In a 2-1 ruling, the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit lifted an order in November 2019 by a lower court judge that had put on hold the executions of four federal death-row inmates.
The appeals court also returned the case, Roane v. Barr, to the district court to address unresolved legal issues surrounding additional claims that the death row inmates made in a legal challenge.
“The Court vacates the preliminary injunction and remands the case to the district court for further proceedings consistent with this opinion,” reads the decision (pdf).
“Each member of the panel takes a different view of what the FDPA [Federal Death Penalty Act of 1994] requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunctions,” the court also wrote.
As such, the fates of the four men, who are convicted murderers, are still uncertain and it is unclear whether federal executions would ultimately resume.
The Justice Department on Tuesday declined to comment on the case or whether it would schedule new execution dates while litigation continues, The Associated Press reported.
The two judges in the majority, Greg Katsas and Neomi Rao, were appointed by President Donald Trump, while the dissenting judge, David Tatel, was appointed by former President Bill Clinton.
Efforts to Resume Federal Execution Stalled
While a number of individual states continue to carry out the death penalty, the federal government has not executed a prisoner since 2003. Since then, litigation over the drugs that were historically used in lethal injection executions prevented the government from continuing the practice.
The lawsuits challenging federal lethal injections, the first of which was filed in 2005, challenged the execution protocol on the grounds that it violated the U.S. Constitution’s Eighth Amendment ban on cruel and unusual punishment by carrying a risk of severe pain. The suits also said the protocol violated a federal law called the Administrative Procedure Act because it was written in secret without public input.
During the presidency of Barack Obama, the Justice Department abandoned its previous three-drug protocol due to a shortage of one of them—an anesthetic called sodium thiopental.
The legal fight fell dormant during Obama’s tenure but was revived in July 2019, when Attorney General William Barr announced that he directed the Federal Bureau of Prisons to adopt a proposed addendum to the Federal Execution Protocol “[to clear] the way for the U.S. government to resume capital punishment.” The addendum replaces the three-drug protocol with a single lethal injection protocol using the drug pentobarbital sodium.
On the same day, the Department of Justice said it had set execution dates for five federal death-row inmates, four of whom moved for a preliminary injunction. The four are Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois, and Dustin Lee Honken.
The fifth inmate, Lezmond Mitchell, had his execution blocked by the 9th Circuit Court of Appeals in October 2019 (pdf) over questions of bias against Native Americans. A three-judge panel heard Mitchell’s public defender’s arguments for appeal on Dec. 13. The court has not announced when it will rule on the appeal.
Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia—an Obama appointee—ordered on Nov. 20, 2019, that the executions of the four inmates to be put on hold until the inmates’ challenges have played out. She also wrote in her ruling (pdf) that the federal government’s execution procedure likely violates the FDPA.
Specifically, Chutkan wrote that the government needs to use whatever methods the states use for executions, citing the FDPA, which states that executions be implemented “in the manner prescribed by the law of the state in which the sentence is imposed.” In particular, she ruled that the government needed to comply with all “additional procedural details” of the execution protocol in a given state, such as what chemicals are used in that injection, or how the catheter is inserted.
A federal appeals court ruled on Dec. 2, 2019, (pdf) in favor of Chutkan’s ruling. In response, the Trump administration appealed to the Supreme Court to intervene in the case at an early stage to allow the executions to proceed. Following the appeal, 14 states across the country filed a joint brief to the Supreme Court on Dec. 4 to support the administration.
The U.S. Supreme Court on Dec. 6 rejected the Trump administration’s appeal but told the appeals court in Washington to act with “appropriate dispatch” in reviewing Chutkan’s ruling.
Both Katsas and Rao rejected the inmates’ interpretation that the FDPA requires that federal executions be carried out in the exact manner provided by the state law, according to the court filing on Tuesday.
“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 reads.
“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,” the court also wrote.
“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.”
Judge Tatel in his opinion said he believed that the FDPA “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.”
While the appeals court has now lifted Chutkan’s November 2019 ruling, it has left unresolved separate claims from the inmates brought under different federal laws, which Chutkan is set to address when the case returns to her.
Jack Phillips, Reuters, and The Associated Press contributed to this report.