WASHINGTON — A federal judge in Washington, DC, once again issued an order blocking the Trump administration from carrying out federal executions by lethal injection, hours before a man was scheduled to die.
US District Judge Tanya Chutkan ruled that the death row inmates who are pursuing a series of legal challenges to the administration's new lethal injection protocol should be given time to exhaust those efforts before the federal government can execute them. The federal Bureau of Prisons was set to execute Daniel Lewis Lee at 4 p.m. EDT on Monday, and two more executions were scheduled for later in the week. They would be the first inmates executed by the federal government since 2003.
The judge wrote that the "last-minute nature" of her ruling wasn't the inmates' fault, but rather the Justice Department's for setting execution dates while the legal action was still pending.
"[B]ecause the public is not served by short-circuiting legitimate judicial process, and is greatly served by attempting to ensure that the most serious punishment is imposed in a manner consistent with our Constitution, the court finds that it is in the public interest to issue a preliminary injunction," Chutkan wrote.
The Justice Department immediately appealed Chutkan's decision to the US Court of Appeals for the DC Circuit. A spokesperson declined to comment.
Shawn Nolan, one of the lawyers involved in challenging the Trump administration's new lethal injection protocol on behalf of death row inmates, said in a statement that the injunction would not only give the inmates time to pursue all of their legal arguments, but also protect everyone else involved in the execution process during the coronavirus pandemic. On Sunday, the Justice Department filed a notice in court that another staff member at the federal prison facility where the executions were set to take place, FCI Terre Haute, had tested positive for COVID-19, the disease caused by the novel coronavirus.
“The government has been trying to plow forward with these executions despite many unanswered questions about the legality of its new execution protocol. The district court’s injunction ensures that the courts will have the opportunity to carefully address those issues. Given that these executions threaten to become COVID-19 super-spreader events, the injunction will also protect the lives and health of the correctional staff, victim family members, spiritual advisors, attorneys, and others who must witness the executions," Nolan said.
Monday's order came after two weeks of frantic litigation across multiple courts by the death row inmates as well as other parties seeking to stop or at least delay the executions.
On Friday, a federal judge in Indiana had ordered Lee's execution delayed. Lee was convicted of murdering a family of three, including a child, and family members of the victims had asked the judge to delay the execution because they wanted to be present but did not feel safe traveling during the coronavirus pandemic; these family members have opposed Lee's execution, advocating instead for a life sentence. US District Chief Judge Jane Magnus-Stinson sided with the family members and granted the injunction.
On Sunday, however, a three-judge panel of the 7th Circuit reversed that injunction, giving the Bureau of Prisons the green light to proceed with the execution. The court concluded there was no federal law or regulation that gave victims' families a right to attend an execution, which meant that there wasn't any legal right that they could go to court to enforce. The panel also held that the agency action being challenged — the scheduling of an execution — wasn't something a court could review under the federal Administrative Procedure Act if the Bureau of Prisons followed the "minimal requirements in the regulations."
In a separate case that Lee filed trying to challenge his underlying conviction based on arguments that his former lawyers had been ineffective, the 7th Circuit issued an order on Friday rejecting that effort. Lee had unsuccessfully tried to raise arguments about his lawyers' handling of his case in the past, and the court ruled that he couldn't relitigate that issue now.
Two other death row inmates, who were also convicted of murdering children, were scheduled to die this week: executions were scheduled for Wesley Purkey on July 15, and Dustin Lee Honken on July 17. A fourth execution, for Keith Nelson, was scheduled for Aug. 28.
Purkey's execution had already been put on hold by the 7th Circuit while he litigated new challenges to his conviction. A separate lawsuit filed by the American Civil Liberties Union in federal court in Indiana on behalf of Purkey's spiritual adviser remains pending; Rev. Seigen Hartkemeyer, a Zen Buddhist priest who wanted to attend Purkey's execution, had argued it should be delayed because it wasn't safe for him to travel due to the pandemic. The judge has yet to rule in that case.
It's been a year since Attorney General Bill Barr announced that the Trump administration planned to resume federal executions — the US government last executed someone in 2003. Chutkan had previously halted the executions while the inmates challenged the new, single-drug lethal injection protocol announced by the administration.
The inmates lost the first round of litigation. They initially argued that the new protocol violated the Federal Death Penalty Act, but the DC Circuit ruled they weren't likely to win on those grounds. The US Supreme Court declined to get involved, and last month the Justice Department announced the new set of execution dates.
Chutkan's latest order is based on a new set of arguments that the inmates are pressing, including that the Trump administration failed to follow the Administrative Procedure Act in adopting the new lethal injection plan, and that the protocol violates the Eighth Amendment's prohibition on "cruel and unusual punishment." Chutkan found that the inmates were likely to succeed on the Eighth Amendment claim because the administration's drug of choice, pentobarbital sodium, "poses an unconstitutionally significant risk of pain."
The judge cited declarations that the inmates' lawyers submitted showing that inmates executed by pentobarbital — states have continued to carry out executions even while the federal government did not — suffered flash pulmonary edema, a condition that interferes with a person's ability to breathe.
"Eyewitness accounts of executions using pentobarbital describe inmates repeatedly gasping for breath or showing other signs of respiratory distress, and indicate that flash pulmonary edema is common and extremely painful," the judge wrote.
Chutkan wrote that the inmates met the standard for an injunction because they'd identified alternative executions methods "that would significant reduce the risk of serious pain" — receiving a dose of opioid or anti-anxiety medication before the injection, or a firing squad. She didn't reach the inmates' Administrative Procedure Act arguments.