The Supreme Court will not take up a challenge to new federal death penalty protocols proposed by the Justice Department, which wants to resume executions as early as July for the first time since 2003.
The court, without comment, declined Monday to take up the lawsuit filed by four death row inmates. As is customary, it gave no reason. Justices Ruth Bader Ginsburg and Sonia Sotomayor said they would have accepted the case.
“Even as people across the country are demanding that leaders rethink crime, punishment, and justice, the government is barreling ahead with its plans to carry out the first federal executions in 17 years,” Ruth Friedman, a lawyer for one of the inmates, Daniel Lee, said in a statement after the court declined to take up the case. “Given the unfairness built into the federal death penalty system and the many unanswered questions about both the cases of the men scheduled to die and the government’s new execution protocol, there must be appropriate court review before the government can proceed with any execution.”
Attorney General William P. Barr in the past summer said the department planned to resume executions using a new lethal-injection procedure that involves a single drug, pentobarbital. The Justice Department has laid out plans for three executions in July and a fourth in August. All involve inmates convicted of murdering children.
Lawyers for the death row inmates challenged the new procedures. A district judge said the government’s new protocol was inconsistent with the Federal Death Penalty Act. That 1994 law requires federal executions be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.”
A panel of the U.S. Court of Appeals for the D.C. Circuit in the spring ruled 2 to 1 that the executions could move forward.
Two judges — Gregory Katsas and Neomi Rao, both recent nominees of President Trump — lifted the district judge’s injunction. But the two disagreed on the legal reasoning.
Katsas concluded the law applies only to the top-line choice among execution methods, such as whether to use lethal injection instead of hanging or electrocution.
Rao, meanwhile, found the law also requires the federal government to follow execution procedures set forth in state law, but not procedures set forth in less formal state execution protocols.
Judge David Tatel, nominated by President Jimmy Carter, dissented. He wrote that for decades almost all federal executions were carried out by state officials who executed federal prisoners in the same “manner” as they executed their own.
Congress subsequently “signaled its intent to continue the same system — for federal executions to be carried out in the same manner as state executions,” Tatel wrote.
Washington lawyer Catherine Stetson, representing the four inmates, said in a brief to the Supreme Court that such a splintered decision deserved the attention of the justices.
“In permitting the government to proceed, the panel majority flouted [Supreme Court] precedent and upended key principles of administrative law rooted in the separation of powers,” Stetson wrote, adding the lower court’s decision “raises more questions than it resolves about how to conduct federal executions.”
Solicitor General Noel Francisco said the lawsuit against resumption of federal executions was simply a delaying tactic, and that there was no argument that the proposed federal protocol was unsafe.
He said the court should resist the request to review the lower court when “the ultimate outcome of the case is clear.”
Ann E. Marimow and Mark Berman contributed to this report.
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