Court wrestles with muddled law on federal execution process

By Josh Gerstein

A trio of federal appeals court judges spent nearly two hours Wednesday mulling over a grisly subject: how precise the law is in dictating how federal prisoners should be put to death.

The D.C. Circuit Court of Appeals panel — which happens to include both members of the court appointed by President Donald Trump — heard a Justice Department attorney delve into some of the more gruesome details of execution procedure, including whether hanging causes a condemned inmate to strangle or breaks his neck.

Beyond the gore, the arguments focused on whether a federal law that says federal executions must be carried out in the “manner” prescribed by state law in the state where the person was convicted, if that state has the death penalty.

The “manner” language has existed in federal law for more than five decades over the past century, but leapt to the fore in a legal challenge brought after Attorney General Bill Barr announced last July that he had adopted a new lethal injection protocol and planned to move forward with five executions, putting the federal government back into business of meting out capital punishment for the first time since 2003.

The arguments Wednesday — which ran to almost quadruple their allotted time — seemed to split the three judges along ideological lines.

Judge David Tatel, a Clinton appointee, sounded highly skeptical of the federal government’s position that the statute simply tells the feds that they have to use one of the same basic methods as the relevant state, like lethal injection, hanging or the gas chamber.

Judges Greg Katsas and Neomi Rao, the Trump appointees, appeared more open to Barr’s claim of broad authority and more concerned about the consequences of micro-managing the execution process.

However, none of the judges announced a firm position and Katsas at times acknowledged the merits of arguments from both sides.

Facing a conservative-leaning panel and, eventually, a conservative-leaning Supreme Court, the lawyer for the inmates, Catherine Stetson, seemed to tailor her arguments to play to many conservative jurists’ stated respect for federalism, as well as the autonomy and expertise of states.

“This is a statute that delegates to states the responsibility to do something,” said Stetson, a partner at law firm Hogan Lovells. “The federal government doesn’t have to carry out these procedures by itself….The people who know what they are doing are the states that are carrying out the death penalty.”

By contrast, Justice Department attorney Melissa Patterson emphasized the impracticality of insisting that the federal government follow every aspect of a state’s death penalty procedure. She noted that some states list a specific state prison for all executions, while others include a long list of witnesses that must be invited.

The Justice Department lawyers said the plaintiffs’ broad interpretation could even allow a state to foul up the feds by leaving in place an essentially-defunct and unworkable protocol.

“Why would Congress have intended to hamstring the federal government?” Patterson asked. “Congress did not intend to say the states are in charge here.”

One pointed exchange came after Patterson said one reason to read the statute narrowly is that a broader reading would give judges wide authority over details of the execution process, something the Supreme Court has increasingly rejected in recent years.

“This would put courts in a position the Supreme Court has said they should not occupy,” she said.

That comment prompted Tatel to shoot back: “You’re clearly right about judges, we shouldn’t be making these decisions. Maybe Congress should be making those decisions — life and death decisions.”

The Clinton appointee went on to suggest that Barr should’ve gone to Congress and asked it to clarify the law, but the Justice Department lawyer replied that the executive branch also represents the American people.

“The executive branch is politically accountable, too. I think Congress is free to leave these decisions to the executive branch,” Patterson said.

At times, Katsas seemed to be searching for a middle-ground approach that might require the federal government to use the same drugs a state uses but not necessarily observe all the other details of the state execution process.

“The question of which drug you pick, that might not be the topline, but it’s like No. 2. It’s not which vein you pick or where you insert the catheter,” he said.

However, Patterson insisted Barr was “absolutely” free to pick any drug he wanted.

When Katsas pressed Stetson, she conceded that the federal government need not follow every detail of how a state executes inmates.

“When we talk about ‘manner,’ it doesn’t include every jot of a state’s process,” she said.

That discussion prompted Rao to suggest that there was no obvious dividing line for judges to divine. “How are the federal courts supposed to sort [that] out?” she asked.

Rao also sounded like she was mulling one way to do that: limiting the restrictions on the feds to the requirements actually outlined in state statutes, but setting aside details states dictate by regulations, rules or other means.

However, Stetson said Supreme Court precedents discourage federal courts from drawing such distinctions.

Barr’s July announcement reanimated long stalled litigation in Washington over the legality of the federal death penalty protocol. After the last federal execution in 2003, capital punishment in the federal system was effectively halted while the Supreme Court considered whether a so-called three-drug cocktail amounted to unconstitutional cruel-and-unusual punishment because of its ability to inflict severe pain.

In 2008, the Supreme Court ruled, 7-2, that the three-drug cocktail used by most states and the federal government was lawful.

However, federal executions did not resume because of a shortage of one of the drugs after the sole manufacturer stopped exports of the drug to the U.S.

The Obama administration maintained it was working on revisions to the federal protocol, but the new process did not emerge until last July, two-and-a-half years into the Trump administration.

In November, U.S. District Court Judge Tanya Chutkan ruled in favor of the death-row inmates, concluding that the single-drug protocol and related procedures Barr proposed appeared to run afoul of applicable state requirements. She blocked executions for four inmates, while the fifth one on Barr’s roster was blocked by the San Francisco-based 9th Circuit Court of Appeals.

The Trump administration quickly took the issue all the way to the Supreme Court in an effort to press forward with plans for the four executions, insisting that extensive planning had taken place to carry out the death sentences last month and this month at the federal penitentiary in Terre Haute, Ind.

In a surprise ruling last month, the justices turned down the federal government’s request to stay Chutkan’s order blocking the executions.

While there was no recorded dissent, three conservative justices signed onto a statement highly skeptical of the argument that the feds are required to abide by state execution procedures.

“The Government has shown that it is very likely to prevail when this question is ultimately decided,” Justice Samuel Alito wrote, joined by Justices Neil Gorsuch and Brett Kavanaugh.

However, the three agreed with their colleagues that the issue should be resolve by the courts before the men are put to death.

“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,” Alito wrote.

The rest of the justices did not explain why they turned down the Justice Department’s request to proceed, but they did signal they wanted the D.C. Circuit to consider and rule on the legal issue quickly.

“We expect that the Court of Appeals will render its decision with appropriate dispatch,” the high court’s Dec. 6 order said.

Alito also chimed in on that point, saying he saw no reason why the D.C. Circuit couldn’t rule on the issue within 60 days.

The appeals court panel made no commitment on timing Wednesday, but has about three weeks to release an opinion and comply with Alito’s admonition.