Opponents vow to challenge Justice decision on death penalty

Opponents vow to challenge Justice decision on death penalty
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Human rights and anti-death penalty groups are vowing to challenge the Justice Department’s decision to resume the federal death penalty after a 15-year hiatus.

Attorney General William BarrWilliam Pelham BarrGiuliani considers launching impeachment podcast The Hill's Morning Report - Impeachment drama will dominate this week Impeachment tests Barr-Trump relationship MORE’s announcement that the federal government will execute five people — its first executions since 200 — was quickly criticized by opponents as unlawful.

The groups predicted the decision would set off new lawsuits opposing the Trump administration, particularly given a decades-long move against capital punishment that has seen a number of states suspend the practice.

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“It seems to me there are a lot of other pressing national security issues that I would think the Department of Justice would be concerned about,” said Miriam Gohara, an associate professor at Yale Law School who previously represented death-sentenced clients in post-conviction litigation.

“I find it surprising they’re using their resources to resurrect this issue at a time when people are really reexamining the death penalty all across the country,” she added.

The Justice Department announced an addendum to the procedure for carrying out capital punishment via lethal injection that would clear the way for the execution of five men: Daniel Lewis Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois and Dustin Lee Honken.

Each man was convicted in 2004 or earlier of killing children or the elderly.

It’s not clear whether the White House had any involvement with the issue, though President TrumpDonald John TrumpFive landmark moments of testimony to Congress Lindsey Graham basks in the impeachment spotlight Democrats sharpen their message on impeachment MORE has touted the death penalty in the past.

Trump did not comment on the decision on Thursday, and the White House did not release a statement on Barr’s announcement.

The issue could play out in the 2020 presidential campaign, where criminal justice reform already has been a hot topic.

Trump has supported capital punishment dating back to the 1980s, when he purchased ad space in a New York newspaper calling for a group of young black and Latino men wrongly accused of raping a white woman to face the death penalty. Just last month, Trump refused to apologize for his past comments on the case.

Trump has continued to advocate for the death penalty since taking office. In the aftermath of the mass shooting at the Tree of Life synagogue in Pittsburgh, Trump suggested one response should be to “stiffen up our laws in terms of the death penalty.”

“I think they should very much bring the death penalty into vogue,” he told reporters last October. “Anybody that does a thing like this to innocent people that are in temple or in church ... they should really suffer the ultimate price.”

The front-runner for the Democratic presidential nomination, former Vice President Joe BidenJoe BidenFive landmark moments of testimony to Congress Democrats sharpen their message on impeachment Biden: 'I'm more of a Democrat from my shoe sole to my ears' than anyone else running MORE, has also supported the death penalty. The 1994 crime bill authored by Biden extended the reach of the death penalty to dozens of new offenses.

But earlier this year, Politico reported that Biden congratulated the people of New Hampshire for ending the death penalty in that state, remarks that could signal a shift in his position.

Supporters of the death penalty said they were not surprised by Barr’s decision.

“The only surprise is that it took this long,” said Kent Scheidegger, legal director of California-based Criminal Justice Legal Foundation.

“I expected [former Attorney General] Jeff SessionsJefferson (Jeff) Beauregard SessionsFive things to watch at Supreme Court's DACA hearings Trump attends football game with Jeff Sessions' Alabama Senate race opponent Bradley Byrne Impeachment tests Barr-Trump relationship MORE to jump on it as soon as he was appointed, but I guess other matters got priority.”

Scheidegger and other proponents of capital punishment argue that it acts as a deterrent and represents a just response to the crimes committed by those on death row.

Death penalty opponents also weren’t surprised, but raised red flags about exactly how the new protocol is being put in place.

A number of groups, including the ACLU, have indicated that they plan to challenge the new policy, whether in court or through other means.

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“Under no circumstances should the Justice Department be allowed to rush through executions. The federal death penalty is defined by the same problems of racial bias, geographic disparities, prosecutorial misconduct, and junk science that have led to the decline in support for capital punishment nationwide,” Cassandra Stubbs, director of the ACLU’s Capital Punishment Project, said in a statement.

An ACLU spokesperson told The Hill that litigation is among the options being weighed at the moment and that Amnesty USA and the Legal Defense Fund are among the groups the ACLU is working with as they explore their options.

Legal battles will likely center on how the policy is being implemented: Barr indicated in Thursday’s announcement that the protocol has already been formally adopted.

But experts say that such a policy should have to go through a comment and notice period as required by the Administrative Procedure Act, and that sets it up to be challenged in court.

“When you're dealing with an issue as serious as the death penalty, it's important that governments that are seeking to carry it out follow the law,” Robert Dunham, the head of the Death Penalty Information Center, told The Hill. “To the extent that they don't, that undermines confidence in the system. But worse than that, it undermines faith in the legitimacy of the punishment.”

Further concerns are being raised about the new form of lethal injection that the federal government will use in the planned executions.

Barr said in Thursday’s announcement that federal authorities will adopt a one-drug method during lethal injections, using the chemical pentobarbital. The same drug is used in executions by other states, including Texas, Georgia and Missouri.

Megan McCracken, a counsel at the University of California, Berkeley School of Law’s Death Penalty Clinic, said that the limited details on how the drug will be purchased, stored and utilized raises concerns on how safe the process will be.

“What we certainly see is that when there’s secrecy, or a lack of transparency, botched executions happen,” she said. “That's a predictable consequence of this type of rush and this type of lack of transparency.”

However, McCracken didn’t rule out the possibility of authorities being trained in time to properly conduct the upcoming executions, saying that it’s possible as long as federal officials start working to reach that goal relatively quickly.

Others are skeptical of how the crimes could be classified as a federal matter.

“All murders are bad and I think people would agree that the murder of a child or a helpless elderly person is particularly bad,” Dunham said. “But that doesn’t make it a federal offense.”

Dunham said states have long had mechanisms in place to address those kinds of crimes, and that it doesn’t necessarily make sense for federal authorities to take over instead.

Public sentiment has in recent years moved away from capital punishment. Roughly 20 states have either banned the death penalty or have governor-imposed moratoriums on the practice.

A Gallup poll conducted last October found that 56 percent of Americans are in favor of the death penalty for someone convicted of murder. But that number has steadily dropped since the 1990s, and the same poll found 49 percent believe the death penalty is applied fairly.

At least one of the planned executions is already being challenged by the death-row inmate it involves: Attorneys for Daniel Lewis Lee, whose execution is planned for Dec. 9 of this year, are speaking out against the move, saying that his conviction was secured despite the “demonstrated unreliability of the evidence.”

Lee’s attorney Morris Moon raised concerns about the DNA and other evidence used in the case, arguing that it “exemplifies many of the serious flaws in the federal death penalty system.”

“Given the problems that undermine the fairness and reliability of Danny Lee’s conviction and death sentence, the Government should not move forward with his execution,” Moon said.

A lawyer for another one of the men, Purkey, also said Thursday that he shouldn’t be executed, claiming that “substandard representation permeated Mr. Purkey’s trial with errors and meant that his jury never had a full picture of his deep and sincere remorse or the personal circumstances that led to these tragic events.“
 
“The DOJ seeks to execute Mr. Purkey now, despite the myriad legal violations in his case and despite his advancing age and declining health,” attorney Rebecca Woodman said in a statement of her 67-year-old client.
 
“The timing of this decision raises serious questions about the application of capital punishment under this administration."