In re: FBOP Execution Protocol Cases
Catherine E. Stetson argued the cause for appellees. With her on the brief were Sundeep Iyer, Pieter Van Tol, Joshua M. Koppel, Arin Smith, Jon Jeffress, Alan E. Schoenfeld,
Before: TATEL, KATSAS, and RAO, Circuit Judges.
Opinion for the Court filed PER CURIAM.
Concurring opinion filed by Circuit Judge KATSAS.
Concurring opinion filed by Circuit Judge RAO.
Dissenting opinion filed by Circuit Judge TATEL.
PER CURIAM: The Federal Death Penalty Act of 1994 (FDPA) requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.”
Each member of the panel takes a different view of what the FDPA requires. Because two of us believe that the district court misconstrued the FDPA, we vacate the preliminary injunction.
A
On three different occasions, Congress has addressed the “manner” of implementing the death penalty for federal capital offenses. In the Crimes Act of 1790, the First Congress specified that “the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 112, 119. This provision governed federal executions for over 140 years.
In 1937, Congress changed this rule to make the “manner” of federal executions follow state law. Specifically, Congress provided:
The manner of inflicting the punishment of death shall be the manner prescribed by the laws of the State within which the sentence is imposed. The United States marshal charged with the execution of the sentence may use available State or local facilities and the services of an appropriate State or local official or employ some other person for such purpose …. If the laws of the State within which sentence is imposed make no provision for the infliction of the penalty of death, then the court shall designate some other State in which such sentence shall be executed in the manner prescribed by the laws thereof.
An Act To Provide for the Manner of Inflicting the Punishment of Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress repealed this provision in 1984, see Sentencing Reform Act of 1984, Pub. L. No. 98-473, § 212, 98 Stat. 1987, but left intact the underlying capital offenses. Accordingly, federal law still
To fill this gap, the Attorney General promulgated a 1993 regulation titled “Implementation of Death Sentences in Federal Cases.” 58 Fed. Reg. 4898, 4901–02 (Jan. 19, 1993). It provides that, unless a court orders otherwise, the “method of execution” of a federal death sentence shall be “[b]y intravenous injection of a lethal substance or substances in a quantity sufficient to cause death, such substance or substances to be determined by the Director of the Federal Bureau of Prisons.” 28 C.F.R. § 26.3(a)(4) (2019). The regulation also addresses various other matters including the time and place of execution, when the prisoner must be notified of the execution, and who may attend it. Id. §§ 26.3–26.5.
Congress enacted the FDPA in 1994. Under the FDPA, as under the 1937 statute, the “manner” of implementing federal death sentences turns on state law. In pertinent part, the FDPA provides that a United States marshal
shall supervise implementation of the sentence in the manner prescribed by the law of the State in which the sentence is imposed. If the law of the State does not provide for implementation of a sentence of death, the court shall designate another State, the law of which does provide for the implementation of a sentence of death, and the sentence shall be implemented in the latter State in the manner prescribed by such law.
At various times since 2001, the Department of Justice has developed protocols setting forth the precise details for carrying out federal executions. One such protocol was adopted in 2004 and updated in 2019. As updated, the protocol “provides specific time related checklists for pre-execution, execution, and post execution procedures, as well as detailed procedures related to the execution process, command center operations, contingency planning, news media procedures, and handling stays, commutations and other delays.” App. 24. This 50-page document addresses, among other things, witnesses for the execution, the prisoner‘s final meal and final statement, strapping the prisoner to the gurney, opening and closing the drapes to the execution chamber, injecting the lethal substances, and disposing of the prisoner‘s body and property.
For the three federal executions conducted between 2001 and 2003, the Bureau of Prisons used a combination of three lethal substances—sodium thiopental, a barbiturate that “induces a deep, comalike unconsciousness when given in the amounts used for lethal injection,” Baze v. Rees, 553 U.S. 35, 44 (2008) (plurality opinion); pancuronium bromide, which stops breathing; and potassium chloride, which induces cardiac arrest. None of the three prisoners challenged these procedures. In 2008, the Bureau memorialized its use of the three substances in an addendum to its 2004 execution protocol, and the Supreme Court held that Kentucky‘s use of the same three substances for executions did not violate the Eighth Amendment, see id. at 44, 63; id. at 94 (Thomas, J., concurring in judgment). But by 2011, a “practical obstacle” to using sodium thiopental had emerged, “as anti-death penalty advocates pressured pharmaceutical companies to refuse to supply the drug” for executions. Glossip v. Gross, 135 S. Ct. 2726, 2733 (2015).
After extensive study, the Bureau recommended use of a single barbiturate—pentobarbital—to carry out federal executions. It noted that many recent state executions had used pentobarbital without difficulty and that courts repeatedly have upheld the constitutionality of its use for executions. Further, BOP had located a “viable source” for obtaining it. App. 15, 19.
For these reasons, the Bureau proposed a two-page addendum to its main execution protocol. The United States Marshals Service concurred in the proposal. On July 24, 2019, the Attorney General approved the addendum and directed the Bureau to adopt it. BOP did so the next day. This 2019 addendum makes pentobarbital the sole lethal substance to be used in federal executions. The addendum also specifies procedural details such as dosage, identification of appropriate injection sites, and the number of backup syringes.
