WASHINGTON — The Justice Department engaged in a deep-dive vocabulary discussion as it tried to convince appeals court judges Wednesday that it has the authority to decide how to execute prisoners on federal death row, regardless of the rules in the states where inmates were convicted.
The key question, said Justice Department appellate attorney Melissa Patterson, is what the term "manner" means. At issue is what Congress meant when it declared 80 years ago that federal executions must be carried out "in the manner prescribed by the state" where inmates were convicted.
Patterson said Congress is simply referring to the type of execution, whether it's lethal injection, the primary method used in the country, or other alternatives allowed in some states, such as gas chamber or hanging. This means, Patterson argued, that as long as the Justice Department follows the general method of execution allowed in states, it has authority to decide everything else, including what drugs to use.
A "much more natural interpretation of the statute" is that Congress empowered the Justice Department to decide how to execute its own inmates, Patterson said.
The hearing, which lasted about two hours in the U.S. Court of Appeals for the D.C. Circuit, comes about six months after Attorney General William Barr announced he is resuming executions after a nearly two-decade hiatus. Barr also announced the federal government is changing its execution protocols, from a three-drug cocktail to just one drug: pentobarbital, which is used to anesthesize and euthanize animals.
The decision, which comes as states are moving away from the death penalty, promptly met resistance from anti-death penalty advocates and death row prisoners whose executions Barr scheduled within months.
In November, a federal district judge temporarily blocked the execution of four inmates who were supposed to die in December and this month, allowing the prisoners to challenge the legality of the new lethal injection protocols. U.S. District Judge Tanya Chutkan said the protocols violate the Federal Death Penalty Act, which allows the states where inmates are convicted – not the federal government – to decide on procedures.
The Justice Department appealed the ruling.
During the hearing Wednesday, the three-judge panel pressed attorneys on the meaning of "manner." Judge David Tatel wondered whether the discussion should focus on what one word means.
"The word 'manner' is just one word in the statute ... Maybe the debate about 'manner' isn't the right debate," Tatel said, adding that if Congress has already vested authority to states to decide how to execute prisoners, then the word isn't that important.
Patterson said she believes Congress does not want to hamstring the federal government's ability. And federal officials, in this case the attorney general, have the power to decide on procedures, particularly when protocols in some states have become antiquated, she said.
Cate Stetson, who represents the prisoners, argued that the word's meaning isn't just about the general type of execution, but how it is implemented. She said it should be done so in a humane way and with regard to what the prisoner is experiencing.
"That's the core of what we talk about when we talk about 'manner,'" said Stetson, an attorney at the Washington D.C. firm Hogan Lovells.
She also said executions should not be carried out through a "categorical one-size-fits-all protocol" by the federal government, which hasn't executed anyone since 2003.
"The people who know what they're doing are the states that carry out the death penalty," Stetson said.
Barr scheduled the executions of five inmates: Daniel Lewis Lee, Lezmond Mitchell, Wesley Ira Purkey, Alfred Bourgeois and Dustin Lee Honken.
Four of the five – Lee, Purkey, Bourgeois and Honken – asked for the executions to be postponed.
A separate court has already postponed Mitchell's execution. Mitchell, unlike the others, is a Native American whose case raises unique issues related to tribal sovereignty. The crime of which Mitchell was convicted happened on Navajo land, and the Navajo Nation opposes the death penalty.
About two dozen states have adopted a three-drug method in carrying out lethal injection, according to the Death Penalty Information Center. The federal government's one-drug protocol is similar to the one used by a few states, including Georgia, Missouri and Texas.
Barr's decision comes amid a nationwide drop in the number of executions in the past 20 years. Several states imposed moratoriums on lethal injections because of problems such as botched executions, in which prisoners gasped and groaned before dying.
Companies also have been unwilling to supply drugs. Lundbeck, a Danish pharmaceutical company that manufactured pentobarbital, has adamantly opposed the use of the drug in capital punishment and denied distribution of the product to U.S. prisons that carry out executions. Another company, Akorn, acquired the product and kept the restrictions in place.
Source: USA Today, Kristine Phillips, January 15, 2020
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde