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.”


John Kruzel, Appeals court appears wary of let­ting Trump rein­state death sen­tences, The Hill, January 15, 2020; Jordan S. Rubin, Trump Executions Get D.C. Circuit Look, Eyeing High Court Return, Bloomberg Law, January 15, 2020; Kristine Phillips, DOJ says it has author­i­ty to car­ry out fed­er­al exe­cu­tions regard­less of state rules, USA Today, January 15, 2020; Josh Gerstein, Court wres­tles with mud­dled law on fed­er­al exe­cu­tion process, Politico, January 152020.

You can lis­ten to the oral argu­ment in In re Federal Bureau of Prison Execution Protocol Cases here.