The U.S. Justice Department’s determination to resume federal executions after a decade-plus hiatus is back in Supreme Court justices’ hands, with the filing of a petition from death row prisoners challenging the way the government wants to execute them.
Their appeal, filed on June 5, presents the latest test for the high court on the hot-button issue of capital punishment, a subject that’s split the court along ideological lines and sparked some of the most tense exchanges between justices in recent years.
Attorney General William Barr announced last summer that the government would resume executions, but the petitioning prisoners are fighting that move in court, raising technical challenges.
The case, which involves several prisoners that the government wants to execute—all of whom were convicted of murdering children—was before the justices in December on a preliminary matter. While the court sided with the prisoners then, Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh made clear in a separate opinion that they thought DOJ had the better of the argument.
Now with the issues more squarely presented to the high court, if those three justices still hold the same view, then the question could be how the rest of the court comes down on the sensitive subject.
The petitioner-prisoners are challenging a 2-1 April ruling by the influential U.S. Court of Appeals for the District of Columbia Circuit.
An internal split
President Donald Trump’s two appointees, Neomi Rao and Gregory Katsas, diverged in their reasoning before arriving at the same conclusion: a trial judge shouldn’t have blocked the government from carrying out the executions. Bill Clinton-appointee David Tatel dissented.
The high court may want to weigh in, regardless which side it favors, to clarify the issue one way or the other. Four justices are needed to grant review.
The federal death penalty act says the U.S. marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed.” The government’s lethal injection protocol doesn’t duplicate the minutiae of every aspect of how every state carries out executions.
Katsas said “manner” in the act only refers to the “method” of execution, like lethal injection as opposed to electrocution. It doesn’t regulate “various subsidiary details cited by the plaintiffs and the district court.”
Rao disagreed with Katsas’ “manner” analysis, saying that the act requires the government to follow state execution statutes and formal regulations, but not less formal state procedures.
Tatel said in dissent that he agreed with Rao that “manner” means more than just general execution method, but he disagreed with her beyond that, saying that the law requires executions to be carried out by state procedures “not just in statutes and regulations, but also in protocols issued by state prison officials pursuant to state law.”
The D.C. Circuit’s “very different opinions” create “grave uncertainty about what the Federal Death Penalty Act means and what rules the federal government must follow when it carries out executions,” said Hogan Lovells’ Cate Stetson, lead counsel for the prisoners Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Purkey.
“The panel’s decision, if uncorrected,” she said, “will have significant effects on both future death-penalty litigation and administrative law more broadly.”
The prisoners’ petition argues that the circuit panel ran afoul of administrative law by adopting a reading of the protocol that the agency never advanced and by deeming the protocol a procedural rule exempt from notice and comment requirements.
“The Supreme Court should grant review,” Stetson said, “to resolve this confusion and hold that the statute means what it says, requiring the government to follow state execution protocols.”
The Justice Department didn’t respond to a request for comment on the petition. It will have the opportunity to file a brief opposing high court review, due July 9, before the justices decide whether to take the case.
Noting the disagreement even within the appeals court majority, Death Penalty Information Center executive director Robert Dunham said “if you’re looking for clarity, I would think the court would want to review the case.”
Dunham said it should be clear “whether the protocol follows the law and why. And I think that benefits everybody to have clarity. When there is clarity, one side or the other isn’t going to be happy. But that’s better than having confusion.”
Death penalty proponent Kent Scheidegger observed that the court might not take up the case because there’s no circuit split and the panel reached the right result, in his view.
“Normally that would indicate a denial of certiorari,” said Scheidegger, legal director of the Criminal Justice Legal Foundation.
“The unusual aspect, though, is that the odd panel split will lead to an incorrect result in a future case unless corrected,” he said, referring to a potential situation where, in light of that D.C. Circuit precedent, a prisoner raises a challenge from a state where formal statute or regulation would control the analysis.
He said that could be a reason for the court to take the case now, “rather than decide the issue on an eve-of-execution basis later.”
The case is Roane v. Barr, U.S., No. 19-1348.