WASHINGTON (CN) — Though it declined to block two federal executions, the first just over 24 hours away, the D.C. Circuit was critical Wednesday that seven lethal injections have been carried out in the last few months without medical prescriptions.
This year alone, President Donald Trump’s Justice Department has carried out more federal executions than the combined total of his predecessors from the last 57 years.
That record has sat undisturbed so far against a litany of challenges to the new lethal-injection protocol unveiled last year by Attorney General William Barr after a 17-year hiatus on the death penalty at the federal level.
Inmates suffered their latest defeat Wednesday morning when the D.C. Circuit declined to stay the executions of Orlando Hall set for Thursday and Brandon Bernard on Dec. 10.
In a rare rebuke from the appeals court as to the government’s death-penalty practices, however, the court revived the inmates’ claims that the government must obtain a prescription before using the drug pentobarbital to kill prisoners.
Attorneys for the challengers had argued Monday before the court that pentobarbital administered without a painkiller triggers a condition that mirrors the experience of drowning, bringing “excruciating pain and suffering” in an inmate’s final moments.
A prescription would involve informed clinical judgment “based on the most current science to ensure that the executions are administered in a way that mitigates risks of severe pain and suffering,” attorney Alex Drylewski told the court.
The Justice Department said it has its own evidence to show that the condition, known as flash pulmonary edema, does not set in until after an inmate has lost consciousness.
Government attorney Melissa Patterson argued the demand that the government have prescriptions in hand was an attempt to grind lethal injections to a halt.
“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,” she argued on Monday.
That hearing followed a September ruling where U.S. District Judge Tanya S. Chutkan found that the Trump administration violated the law by carrying out death sentences with unprescribed pentobarbital, but that Supreme Court decisions foreclosed her from blocking the upcoming executions.
The Supreme Court cleared the way for the first federal execution to proceed this year, overturning a temporary ban that Chutkan had ordered. In her latest ruling, Chutkan concluded that “most of the evidence” brought by attorneys to show flash pulmonary edema grips an inmate while they are still awake was already reviewed by the justices and did not reach the high bar to grant injunctive relief.
But the 2-1 appeals panel ruled Wednesday that Chutkan “should have ordered the 2019 protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the FDCA.”
Though the court revived the inmates’ Eighth Amendment challenge, it affirmed “denial of a permanent injunction to remedy the FDCA violation.”
Jonathan S. Meltzer, an attorney for Hall, said they would ask the Supreme Court this afternoon to issue a stay. The Justice Department did not respond to whether it plans to bring its own challenge to the Wednesday ruling.
Hall has requested to go to the execution chamber at 6 p.m. for his scheduled death on Thursday. He was convicted for the kidnapping, rape and murder of a 16-year-old girl in 1994.
Bernard, set to be executed next month, was sentenced to death for the killing of two youth ministers at Food Hood. One of his five co-defendants, Christopher Vialva, was the most recent federal prisoner to die by lethal injection, executed by the Trump administration in September.
Lisa Montgomery, bringing a separate lawsuit backed by the ACLU, is scheduled to die on Dec. 8 — two days before Bernard — and would be the first woman executed by the U.S. government since 1953.
Wednesday’s ruling from the D.C. Circuit was unsigned, with two members of the panel issuing partial dissents.
“It is the government’s prerogative to execute the plaintiffs by a method of its choosing,” wrote U.S. Circuit Judge Cornelia Pillard. “But if it elects a method subject to statutory requirements, the government must then abide by those requirements.”
An Obama appointee, Pillard argued that if the Justice Department planned to execute inmates by firing squad — assuming the method was still allowed under the Eighth Amendment — and a federal statute required certified marksmen, then the government “could not execute a death row inmate until it ensured that the members of its firing squad were so certified.”
In the other partial dissent, Trump-appointed U.S. Circuit Judge Neomi Rao challenged the majority’s finding that the absence of prescriptions violated the Federal Food, Drug & Cosmetic Act
Rao wrote the “application of the FDCA to drugs used in lethal injections is inconsistent with the statutory text and the Supreme Court’s decision in FDA v. Brown & Williamson Tobacco Corp.”
Megan McCracken, an attorney with the Death Penalty Clinic at U.C. Berkeley School of Law, whose focus is on lethal injection as a method of execution, said that even Rao’s dissent acknowledges the government must procure prescriptions to carry out executions lawfully.
“We know that the law is being violated here. And it will continue to be violated. There's just no question,” she said. “And so that is a victory. It's just, you know, where is the remedy?”
Georgia and Missouri, two states with death penalty protocols similar to those adopted by the Trump administration, routinely obtain prescriptions for executions, McCracken said.
“It is remarkable to me,” the Berkeley attorney added, “that the government has argued that it can continue to execute prisoners, even with the protocol set aside.”
Rao agreed that the lower court was wrong to dismiss the inmates’ Eighth Amendment claim.
The third member of the panel, Obama-appointed U.S. Circuit Judge Patricia Millett, did not issue any opinion.
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