.@TheJusticeDept’s claim that the government can carry out an execution after the original death warrant expires is the DOJ’s own opinion, NOT a settled legal proposition under federal law. It’s a self-serving claim that should be reviewed by the federal courts immediately.
The DOJ engages in procedural gamesmanship and ethically dubious conduct by executing people before they have a chance to bring a legal claim challenging the DOJ’s self-serving interpretation of the warrant requirement.
The federal regulations say that an execution date shall be promptly reset when a stay is lifted. In the same set of regulations, there is a 20-day notice requirement. The DOJ claims that the 20-day requirement doesn’t apply after a short delay is lifted, but that’s questionable.
Under the DOJ’s interpretation, a BOP official could stand over a person who is strapped down in the execution chamber and say, “The stay is lifted, we’re killing you now,” without even notifying their attorneys.
The DOJ’s interpretation can’t be correct. Even if the language of the regulations allows the BOP to reset an execution for “right now” after the original warrant expires, there are underlying legal principles that push against that interpretation.
The DOJ and BOP are both subject to the Administrative Procedure Act, which prohibits federal government agencies from taking actions that are “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”
There’s a very strong argument that it is arbitrary and capricious as well as an abuse of discretion for the government to reset an execution mere minutes after a stay is lifted without providing notice to the condemned’s attorneys.
The basic requirements of due process are even more fundamental. At minimum, due process requires notice and an opportunity to respond. There’s a strong argument that a few minutes’ notice of an imminent execution is not sufficient to satisfy due process.
The DOJ’s actions seem to be calculated to remove any opportunity to respond. Prisoners are killed minutes after receiving notice of the imminent execution and their attorneys are not notified. After the prisoner is killed, there is no more opportunity for judicial review.
The federal courts should not allow the DOJ to get away with this likely illegal conduct. A full judicial review about the execution warrant regulation’s meaning and requirements should take place before any more federal executions are allowed to proceed.
Unfortunately, the U.S. Supreme Court has proved time and again that it is unwilling to act as a check on the government’s legally dubious activities when it comes to the death penalty.
That’s why I am calling on Congress to exercise its oversight power and investigate the Department of Justice’s misconduct surrounding these federal executions.
