“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,” Judge Tanya S. Chutkan, an Obama-appointee, wrote in the ruling.
Solicitor General Noel Francisco filed the appeal, which named Attorney General William Barr and a host of other officials, including Bureau of Prisons Assistant Director Nicole English, as applicants in the case.
Francisco argued against Chutkan’s view that the Federal Death Penalty Act not only requires the federal government to carry out executions in the same manner as the law of the state in which the sentence was imposed but also that the government needed to comply with all “additional procedural details” of the State’s execution protocol.
“Under the court’s reasoning, a State could effectively veto a federal execution simply by making unavailable state officials or resources that are required by state law for the execution. Even an otherwise-cooperative State could prevent a federal execution by declining to disclose certain execution procedures or drug sources,” he added.
Francisco said the pending executions of the four murderers, each of whom killed at least one child, should be carried out in a timely manner.
The plaintiffs’ charge that they shouldn’t be executed with the pentobarbital injection doesn’t make sense because the lethal cocktail mix used by some states has been acknowledged as causing greater pain, Francisco said.
“The balance of equities thus militates strongly in favor of setting aside the order below and allowing the executions to proceed as scheduled, as this Court has summarily done on other occasions when lower courts unjustifiably enjoined or stayed executions,” he said.
Barr announced on July 25 that he directed the Federal Bureau of Prisons to adopt an addendum to the Federal Execution Protocol, clearing the way for the government to resume capital punishment.
“Under Administrations of both parties, the Department of Justice has sought the death penalty against the worst criminals, including these five murderers, each of whom was convicted by a jury of his peers after a full and fair proceeding. The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system.”
The addendum replaced the three-drug mix that was used in federal executions with pentobarbital. “Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment,” according to the department.
