Cooley Challenges New Federal Execution Regulations

Filed on behalf of Federal Capital Habeas Project + four federal death row inmates, complaint seeks declaratory and injunctive relief against DOJ and BOP

Washington, DC – December 22, 2020 – Cooley has filed a complaint on behalf of the Federal Capital Habeas Project and four inmates who have been sentenced to death seeking an immediate stay of new US Department of Justice regulations that govern the manner of federal executions and unlawfully eliminate critical safeguards restricting how the federal government executes individuals. The lawsuit asserts that, by providing new and wide-ranging powers to the US attorney general, the final rule violates the US Constitution, the Federal Death Penalty Act and the Administrative Procedure Act in multiple respects. Lawyers Elizabeth Prelogar, Elizabeth Wright, Elias Kim, Colin Scott and Jenny Elkin lead the Cooley effort.

One of the plaintiffs, Dustin Higgs, is scheduled to be executed on January 15 as part of a rush of executions that have been scheduled to occur days before President-elect Joe Biden takes the oath of office on January 20. The other plaintiffs are Kenneth Eugene Barrett, Norris Holder and Rejon Taylor, whose execution dates have not been set.

The execution of Brandon Bernard on December 13 marked the first time in more than a century that an execution has occurred during a presidential transition period. On the day after Thanksgiving, the DOJ published a revised set of regulations governing the manner of federal executions, touting “a greater flexibility to conduct executions,” which are set to take effect on December 28, before the executions of three additional individuals scheduled in January. If the scheduled executions proceed, the federal government will have executed more than three times as many people in the seven-month period between July 2020 and January 2021 than in the last six decades combined.

“The federal government has resisted court oversight and sought to avoid providing constitutionally necessary process, all part of a calculated rush to execute as many individuals as possible before Inauguration Day,” Prelogar said. “The death penalty is already implemented out of sight from the public and, at times, even from the lawyers for the individuals sentenced to death. DOJ’s new regulations would unlawfully eliminate critical safeguards and provide even less advance notice. We’re seeking a preliminary injunction and stay to prevent these invalid regulations from taking effect before the executions scheduled in January.”

The Federal Capital Habeas Project’s goal is for every individual sentenced to death in federal court to receive post-conviction representation consistent with the highest standards of the legal profession. In addition to offering assistance and training to capital counsel nationwide, it provides consultation and assistance to courts upon request, monitors case proceedings and legal developments around the country, maintains current data on the composition of the federal death row and provides direct representation in a limited number of cases.

Read the complaint

Read the motion for preliminary injunction

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Related Contacts
Elizabeth Wright Special Counsel, Boston
Elias Kim Associate, Washington, DC
Colin Scott Associate, San Francisco
Jenny Elkin Associate, Boston
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