President Donald Trump and Attorney General William Barr got one step closer in their quest to resume federal executions, as a full panel at the U.S. Court of Appeals in Washington has declined to reconsider last month’s three-judge panel ruling in the government’s favor.
Their denial of en banc review, made Friday, clears the way for the long-running litigation to potentially return to the Supreme Court, where it was in December. The justices had sent it back down for further review, with Samuel Alito, Neil Gorsuch, and Brett Kavanaugh signaling that they’d vote for the government were the case to come back to them.
Where it goes next, though, is an open question.
After the federal government’s years-long hiatus in carrying out executions, Barr announced last summer that the Justice Department would resume them. But that raised concerns about the government’s execution protocol, with death row prisoners challenging it as running afoul of federal law.
It doesn’t, the D.C. Circuit panel said last month, splitting 2-1, with Trump’s two D.C. Circuit appointees—Neomi Rao and Gregory Katsas—in the majority, though their reasoning differed in why the government should win.
But it’s not clear that the prisoners are in a hurry to get back before the high court. They might prefer to go back down to the district court, whose Nov. 21 preliminary injunction the three-judge panel upended, to further litigate the issues in this complex case.
“The Court of Appeals’ fractured decision leaves many questions about the legality of the government’s execution protocol unresolved,” she said. “We will be actively assessing all available avenues to ensure that no federal executions take place until the courts have had an opportunity to review all outstanding issues.”
The case is In re FBOP Execution Protocol Cases, D.C. Cir. App., No. 19-05322, en banc review denied 5/15/20.