WASHINGTON (CN) — President Donald Trump’s Justice Department is continuing down the line of federal death row prisoners it plans to execute, but attorneys put up a new fight against the effort at the D.C. Circuit on Monday.
The government has executed seven federal inmates this year after ending a 17-year hiatus on the death penalty. Even with Trump facing the twilight of his presidency, one prisoner is scheduled to die on Nov. 19 and another two next month, including the only woman on federal death row.
The Trump administration’s tally is more than double the combined number of federal executions of all prior presidencies, totaling just three executions under federal law from 1988 until this year.
Attorneys for the two men next up to die, Brandon Bernard and Orlando Cordia Hall, argued to a three-judge panel on Monday that the government has violated federal law by failing to acquire a medical prescription for the lethal injection the Bureau of Prisons plans to use.
They warned the drug pentobarbital causes what’s called flash pulmonary edema, a condition where fluid accumulates in the lungs and creates the sensation of drowning and asphyxiation.
Attorney General William Barr last year ordered federal executions be carried out using pentobarbital alone, rather than the three-drug cocktail commonly used by states, a new protocol applied in the seven death penalties carried out so far in 2020.
A federal judge had originally found credible evidence that the experience of flash pulmonary edema sets in after a prisoner is injected with a lethal dose of pentobarbital, but before losing consciousness, causing extreme pain and terror.
But U.S. District Judge Tanya S. Chutkan later reached the opposite conclusion and sided with the Trump administration, after an evidentiary hearing and a ruling from the Supreme Court clearing the way for the executions.
Undeterred, attorneys for the death row prisoners mounted a new challenge in the same lawsuit, alleging the government’s failure to obtain prescriptions for lethal injections violates the Federal Food, Drug and Cosmetic Act, or FDCA.
They had previously argued the new pentobarbital execution protocol was illegal under the Eight Amendment’s prohibition on cruel and unusual punishments, a much higher standard to prove.
“It would be the tail wagging the dog to allow the FDCA to enter an injunction halting lethal injections where the Eight Amendment couldn’t,” Justice Department attorney Melissa Nicole Patterson said on Monday.
The majority of executions carried out across the country by lethal injection happened without a prescription, the government attorney added, estimating that amounts to more than 1,000 lawful death penalties.
But attorney Alex Drylewski, arguing for the death row prisoners, told the D.C. Circuit that it’s a “virtual medical certainty” that the drug triggers pulmonary edema while a prisoner is still conscious.
“That’s your evidence. They have competing evidence,” U.S. Circuit Judge Cornelia Pillard said.
But Drylewski pressed his claim that the onset of the severe medical condition exposes prisoners to “unnecessary pain and suffering,” thus meeting the requirement for an injunction under the FDCA.
“I’m just not understanding how the prescription addresses the injury you’re talking about,” Pillard said.
An Obama appointee, the judge explained a ruling in the prisoners’ favor could at worst result in a doctor from the Bureau of Prisons writing a prescription for pentobarbital, without a prescription for a secondary drug to relieve pain.
The Trump administration has argued in the case that the Constitution does not guarantee a painless death.
But Drylewski insisted that requiring the government to first obtain a prescription for the lethal drug would bring into the mix informed clinical judgment “based on the most current science” to guarantee that the drug is used “as intended to mitigate the risks of an inhumane death.”
“Removing those safeguards alone is the irreparable harm here because you’re putting these plaintiffs at risk without any of that clinical oversight,” the attorney said.
But the government sharply criticized the new legal inroad as far off course.
“Congress has very clearly identified who can enforce the FDCA and it is the federal government, or in very narrow exceptions, the state government,” Patterson said.
But Pillard, joined by her fellow Obama appointee, U.S. Circuit Judge Patricia Millett, sparred at length with the government.
While the Justice Department argued there was no avenue to challenge the federal executions under the FDCA, Millett asked under what statute a non-death row prisoner could bring a case against the government if it tried to administer a routine medication without a prescription.
The government attorney said she could not provide a statute but that doesn't mean one does not exist.
“I don’t know of every statute in the books,” Millett said. “But I see a lot of them, and I can’t conceive of what that other statute would be to make the government comply with the law.”
In response to the hypothetical, the government buckled down on its argument that no new evidence has surfaced since the appeals court issued an Aug. 27 ruling vacating a stay on the executions.
New autopsy records brought forward by attorneys after executions over the summer do not verify that pulmonary edema set in before the death row inmates passed out, the government argued, and were reviewed by Judge Chuktan and found to not meet the burden for injunctive relief.
Furthermore, the government pointed out, as Judge Pillard did, that a prescription alone would not eliminate the prisoners’ claimed injury without fail.
“This underscores the degree to which they’re trying to use the FDCA to reform execution protocols in a way that is far beyond anything the FDCA contemplates or dictates,” Patterson said.
The government attorney refused to engage substantively with Pillard on a detailed line of questioning on whether the new protocols could constitute gratuitous pain and whether that violates the Eight Amendment, telling the judge: “We are so far from any of the allegations in this case.”
Instead, Patterson cautioned the appeals court against “tinkering with execution protocols” and advised the judges to review Supreme Court precedent in the case.
“There has been an earnest desire to move to ever more humane types of executions. And that is why the Supreme Court has never invalidated a single execution method,” she said.
U.S. District Judge Neomi Rao, a Trump appointee, joined the two Obama appointees on Monday’s panel, asking few questions.
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