Federal Execution Case

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The appeal in the Eighth Amendment challenge to the federal exection protocol is now before the U.S. Court of Appeals for the D.C. Circuit in case No. 20-5199, In the Matter of the Federal Bureau of Prisons’ Execution Protocol Cases: Roane v. Barr. See Mike’s post this morning. In her ruling, Judge Chutkan states, “The last-minute nature of this ruling is unfortunate, but no fault of the Plaintiffs.” She is partly correct in that, if in little else. The last-minute nature of the ruling is primarily the fault of Judge Chutkan herself. The Court of Appeals should not only vacate the stay, it should boot her off the case.

From the Government’s motion to vacate the stay (italics in original):

Following issuance of this Court’s mandate [the last time it vacated a stay by the same judge], BOP [the Bureau of Prisons] on June 15 rescheduled execution dates for plaintiffs Lee, Purkey, and Honken, on July 13, 15, and 17, respectively. BOP also scheduled respondent Nelson’s execution for August 28. Only then—on June 19, more than two months after this Court vacated the first injunction—did plaintiffs move for another preliminary injunction. The government promptly opposed that motion on June 25.  Remarkably, however, the district court (without objection from plaintiffs) left the motion sitting undecided for the next 18 days, resolving it only today by granting a second injunction of plaintiffs’ executions just six hours before the first rescheduled execution is set to occur. This time, the court’s stated basis is that the federal execution protocol violates the Eighth Amendment, A9-18, in contravention of the clear import of Bucklew, 139 S. Ct. at 1118-1119, 1129-1133.

The Government further explained that Judge Chutkan said she had a ruling ready last Friday, but she held back ostensibly to tweak the background section with references to parallel litigation going on in Indiana. That should have taken about 10 minutes, but instead Judge Chutkan released her ruling just before 10:00 a.m. on the scheduled execution date.

The obvious reason to hold a ruling until the last minute is to reduce the ability of higher courts to review and vacate it before the day ends. Orderly process called for the decision to be announced as soon as it was ready. This is naked partisanship on the part of the judge, and it warrants removal from the case.