The 2-1 ruling is a win for the Department of Justice, but the appeals court noted that there are still other issues that need resolution, suggesting that the executions will remain on hold while litigation continues.
The case comes after the Trump administration announced last July that it would reinstate the federal death penalty after a nearly two-decade lapse, and the two judges in the majority -- Gregory Katsas and Neomi Rao -- were both appointed by President Donald Trump.
Attorney General William Barr's move to reinstate the federal death penalty underscored the stark law and order philosophy of the Trump administration. At the time, he directed the head of the Bureau of Prisons to execute five inmates he said represented the "worst criminals."
The Bureau of Prisons adopted a new lethal injection protocol consisting of a single drug, pentobarbital.
The federal inmates involved in the appeal are Daniel Lewis Lee, who killed a family of three, including an 8-year-old girl; Wesley Ira Purkey, who raped and murdered a 16-year-old girl; Alfred Bourgeois, who tortured and killed his own 2-year-old daughter; and Dustin Lee Honken, who shot and killed five people, including two young girls.
A district judge blocked the executions from going forward, holding that the protocol conflicts with the Federal Death Penalty Act, which requires adherence to a state's method of execution.
US District Judge Tanya S. Chutkan of the District of Columbia Circuit put the executions on hold, ruling that a delay would not hurt the government, particularly because it has waited several years to announce a new protocol.
Chutkan said the public interest is not served by "executing individuals before they have had the opportunity to avail themselves of legitimate procedures to challenge the legality of their executions."
Lawyers for the inmates argued that the government is trying to push the issue forward even though it took eight years to create a new execution protocol.
"From the moment it announced the protocol on July 25, 2019, the government has rushed the process in order to carry out executions without meaningful judicial review of the legality and constitutionality of the new execution procedures," said Cate Stetson, a lawyer for the inmates.
In the opinion, the appeals court nodded to the timeline.
"We do share the government's concern about further delay from multiple rounds of litigation," the court held, "But the government did not seek immediate resolution of all the plaintiffs' claims, including the constitutional claims and the claim that the protocol and addendum are arbitrary and capricious under the APA," the court said and emphasized that "several claims" are pending at the lower court level.
"The one thing all the judges agree on is that there are other significant factual and legal issues that the district court still needs to resolve," said Robert Dunham of the Death Penalty Information Center.
Source: CNN, Ariane de Vogue, April 7, 2020
Trump’s DC Circuit Appointees Rule in Favor of Administration’s Federal Execution Policies
Hogan Lovells appellate partner Cate Stetson argued before the panel on behalf of several death row inmates.
The U.S. Court of Appeals for the D.C. Circuit threw out a district court’s preliminary injunction Tuesday that blocked the Trump administration’s recent efforts to reinstate the federal death penalty.
Judges Neomi Rao and Gregory Katsas, both appointed to the bench by President Donald Trump, wrote concurring opinions in favor of vacating the injunction. Judge David Tatel, a Clinton appointee, dissented.
“Each member of the panel takes a different view of what the [Federal Death Penalty Act of 1994] requires,” Tuesday’s opinion reads. “Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.”
At the center of the case is the question of how the federal government can implement the death penalty, as federal law says executions should be carried out “in the manner prescribed by the law of the state in which the sentence is imposed.” Attorney General William Barr last year announced new protocols for federal executions and scheduled the executions of 5 federal prisoners.
In his concurring opinion, Katsas wrote he believes the “manner” of execution as laid out in the federal death penalty law only applies to the method of execution, which gives federal authorities more leeway.
“The FDPA requires federal executions to follow the method of execution provided by the law of the state in which the sentence is imposed, but it does not require federal executions to follow the ‘additional procedural details’ invoked by the district court,” he wrote.
Katsas further wrote that he is in favor of overturning the preliminary injunction entirely, saying “the district court failed to recognize the important governmental and public interest in the timely implementation of capital punishment.”
“These interests are magnified by the heinous nature of the offenses committed by the appellees—all of whom murdered children—as well as the decades of delay to date,” Katsas wrote.
Rao, diverging from Katsas, said the federal death penalty law says authorities should follow state law on execution protocols wherever it exists.
“Where state law is silent, the federal government has discretion to choose whatever lawful execution procedures it prefers,” Rao wrote. “Under this interpretation, the Department of Justice’s 2019 protocol is consistent with the FDPA.”
“The protocol lays out a non-binding procedural framework that the federal government may apply in most cases, and it allows the U.S. Marshal Service to depart from federal procedures when required—a carveout that naturally would encompass situations in which the 2019 protocol conflicts with state law,” she continued. “I therefore agree to vacate the preliminary injunction.”
In his dissenting opinion, Tatel said he does not believe Barr’s new federal protocols for executions included a “carveout” to follow state regulations where they exist.
He said he believes the Federal Death Penalty Act “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.”
Therefore, Tatel wrote, he found the new federal protocol to be “contrary” to federal law and would vacate it.
The panel grilled Hogan Lovells appellate partner Cate Stetson and Justice Department attorney Melissa Patterson during January oral arguments over an injunction issued by U.S. District Judge Tanya Chutkan last year that temporarily blocked the death penalty policy.
A number of Big Law firms, including KaiserDillon and Wilmer Cutler Pickering Hale and Dorr, alongside federal defenders, are representing federal prisoners Daniel Lewis Lee, Wesley Ira Purkey, Alfred Bourgeois and Dustin Lee Honkin.
Chutkan found in October that it was necessary to pause the executions, which were set to begin the following December, so the inmates could pursue their legal claims and not “be executed under a procedure that may well be unlawful.”
The D.C. Circuit declined to stay the injunction during the appeal, as did the U.S. Supreme Court. Justice Samuel Alito, joined by Justices Neil Gorsuch and Brett Kavanaugh, wrote in a statement at the time they believed the new execution protocols would ultimately be upheld.
Still, Alito wrote, “in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.”
Source: law.com, Staff, April 7, 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