The Trump administration is asking the Supreme Court to reinstate the federal death penalty.
A lower court blocked the first federal execution in nearly two decades just days before it was scheduled to take place. The administration turned to the Supreme Court on Monday after the D.C. Circuit Court of Appeals summarily declined its appeal, asking justices to permit the execution of men who, the government says, have committed "crimes of staggering brutality."
In its brief, the federal government called the lower court's holding "meritless," contending that it misunderstood federal law governing executions. It further insisted that continued delay would "undermine [the] retributive and deterrent functions of the death penalty," an argument that the Court's conservatives have made in past.
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It was this same concern for swift and certain justice that animated Attorney General William Barr's reinstatement of the federal death penalty in July. He instructed the Bureau of Prisons to prepare to execute five convicted murderers.
"The Justice Department upholds the rule of law—and we owe it to the victims and their families to carry forward the sentence imposed by our justice system," Barr said.
In November, U.S. District Judge Tanya Chutkan blocked the execution of four of the five men, arguing that the administration would be in violation of a provision of the Federal Death Penalty Act of 1994, which requires that federal executions be conducted in the "manner" prescribed by law in the state they are to be carried out in. The four were to be executed in Indiana, which uses a combination of three drugs for executions, compared with the federal government's stated plan to use just one.
A three-judge appellate panel—including Trump appointee Neomi Rao—denied the administration's appeal, saying only that it had "not satisfied the stringent requirements" to overturn the lower court.
The administration is now hoping the Supreme Court will vacate the stay in advance of Dec. 9, when murderer Daniel Lewis Lee is scheduled for execution.
There is reason to think the High Court will be more sympathetic to the Trump administration's position. The Court's five-man conservative majority has been conspicuously pro-capital punishment and critical of the expanding length of the death penalty appeals process, which can take more than 20 years to complete.
In April, Justice Neil Gorsuch authored a majority opinion upholding the Court's repeated finding that the death penalty is constitutional and, consequently, that there must be a constitutional way to enforce capital punishment. He further wrote that "both the State and the victims of crime have an important interest in the timely enforcement of a sentence."
If the administration is successful in its appeal, Lee will be the first person executed by the federal government since 2003, when Louis Jones Jr. was put to death for the murder of 19-year-old Army private Tracie McBride. Lee, a white supremacist, was convicted in 1999 of the murder of Bill and Nancy Mueller, as well as eight-year-old Sarah Powell.
The death penalty has been a key issue for Trump for decades. In 1989, he placed ads in major newspapers calling on New York State to reinstate the death penalty for the Central Park Five—five young black men wrongly convicted of the public rape of a woman jogging in Central Park. On executions, however, Trump will almost certainly find himself at odds with his eventual 2020 opponent: Every major Democratic candidate running for the nomination has called for the abolition of the death penalty.