Appeals court appears wary of letting Trump reinstate death sentences

A federal appeals court in Washington on Wednesday appeared reluctant to let the Trump administration reinstate federal executions under a new lethal injection policy.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit seemed to lean in favor of four inmates whose executions, scheduled to take place over recent weeks, were temporarily halted last year. 

During oral arguments, a lawyer for the Justice Department faced tough questions about whether the administration’s new approach to lethal injections violated a federal law that calls on the government to defer to states over the method of execution.


“What this looks like is that Congress was vesting the right to carry out death penalties to the states,” Judge David Tatel, a Clinton appointee, told the government’s attorney. “That’s one way to look at this.” 

Tatel was joined by two Trump appointees, Judges Neomi Rao and Gregory Katsas, both of whom asked sharp questions about the Trump administration’s aggressive efforts to resume executions, which have not been carried out at the federal level since 2003.

Attorney General William BarrWilliam Pelham BarrHillicon Valley: Trump turns up heat on Apple over gunman’s phone | Mnuchin says Huawei won’t be ‘chess piece’ in trade talks | Dems seek briefing on Iranian cyber threats | Buttigieg loses cyber chief Appeals court appears wary of letting Trump reinstate death sentences Apple v. Attorney General Barr: Giving feds access to smartphones is a bad call MORE last July announced that executions would resume under a new lethal injection protocol that utilizes a single drug, pentobarbital sodium. The announcement came after a widespread shortage during the Obama era of lethal injection drugs involved in the familiar three-drug “cocktail.”

The death row inmates sued, arguing that their executions should be halted on the grounds that the Trump administration drug protocol violated a 1994 law, the Federal Death Penalty Act (FDPA). The law says that the state where a capital crime was committed should determine the method of execution, not the federal government.

The Wednesday oral argument centered on just how closely Congress intended for the federal government to adhere to the specifics of state execution laws. 


Catherine Stetson, who argued on behalf of the inmates, said the federal statute encompasses even granular details spelled out in state law, like how an IV should be inserted and the manner in which a death row inmate’s consciousness is monitored.

Justice Department attorney Melissa Patterson faced strong pushback when she argued that the statute only required that the federal government match the state’s method of execution. Under this reading, the issue of which specific ingredients were used in a lethal injection would have little relevance.

“You could imagine Congress wanted to defer to the states,” Rao said, challenging Patterson. “I don’t know why that would be so peculiar.”

Sounding a somewhat incredulous tone, Tatel asked, “Could the attorney general use fentanyl?”

“Absolutely,” Patterson responded.

Katsas, who of the three judges kept his cards closest to the vest, said the key question was how much “granularity” of state law Congress entrenched in the federal statute. He appeared to wrestle with how to classify the level of specificity that lethal injection ingredients should occupy. 

“The question of which drug you pick,” he told Patterson, “that might not be top-line, but that could be second line.”

The four inmates were scheduled to be executed last month and this month, before their lawsuits could fully play out in court. But Judge Tanya Chutkan of the district court in D.C. sided with the challengers and agreed to temporarily suspend their executions. A fifth was put on hold by a separate court.

In her Nov. 20 opinion, Chutkan, an Obama appointee, said the federal government likely exceeded its authority by implementing a single uniform method of execution, rather than follow the state-by-state approach under the FDPA.

“There is no statute that gives the [federal government] the authority to establish a single implementation procedure for all federal executions,” she wrote. “To the contrary, Congress, through the FDPA, expressly reserved those decisions for the states of conviction.”

The D.C. circuit court affirmed the ruling, which prompted the Trump administration to file an emergency petition to the Supreme Court to vacate the stay. 

The high court rejected the request, but conservative Justice Samuel AlitoSamuel AlitoAppeals court appears wary of letting Trump reinstate death sentences Justices grapple with ‘Bridgegate’ convictions Justice Roberts neglects his own role in tilting American democracy MORE, joined by his colleagues Neil GorsuchNeil GorsuchAppeals court appears wary of letting Trump reinstate death sentences SCOTUS ‘TRAP law’ case and the erosion of abortion rights Sanders: Releasing list of Supreme Court picks ‘not a bad idea’ MORE and Brett KavanaughBrett Michael KavanaughAppeals court appears wary of letting Trump reinstate death sentences SCOTUS ‘TRAP law’ case and the erosion of abortion rights Sanders: Releasing list of Supreme Court picks ‘not a bad idea’ MORE, urged the appeals court to resolve the case quickly.

More than a dozen states, which each permit capital punishment, have come out in support of the Trump administration’s push to resume federal executions.

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