A federal appeals court ruled Tuesday that the government can carry out executions under its new lethal injection protocols, erasing a lower court’s injunction and clearing one of the roadblocks to restarting the federal death penalty.
Other legal hurdles, which the Circuit Court of Appeals for the District of Columbia didn’t reach in its new ruling, remain, so the four death row inmates who challenged the protocols can keep delaying executions for murders dating back more than 20 years.
Tuesday’s case turned on intricate readings of federal law and produced some serious heat between the members of the three-judge panel.
They issued four opinions among themselves, with each judge delivering a different reasoning. But since two thought the lower court misread the law, they wrote another combined opinion siding with the Trump administration and lifting the injunction.
At issue was a 2019 update to the federal execution protocols, adopting a new drug regimen.
The inmates argued the protocols violated the Federal Death Penalty Act by sidestepping the manner of execution written in state laws. The inmates also argued Attorney General William Barr cut too many procedural corners in issuing the protocols.
Judge Tanya Chutkan, an Obama appointee to the district court, had sided with them.
But Circuit Judge Gregory Katsas disagreed, saying federal law governs big decisions such as whether execution is by hanging, injection or the like, and the feds aren’t obligated to follow state rules. “Adherence to the minutiae of state execution protocols is not only pointless, but practically impossible,” he wrote.
Judge Neomi Rao disagreed, saying the federal law does require attention to specific decisions. But she ruled the 2019 update was “internal house-keeping,” and not a big enough change to require a broad notice and comment period, as the plaintiffs argued.
The two judges, both Trump appointees, vehemently sparred in their opinions, but because they both disagreed with Judge Chutkan, they lifted her injunction.
Judge David Tatel, a Clinton appointee, dissented. He sided with Judge Rao in saying the federal law governs more than just the big decisions about execution methods but broke with her reasoning that these changes didn’t need to go through a broader administrative procedure.
He said that if it’s too difficult for the federal government to craft rules, then they can arrange for the states to execute the inmates — “just as most federal prisoners have been since 1937.”
The last federal execution, by lethal injection, was carried out in 2003.
The four death row inmates who challenged the 2019 protocol included a man convicted of murdering a couple and their 8-year-old daughter in Arkansas in 1996; a man convicted of raping and murdering a 16-year-old in Missouri in 1998, then cutting her body up with a chainsaw and setting it on fire; a man convicted of murdering five people in Iowa in 1999, including two young children, to further his drug trafficking; and a man convicted in Texas of murdering his 2-year-old daughter in 2002.
Cate Stetson, a lawyer for one of the inmates, said the federal government waited years to pursue the new protocols, yet now suddenly seems in a rush to carry out executions.
She said the full circuit court needs to step in.
“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,” she said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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