A divided federal appeals court sided Tuesday with the Trump administration’s efforts to resume federal executions after a nearly two-decade hiatus.
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.
In her injunction, Chutkan concluded that just using lethal injection and the same drug as a state is not enough, saying there were “inconsistencies” between the federal protocol and some state procedures.
The four death row inmates who had scheduled executions in the case were convicted in Texas, Missouri, Indiana and Iowa. Both Texas and Missouri use pentobarbital for executions, while Indiana uses a three-drug protocol. Iowa has no death penalty, but in that case, the courts selected Indiana — where federal executions are carried out — as its death-penalty state.