U.S. Court of Appeals Lifts Injunction on Federal Executions, Returns Case to Lower Court for Further Litigation

A bad­ly divid­ed fed­er­al court of appeals has lift­ed a court order that had pre­vent­ed the fed­er­al gov­ern­ment from resum­ing exe­cu­tions after a hia­tus of more than 16 years. 

In a frac­tured rul­ing with three sep­a­rate opin­ions and no ratio­nale for its deci­sion com­mand­ing a major­i­ty, a pan­el of the U.S. Court of Appeals for the District of Columbia Circuit vot­ed 2 – 1 on April 7, 2020 to vacate the pre­lim­i­nary injunc­tion that had blocked the fed­er­al gov­ern­ment from car­ry­ing out four exe­cu­tions in December 2019 and January 2020. The court remand­ed the case to the D.C. fed­er­al dis­trict court to decide a series of addi­tion­al unre­solved issues in the case.

The rul­ing came in a case in which fed­er­al death-row pris­on­ers had filed a mul­ti-pronged chal­lenge to the legal­i­ty and con­sti­tu­tion­al­i­ty of a new exe­cu­tion pro­to­col issued by the U.S. Department of Justice in July 2019. When the pro­to­col was released, Attorney General William Barr also announced that exe­cu­tion dates had been sched­uled for five pris­on­ers. One of those pris­on­ers, who had received a stay of exe­cu­tion on unre­lat­ed grounds, did not join the execution challenge.

The court’s per curi­am opin­ion stat­ed ​“Each mem­ber of the pan­el takes a dif­fer­ent view of what the FDPA [Federal Death Penalty Act] requires. Because two of us believe that the dis­trict court mis­con­strued the FDPA, we vacate the pre­lim­i­nary injunc­tion.” The court’s deci­sion divid­ed along par­ti­san lines. Judges Gregory Katsas and Neomi Rao, both appoint­ed by President Donald Trump, vot­ed to vacate the injunc­tion and allow the fed­er­al gov­ern­ment to sched­ule exe­cu­tions. Judge David Tatel, appoint­ed by President Bill Clinton, dis­sent­ed, argu­ing that the pro­posed fed­er­al pro­to­col vio­lates the FDPA. The pan­el left the dis­trict court to decide the pris­on­ers’ chal­lenges to the pro­posed exe­cu­tion drugs brought under the Food, Drug, and Cosmetic Act and the Controlled Substances Act, as well as claims relat­ed to the con­sti­tu­tion­al­i­ty of the pro­to­col and a claim that the pro­to­col is arbi­trary and capri­cious under the fed­er­al Administrative Procedures Act. 

In a state­ment, Cate Stetson, who argued the case for the pris­on­ers in the cir­cuit court, sug­gest­ed that the pris­on­ers would seek recon­sid­er­a­tion by the full appeals court. ​“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,’” she 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. As Judge Tatel wrote in his dis­sent­ing opin­ion, ​‘Had Congress intend­ed to autho­rize the Attorney General to adopt a uni­form exe­cu­tion pro­to­col, it knew exact­ly how to do so.’”

The court heard argu­ment in the case in January, after the U.S. Supreme Court had declined to lift the injunc­tion while the exe­cu­tions were pend­ing. The pris­on­ers argued that the exe­cu­tion pro­to­col pro­mul­gat­ed by Department of Justice in July, which estab­lished a uni­form one-drug lethal-injec­tion process using pen­to­bar­bi­tal, vio­lat­ed the Federal Death Penalty Act. Among oth­er con­cerns, the pris­on­ers said the plain lan­guage of the FDPA required that fed­er­al exe­cu­tions be car­ried out ​“in the man­ner pre­scribed by the state” in which the pris­on­er was convicted. 

Judges Katsas and Rao dis­agreed, although they offered dif­fer­ent rea­sons for their con­clu­sions. The per curi­am deci­sion sum­ma­rized their dis­agree­ment. ​“Judge Katsas con­cludes that the FDPA reg­u­lates only the top-line choice among exe­cu­tion meth­ods, such as the choice to use lethal injec­tion instead of hang­ing or elec­tro­cu­tion,” the deci­sion said. ​“Judge Rao con­cludes that the FDPA also requires the fed­er­al gov­ern­ment to fol­low exe­cu­tion pro­ce­dures set forth in state statutes and reg­u­la­tions, but not exe­cu­tion pro­ce­dures set forth in less for­mal state exe­cu­tion pro­to­cols. Judge Rao fur­ther con­cludes that the fed­er­al pro­to­col allows the fed­er­al gov­ern­ment to depart from its pro­ce­dures as nec­es­sary to con­form to state statutes and reg­u­la­tions. On either of their views, the plain­tiffs’ pri­ma­ry FDPA claim is with­out mer­it. Accordingly, the pre­lim­i­nary injunc­tion must be vacat­ed, and judg­ment for the gov­ern­ment must be entered on this claim.” 

The deci­sion also addressed the ques­tion of whether the DOJ vio­lat­ed the Administrative Procedures Act by announc­ing the new pro­to­col with­out allow­ing for pub­lic com­ment and over­sight. ​“On the mer­its, Judge Katsas and Judge Rao con­clude that the 2019 pro­to­col and adden­dum are rules of agency orga­ni­za­tion, pro­ce­dure, or prac­tice exempt from the APA’s require­ments for notice-and-com­ment rule­mak­ing. Judgment for the gov­ern­ment must be entered on this claim.”

Judge David Tatel dis­sent­ed, argu­ing that the pro­posed fed­er­al pro­to­col vio­lates the FDPA. The rel­e­vant sec­tion of the law, he wrote, ​“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. Because the fed­er­al pro­to­col, on its face, takes no account of these pro­ce­dures, it is con­trary to [the FDPA], and I would vacate it.” That meant that two judges on the pan­el believed that the fed­er­al gov­ern­ment must fol­low state law, as opposed to cre­at­ing an inde­pen­dent fed­er­al process. However, they dif­fered on what con­sti­tut­ed state ​“law.”

For Judge Tatel, “[t]he ​‘law’ of each state … requires exe­cu­tions to be imple­ment­ed accord­ing to pro­ce­dures deter­mined by state cor­rec­tions offi­cials, who, in turn, have set forth such pro­ce­dures in exe­cu­tion pro­to­cols. In oth­er words, ​‘by law,’ each state direct­ed its prison offi­cials to devel­op exe­cu­tion pro­ce­dures, and ​‘by law,’ those offi­cials estab­lished such pro­ce­dures and set them forth in exe­cu­tion pro­to­cols. Accordingly, the pro­to­cols have been ​‘pre­scribed by … law.’” He also said that ignor­ing state exe­cu­tion pro­to­cols would defeat the intend­ed pur­pose of the FDPA, which he said was ​“to make fed­er­al exe­cu­tions more humane by ensur­ing that fed­er­al pris­on­ers are exe­cut­ed in the same man­ner as states exe­cute their own.”