In re Fed. Bureau of Prisons' Execution Protocol Cases, Case No. 19-mc-145 (TSC)
| Decision Date | 13 July 2020 |
| Docket Number | 20-cv-557,19-cv-3214,Case No. 19-mc-145 (TSC),19-cv-2559 |
| Citation | 471 F.Supp.3d 209 |
| Parties | In the MATTER OF the FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL CASES, Lead Case: Roane, et al. v. Barr This Document Relates to: Lee v. Barr, et al., Purkey v. Barr, et al., Nelson v. Barr, et al. |
| Court | U.S. District Court — District of Columbia |
Joshua Christopher Toll, King & Spalding, LLP, Paul F. Enzinna, Ellerman Enzinna PLLC, Washington, DC, for James H. Roane, Jr.
Charles Anthony Zdebski, Eckert Seamans Cherin & Mellott, LLC Telecommunications Law, Joshua Christopher Toll, King & Spalding, LLP, Brandon David Almond, Troutman Sanders LLP, Washington, DC, Gerald Wesley King, Jr., Pro Hac Vice, Federal Defender Program, Inc., Atlanta, GA, for Richard Tipton.
Charles Frederick Walker, Donald P. Salzman, Steven M. Albertson, Skadden, Arps, Slate, Meagher & Flom LLP, Charles Anthony Zdebski, Eckert Seamans Cherin & Mellott, LLC Telecommunications Law, Joshua Christopher Toll, King & Spalding, LLP, Washington, DC, for Cory Johnson.
Celeste Bacchi, Office of the Public Defender, Craig Anthony Harbaugh, Jonathan Charles Aminoff, Federal Public Defender, Central District of California, Los Angeles, CA, for Julius Robinson.
Alexander Louis Kursman, Billy H. Nolas, Office of the Federal Community Defender, Philadelphia, PA, for Alfred Bourgeois.
David S. Victorson, Danielle Desaulniers Stempel, Pro Hac Vice, Hogan Lovells US LLP, Washington, DC, Elizabeth Hagerty, U.S. Attorney's Office, Denver, CO, John D. Beck, Pro Hac Vice, Pieter Van Tol, Pro Hac Vice, Hogan Lovells US LLP, New York, NY, for Daniel Lewis Lee.
Alan E. Schoenfeld, Pro Hac Vice, Ryan M. Chabot, Pro Hac Vice, Wilmer Cutler Pickering Hale & Dorr, LLP, New York, NY, Andres C. Salinas, Arin Hillary Smith, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, for Wesley Ira Purkey.
Scott Wilson Braden, Federal Public Defender, Little Rock, AR, Andrew Moshos, Pro Hac Vice, Jeffrey Lyons, Pro Hac Vice, Jennifer Ying, Pro Hac Vice, Morris Nichols Arsht & Tunnell LLP, Stephen J. Kraftschik, Pro Hac Vice, Polsinelli PC, Wilmington, DE, for Norris G. Holder, Jr.
Kathryn Louise Clune, Crowell & Moring, LLP, Washington, DC, Dale Andrew Baich, Jennifer M. Moreno, Office of the Federal Public Defender, Phoenix, AZ, for Keith Nelson.
Ginger Dawn Anders, Munger, Tolles & Olson LLP, Washington, DC, for Brandon Bernard.
Cristen Cori Handley, Paul R. Perkins, Ethan Price Davis, Jean Lin, Jonathan D. Kossak, U.S. Department of Justice, Denise M. Clark, Alan Burch, Peter S. Smith, United States Attorney's Office, Washington, DC, for Karen Tandy.
Cristen Cori Handley, Paul R. Perkins, Ethan Price Davis, Jean Lin, Jonathan D. Kossak, U.S. Department of Justice, Denise M. Clark, Alan Burch, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Harley G. Lappin, John Does, Thomas Webster, Michael B. Mukasey, Alan R. Doerhoff, Michele Leonhart, Charles E. Samuels, Jr., John F. Caraway, United States Department of Justice, Paul Laird, Kerry J. Forestal, Charles L. Lockett.
Cristen Cori Handley, Paul R. Perkins, Robert J. Erickson, Ethan Price Davis, Jean Lin, Jonathan D. Kossak, U.S. Department of Justice, Denise M. Clark, Alan Burch, Peter S. Smith, United States Attorney's Office, Washington, DC, for Newton E. Kendig, II, Mark Bezy.
Cristen Cori Handley, Paul R. Perkins, Ethan Price Davis, Jean Lin, Jonathan D. Kossak, U.S. Department of Justice, Denise M. Clark, Alan Burch, U.S. Attorney's Office for the District of Columbia, Paul F. Enzinna, Ellerman Enzinna PLLC, Washington, DC, for Eric H. Holder, Jr.
Amy Gershenfeld Donnella, Billy H. Nolas, Joseph William Luby, Shawn Nolan, Federal Community Defender Office for the EDPA, Philadelphia, PA, Cristen Cori Handley, Paul R. Perkins, Ethan Price Davis, Jean Lin, Jonathan D. Kossak, U.S. Department of Justice, Alan Burch, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Chadr Ick Evan Fulks.
Cristen Cori Handley, Paul R. Perkins, U.S. Department of Justice, Alan Burch, U.S. Attorney's Office for the District of Columbia, Washington, DC, for William P. Barr, Jeffrey E. Krueger, Joseph McClain, Radm Chris A. Bina, T. J. Watson.
