Last month, a judge issued an injunction prohibiting federal officials from executing four death-row inmates while they challenge the government’s lethal-injection procedure in court. The judge found that the procedure “very likely exceeds” the government’s authority under federal law.
The Justice Department argued in its 38-page filing Monday that the judge’s interpretation of the law is “implausible.” The filing, signed by Noel Francisco, the solicitor general, dismissed what it called a “flawed injunction against the implementation of lawful executions.”
Attorney General William P. Barr, in announcing plans to resume executions, had said the department owes it to victims to carry out the sentences, though some relatives of the first inmate facing execution have urged the administration to call off the lethal injection and sentence him to life in prison instead.
When Barr declared that the Justice Department intended to resume executions, his announcement also included details about the new lethal-injection protocol the department planned to use. This new protocol would rely on one drug, pentobarbital, rather than the three-drug combination previously used.
U.S. District Judge Tanya S. Chutkan of the District of Columbia, who issued the injunction blocking the federal executions, wrote that she had concluded that the inmates facing lethal injection were likely to succeed in challenging the protocol by arguing that it “exceeds statutory authority.”
Chutkan pointed to the Federal Death Penalty Act, which she said mandated that executions must be carried out “in the manner prescribed by the law of the State in which the sentence is imposed.”
While lethal injection remains the primary method of execution nationwide, the specific protocols vary from state to state, with differences including what drugs are used and how many.
In its filing with the Supreme Court, the Justice Department argued that “manner,” as stated in the federal statute, refers to the way the death penalty is carried out — such as a lethal injection, firing squad or electric chair — rather than specific details of the procedure.
The department argued that under Chutkan’s reading, states could essentially block federal executions “by making it impossible to follow some discrete aspect of state procedural law.”
Earlier Monday, the U.S. Court of Appeals for the D.C. Circuit denied the Justice Department’s request to scuttle the injunction while it appealed.
In a brief order, a three-judge panel unanimously rejected the Justice Department’s motion. The panel offered no commentary on the merits of the Justice Department’s appeal, saying only that its request to stay or vacate the injunction had “not satisfied the stringent requirements for a stay pending appeal.”
The three circuit court judges who issued the order are Judith W. Rogers, who was appointed by President Bill Clinton; Thomas B. Griffith, appointed by President George W. Bush; and Neomi Rao, appointed by President Trump earlier this year.
An attorney for some of the death-row inmates did not immediately respond to a request for comment about the Supreme Court filing. Earlier Monday, he had praised the appeals court’s move.
“We are gratified that the Court of Appeals agreed with the District Court that there is no basis to vacate the preliminary injunction in this case,” Shawn Nolan, one of the attorneys representing some of the death-row inmates, said in a statement. “The courts have made clear that the government cannot rush executions in order to avoid judicial review of the legality and constitutionality of its new execution procedure.”
Even before the judges issued their order Monday, the Justice Department had said it was likely to move to the Supreme Court. The department had written in filings with the appeals court that it was planning to “seek relief in the Supreme Court absent relief here.”
A Justice Department spokesman declined to comment Monday.
In its Supreme Court filing on Monday, the department again emphasized the work needed to prepare for a federal execution, writing that this “is a complicated endeavor that requires mobilizing hundreds of federal and other personnel, coordinating with victims’ families who decide to view the execution of their loved one’s murderer, providing security, and safety preparing the drug protocol.”
The federal government last carried out an execution in 2003.
This story has been updated.