DC Circuit Backs Resumption of Federal Death Penalty

Guard towers and razor wire ring the compound at the U.S. Penitentiary in Terre Haute, Ind., the site of the last federal execution. (AP Photo/Michael Conroy)

WASHINGTON (CN) — Five months after a federal judge blocked the government from reinstituting capital punishment, the D.C. Circuit cleared the way for federal executions Tuesday with an unusual 2-1 reversal.

The case stems from Attorney General Bill Barr’s adoption in July last year of a single-drug lethal injection method, relying on pentobarbital, after pressure on drugmakers made it no longer possible for authorities to administer the three-drug cocktail that had been in place for years. As states grappled with their own protocols, the Justice Department attempted to schedule the country’s first lethal injections of federal inmates since 2003.

The four men who were to be put to death — all of whom were convicted of heinous crimes, like Alfred Bourgeois, who was convicted of sexually abusing, torturing and murdering his 2-year-old daughter — filed suit and secured an injunction from U.S. District Judge Tanya Chutkan in Washington.

After appellate arguments in January, two Trump appointees to the D.C. Circuit reversed Tuesday. Making the split decision more unusual, the judges both say Chutkan misconstrued the Federal Death Penalty Act but otherwise disagree on what the law requires.

The lead opinion is unsigned, made up of just 11 pages, followed by separate concurring opinions from U.S. Circuit Judges Neomi Rao and Gregory Katsas. U.S. District Judge David Tatel, a Clinton appointee, dissented.

Hogan Lovells attorney Cate Stetson, who represented the inmates at trial, released a statement Tuesday where she blasted the government’s rush to complete executions before the constitutionality of its move can be studied.  

“The District Court’s injunction was aimed at preventing the government from ‘short-circuiting legitimate judicial process’ and serving the public interest by ‘attempting to ensure that the most serious punishment is imposed lawfully,’” Stetson said. “Without action by the full court, 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.”  

Melissa Patterson, who represented the government at oral arguments in January, did not respond to a request for comment.

At the crux of challenge is language in the FDPA that says federal executions must be implemented “in the manner prescribed by the law of the state in which the sentence is imposed.”
As argued by Katsas, however, the demand by the inmates that the federal rules match those of the state down to miniscule protocol “would make the federal death penalty virtually un-administrable.”

“The FDPA requires federal executions to follow the method of execution provided by the law of the state in which the sentence is imposed, but it does not require federal executions to follow the ‘additional procedural details’ invoked by the district court,” Katsas wrote. 

While Katsas said the FDPA regulates only the execution method — here, the choice to use lethal injection instead of hanging or electrocution — Rao said the FDPA also requires the federal government to follow a state’s laws and regulations setting forth the execution procedures, but not those that appear in less formal state execution protocols.

Tatel complained in his dissent meanwhile that Rao’s reading of a carveouts did not appear in any of the government’s argument or in the protocol.

“In my view, section 3596(a), best understood, 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,” Tatel wrote. “Because the federal protocol, on its face, takes no account of these procedures, it is contrary to section 3596(a), and I would vacate it.”

Tatel denied that his scheme renders the death penalty unworkable.

“Quite to the contrary, they argue, and I agree, that section 3596(a) requires the federal government to follow only ‘implementation’ procedures, which plaintiffs define as those procedures that ‘effectuate the death,’ including choice of lethal substances, dosages, vein-access procedures and medical-personnel requirements,” he wrote.

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