March 11, 2020

D.C. Circuit Court Hears Oral Arguments About Federal Lethal Injection Protocol

D.C. Court of Appeals building in Washington, D.C.

D.C. Court of Appeals building in Washington, D.C.

© User: AgnosticPreachersKid / Wikimedia Commons / CC-BY-SA-3.0

On January 15, 2020, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in the Federal Bureau of Prisons’ Execution Protocol Cases—Roane v. Barr, which is currently staying the federal government’s attempt to resume federal executions. The arguments represented the next stage in the litigation triggered by Attorney General William Barr’s July 2019 announcement that the government had set execution dates for five federal death-row prisoners and directed the Bureau of Prisons (BOP) to adopt a new lethal injection protocol using a single drug, pentobarbital. Following the July announcement, several of the federal death row prisoners noticed for execution sued.

Among other things, the federal prisoners argued that the new protocol violates the Federal Death Penalty Act (FDPA), which includes language that any death sentence shall be implemented in the “manner prescribed by the law of the State in which the sentence is imposed.” The prisoners argued that “manner” referred very specifically to each state’s individual execution protocol, whereas the government contended that “manner” was meant more broadly to encompass only the method of execution, e.g., lethal injection versus electrocution. In November 2019, the U.S. District Court for the D.C. Circuit sided with the prisoners and found that the government’s proposed execution protocol exceeded its authority under the FDPA. Four of the five scheduled federal executions were stayed. The fifth federal prisoner noticed for execution in the July 2019 announcement, Lezmond Mitchell, was not a part of the Roane litigation as he had already received a stay arising out of a separate legal appeal filed in the Ninth Circuit in October 2019.

Whether the new protocol was indeed unlawful under the FDPA was at the center of the January 15th arguments, with the Justice Department seeking a reversal of the November order. The oral arguments focused on the interpretation of the word “manner” in the statute and how closely Congress intended for the federal government to adhere to individual states’ specific execution laws in issuing an execution protocol.  The attorney arguing on behalf of the Justice Department asserted that Congress intended “manner” to refer broadly to the method of execution, rather than the granular details of each state’s procedure.  The Justice Department further argued that requiring the federal government to follow minute details of various states’ execution procedures would not only be burdensome but at times even impossible where a state has not updated its death penalty procedures in a way that would make them workable today. Some panel judges expressed skepticism about this position after noting that in other instances, the FDPA’s use of the term “manner” appears to refer to something more specific than just method. Judge Katsas pointed to § 3592 of the FDPA, which discusses aggravating circumstances, explaining that it uses the word manner “in a seemingly broader way” than the government’s proposed definition. Judge Katsas asked. “Doesn’t that cut against [the government] a little bit? We would have to conclude that the same word in the same statute has different meanings in different sections.”

Arguing on behalf of the condemned prisoners, pro bono attorney Cate Stetson from Hogan Lovells said that the plain language of the FDPA meant for the federal government to adopt even the most granular details of a state’s execution laws in setting an execution protocol. When asked whether “manner” therefore means any process “specified in the positive law of the states,” Ms. Stetson answered that “manner” refers primarily to the parts of an execution plan that bear directly on the state’s ability to effectuate a humane execution, like how an IV should be inserted and the dosage and type of drugs used. She differentiated these elements from less central parts of an execution procedure, stating that other details, like how many phone-calls a prisoner gets in the days prior to execution, do not speak to the “manner” that the federal government is required to follow. Both Judge Katsas and Judge Rao expressed concerns about the practicality of the prisoners’ interpretation, namely the ability to consistently determine where to draw the line.

While there was no commitment about when the panel would release its opinion, it will likely do so soon. In December, in rejecting a Justice Department motion for an emergency stay of the district court order enjoining the executions, the U.S. Supreme Court indicated its desire for the Court of Appeals to resolve this legal issue quickly. Justice Alito, joined by Justice Gorsuch and Justice Kavanaugh, wrote that they “saw no reason why the Court of Appeals should not be able to decide this case, one way or another, within the next 60 days,” given that the legal “question is straightforward and has already been very ably briefed in considerable detail.” February 4, 2020, marked sixty days since the U.S. Supreme Court’s denial of the Justice Department’s motion.