C
This appeal arises from several consolidated cases in which twelve death-row inmates challenge the federal execution protocol. The first of these cases was filed in 2005, by three inmates who are not parties to this appeal. With the government‘s consent, the district court stayed their executions pending the decision in Hill v. McDonough, 547 U.S. 573 (2006). The government subsequently requested that the case
On July 25, 2019, the Department of Justice informed the district court that it had adopted a revised protocol providing for the use of pentobarbital. That same day, DOJ set execution dates for the four plaintiffs involved in this appeal: Daniel Lee, Wesley Purkey, Dustin Honken, and Bourgeois. Each of them moved for a preliminary injunction. Collectively, they claimed that the 2019 protocol and addendum violate the FDPA, the Administrative Procedure Act, the Federal Food, Drug, and Cosmetic Act, the Controlled Substances Act, and the First, Fifth, Sixth, and Eighth Amendments to the Constitution.
On November 20, 2019, the district court issued a preliminary injunction prohibiting the government from executing any of the four plaintiffs. In re Fed. Bureau of Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019 WL 6691814 (D.D.C. Nov. 20, 2019). The court held that the plaintiffs were likely to succeed on the merits of their claim “that the 2019 Protocol exceeds statutory authority.” Id. at *7. In particular, the court concluded that “the FDPA gives decision-making authority regarding ‘implementation‘” of federal death sentences to states. Id. at *4. Thus, “insofar as the 2019 Protocol creates a single implementation procedure it is not authorized by the FDPA.” Id. at *7. The court reasoned that the requirement to conduct executions “in the manner
The government filed an interlocutory appeal under
The government applied to the Supreme Court for an emergency stay or vacatur of the preliminary injunction. The Court denied the application but directed us to decide the government‘s appeal “with appropriate dispatch.” Barr v. Roane, 140 S. Ct. 353 (2019 mem.). Three justices explained their view that the government was “very likely” to succeed on appeal. Id. (statement of Alito, J.).
We then ordered expedited briefing and argument on the government‘s appeal.
II
A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. NRDC, 555 U.S. 7, 22 (2008). A party “seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in
In reviewing a district court‘s conclusion as to likelihood of success, “[t]here are occasions … when it is appropriate to proceed further and address the merits” directly. Munaf v. Geren, 553 U.S. 674, 689–92 (2008); see also Wrenn v. District of Columbia, 864 F.3d 650, 667 (D.C. Cir. 2017). For several reasons, we exercise our discretion to resolve the merits of plaintiffs’ primary FDPA claim. This claim is a purely legal one, which the parties have briefed thoroughly. At oral argument, the parties agreed that we should decide it now. Finally, assessing only the likelihood of success would invite further litigation and delays on remand, which would hardly constitute appropriate dispatch.
The plaintiffs press two distinct claims under the FDPA. The first, on which the district court found they were likely to succeed, involves the requirement to implement federal executions in the manner provided by state law. As explained in separate opinions that follow, Judge Katsas and Judge Rao both reject that claim on the merits. Judge Katsas concludes that the FDPA regulates only the top-line choice among execution methods, such as the choice to use lethal injection instead of hanging or electrocution. Judge Rao concludes that the FDPA also requires the federal government to follow execution procedures set forth in state statutes and regulations, but not execution procedures set forth in less formal state execution protocols. Judge Rao further concludes that the federal protocol allows the federal government to depart from its procedures as necessary to conform to state statutes and regulations. On either of their views, the plaintiffs’ primary FDPA claim is without merit. Accordingly, the preliminary
Alternatively, the plaintiffs contend that the federal protocol and addendum reflect an unlawful transfer of authority from the United States Marshals Service to the Federal Bureau of Prisons. The district court did not address this claim, but the plaintiffs press it as an alternative basis for affirmance, and both parties ask us to resolve it. A court has discretion to consider alternative grounds for affirmance resting on purely legal arguments. See, e.g., United States v. Anthem, Inc., 855 F.3d 345, 349 (D.C. Cir. 2017). And as noted above, in addressing likelihood of success on the merits, a court has discretion to decide the claim. Two of us address the alternative FDPA claim here. As explained in their separate opinions, Judge Katsas would reject the claim on the merits, and Judge Rao would hold that it was forfeited.
The government also asks us to decide whether its protocol and addendum violate the notice-and-comment requirement of the Administrative Procedure Act. The district court did not reach that issue, and the plaintiffs urge us not to reach it. Judge Katsas and Judge Rao resolve the notice-and-comment claim because, on their view, it involves purely legal questions intertwined with the merits of the FDPA issues at the center of this appeal. On the merits, Judge Katsas and Judge Rao conclude that the 2019 protocol and addendum are rules of agency organization, procedure, or practice exempt from the APA‘s requirements for notice-and-comment rulemaking. Judgment for the government must be entered on this claim.
Finally, the government asks us to reject the plaintiffs’ claims under the Food, Drug, and Cosmetic Act and the Controlled Substances Act. We decline to do so because those claims were neither addressed by the district court nor fully
III
The Court vacates the preliminary injunction and remands the case to the district court for further proceedings consistent with this opinion. For the reasons given in his separate opinion, Judge Tatel dissents.
So ordered.
In my view, the government is correct. The FDPA‘s text, structure, and history show that “manner” refers only to the method of execution. Moreover, the federal execution protocol does not violate the FDPA by transferring authority from the United States Marshals Service to the Federal Bureau of Prisons. Furthermore, the protocol did not need to be promulgated through notice-and-comment rulemaking. For these reasons, I would vacate the preliminary injunction and remand the case with instructions to enter judgment for the government on the plaintiffs’ FDPA and notice-and-comment claims. Finally, apart from the merits, I would vacate the preliminary injunction because the balance of equities tips decidedly in favor of the government.
