Splintered DC Circuit Vacates Injunction Against Federal Executions

Last November, a federal district judge in DC enjoined all federal executions based on a statute requiring use of the “manner” of execution provided by the law of the state where the conviction was rendered. See this post. Today, a splintered three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated the injunction, for now. The division on the panel clearly requires further review, and the court on its own motion stayed the issuance of its mandate to allow it.

Because the panel disagrees in multiple ways, the main opinion is per curiam, i.e., “by the court” without a designated author. It is followed by three separate opinions, one by each judge on the panel.

The Simple and Correct Answer

The first opinion is by Judge Katsas, who gets it right in my opinion. When Congress adopted the “manner” of the law of the state, it was referring only to the “top-line choice among execution methods such as hanging, electrocution, or lethal injection.” This is the level at which manner of execution is generally designated by statute. When Congress designated hanging as the federal method of execution back in 1790, it did not specify in the statute “subsidiary details such as the length of the rope, how it would be fastened around the neck, or the training of the hangman.” In almost all jurisdictions those choices are left to a level of decision-making below statutory. (Arkansas has details in the statute because of an extreme interpretation of its state’s delegation doctrine rejected by every other court to consider it. See this post.)

The Maximally Complex Answer

Judge Rao would draw the line regarding level of detail state-by-state according to the level of the law in which the details are specified. If a state’s subsidiary details are in a statute or regulation, they are binding on the federal government in the execution of its own judgments in its own cases, but if they are in a policy less formally adopted by the state prison department they are not.

In this interpretation, federal law on executions would vary according to how a state interprets its own delegation doctrine and administrative procedure act. There is no good reason for such variation, and it is simply bizarre to think that Congress intended that.

In Judge Rao’s view, the federal execution protocol is validly adopted and can be applied to murderers from states where the details are not in statutes or regulations, which is most states. Therefore she and Judge Katsas form a majority for today’s result that the district court’s injunction against all executions must be vacated.

The Less Complex and Wrong Answer

Judge Tatel agrees with Judge Rao that “manner” in the federal statute refers to more than just the top-line choice. However, he would adopt all details state-by-state in every case. Therefore, the federal government’s own protocol is void in every case, and the district court was correct to enjoin its use. The federal government is stuck with the state’s protocol no matter how faulty it may be.

Both Judge Rao’s view and Judge Tatel’s view would create a target-rich environment for murderers to delay their well-deserved executions indefinitely with litigation. That is, of course, the real purpose of this suit.

When Congress adopted the Federal Death Penalty Act, it intended that the federal government have an operating death penalty. Tangling up the details of execution with needless complexity for no good reason, based on far less important notions of administrative procedure adopted for other contexts, would frustrate the overarching purpose of the law.

I hope the full D.C. Circuit will adopt Judge Katsas’s view, but if it does not I expect the Supreme Court will. See this post.