Lawyers for one of five federal prisoners scheduled by President Donald Trump’s administration for execution have launched a two-pronged legal effort to prevent the government from carrying out the lethal injection slated for January.
The U.S. government has not carried out an execution since 2003 amid legal challenges to its lethal injection protocol, but Attorney General William Barr last month said it would resume capital punishment and scheduled the execution of five convicted murderers who were tried in federal rather than state courts.
In Washington, U.S. District Judge Tanya Chutkan on Thursday allowed one of the five men, Alfred Bourgeois, to have his federal lawsuit challenging the legality of the government’s lethal injection procedures consolidated with a larger and long-running civil lawsuit brought by a group of other federal death row inmates. Alexander Kursman, a lawyer for Bourgeois, told Chutkan he plans by Monday to seek a stay of execution.
His lawyers also said they have filed a separate lawsuit in federal court in Indiana seeking to block his execution on the grounds that Bourgeois is “intellectually disabled and constitutionally ineligible for the death penalty.” Under Supreme Court precedent, executing people with intellectual disabilities violates the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment.
Bourgeois, due to be executed on Jan. 13 at a federal prison in Indiana, was sentenced to death in Texas in 2004 after being convicted of sexually molesting and fatally beating his 2-1/2-year-old daughter.
“The jury that sentenced Mr. Bourgeois to death never learned that he was intellectually disabled,” Victor Abreu, another lawyer for Bourgeois, said in a statement, adding that no court has ever used proper scientific standards to review his client’s disability.
The hearing before Chutkan was the first time Justice Department lawyers had appeared in court since Barr’s July 25 announcement that the Justice Department had adopted a new death penalty protocol using a single drug rather than the prior three-drug cocktail. Barr scheduled five executions starting in December.
Barr’s announcement jump-started a dormant lawsuit, first filed in 2005, that challenged the department’s capital punishment procedures on several grounds, including violating the Eighth Amendment as well as a federal law on how regulations are enacted. The other death row inmates in that litigation were not among the five scheduled for execution.
Paul Enzinna, lead plaintiff lawyer in the case, told Chutkan his team needs to carry out depositions of government officials about how the single-drug protocol will work amid concerns it could cause a painful death or not be administered properly.
Lawyers for the inmates and Justice Department agreed to a timetable for carrying out preliminary depositions.