I
A
The FDPA requires federal executions to be implemented “in the manner prescribed by the law of the State in which the sentence is imposed.”
The government contends that the “manner” of execution regulated by the FDPA is simply the method or mode of execution—the top-line choice among mechanisms of fatality such as hanging, firing squad, electrocution, lethal gas, or lethal injection. Under that interpretation, the federal protocol is clearly consistent with the FDPA: Every state that authorizes capital punishment uses lethal injection “as the exclusive or primary means of implementing the death penalty.” Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion). The federal regulations likewise designate lethal injection as the means for implementing capital punishment, 28 C.F.R. § 26.3(a)(4), and the federal protocol establishes procedures for these injections.
The district court and the plaintiffs read the FDPA much more broadly. According to the district court, the FDPA covers not only the method of execution but also “additional procedural details such as the substance to be injected or the safeguards taken during the injection.” In re Fed. Bureau of Prisons’ Execution Protocol Cases, No. 1:19-mc-145, 2019 WL 6691814, at *4 (D.D.C. Nov. 20, 2019). These “additional procedural details” include even provisions on “how the intravenous catheter is to be inserted.” See id. at *6. As an example, the district court cited state protocol provisions requiring the catheter to be inserted by “medically trained” personnel, id. at *6 n.6, whereas the federal protocol requires
1
In my view, the government is correct. All indicators of the FDPA‘s meaning—statutory text, history, context, and design—point to the same conclusion. The FDPA requires federal executions to follow the method of execution provided by the law of the state in which the sentence is imposed, but it does not require federal executions to follow the “additional procedural details” invoked by the district court.
The district court began its analysis quite properly, by addressing the plain meaning of the critical word “manner.” The court recognized that the government‘s position would be correct if the FDPA had addressed the “method” rather than the “manner” of execution, because the word “method” bears “particular meaning in the death penalty context“—i.e., it denotes the top-line choice among mechanisms of death such as hanging, electrocution, or lethal injection. In re Execution Protocol Cases, 2019 WL 6691814, at *4. But, the district court reasoned, “manner” is broader than “method” because one dictionary defines “manner” as “a mode of procedure or way of acting.” Id. (quotation marks omitted). This analysis overlooks other definitions, as well as the need to consider statutory history and context, see, e.g., Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 668–69 (2007); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132–33 (2000). Other dictionaries indicate that “manner” is
First, consider hanging. In 1790, the First Congress enacted a bill providing that “the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead.” Crimes Act of 1790, ch. 9, § 33, 1 Stat. 112, 119. Congress thus described “hanging” as “the” unitary “manner” of imposing capital punishment, without undertaking to specify subsidiary details such as the length of the rope, how it would be fastened around the neck, or the training of the hangman. This approach followed the law of England, where one common form of capital punishment was to be “hanged by the neck till dead.” 4 W. Blackstone, Commentaries on the Laws of England 370 (1769). Blackstone further stated that a “sheriff cannot alter the manner of the execution by substituting one death for another,” for “even the king cannot change the punishment of the law, by altering the hanging or burning into beheading.” Id. at 397–98 (emphasis added). This makes clear that hanging itself was considered a “manner” of execution, as distinct from burning or beheading. But no evidence suggests that the sheriff (or the king) could not improvise “procedural details” such as the length of the rope.
In using “manner” to mean “method,” the First Congress followed common historical usage. See, e.g., 1 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795) (defining “manner” as “[a] form, a method“); 2 S. Johnson, A Dictionary of the English Language (1755) (“Form; method.“). The use of hanging as “the manner” of
Consider also practices and usages with respect to the firing squad, another common method of execution into the 1800s. In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court held that the use of a firing squad for executions does not violate the Eighth Amendment. The statute at issue provided for “death by being shot, hung, or beheaded,” and the court imposed a sentence requiring that the defendant be “shot until … dead.” Id. at 131–32 (quotation marks omitted). The legislature did not undertake to regulate subsidiary “procedural details” such as, in the case of a firing squad, the kind or number of guns, the type of ammunition, where the shooters would aim, or how far away they would stand. Nor did the sentencing court specify any of those details. And although such details might have affected the likelihood of unnecessary suffering during the execution, the Court never suggested that the Eighth Amendment claim turned on any of them. To the
The history of electrocution follows much the same pattern. Introduced in 1888, it soon became “the predominant mode of execution for nearly a century,” Baze, 553 U.S. at 42 (plurality opinion), and the Supreme Court promptly upheld it as constitutional, In re Kemmler, 136 U.S. 436 (1890). As Kemmler recounted, electrocution came to replace hanging because it was thought to be a more humane “manner” or “method” or “mode” of execution—terms the Court again used interchangeably. See id. at 442–47. Moreover, the underlying legal and policy debates were framed as a unitary choice between hanging and electrocution, and the reformers never undertook to prescribe subsidiary “procedural details” such as how strong an electric current would be used, where electrodes would be attached, how the electric chair would be tested, or who would train the electrocutioner. See id. at 444.2
