D.C. Circuit Panel Splits on Lawfulness of Federal Execution Protocol (and Whether to Enjoin It).
On Tuesday, the U.S. Court of Appeals for the D.C. Circuit issued an interesting, splintered opinion in In Re: In the Matter of the Federal Bureau of Prisons’ Execution Protocol Cases. The panel, which consisted of Judges Millett, Pillard and Rao, divided on whether the federal government’s execution protocol is unlawful as well as over whether, if so, it should be enjoined.
The court’s per curiam opinion (presumably written by Judge Millett) begins:
In July 2019, eight years after federal executions were put on hold due to the government’s inability to acquire one of the drugs for its then-existing lethal injection
protocol, the Department of Justice announced a revised protocol for execution by lethal injection using a single drug, pentobarbital. Plaintiffs, thirteen federal death row inmates, promptly raised statutory and constitutional challenges to the government’s revised protocol. In November 2019, the district court preliminarily enjoined the four then-scheduled executions while it (and, in turn, we) considered a pair of baseline legal challenges to the government’s lethal injection protocol. When we held that the 2019 Protocol is exempt from notice and comment requirements under the Administrative Procedure Act (APA) and that the Federal Death Penalty Act (Death Penalty Act) does not require the federal government to follow execution procedures set forth in state execution protocols that are less formal than state statutes and regulations, we vacated those injunctions and remanded for the district court to consider the balance of Plaintiffs’ challenges. See In re Federal Bureau of Prisons’ Execution Protocol Cases (In re FBOP), 955 F.3d 106 (D.C. Cir. 2020).
During the pendency of the litigation on those remaining claims, the government scheduled executions to take place within days or weeks of one another through the summer and fall. At the behest of Plaintiffs with execution dates and unresolved challenges, the district court issued a series of injunctions barring the federal government from executing inmates whose pending claims it held were likely to succeed. Each of those injunctions was vacated by either this court or the Supreme Court, and the government has since executed seven inmates, six of whom were Plaintiffs in this case at the time of their execution. In September, the district court
resolved the Plaintiffs’ remaining claims. On November 3, 2020, the district court denied the Plaintiffs’ motion to alter or amend the judgment under Rule 59(e).
The Plaintiffs then sought expedited review in this court of three of the district court’s rulings, and two Plaintiffs with upcoming execution dates moved for stays of execution
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