant amount of work necessary to prepare for a federal execution, saying that it “is a complicated endeavor that requires mobilizing hundreds of federal and other personnel, coordinating with victims’ families who decide to view the execution of their loved one’s murderer, providing security, and safely preparing the drug protocol.”
The government previously put a moratorium on federal executions after experiencing a shortage of sodium thiopental, an anesthetic that’s part of a three-drug cocktail the Federal Execution Protocol requires be used in capital punishment. Barr told the prison bureau to amend the protocol and replace the drug cocktail with pentobarbital, a single drug that states have used at times when sodium thiopental shortages have resulted in governments participating in potentially unconstitutional workarounds for executions.
The prisoners’ filing Wednesday with the Supreme Court said that the Bureau of Prisons would need Congress to amend the Federal Death Penalty Act if it wanted to create and implement its own execution procedures and that Barr cannot achieve what he wants “through agency fiat.”
The last federal execution occurred on March 18, 2003, according to the Death Penalty Information Center.
Read the death row prisoners’ filing with the Supreme Court here:
This article has been updated with an Indiana court issuing a stay in the Daniel Lewis Lee execution that had been scheduled for Monday.