While the ruling was a victory for the government,
it does not mean executions can begin immediately. The appeals court sent
the case back to a lower court and put its own order on hold to allow lawyers
for the death row inmates to challenge it.
The decision by a three-judge panel of the U.S. Court of
Appeals for the D.C. Circuit comes months after the Justice Department had
intended to resume carrying out death sentences under a plan announced by
Attorney General William P. Barr last year.
The federal government has not executed a death row inmate
since 2003. When Barr declared last summer that the Justice Department had
adopted a new lethal-injection procedure and set execution dates for
five inmates, he said officials owed it to the victims and their relatives.
But in November, just weeks before the first
scheduled execution, U.S. District Judge Tanya S. Chutkan of
Washington issued
an injunction blocking four that were scheduled. The fifth
was separately stayed by a different court.
Chutkan said the government’s new protocol — which laid out
a lethal-injection procedure using one drug, pentobarbital — was inconsistent
with the Federal Death Penalty Act, writing that the 1994 law required federal
executions be carried out “in the manner prescribed by the law of the State in
which the sentence is imposed.”
On Tuesday, the appeals court panel split
2 to 1 in deciding to lift the injunction. In three separate opinions,
each member took a different view of what the law requires when it comes to
guidelines for federal executions.
Because two judges — Gregory Katsas and Neomi Rao, both
recent nominees of President Trump — agreed Chutkan had misinterpreted
sections of the law, they lifted the injunction and sent the case back to lower
court.
Both Katsas and Rao rejected the arguments for the four
people on death row, but for different reasons.
Katsas concluded the law applies only to the top-line choice
among execution methods, such as whether to use lethal injection instead of
hanging or electrocution. Rao, meanwhile, found the law also requires the
federal government to follow execution procedures set forth in state law, but
not procedures set forth in less formal state execution protocols.
The law 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,” Katsas wrote in a 31-page opinion.
Katsas also said the claims presented by the death row inmates “are designed to
delay lawful executions indefinitely.”
In his dissent, Judge David S. Tatel pointed out that for
decades almost all federal executions were carried out by state officials who
executed federal prisoners in the same “manner” as they executed their
own.
Congress subsequently “signaled its intent to continue the
same system — for federal executions to be carried out in the same manner as
state executions,” wrote Tatel, who was nominated by President Bill
Clinton.
To rule otherwise, Tatel wrote, would defeat the purpose of
the law, which he writes was “to make federal executions more humane by
ensuring that federal prisoners are executed in the same manner as states
execute their own.”
A spokesman for the Justice Department did not immediately
respond to a request for comment. Attorneys for the inmates facing execution
said the federal government had “rushed the process” to carry out the lethal
injections without letting courts review new execution protocols.
“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,” Catherine
Stetson, an attorney for the death row inmates, said in a statement.
Stetson wrote in a separate email that attorneys for the
inmates were “considering all options,” including review by a full complement
of D.C. Circuit judges.
The Justice Department had appealed Chutkan’s ruling
and asked
the Supreme Court to let it sidestep that injunction and carry out
the executions late last year, but the high court refused, letting the
case play
out before the federal appeals court.
Lethal injection is the primary method of execution
nationwide, but the specific procedures governing executions can vary
by state, including the types of drugs, how many are used and other details
laid out in execution plans.
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