WASHINGTON (CN) — Four men scheduled to be among the first federal prisoners executed in 17 years have asked the Supreme Court to resolve whether the new national protocols trample the law.
The crisis erupted nearly a year ago when Attorney General William Barr announced the Trump administration would carry out federal executions for the first time since 2003.
Most of the 30 states that execute prisoners use a three-drug cocktail, but Barr’s directive calls for the mix to be replaced with pentobarbital sodium.
Four of the five inmates who would be the first executed under the new procedures responded with a lawsuit, arguing that the administration violated federal law and circumvented administrative procedures when it put forward its new protocols.
Though a Washington federal judge granted these challengers an injunction, the D.C. Circuit reversed in a fractured 2-1 April ruling.
“The panel’s decision, if uncorrected, will have significant effects on both future death penalty litigation and administrative law more broadly,” Cate Stetson, a partner at Hogan Lovells who represents the inmates, said in a statement. “The Supreme Court should grant review to resolve this confusion and hold that the statute means what it says, requiring the government to follow state execution protocols.”
Both judges in the D.C. Circuit majority — Judges Neomi Rao and Greg Katsas — are Trump appointees.
While the trial judge who granted the injunction seized on the Federal Death Penalty Act’s requirement federal inmates to be executed “in the manner prescribed by the law of the state in which the sentence is imposed,” Rao and Katsas said this misapplied the FDPA’s requirements.
The full circuit declined to rehear the case last month.
Hogan Lovells submitted its petition to the Supreme Court for certiorari on Friday, calling the D.C. Circuit’s decision “manifestly incorrect” and at odds with precedent and core tenets of administrative law.
“That misguided decision conflicts with this court’s precedent, disregards Congress’ choice to defer to the states in this important area and will have severe consequences,” the petition states. “It is also wrong on its own terms.”
They argue the court upheld the Justice Department’s execution protocols on grounds the agency never embraced, a violation of a key administrative law doctrine. In addition, the inmates say the protocols should have gone through the regulatory process that gives the public an opportunity to comment on proposed changes to federal rules.
A representative for the Justice Department declined to comment on the petition.
The last person executed under the federal death penalty was Louis Jones in March 2003. Jones was convicted of raping and murdering a female soldier.
All four inmates currently challenging the federal protocols were convicted of particularly heinous crimes. Among them are Alfred Bourgeois, who was convicted in 2004 of molesting and murdering his 2-year-old daughter; and Daniel Lewis Lee, a white supremacist convicted of murdering a family, including an 8-year-old girl.
Across the country, lethal-injection protocols have come under scrutiny in recent years as pressure on drugmakers has led them to end production on certain chemicals used in capital punishment.
In 2014, following a botched execution in Oklahoma that relied on a new drug cocktail, then-President Barack Obama ordered the Justice Department to conduct a study of lethal-injection drugs and capital punishment more broadly. The conclusion of that review remains unclear.
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