WASHINGTON - The Trump administration's push to restart federal executions after nearly two decades heads back to court Wednesday morning in Washington.
Justice Department lawyers are asking the U.S. Court of Appeals for the District of Columbia Circuit to reverse a judge's order and allow the administration to move forward with four executions the administration had scheduled for December and January.
U.S. District Judge Tanya S. Chutkan in November found that the government had probably exceeded its powers with the adoption of a new lethal-injection protocol to be used in those executions.
The new protocol, she wrote, is inconsistent with a 1994 law that requires federal executions to be carried out "in the manner prescribed by the law of the State in which the sentence is imposed."
The Supreme Court in December denied the government's request to put her ruling on hold. No dissents were announced, but three justices - Samuel Alito, Neil Gorsuch and Brett Kavanaugh - included a statement saying they respected the decision while urging the appeals court to move quickly in deciding the case.
The Justice Department's announcement last summer that it intended to resume carrying out death sentences also included a schedule for what would be the first federal executions since 2003. Under that timeline, the last scheduled execution was set to take place Wednesday.
Instead, none of the executions have taken place, and on Wednesday attorneys for death-row inmates and for the Justice Department will appear at the D.C. Circuit.
The appeal will be heard by a three-judge panel made up of Judges David S. Tatel, Gregory Katsas and Neomi Rao.
Chutkan's ruling blocked the Justice Department from using its new lethal-injection procedure, because it established a single protocol for all federal executions rather than "in the manner prescribed" in each state, which she said the 1994 law requires. It also, she added, says that for states without the death penalty, courts must select a state that does have one for federal executions.
The Trump administration's protocol, she said, "very likely exceeds" its authority under that law.
"The public interest is not served by executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions," Chutkan wrote in issuing a preliminary injunction. Her injunction blocked four of the five executions scheduled by federal officials, while a fifth was separately put on hold by another court.
The new lethal-injection protocol unveiled by the Justice Department last year utilizes one drug - pentobarbital - rather than a three-drug combination that had previously been used.
States across the country have shifted their lethal-injection protocols in recent years and scrambled to obtain drugs in the face of opposition from pharmaceutical companies that do not want their products used for executions.
Federal officials say they selected pentobarbital for executions because it has been used frequently - including in Texas, the country's most active death-penalty state - and upheld by courts as constitutional.
The four death-row inmates with executions blocked by Chutkan were convicted in Texas, Missouri, Indiana and Iowa. Missouri, like Texas, uses pentobarbital for lethal injections, while Indiana has a three-drug protocol. Iowa does not have the death penalty, so the courts for that case selected Indiana, where federal executions take place.
Justice Department lawyers told the appeals court that the language at issue in this case - the word "manner" - refers to the mechanism for imposing the death penalty, such as lethal injection, rather than granular details of the procedure, including whether a sedative is offered or how a catheter must be inserted.
The judge's ruling "could effectively block federal death sentences" and subject the government to a "state's effective veto and even bar it from improving upon state procedures," according to the Justice Department.
The government and the public "have a significant interest in the timely implementation of lawfully imposed capital sentences," Justice Department attorneys said in court filings. Attorney General William P. Barr has also said the department has a responsibility to victims and their relatives to carry out the sentences.
Attorneys for the death-row inmates have pushed back against the Justice Department's invocation of victims' families to argue for carrying out the executions, noting some relatives have vocally opposed this.
The first execution, originally scheduled for December, was intended to carry out the sentence for Daniel Lewis Lee, a member of a white-supremacist group convicted of murdering an Arkansas family, including an 8-year-old girl, according to the Justice Department.
Some relatives of the victims in Lee's case - including the woman whose granddaughter and daughter were killed - have asked the Trump administration not to execute him, instead asking he be sentenced to life in prison without the possibility of parole.
The others inmates involved in this case are Wesley Ira Purkey, found guilty in Missouri of kidnapping, raping and murdering a 16-year-old; Alfred Bourgeois, convicted in Texas of physically assaulting and murdering his 2-year-old daughter; and Dustin Lee Honken, found guilty in Iowa of murdering two federal witnesses, along with the girlfriend of one witness and her two young daughters.
Attorneys for the death-row inmates have also taken issue with the government's urgency in the case.