The Trump administration petitioned the Supreme Court Monday after a federal judge halted the first federal execution — for now — which was scheduled to occur next week.
The judge issued an injunction as a legal challenge to the federal government’s new execution policy works its way through the courts.
Judge Tanya S. Chutkan, an Obama-appointee, said in a recent ruling the Justice Department’s execution protocol likely runs afoul of the legal authority for executive rulemaking laid out by Congress.
She also said not issuing an injunction would cause irreparable harm for the inmates who would be put to death before their legal challenge is adjudicated.
“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,” the judge wrote in a 15-page ruling.
The Trump administration appealed the move to the federal appeals court in Washington but was denied. It now is petitioning the high court, asking the justices to lift the injunction.
“The district court’s holding is meritless,” said Noel Francisco, the solicitor general.
The Trump Justice Department approved a new death penalty protocol to carry out executions, officials announced in July, saying the move clears the way for the first federal execution since 2003.
The Bureau of Prisons plans to use a single drug, pentobarbital, for lethal injection, adopting the same protocol used in Texas and at least four other states.
Pentobarbital has been used in at least 200 executions and the Justice Department said its use as an execution drug has been upheld by the Supreme Court, which ruled it does not violate the 8th Amendment’s prohibition on cruel and unusual punishment.
The new policy makes good on President Trump’s stance that the death penalty is an important criminal justice tool, and it fulfills a goal of former Attorney General Jeff Sessions, who sought to update the federal protocols.
Attorney General William Barr made the final decision to authorize the new protocol, an official said.
He ordered the Bureau of Prisons to schedule executions of five death row inmates who have been convicted of murdering children and the elderly, picking cases that involved heinous crimes and where the criminals have exhausted their appeals.
The executions were scheduled to take place at the U.S. penitentiary in Terre Haute, Indiana, with the first having been slated for December.
Four of the five men filed a legal challenge, saying the new protocol is unlawful and unconstitutional. Depositions are set to be complete by the end of February, as the litigation is expected to continue through the Spring of 2020.
The last federal execution was in 2003, when Louis Jones was put to death for kidnapping and killing Army soldier Tracie Joy McBride.
In the intervening years execution methods have faced a number of hurdles, including a pressure campaign by activists to deny access to the drugs used in lethal injections.
That’s slowed the pace of executions in the 25 states where executions are still legal and able to take place, and it “complicated and prevented” executions at the federal level, a department official said.
The federal government carried out 37 executions between 1927 and 2003, and there are about 60 inmates currently on federal death row.
Daniel Lewis Lee, a white supremacist who murdered a family of three, was to be the first of the five new executions scheduled. His date was set for Dec. 9.
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