The 1937 Act did not disturb this settled understanding about the “manner” of executing capital punishment. To the contrary, although Congress changed the governing rule, it preserved the underlying semantic understanding. Whereas the Crimes Act of 1790 had identified hanging as “the manner of inflicting the punishment of death,” 1 Stat. at 119, the 1937 Act provided a different rule for “[t]he manner of inflicting the punishment of death“—i.e., use “the manner prescribed by the laws of the State within which the sentence is imposed.” An Act To Provide for the Manner of Inflicting the Punishment of Death, Pub. L. No. 75-156, 50 Stat. 304 (1937). Congress‘s decision to carry forward the legally operative text—regarding “the manner of inflicting the punishment of death“—also carried forward the prevailing understanding about what constituted a “manner” of execution. The reason for this is the settled canon of construction, framed by Justice Frankfurter and routinely applied since, that “if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). See, e.g., Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019); Stokeling v. United States, 139 S. Ct. 544, 551 (2019); Hall v. Hall, 138 S. Ct. 1118, 1128 (2018).3
Nothing in 1994 usage compels a different understanding. To the contrary, at that time, many state statutes continued to describe the “manner” of execution as a top-line choice among methods such as electrocution, lethal gas, or lethal injection. See, e.g.,
As of 1994, Supreme Court decisions reflected similar understandings. Between 1937 and 1994, the Court became much more active in policing capital punishment. But the Court never retreated from its holdings that the firing squad and electrocution are constitutional methods of execution. Likewise, the Court had not yet approved granular, post-habeas challenges to the specific details of an execution. To the contrary, in Gomez v. United States District Court, 503 U.S. 653 (1992) (per curiam), the Court summarily rejected a claim that “execution by lethal gas” violated the Eighth Amendment, and it did so because the claim had not been properly channeled through the federal habeas statute. Id. at 653-54. The Court‘s first, tentative approval of claims challenging procedural details such as the method of “venous access” did not come until a decade after the FDPA was enacted, Nelson v. Campbell, 541 U.S. 637 (2004), and its wholesale approval of post-habeas challenges to the details of lethal-injection protocols did not come until even later, Hill v. McDonough, 547 U.S. 573 (2006).6
In sum, practices and usages in 1994 mirrored those in 1937: Inquiries into the manner or method of execution focused on the choice between say, lethal gas or lethal injection—not the choice of specific lethal agents or procedures for releasing the gas or inserting the catheter. In common understanding, what mattered was the top-line choice.
Within the FDPA itself, statutory context reinforces this understanding. The FDPA states that the marshal responsible for supervising a federal execution “may use appropriate State or local facilities” and “may use the services of an appropriate State or local official.”
Finally, consider statutory design. In “ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). Here, the plaintiffs’ interpretation of “manner” would frustrate a principal objective of the Federal Death Penalty Act—to provide for an administrable scheme of capital punishment. As Justice Alito explained, the plaintiffs’ interpretation “would require the BOP to follow procedures that have been attacked as less safe than the ones the BOP has devised (after extensive study); it would demand that the BOP pointlessly copy minor details of a State‘s protocol; and it could well make it impossible to carry out executions of prisoners sentenced in some States.” Barr v. Roane, 140 S. Ct. 353, 353 (2019) (statement of Alito, J.). The plaintiffs dismiss these points as mere policy arguments, but they are more than that.
The FDPA was enacted as Title VI of the Violent Crime Control and Law Enforcement Act of 1994. See Pub. L. No. 103-322, § 60001, 108 Stat. 1796, 1959. These statutes sought to ensure a workable and expanded system of capital punishment. The larger statute created more than two dozen new capital offenses. See DOJ, Criminal Resource Manual § 69 (2020). And the FDPA established procedures to ensure the fair administration of capital punishment—by specifying aggravating circumstances that a jury must find in order to
The plaintiffs do not dispute that this scheme would be upset if individual states could effectively obstruct the federal death penalty. Yet their interpretation would make such obstruction likely. For example, states could block federal death sentences by refusing to disclose their full execution protocols. Some might do so because of moratoria on the use of capital punishment, like those ordered by the governors of California and Pennsylvania.7 Other states simply may wish not to assist in the enforcement of federal law. See, e.g., Printz v. United States, 521 U.S. 898, 923 (1997). And state statutes may prohibit disclosure of state execution protocols. See, e.g.,
Adherence to the minutiae of state execution protocols is not only pointless, but practically impossible. State protocols are as detailed as the federal one—from Arkansas‘s color-coding to ensure that three lethal agents are properly separated among nine syringes, Arkansas Lethal Injection Procedure, Attachment C, § III.5.a (Aug. 6, 2015), to Indiana‘s seventeen-step “procedure for venous cut down,” Ind. Dep‘t of Corr., Facility Directive ISP 06-26: Execution of Death Sentence, Appendix A (Jan. 22, 2014). Conducting a single execution under the federal protocol requires extensive preparation by a trained execution team of over 40 individuals, as well as further support from 250 more individuals at the federal execution facility in Terre Haute, Indiana. App. 93-94. Simultaneously managing the same logistical challenges under a few dozen state protocols—all different—would be all but impossible.
The plaintiffs offer two limiting principles to mitigate this problem, but neither would work. First, they suggest a de minimis exception to the otherwise unyielding requirement to follow state procedures. But that would invite endless litigation over which requirements are de minimis. Must the federal government follow state provisions regarding the number of backup syringes? Compare App. 75 (two sets under federal protocol), with Mo. Dep‘t of Corr., Preparation and Administration of Chemicals for Lethal Injection §§ B, E (one set under Missouri protocol). The type of catheters used? The selection of execution personnel? The training of those personnel? The same problem inheres in the plaintiffs’ related
2
The plaintiffs’ further counterarguments are unavailing. First, the plaintiffs highlight the statutory text immediately surrounding “manner“—the language stating that a United States marshal “shall supervise implementation” of a death sentence in the manner prescribed by state law.
