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Judge halts scheduled executions, says Barr proposal violates law

WASHINGTON — A federal judge late Wednesday halted the four scheduled federal executions, finding that Attorney General William Barr’s July proposal seeking to resume the death penalty after a 16-year moratorium appears to be at odds with federal law.

The four executions were scheduled to take place in December and in January 2020. But U.S. District Judge Tanya Chutkan of the District of Columbia ruled Wednesday that the inmates were likely to succeed in their argument that Barr’s proposal to execute all four men using one type of lethal injection contradicts the Federal Death Penalty Act.

“Plaintiffs have clearly shown that, absent injunctive relief, they will suffer the irreparable harm of being executed under a potentially unlawful procedure before their claims can be fully adjudicated,” wrote Chutkan, an appointee of President Barack Obama.

A spokeswoman for the Justice Department declined to comment on the ruling. On Thursday, the Justice Department filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

Shawn Nolan, an attorney for the inmates facing execution, said he had expected that the federal government would appeal. Nolan praised the judge’s decision in a statement issued after it was handed down.

“This decision prevents the government from evading accountability and making an end run around the courts by attempting to execute prisoners under a protocol that has never been authorized by Congress,” Nolan said. “By granting the preliminary injunction, the court has made clear that no execution should go forward while there are still so many unanswered questions about the government’s newly announced execution method.”

Barr announced plans this summer to resume the federal death penalty under a new lethal injection protocol, saying the Justice Department “owe[s] it to the victims and their families” to carry out executions. A federal execution has not been carried out since 2003; the Obama administration said in 2011 that it couldn’t execute prisoners because it did not have access to the drugs necessary for lethal injection.

Some relatives of victims in the first case with a scheduled execution have publicly asked the Justice Department not to carry out the execution. Those pleas have been echoed by public messages from hundreds of other murder victims’ relatives, current and former law enforcement officials and former judges and corrections officials, who signed onto letters asking that the executions be called off.

The plan Barr announced included a new method of lethal injection that would use a single drug — pentobarbital — rather than a combination of three chemicals.

The problem with this policy, Chutkan wrote, is that appears to contradict the Federal Death Penalty Act’s requirement that death row inmates be executed “in the manner prescribed by the state of conviction.” Creating a uniform federal method is “very likely” beyond the attorney general’s authority, the judge said.

“The FDPA provides no exceptions to this rule,” Chutkan wrote, “and does not contemplate the establishment of a separate federal execution procedure.”

In July, the Federal Bureau of Prisons also scheduled the execution of a fifth man, but the U.S. Court of Appeals for the 9th Circuit blocked his execution last month.

Barr’s decision over the summer to go forward with executions rattled criminal justice groups, which pointed to a nationwide decline in support for the death penalty; however, the decision drew support from victims’ advocates, who say it’s painful for families to wait years, even decades, for a sentence to be carried out.

In recent years, states such as Texas and Missouri have also switched from a three-drug combination to pentobarbital for lethal injections, largely because of mounting obstacles in obtaining the drugs from suppliers.

Two of the men who were scheduled for execution were from Texas and Missouri, but the two others were scheduled to be executed under state protocols that still use the three-drug combination.

The Justice Department argued in legal briefs that it would be “absurd” to require the federal government to keep every single drug used by death-penalty states in stock to comply with the FDPA. Using lethal injection as the method of execution in general, despite using different drugs, is still in the spirit of the law, the Justice Department argued.

But Chutkan disagreed. She said she found that interpretation of the law “implausible,” based on the basic dictionary definitions of words within the FDPA statute. She emphasized that carrying out executions in the same “manner” as the states in which the prisoner is convicted is a higher standard than adopting the same general method.

Besides, she said, the federal government has been following some version of this legal requirement since 1937. For years, federal authorities did not even have their own execution chamber. If a state required use of the electric chair for its convicts, for example, the federal government could borrow one, as the U.S. Marshals did when they oversaw the execution of Ethel and Julius Rosenberg on spying charges at New York’s Sing Sing prison in 1953.

The federal government is still allowed to ask for assistance from state officials in carrying out executions, Chutkan noted.

“Far from creating absurd results, requiring the federal government to follow more than just the state’s method of execution is consistent with other sections of the statute and with historical practices,” Chutkan wrote. “For all these reasons, this court finds that the FDPA does not authorize the creation of a single implementation procedure for federal executions.”

The Justice Department argued that delaying the executions by granting the inmates’ injunction would cause the government harm. But in addition to pointing to the more obvious harm awaiting the prisoners — death — Chutkan countered that the Justice Department’s argument was also undercut by the fact that the federal government waited eight years to amend its execution protocol, since the Obama administration announced in 2011 that it would have to undergo review.

The death row inmates awaiting execution are Daniel Lewis Lee, a white supremacist convicted in 1999 in Arkansas of robbing and murdering a family of three; Wesley Ira Purkey, convicted in 2003 in Missouri of violently raping, murdering, dismembering and burning a 16-year-old girl; Alfred Bourgeois, convicted in 2004 in Texas of torturing and killing his 2-year-old daughter; and Dustin Lee Honken, convicted in 2004 in Iowa of shooting and killing five people, including two children.

Iowa does not have the death penalty, meaning that the federal government must choose a different state’s execution rules to follow under the FDPA. In Honken’s case, the feds chose Indiana, where the Terre Haute federal penitentiary and execution chamber are located. Indiana uses the three-drug lethal injection combination, according to the Death Penalty Information Center.