A federal judge late Wednesday froze the Trump administration’s plan to resume executions of convicted murders, ruling that the method of execution the government intended to use violated the Federal Death Penalty Act requiring that it kill condemned prisoners using practices followed by the states in which the sentences were handed down.
Letting the government go forward with four planned executions beginning next month would, obviously, end the defendants’ ability to pursue their legal challenge.
It’s somewhat arcane, I know, but interesting on a couple of levels.
First, the 1994 Federal Death Penalty Act is explicit in how a federal execution is to be carried out, and it’s bizarre that a Justice Department populated with lawyers managed to miss those statutory requirements as they prepared for the announcement by Atty. Gen. William P. Barr of the resumption of federal executions, the last of which was carried out in 2003. Barr himself is no rookie on this general topic; he helped craft federal capital punishment policy in the early 1990s for the George H.W. Bush administration.
The law says that the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” If that state does not have the death penalty, the government could pick another state and follow its protocol (the executions take place at a federal prison in Terre Haute, Ind.).
“The FDPA provides no exceptions to this rule and does not contemplate the establishment of a separate federal execution procedure,” U.S. District Judge Tanya S. Chutkan wrote in her 15-page preliminary injunction.
But Barr’s order did just that. He revised the federal government’s previous practice — which also seems to have violated the Federal Death Penalty Act — of using a three-drug protocol and replaced it with a single execution drug, pentobarbital, noting that a number of states had similarly made that switch. One of the men was sentenced in Texas and and another in Missouri, states that have a single-drug protocol. The other two were sentenced in states that still use the three-drug protocol.
Barr didn’t mention, though, that the three-drug protocol had been involved in several botched executions, or that it had become exceedingly difficult for state governments to procure some of the drugs because pharmaceutical companies refused to sell them for use in executions.
They haven’t had much more luck with pentobarbital, and several states have been forced to turn to compounding pharmacies, which make the drug to order. Many states have adopted laws that shield the identity of the compounding pharmacy ostensibly to protect it from reprisal by anti-death-penalty advocates (despite any sort of record that previous disclosures have led to harassment).
But some of the inmates executed with the locally made pentobarbital reported a burning sensation as the process began, and witnesses said they seemed to writhe in pain before dying, raising significant questions about how the drug is made, its potency, and its purity.
The government argued that the Federal Death Penalty Act allows for the federal government to use lethal injection in states that allow it, and that the protocol itself is irrelevant. Not so, the judge said.
“The statute does not refer to the ‘method’ of execution, a word with particular meaning in the death penalty context,” she wrote. “Instead, it requires that the ‘implementation’ of a death sentence be done in the ‘manner’ prescribed by the state of conviction.
“The statute’s use of the word ‘manner’ thus includes not just execution method but also execution procedure. To adopt defendants’ interpretation of ‘manner’ would ignore its plain meaning.”
The second interesting aspect is that the administration sought to resume executions in the first place. Nationwide, support for capital punishment has been waning amid revelations of innocent men snatched from the gallows, sometimes after decades on death row for murders they didn’t commit.
In fact, the 20 executions carried out so far this year took place in only seven states — eight of them in Texas alone, historically the nation’s leading state for executions. Conversely, 31 states plus the District of Columbia and the federal government have not carried out an execution in at least a decade.
Chutkan’s decision affects four scheduled executions; a fifth was previously stayed by the 9th Circuit Court of Appeals over concerns about the fairness of the defendant’s trial.
California is among the states with stalled capital punishment systems. Because of legal challenges and, now, a moratorium declared by Gov. Gavin Newsom, the state hasn’t executed anyone in 13 years, yet district attorneys continue to seek death sentences from juries.
So that just builds up the backlog of the condemned, with 732 people on death row.
The U.S. is an outlier among industrialized nations in still embracing the barbaric practice of capital punishment. That practice, fortunately, is fading. But not nearly fast enough.