The plaintiffs next invoke a different FDPA provision defining aggravating circumstances to include cases where “[t]he defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved torture or serious physical abuse to the victim.”
Finally, the plaintiffs stress that between 1995 and 2008, Congress failed to enact some nine bills that would have allowed federal capital punishment to be implemented in a manner independent of state law. But “failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute.” Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 187 (1994) (quotation marks omitted). The plaintiffs highlight DOJ statements that the FDPA imperiled its 1993 regulation, which establishes lethal injection as the sole method for federal executions. But those statements were made when some states still provided for electrocution “as the sole method of execution.” See Baze, 553 U.S. at 42-43 n.1 (plurality opinion). In 2009, Nebraska became the last death-penalty state to authorize lethal injection as a permissible execution method. See Act of May 28, 2009, L.B. 36, 2009 Neb. Laws 52. After that, attempts to amend the FDPA ceased, as did DOJ‘s support for them. So, DOJ‘s current interpretation of the FDPA to encompass methods of execution, but not subsidiary procedural details, has been consistent.
3
Judge Rao takes a different approach advocated by none of the parties. In her view, the word “manner” is flexible enough, considered in isolation, to refer either to the top-line method of execution or to the full panoply of execution procedures. Post, at 1-6. So far, so good. She then reasons that, by requiring federal executions to be conducted “in the manner prescribed by the law of the State in which the sentence is imposed,” Congress specified “the level of generality” for interpreting the word “manner.” Id. at 1. She thus concludes that Congress used “manner” in its broad sense, so as to include all execution procedures—no matter how picayune—that are “prescribed by the law of the State.” Id. at 22. For Judge Rao, as it turns out, the key to this case is not the word “manner,” but the phrase “prescribed by the law of the State.”
This account runs contrary to established rules of grammar and statutory interpretation. As a matter of grammar, the participial phrase “prescribed by the law of the State” functions
To be sure, adjectival phrases can clarify the meaning of ambiguous nouns by ruling out certain possibilities through context. For example, in the abstract, the noun “check” might refer to “an inspection, an impeding of someone else‘s progress, a restaurant bill, a commercial instrument, a patterned square on a fabric, or a distinctive mark-off.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 70 (2012). But when “check” is combined with the adjectival phrase “made payable to the IRS,” we know that the noun refers only to a commercial instrument. In this example, the phrase “made payable to the IRS” clarifies the meaning of “check” because it is consistent with only one possible understanding of it.
The FDPA does not work like that. Divorced from its statutory history, the noun “manner” could mean either the top-line execution method or all state execution procedures. But the adjectival phrase “prescribed by the law of the State” cannot resolve this ambiguity, because it is perfectly consistent with both meanings. On the one hand, states use their laws to prescribe the top-line method of execution. On the other hand,
Judge Rao stresses the assertedly limited scope of her reading of the FDPA. She interprets the phrase “prescribed by the law of the State” to mean execution procedures set forth only in state “statutes and regulations carrying the force of law,” but not in less formal state execution protocols. Post, at 6. And that interpretation, she concludes, “mitigates many of the concerns raised by the district court‘s broad reading” of the FDPA. Id. at 26. All of this is a good reason for rejecting an interpretation of the FDPA that encompasses procedural details set forth only in state execution protocols. But it is not a good reason for rejecting the historical understanding of “manner,” which creates no practical concerns about administrability.
Judge Rao also understates the practical difficulties with her proposed interpretation. For one thing, state statutes and regulations do contain many granular details. Consider just the four state death-penalty statutes before us in this case. The Arkansas statute requires that catheters be “sterilized and prepared in a manner that is safe.”
Moreover, the line between “formal” regulations “carrying the force of law” and “informal policy or protocol,” post, at 6–8, will be another fertile source of litigation. At the state level, how “formal” is formal enough? Even at the federal level, the question of which regulations have the force of law has been “the source of much scholarly and judicial debate.” Perez v. Mortg. Bankers Ass‘n, 575 U.S. 92, 96 (2015). Yet now, courts will be forced to confront every variation of that question arising out of the administrative law of some thirty states. What if a state administrative procedure act permits rulemaking through processes less formal than notice-and-comment? What if a warden may change protocol procedures unilaterally, but only under limited circumstances? What if a state court moves the goalposts with an unexpected interpretation of the governing rules? Litigation over such matters will foreclose any realistic possibility for the prompt execution of federal death sentences.10
For all these reasons, I would hold that the FDPA requires the federal government to follow state law regarding only the method of execution and does not regulate the various subsidiary details cited by the plaintiffs and the district court. On that interpretation, the plaintiffs’ primary FDPA claim is without merit.
B
In the alternative, the plaintiffs contend that the 2019 protocol violates the FDPA by impermissibly shifting authority from the United States Marshals Service to the Federal Bureau of Prisons. The plaintiffs rest this argument on FDPA provisions requiring a United States marshal to “supervise implementation” of the death sentence.
