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Federal government asks justices to allow executions to go forward

It has been less than two weeks since a federal judge in Washington, D.C., issued an order blocking the executions of four federal inmates. This evening the federal government asked the Supreme Court to lift the lower court’s order and allow the executions – the first of which is scheduled for next week – to proceed, even it means that the inmates will be executed before their appeal is resolved.

Tonight’s filing by the federal government was the most recent development in a fast-moving challenge by four inmates – Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee and Wesley Ira Purkey – to the lethal-injection protocol that the federal government planned to use to execute them. On November 20, U.S. District Judge Tanya Chutkan blocked the inmates’ executions indefinitely. She ruled that federal law requires the government to carry out executions using not only the same method of execution (for example, lethal injection) as the state where the execution is taking place, but also the exact same protocol. After the U.S. Court of Appeals for the District of Columbia Circuit declined to stay or vacate Judge Chutkan’s order earlier today, the government filed an emergency appeal with the Supreme Court.

In the government’s 38-page filing, U.S. Solicitor General Noel Francisco criticizes the district court’s ruling as “meritless.” “For virtually the entire history of the United States,” Francisco writes, “federal statutory references to the ‘manner’ of imposing the death penalty have been understood to refer only to the ‘mode of execution’ – not to all ‘additional procedural details’ of the execution, such as the composition of the firing squad or ‘how the intravenous catheter is to be inserted.’”

The district court’s ruling, Francisco continues, “conflicts not only with the statutory text, context, and two centuries of history, but also with common sense.” Under the lower court’s logic, a state court could “effectively veto a federal execution simply by” withholding state officials or resources that the federal government would need to carry out an execution. Indeed, Francisco adds, the lower court’s interpretation would – as in this case – actually prevent the federal government from using a method of execution that is widely regarded as more humane than what many states use. “Congress would not and did not enact such an upside-down scheme,” Francisco concludes.

Francisco urges the justices to allow the executions to proceed on schedule, explaining that the government has “spent months preparing for these executions, a major logistical undertaking.” By contrast, he depicts the inmates – who, he notes, all “murdered at least one child” – as litigating a technicality, because they concede that they can be executed by lethal injection. Francisco acknowledges that allowing the executions to go forward will mean that the inmates’ appeal will become moot after their execution, but he explains that when the inmates have suffered a “purely procedural injury” that is “likely illusory and at most harmless,” “[s]etting aside the district court’s injunction in these circumstances is amply warranted.”

The government’s request will go first to Chief Justice John Roberts, who is responsible for emergency appeals from the District of Columbia. Roberts can act on the request himself or (as is more likely) refer it to the full court.

[Disclosure: Goldstein & Russell, P.C. (or its predecessor firm) has in the past served as as counsel to Wesley Purkey, one of the inmates in this case, but neither the firm nor the author of this post represents him at this time or is otherwise involved in this litigation.]

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Federal government asks justices to allow executions to go forward, SCOTUSblog (Dec. 2, 2019, 8:55 PM),