Cristen Cori Handley, U.S. Department of Justice, Washington, DC, for Uttam Dhillon, Nicole English.
MEMORANDUM OPINIONTANYA S. CHUTKAN, United States District Judge In Callins v. Collins , Justice Blackmun, writing in dissent, declared that he would "no longer ... tinker with the machinery of death." 510 U.S. 1141, 1145, 114 S.Ct. 1127, 127 L.Ed.2d 435 (1994). More than twenty-five years later, this court is tasked with doing just that, in addressing challenges to the manner in which the federal government seeks to execute inmates who have been sentenced to death under federal statutes.
After a hiatus in federal executions of more than fifteen years, on July 25, 2019, the U.S. Department of Justice (DOJ) announced plans to execute five inmates who had been sentenced to death under the federal death penalty statute.1 See Press Release, Dep't of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse. To implement these executions, the Federal Bureau of Prisons (BOP) adopted a new execution protocol: the 2019 Protocol. (ECF No. 39-1, Admin. R. at 1021–75.)
On November 20, 2019, the court preliminarily enjoined the executions of four inmates: Alfred Bourgeois, Daniel Lewis Lee, Dustin Lee Honken, and Wesley Ira Purkey. (ECF No. 50, Mem. Op. (2019 Order), at 15.) The court found that these four Plaintiffs had demonstrated a likelihood of success on the merits of their claims that the 2019 Protocol violates the Federal Death Penalty Act (FDPA), but the court did not rule on their other statutory and constitutional claims. (Id. at 13–14.) In April of this year, a divided D.C. Circuit panel vacated the preliminary injunction. In re Fed. Bureau of Prisons’ Execution Protocol Cases , 955 F.3d 106, 113 (D.C. Cir. 2020), cert. denied sub nom. Bourgeois v. Barr , No. 19-1348, ––– U.S. ––––, 141 S.Ct. 180, ––– L.Ed.2d –––– (June 29, 2020). That Court based its ruling solely on the Plaintiffs’ claims under the FDPA and the APA, and noted that "regardless of our disposition, several claims would remain open on remand." Execution Protocol Cases , 955 F.3d at 113 (per curiam).
On June 15, 2020, the DOJ and BOP scheduled new execution dates for three of the four Plaintiffs whose executions had been preliminarily enjoined by the 2019 Order. (ECF No. 99, Defs. Notice Regarding Execution Dates.) Defendants intend to execute Lee on July 13, 2020, Purkey on July 15, 2020, and Honken on July 17, 2020. (Id. ) Keith Dwayne Nelson is scheduled for execution on August 28, 2020. (Id. )
Because these four Plaintiffs are scheduled to be executed before their claims can be fully litigated, they have asked this court, pursuant to Federal Rule of Civil Procedure 65 and Local Rule 65.1, to preliminarily enjoin Defendants from executing them while they litigate their remaining claims.
On July 2, 2020, the Seventh Circuit stayed Purkey's execution, and at the time of this filing, that stay remains in place.2 Purkey v. United States , No. 19-3318, 964 F.3d 603 (7th Cir. July 2, 2020). On July 10, 2020, the Southern District of Indiana preliminarily enjoined Lee's execution, See Peterson v. Barr , No. 2:20-cv-350, 2020 WL 3956247 (S.D. Ind. July 10, 2020), ECF No. 21, but on July 12, 2020, the Seventh Circuit vacated the injunction. See Peterson v. Barr , No. 20-2252, 965 F.3d 549 (7th Cir. July 12, 2020).
The last-minute nature of this ruling is unfortunate, but no fault of the Plaintiffs. Cf. Bucklew v. Precythe , ––– U.S. ––––, 139 S. Ct. 1112, 1134, 203 L.Ed.2d 521 (2019) () (internal quotations omitted). The succession of last-minute rulings is the result of the Government's decision to set short execution dates even as many claims, including those addressed here, were pending.3 The Government is entitled to choose dates, but the court cannot take short cuts in its obligations in order to accommodate those dates. As the Seventh Circuit wrote last week, "just because the death penalty is involved is no reason to take shortcuts—indeed, it is a reason not to do so." Purkey v. United States , 964 F.3d at 618.
The Eighth Amendment to the Constitution provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. The Supreme Court declared capital punishment constitutional in 1976, in Gregg v. Georgia , 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (). Therefore, "there must be a constitutional means of carrying it out." Glossip v. Gross , 576 U.S. 863, 135 S. Ct. 2726, 2732–33, 192 L.Ed.2d 761 (2015) (citation omitted). Balancing the constitutional legitimacy of capital punishment with the Eighth Amendment's prohibition on cruel and unusual methods of execution has long been the subject of intense debate and litigation since the advent of hanging, electrocution, and, most recently, lethal injection. Baze v. Rees , 553 U.S. 35, 41–42, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).
The Supreme Court first addressed the application of the Eighth Amendment to lethal injection in Baze , upholding Kentucky's then-practice of execution by injection with a three-drug combination: (1) sodium thiopental
, a fast-acting barbiturate sedative; (2) pancuronium bromide, a paralytic agent that paralyzes the body and stops the lungs; and (3) potassium chloride, which induces cardiac arrest. Id. at 44, 128 S.Ct. 1520. The plaintiffs in that case conceded that, if administered...
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