The execution protocol does not strip the Marshals Service of the power to supervise executions. To the contrary, it requires a “United States Marshal designated by the Director of the USMS” to oversee the execution and to direct which other personnel may be present at it. App. 30. The “execution process,” which starts at least thirty minutes before the actual execution, cannot begin without the marshal‘s approval. App. 40. The same is true for the execution itself. App. 44, 68. Individuals administering the lethal agents are “acting at the
In any event, federal law vests all powers of DOJ components in the Attorney General and permits him to reassign powers among the components. “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”
The plaintiffs invoke United States v. Giordano, 416 U.S. 505 (1974). There, the Supreme Court held that a statute “expressly” limiting the Attorney General‘s power to delegate wiretap authority to a handful of enumerated officials qualified his general authority to reassign DOJ functions. Id. at 514. But the FDPA contains no such language expressly prohibiting the Attorney General from deciding or delegating matters relating to executions. For these reasons, the protocol allocates duties consistent with the FDPA, so the plaintiffs’ alternative FDPA argument is also without merit.11
C
The federal protocol is both a procedural rule and a general policy statement exempted from the notice-and-comment requirements of the Administrative Procedure Act. See
“The critical feature of a procedural rule is that it covers agency actions that do not themselves alter the rights or interests of parties.” Nat‘l Mining Ass‘n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 2014) (quotation marks omitted). The federal protocol does not alter the plaintiffs’ rights or interests, which were all but extinguished when juries convicted and sentenced them to death. Moreover, pre-existing law establishes lethal injection as the method of execution,
The execution protocol is also a general statement of agency policy. In defining this category, “[o]ne line of analysis
For these reasons, the federal protocol was not subject to notice-and-comment requirements, and the plaintiffs’ contrary claim is without merit.12
Wholly apart from the merits, I would reverse the preliminary injunction because the balance of harms and the public interest strongly favor the government. The party seeking a preliminary injunction “must establish” not only a likelihood of success on the merits, but also “that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008); see also Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542 (1987). And appellate courts may reverse preliminary injunctions where, apart from the merits, the district court‘s equitable balancing constituted an abuse of discretion. See NRDC, 555 U.S. at 24-26, 32.
In this case, the district court failed to recognize the important governmental and public interest in the timely implementation of capital punishment. The court concluded that any “potential harm to the government caused by a delayed execution is not substantial.” In re Execution Protocol Cases, 2019 WL 6691814, at *7. In contrast, the Supreme Court frequently has explained that “both the [government] and the victims of crime have an important interest in the timely enforcement of a [death] sentence,” which is frustrated by decades of litigation-driven delay. Bucklew, 139 S. Ct. at 1133 (quotation marks omitted). Indeed, “when lengthy federal proceedings have run their course“—as is the case here—“finality acquires an added moral dimension.” Calderon v. Thompson, 523 U.S. 538, 556 (1998). “Only with an assurance of real finality can the State execute its moral judgment in a case.” Id. And “[o]nly with real finality can the victims of crime move forward knowing the moral judgment will be carried out.” Id. “To unsettle these expectations is to inflict a profound injury to the ‘powerful and legitimate interest in
These interests are magnified by the heinous nature of the offenses committed by the appellees—all of whom murdered children—as well as the decades of delay to date.
In 1999, an Arkansas jury convicted Daniel Lee of three counts of murder in aid of racketeering. The murders were committed in 1996, during a robbery to fund a white supremacist organization. United States v. Lee, 374 F.3d 637, 641 (8th Cir. 2004). After overpowering a couple and their eight-year-old daughter in their home, Lee and a confederate “shot the three victims with a stun gun, placed plastic bags over their heads, and sealed the bags with duct tape.” Id. at 641-42. They then drove the family to a bayou, taped rocks to their bodies, and threw them into the water to suffocate or drown. Id. at 642. The Eighth Circuit affirmed Lee‘s death sentence on direct review, id., and thrice denied him collateral relief, Lee v. United States, No. 19-3576 (8th Cir. Jan. 7, 2020); United States v. Lee, 792 F.3d 1021 (8th Cir. 2015); United States v. Lee, 715 F.3d 215 (8th Cir. 2013). Nonetheless, Lee continues to pursue a fourth round of collateral review. Lee v. United States, No. 2:19-cv-00468 (S.D. Ind. Dec. 5, 2019), preliminary injunction vacated by Lee v. Watson, No. 19-3399 (7th Cir. Dec. 6, 2019).
In 2003, a Missouri jury convicted Wesley Purkey of the kidnapping, rape, and murder of sixteen-year-old Jennifer Long in 1998. United States v. Purkey, 428 F.3d 738, 744-45 (8th Cir. 2005). After killing the girl, Purkey dismembered her body with a chainsaw and burned her remains. Id. at 745. The jury found nine aggravating factors, including that Purkey had previously bludgeoned a woman to death with a hammer. Id. at 746. The Eighth Circuit affirmed Purkey‘s death sentence
In 2004, an Iowa jury convicted Dustin Honken of murdering five individuals in 1999, including two witnesses to his drug trafficking and two young children. United States v. Honken, 541 F.3d 1146, 1148 (8th Cir. 2008). Honken and an accomplice kidnapped one witness, the witness‘s girlfriend, and her six- and ten-year-old daughters. Honken murdered all four execution-style, by shooting each in the head. Id. at 1149-51. Four months later, Honken murdered another prospective witness against him. Id. at 1148, 1151. Then, while in prison awaiting trial, he made plans to murder additional witnesses. Id. at 1150-51. Because Iowa has no death penalty, the district court ordered Honken to be executed in the manner provided by Indiana law. The Eighth Circuit affirmed the death sentence on direct appeal, id. at 1148, and then declined to set it aside on collateral review, see Honken v. United States, 42 F. Supp. 3d 937, 1196-97 (N.D. Iowa 2013), certificate of appealability denied, No. 14-1329 (8th Cir. May 2, 2014).
