Appeals Court Hears Argument on Injunction that Halted Federal Executions

A three-judge pan­el of the U.S. Court of Appeals for the D.C. Circuit heard near­ly two hours of argu­ment on January 15, 2020 in four con­sol­i­dat­ed cas­es that could deter­mine whether the fed­er­al gov­ern­ment will be able to resume exe­cu­tions in 2020. The appeals pan­el — com­posed of Gregory G. Katsas and Neomi Rao, both appoint­ed by President Donald Trump, and David S. Tatel, appoint­ed by for­mer President Bill Clinton — sharply ques­tioned lawyers for the U.S. Department of Justice (DOJ) and four fed­er­al death-row pris­on­ers over whether the DOJ exe­cu­tion pro­to­col adopt­ed in July 2019 in an effort to restart fed­er­al exe­cu­tions com­plied with the require­ments of the Federal Death Penalty Act.

A fed­er­al dis­trict court had issued a pre­lim­i­nary injunc­tion in November 2019 halt­ing the exe­cu­tions sched­uled for December 2019 and January 2020, say­ing that the pris­on­ers were like­ly to pre­vail on their claim that the DOJ had ​“exceed­ed its statu­to­ry author­i­ty” in adopt­ing the pro­to­col. Court watch­ers agreed that the appeals pan­el appeared engaged but divid­ed on that ques­tion, with the out­come of the government’s appeal uncertain. 

The core issue in the case was whether lan­guage in the Federal Death Penalty Act requir­ing that fed­er­al exe­cu­tions be car­ried out ​“in the man­ner pre­scribed by the state” in which the pris­on­er was con­vict­ed per­mit­ted the exec­u­tive branch to instead adopt a uni­form fed­er­al exe­cu­tion pro­to­col. On behalf of the DOJ, Melissa Patterson argued that ​“man­ner” refers sim­ply to the method of exe­cu­tion, such as lethal injec­tion, gas cham­ber, or hang­ing. Once the gen­er­al method of lethal injec­tion was select­ed, she said, the U.S. Attorney General had absolute author­i­ty to des­ig­nate the drug or drugs used to car­ry it out, whether that drug was autho­rized by the state’s exe­cu­tion law or not. She said requir­ing the fed­er­al gov­ern­ment to fol­low the details of each state’s death penal­ty pro­ce­dures was imprac­ti­cal and could per­mit states that had exe­cu­tion mora­to­ria or dor­mant death penal­ties to make it impos­si­ble for the fed­er­al gov­ern­ment to car­ry out exe­cu­tions for fed­er­al crimes com­mit­ted in those states. ​“Why would Congress have intend­ed to ham­string the fed­er­al gov­ern­ment?,” she asked. 

The pris­on­ers’ coun­sel, Catherine Stetson, argued based on the plain lan­guage of the statute and his­tor­i­cal prac­tice that ​“man­ner” refers to the details of how the states car­ry out an exe­cu­tion, includ­ing the method of exe­cu­tion, which drugs are used, and how the IV is insert­ed. She argued that Congress had express­ly del­e­gat­ed cer­tain dis­crete func­tions to the attor­ney gen­er­al and that pro­mul­gat­ing a uni­form fed­er­al exe­cu­tion pro­to­col was not one of them. Instead, she said, Congress deferred to the greater expe­ri­ence of state gov­ern­ments in car­ry­ing out exe­cu­tions by direct­ing that fed­er­al exe­cu­tions fol­low state procedures. 

In response to ques­tion­ing from Katsas, Stetson said that the statute did not com­pel the fed­er­al gov­ern­ment to fol­low ​“every jot of a state’s process” — such as pre-exe­cu­tion vis­i­ta­tion prac­tices or wit­ness prac­tices — only those por­tions of the process relat­ed to ​“imple­ment­ing the sen­tence” itself. Rao ques­tioned how, under the pris­on­ers’ approach, the fed­er­al courts were sup­posed to deter­mine which prac­tices they must fol­low and which they did not have to. 

Nonetheless, the judges seemed recep­tive, at least in part, to the argu­ment that Congress was defer­ring to state expe­ri­ence and exper­tise. ​“What this looks like is that Congress was vest­ing the right to car­ry out death penal­ties to the states,” Tatel said. ​“That’s one way to look at this.” Rao agreed, say­ing, ​“You could imag­ine Congress want­ed to defer to the states. I don’t know why that would be so peculiar.” 

While chal­lenges to the fed­er­al lethal-injec­tion pro­to­col have been pend­ing in fed­er­al court for sev­er­al years, the case gained a new urgency in July 2019, when Attorney General William Barr announced that the fed­er­al gov­ern­ment planned to resume exe­cu­tions after a 16-year hia­tus. Barr set five exe­cu­tion dates to be car­ried out in a five-week span in December 2019 and January 2020, includ­ing three December exe­cu­tions in a span of five days. One pris­on­er – Lezmond Mitchell – received a stay of exe­cu­tion to allow review of his claim that his death sen­tence was uncon­sti­tu­tion­al­ly influ­enced by anti-Native American bias. The oth­er four pris­on­ers – Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken — sought to stay their exe­cu­tions while the fed­er­al dis­trict court reviewed their chal­lenges to the new fed­er­al execution protocol. 

Their exe­cu­tion dates were stayed by a November 20, 2019 injunc­tion issued by U.S. District Court Judge Tanya S. Chutkan. Chutkan wrote that the government’s pro­posed exe­cu­tion process con­flict­ed with the pro­vi­sions of the fed­er­al death penal­ty statute Congress passed in 1994 and that the pris­on­ers were like­ly to pre­vail on their claim that the DOJ had ​“exceed­ed its statu­to­ry author­i­ty” in adopt­ing the protocol. 

On December 2, 2019, a unan­i­mous fed­er­al appeals pan­el refused to vacate the injunc­tion, and the DOJ sought review by the U.S. Supreme Court. Four days lat­er, the high court unan­i­mous­ly denied the DOJ’s request to lift the injunc­tion, return­ing the case to the U.S. Court of Appeals to review the mer­its of the case ​“with appropriate dispatch.”