President Donald Trump’s quest to resume federal executions got a boost from his two appointees on the U.S. Court of Appeals for the D.C. Circuit on Tuesday, as the court upended an injunction that had halted the Justice Department’s attempts to carry out the death penalty.
Though the federal capital punishment litigation is complex, and the dispute will continue to play out in the courts, the 2-1 ruling from the appeals court thought of as the second-highest in the land brings the government a step closer to its execution goals following a decade-plus hiatus.
Trump appointees Gregory Katsas and Neomi Rao said the district court misconstrued a crucial law, the federal death penalty act, in preliminarily halting several executions. Bill Clinton-appointee David Tatel dissented.
The group of prisoners who lost the ruling are considering their options, including en banc review before the full D.C. Circuit, said the lawyer who argued the case for them in January, Hogan Lovells partner Cate Stetson.
“Without action by the full court,” Stetson said, “the panel’s splintered decision will allow the government to execute prisoners even while serious questions remain unanswered about the legality of the government’s execution procedures under federal law.”
The Justice Department declined comment.
Most executions are carried out on the state level. Attorney General William Barr announced last summer that the federal government would resume them. All of the death row prisoners at issue in this case were convicted of murdering children, Barr noted.
Most Americans prefer life-without-parole to the death penalty, according to a Death Penalty Information Center report. Colorado recently became the 22nd state to repeal the ultimate punishment. The coronavirus pandemic has already halted some state executions and could halt more in the coming months.
The federal death penalty act says the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.”
But disagreements over the word “manner,” in particular, and what it requires, have been a huge source of litigation, here.
U.S. district judge Tanya S. Chutkan, who’s in Washington, in November sided with the prisoners challenging the Justice Department’s new uniform lethal injection protocol, which doesn’t track every aspect of state procedures.
She granted a preliminary injunction against the government, reasoning that “manner” in the federal act applies not just to the type of execution—like lethal injection as opposed electrocution—but also, more specifically, to how the lethal injection is administered.
The government appealed, taking the case to the U.S. Supreme Court in December. But the high court declined to clear the way for the executions, instead putting the case back before the D.C. Circuit. Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh signaled at the time that they would side with the administration if the case comes back to them.
Disagreeing to Agree
In Tuesday’s D.C. Circuit ruling, each of the three judges laid out their own views of what’s required of the federal government in carrying out executions.
Though even the Trump appointees disagreed in great detail on some finer points of law, Katsas and Rao agreed on the bottom line—that Chutkan shouldn’t have halted the executions under the federal act.
Katsas said “manner” in the act only refers to the “method” of execution, like lethal injection as opposed to electrocution. The act doesn’t regulate “various subsidiary details cited by the plaintiffs and the district court,” he said.
Disagreeing with Katsas’ analysis, Rao said the act requires the government to follow state execution statutes and formal regulations, but not less formal state procedures. Yet she said in any event that the protocol complies with the act under her analysis as well.
Dissenting, Tatel said he agreed with Rao that “manner” means more than just general execution method. But he disagreed beyond that, saying that the law “requires federal executions to be carried out using the same procedures that states use to execute their own prisoners—procedures set forth not just in statutes and regulations, but also in protocols issued by state prison officials pursuant to state law.”
Katsas was seated in 2017, while Rao took the bench last year after being appointed by the Republican, Trump. Tatel, appointed by the Democrat, Clinton, has been on the court since 1994.
The hodgepodge ruling against the death row plaintiffs—Daniel Lee, Wesley Purkey, Alfred Bourgeois, and Dustin Honken—may not be the last word.
The D.C. Circuit remanded the case to the district court, and other issues in the case remain. But as the plaintiffs’ attorney said after the ruling, they might appeal to higher authority.
William Jay, co-chair of Goodwin’s appellate litigation practice and head of litigation in the firm’s D.C. office, said he expects the inmates will petition for en banc rehearing.
If the full D.C. Circuit takes the case, that could set it on a course back to the justices again.
Jay, who isn’t involved in this litigation, said if the en banc D.C. Circuit were to reverse Tuesday’s ruling, “I think the government will have no choice but to petition for cert.” A grant of certiorari means the court will take up the case.
The case is In re FBOP Execution Protocol Cases, D.C. Cir., No. 19-05322, 4/7/20.