Appeals court sides with Trump on federal execution policy
A federal appeals court ruled in favor of the Trump administration on Tuesday over a plan to resume federal death sentences under a new lethal injection protocol.
In a 2-1 ruling, a three-judge panel of the D.C. Circuit Court lifted a district court judge’s order halting the executions and returned the case to the lower court to resolve several remaining legal questions.
Judges Neomi Rao and Gregory Katsas, both Trump appointees, said a Justice Department plan to execute death row inmates under a new drug protocol was allowed under federal law. Judge David Tatel, a Clinton appointee, dissented.
Federal executions have not been carried out since 2003, due in part to a widespread shortage during the Obama administration of lethal injection drugs involved in the so-called three-drug cocktail.
In an effort to resume capital punishment at the federal level, Attorney General William Barr announced in July that executions would occur through the use of a single drug, pentobarbital sodium.
At issue was whether the Trump administration’s drug protocol violated the Federal Death Penalty Act (FDPA), which says that the state where a capital crime was committed should determine the method of execution.
In November, Judge Tanya Chutkan of the district court in D.C. sided with several death row inmates who challenged the law, and agreed to temporarily suspend their executions. The Obama appointee ruled that the federal government likely exceeded its authority by creating a single uniform method of execution, rather than follow the state-by-state approach under the FDPA.
“There is no statute that gives the (federal government) the authority to establish a single implementation procedure for all federal executions,” Chutkan wrote. “To the contrary, Congress, through the FDPA, expressly reserved those decisions for the states of conviction.”
But the D.C. Circuit Court on Tuesday took a different view of just how closely Congress intended the federal government to adhere to the specifics of state execution laws.
“Each member of the panel takes a different view of what the Federal Death Penalty Act requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction,” the panel wrote.
In his dissent, Tatel said he believes the law requires federal executions to mirror state protocols, something the Trump administration’s plan doesn’t do.
“Because the federal protocol, on its face, takes no account of these procedures, it is contrary to (the law), and I would vacate it,” Tatel wrote.
Cate Stetson, a lawyer at Hogan Lovells who represents the death row plaintiffs, criticized the D.C. Circuit panel’s decision.
“The district court’s injunction was aimed at preventing the government from ‘short-circuiting legitimate judicial process’ and serving the public interest by ‘attempting to ensure that the most serious punishment is imposed lawfully,’ ” she said. “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.”
The case, Roane v. Barr, will return to the district court to address unresolved legal issues.
Updated at 12:19 p.m.
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