Attorney General William Barr testifies before the Senate Judiciary Committee during a hearing regarding the Department of Justice's investigation into Russian interference in the 2016 U.S. presidential elections May 1. Photo: Diego M. Radzinschi/ALM

The U.S. Justice Department's plan to restart federal executions using a single lethal-injection drug may get quick scrutiny in a lawsuit pending in Washington's federal district court since 2005.

U.S. Attorney General William Barr on Thursday ordered the Bureau of Prisons to set execution dates for five federal death row inmates. At the same time, the Justice Department announced it was replacing its prior three-drug lethal injection protocol with a single drug: pentobarbital.

As the drugs in the more commonly used three-drug protocol have grown increasingly difficult to obtain, some states have changed to the single drug pentobarbital. That drug generally is used to induce surgical comas and is related to a version used to euthanize animals.

The U.S. Supreme Court has not examined the constitutionality of the use of pentobarbital in executions. More recently, the justices have divided sharply over the use of the drug midazolam, with the conservative majority approving its use. There also have been intense disagreements, displayed publicly in rare fashion, over the court's procedures for handling last-minute requests for stays of execution.

The Justice department informed U.S. District Judge Tanya Chutkan of the District of Columbia of its new protocol in a filing in the case Roane v. Barr. That lawsuit, first filed in December 2005, was a challenge by seven death row inmates to the prior drug protocol. The seven inmates, whose executions are blocked by an injunction, do not include the five who will receive execution dates under the Justice Department's announcement.

“We took discovery with the prior federal protocol, but around 2009, the government announced it would no longer use that protocol because it couldn't get the drugs,” said Paul Enzinna of Washington's Ellerman Enzinna, counsel to James Roane and two others in the lawsuit. “The litigation basically went into hibernation.”

For years now, the parties in the case have filed status reports indicating the Justice Department's review of death penalty procedures was still ongoing. Enzinna said the department's announcement was the first he had heard of a new protocol.

“That protocol obviously will be subject to examination in our lethal injection litigation,” Enzinna said.

One of the claims in that litigation was that the Justice Department had failed to follow requirements under the Administrative Procedure Act, or APA, for notice and comment on its original drug protocol. It was not clear from the department's Thursday announcement whether the department intends to submit the new protocol to the act's process. Barr's announcement did not mention any notice-and-comment procedures.

“Congress has expressly authorized the death penalty through legislation adopted by the people's representatives in both houses of Congress and signed by the president,” Barr said in a statement. “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.”

Ruth Friedman, director of the Federal Capital Habeas Project, said problems with the federal death penalty include over-federalization of traditionally state crimes and restricted judicial review.

“These and other concerns, including troubling questions about the new execution protocol, are why there must be additional court review before the federal government can proceed with any execution,” she said. Friedman said anti-death penalty advocates are concerned by the “lack of transparency and lack of scrutiny.”

Madeline Cohen, a solo practitioner in Boulder, Colorado, who has three clients on federal death row, said she was surprised to hear about a new protocol after the government spent eight years reviewing the death penalty. The Justice Department, she said, announced “a new protocol and execution dates for guys with no connection to the ongoing lethal injection litigation. From this view, it seems like they're making an end-run around the courts and any transparent rulemaking.”

Cassandra Stubbs, director of the Capital Punishment Project at the American Civil Liberties Union, said in a statement: “We, along with a broad coalition of national groups, are looking carefully at this. We will challenge this move, which is completely out of step with the American people and justice at large. The DOJ is on the wrong side of history again.”

The application of the death penalty nationally has dropped significantly in recent years. Twenty-five inmates were executed in 2018, according to an annual survey by the Death Penalty Information Center. In 1999, nearly 100 prisoners were executed.

Tanya S. Chutkan, during her confirmation hearing before the Senate Judiciary Committee, to be U.S. District Judge for the District of Columbia. Febr. 25, 2014. Photo by Diego M. Radzinschi/NLJ

Several major U.S. law firms, including King & Spalding, Vinson & Elkins, Troutman Sanders and Skadden, Arps, Slate, Meagher & Flom have participated in the Washington court, representing either plaintiffs or other inmates who intervened in the litigation.

Enzinna suggested the five inmates who received execution dates Thursday could try to intervene in the case before Chutkan in Washington's federal trial court. “It would be very odd if we were to litigate our claim and find violations of the APA and have the case sent back while [the department] is executing other  people,” he said.

There are currently 62 people on federal death row—61 men and one woman. The last federal execution was in 2003. The Justice Department said executions for the five inmates will be in December and January.

 

Read more:

Kavanaugh Leads Majority Ruling for Mississippi Death Row Inmate

Justices' Feud Over Death Penalty Flares, Exposing Tension and Private Deliberations

Gorsuch's 'Troubling Dicta' in Death Case Draws Sotomayor Rebuke

SCOTUS Issues Eleventh-Hour Stay in Execution of Texas Buddhist Inmate

Sotomayor Is 'Profoundly Troubled' by Georgia Death Penalty Case