In 2004, a Texas jury convicted Alfred Bourgeois of murdering his two-year-old daughter in 2002. United States v. Bourgeois, 423 F.3d 501, 503 (5th Cir. 2005). Before the murder, Bourgeois “systematically abused and tortured” the child—he punched her in the face, whipped her with an electrical cord, hit her head with a plastic bat so many times that it “was swollen like a football,” and later bragged to a fellow inmate that the “f––ing baby‘s head got as big as a watermelon.” Id. He bit her, scratched her, and burned the bottom of her feet with a cigarette lighter. When others tried to clean the sores, Bourgeois “would stop them and jam his dirty thumb into the wounds, then force [her] to walk” on them. Id. After her training potty tipped over, Bourgeois repeatedly slammed the back of her head into a window. He refused to
These crimes were committed twenty-four, twenty-two, twenty-one, and eighteen years ago respectively. Each appellee received the full panoply of procedural protections afforded under the Constitution and the FDPA. Each received direct review and one or more rounds of collateral review. Yet now, supported by fifteen lawyers on just this appeal, they continue to litigate with a vengeance, ostensibly over the manner of their executions, but with the obvious and intended effect of delaying them indefinitely. As the Supreme Court noted in Bucklew, with apparent exasperation, the people and the surviving victims “deserve better.” 139 S. Ct. at 1134.
The district court stressed that the government took eight years to craft its revised execution protocol. True enough, but things were fine in 2008, with a three-drug execution protocol in place and approved by the Supreme Court in Baze. Then began a long and successful campaign of obstruction by opponents of capital punishment, which removed sodium thiopental from the market by 2011 and made pentobarbital unavailable shortly thereafter. See Glossip v. Gross, 135 S. Ct. 2726, 2733 (2015). At that point, the government‘s options were severely limited, and it can hardly be faulted for proceeding with caution. The government declined to press ahead with an available three-drug protocol using midazolam—a milder sedative than either sodium thiopental or pentobarbital—and two other substances to stop respiration
Instead of proceeding with an inferior option, the government waited until pentobarbital again became available. That barbiturate—which can act as both sedative and lethal agent—is “widely conceded to be able to render a person fully insensate,” Zagorski v. Parker, 139 S. Ct. 11, 11–12 (2018) (Sotomayor, J., dissenting from denial of application for stay and denial of certiorari), thus ensuring a painless execution. The government also took time to study the successful track record of pentobarbital, documenting its use without incident in more than 100 state executions, A.R. 929–30, as well as the many cases that have upheld its use, see, e.g., Zink v. Lombardi, 783 F.3d 1089, 1102 (8th Cir. 2015) (en banc) (per curiam); Ladd v. Livingston, 777 F.3d 286, 289–90 (5th Cir. 2015). The government’s care in selecting an available and effective execution substance does not diminish the importance of carrying out the appellees’ sentences.
On the other side of the balance, a death sentence is of course serious business. But here, there is no dispute that the appellees may be executed by lethal injection, nor any colorable dispute that pentobarbital will cause anything but a swift and painless death. Instead, the plaintiffs contend only that their executions cannot occur until the federal government replicates every jot-and-tittle of the relevant state execution protocols. And in doing so, they would expose other death-row inmates to substances less reliably certain to ensure a painless death than is pentobarbital—including midazolam, which remains in use in five different states. A.R. 92–93. The claims before us are designed neither to prevent unnecessary suffering
* * * *
For these reasons, I would vacate the preliminary injunction and remand the case to the district court with instructions to enter judgment for the government on the plaintiffs’ FDPA claims and their notice-and-comment claims.
Under this interpretation, the Department of Justice’s 2019 protocol is consistent with the FDPA. The protocol lays out a non-binding procedural framework that the federal government may apply in most cases, and it allows the U.S. Marshal Service to depart from federal procedures when required—a carveout that naturally would encompass situations in which the 2019 protocol conflicts with state law. I therefore agree to vacate the preliminary injunction.
I.
Assessing the validity of the 2019 protocol requires us first to interpret the reach of the FDPA. The Department of Justice maintains that “manner” as used in the FDPA means only the method of execution—i.e., hanging, electrocution, or lethal injection—leaving the government free to set forth a uniform procedure for executions. The plaintiffs, on the other hand,
A.
The FDPA provides that the U.S. Marshal “shall supervise implementation of the sentence [of death] in the manner prescribed by the law of the State in which the sentence is imposed.”
1.
In ordinary usage, the word “manner” has a broad, flexible meaning. A “manner” is “a characteristic or customary mode
The word “manner” has the same flexible meaning in the execution context, as demonstrated by federal and state statutes and judicial decisions that use the word with varying levels of generality. As DOJ notes, the word is sometimes used to refer to a general execution method, and courts occasionally use the terms “manner” and “method” interchangeably; yet “manner”
State legislatures also use the word “manner” to refer to the specifics of an execution procedure, including in some statutes the choice of lethal substance or method of injection. See, e.g.,
Similarly, federal courts use the term “manner” variably to refer both to the method of execution and to the specifics of execution procedures. See Glossip v. Gross, 135 S. Ct. 2726, 2741 (2015) (“[T]here is no scientific literature addressing the use of midazolam as a manner to administer lethal injections in
2.
