DC Circuit Digs Into Resumption of Federal Death Penalty

WASHINGTON (CN) — Two Trump appointees sat on the D.C. Circuit panel Wednesday that considered the government’s bid to resume executing federal prisoners after a 16-year moratorium. 

Attorney General William Barr announced the move in July, invoking the Federal Death Penalty Act to say that the government would use the drug pentobarbital to administer lethal injections at the federal level for the first time since 2003.

The law specifies that the U.S. Marshal, a law enforcement wing of the Justice Department, “shall supervise implementation of the sentence in the manner prescribed by the law of the state in which the sentence is imposed.” 

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)

U.S. Circuit Judge Neomi Rao, who joined the federal appeals court in March 2019, emphasized what she called the “very open ended” language of the statute.

“For a state that has very barebones procedures, could this statute apply then?” Rao asked the lawyer for four inmates challenging the new death-penalty procedure.

Catherine Stetson, an attorney at Hogan Lovells, said she had not come across any such state procedures. Furthermore, Stetson argued, the Justice Department does not face a situation where a state governor has refused to carry out a federal death sentence. “There are not rogue states,” she said.

“The details matter,” Stetson argued to Rao. “The details about syringes matter,” she added. “The details about how the IV is placed matter.” 

U.S. Circuit Judge Gregory Katsas, another Trump appointee, meanwhile pressed Stetson on the possibility of the Justice Department ordering California to execute a federal prisoner. The left-leaning state has no death-sentence procedures in place.

Stetson recognized that California could defy such an order in the unlikely scenario. 

Today’s hearing follows a stay that blocked the Justice Department from carrying out federal executions using a new lethal-injection procedure last month. The Supreme Court refused to lift the stay.

Stetson told the appellate panel that there was no need for White House intervention on the death-penalty issue.

“The federal government doesn’t have to carry out these procedures,” she said, adding that, “the people who know what they’re doing are the states carrying out the death penalty.”

All four of Stetson’s clients were convicted of heinous crimes.

Wesley Ira Purkey, who raped and killed a 16-year-old girl in 1998 and later killed an 80-year-old woman, was originally scheduled for execution last month, as was Danny Lee, convicted of killing a family of three, including an 8-year-old, in 1999.

Alfred Bourgeois, convicted of sexually abusing, torturing and then murdering his 2-year-old daughter, was set to be executed Jan. 13. Dustin Honken, who killed five people execution-style in 1993, would have been executed today. 

U.S. Circuit Judge David Tatel said the federal law outlines three responsibilities for the attorney general, specifically to retain custody of prisoners, release condemned persons to the U.S. Marshal for execution and make payments to states that carry out death sentences. 

The Clinton appointee questioned how the government’s lawyer on how Attorney General Barr derived a fourth authority now to determine the method of execution. He also suggested that the debate was beyond the scope of judicial authority.

“Maybe Congress should be making these decision, life and death decision,” Tatel said. 

Justice Department attorney Melissa Patterson argued before the federal appeals court today that the words that method and manner are equivalent, so the statute vests authority to the attorney general to determine the chemical to be used for lethal injections.

“Under the plaintiff’s theory, the federal government would be hamstrung with a protocol it can’t carry out,” Peterson said. 

Though the parties were allocated just 10 minutes each side for arguments, the court instead allowed them to make their case for one hour.

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