To determine the level of specificity of “manner” as used in the FDPA, I start with the language of Section 3596. Recall the statute provides that 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 ordinary meaning of “law of the State” refers to binding law prescribed through formal lawmaking procedures. In analogous contexts, the Supreme Court has read similar statutory language to incorporate only statutes and regulations carrying the force of law. For instance, the Court held in United States v. Howard, 352 U.S. 212, 216–17, 219 (1957) that a Florida regulation was part of the “law of the state” because violations of the regulation were “punishable as a misdemeanor.” In Chrysler Corporation v. Brown, 441 U.S. 281, 295–96 (1979), the Court held that the phrase “authorized by law” encompasses “properly promulgated, substantive agency regulations” that “have the ‘force and effect of law’”; see also Baltimore & O.R. Co. v. Baugh, 149 U.S. 368, 398 (1893) (“‘[T]he equal protection of the laws,’ … means equal protection not merely by the statutory enactments of the state, but equal protection by all the rules and regulations which, having the force of law, govern the intercourse of its citizens with each other and their relations to the public.”); Samuels v. Dist. of Columbia, 770 F.2d 184, 199 (D.C. Cir. 1985) (“[T]hose federal regulations adopted pursuant to a clear congressional mandate that have the full force and effect of law … have long been recognized as part of the body of federal law.”). The Supreme Court has emphasized that something is “prescribed by law” when it includes binding requirements. Cf. United States v. Rodriquez, 553 U.S. 377, 390–91 (2008) (holding that the phrase “maximum term of imprisonment … prescribed by law” refers to the statutory maximum, not the maximum set by sentencing guidelines, which do not bind a judge in all circumstances). Consistent with the deep-rooted conception of law as fixed and binding, I have not found, nor did the plaintiffs cite, any case in which the Supreme Court or this court has held that an informal policy or protocol was prescribed by law.4
The textual context of Section 3596(a) supports this interpretation. Section 3596(a) provides that the Marshal “shall supervise implementation of the sentence in the manner prescribed by the law of the State.”
In the death penalty context, the term “implementation” is commonly used to refer to a range of procedures and safeguards surrounding executions, not just the top-line method of execution. This is true of DOJ’s regulations, which were promulgated during a period when no statute specified procedures for the federal death penalty. DOJ’s 1993 execution regulation bears the title, “Implementation of Death Sentences in Federal Cases.” See 58 Fed. Reg. 4,898 (Jan. 19, 1993). That regulation governs very minute aspects of executions, including the “[d]ate, time, place, and method,” whether and when the prisoner has access to spiritual advisors, and whether photographs are allowed during the execution. Id. at 4,901–902. Likewise, the 2019 addendum to DOJ’s execution protocol, which governs some of the procedures at issue in this case, is titled, “Federal Death Sentence Implementation Procedures.” Department of Justice, Addendum to BOP Execution Protocol, Federal Death Sentence Implementation Procedures 1 (July 25, 2019) (“BOP Addendum”). As with the 1993 regulation, the addendum governs minute details, such as the numbering and labeling of syringes. Id. at 2. According to DOJ regulations and protocols, all of these details fall under the umbrella of implementing a death sentence. The breadth of the term “implementation” further undermines the government’s narrow interpretation that “manner” means only the “method” of execution, irrespective of the requirements of state law.
At the same time, the statute’s use of “supervise” suggests that the Marshal enjoys a certain degree of discretion in the absence of state law on a particular question. If the FDPA had provided only that the Marshal “shall implement” the sentence according to state law, there would be less support for the idea that the Marshal has discretion to fill gaps in a state’s execution law. Instead, the statute affords the Marshal a measure of supervisory discretion within the bounds of state law.
Finally, this fuller reading of the statutory text coheres with the FDPA and the apparent balance Congress struck between providing for a federal death penalty and respecting provisions of state law. If “prescribed by the law of the State” includes only a state’s statutes and formal regulations, the Marshal will be able to identify the requirements of state law. Nothing in the FDPA suggests that the federal government must incorporate most or all procedures and practices found in a state’s informal execution policies, which could raise practical, and perhaps insurmountable, difficulties to the
In this politically charged area, Congress enacted a federalist scheme, incorporating state law as to the “manner” of death penalty implementation, but only for those execution procedures enacted or promulgated by states as part of their binding law. The FDPA leaves the federal government free to specify details regarding execution procedures, as it did in its protocol and addendum, subject to any contrary requirements of state law.
DOJ attempts to use previous federal death penalty statutes to show that “manner” must mean “method.” A review of these statutes, however, demonstrates that Congress was at best silent as to whether the word had a specialized meaning. Prior federal execution statutes support neither the government’s “manner means method only” interpretation, nor the plaintiffs’ “manner means everything” interpretation. Rather, the history shows Congress uses “manner” in its ordinary sense, such that the scope of the term’s application depends on the context.
There were only two federal statutes regulating execution procedures prior to the FDPA, and neither suggested that “manner” refers exclusively to general methods. The first federal death penalty statute, passed in 1790, read, “the manner of inflicting the punishment of death, shall be by hanging the person convicted by the neck until dead.” § 33, 1 Stat. at 119. That provision is entirely consistent with my interpretation: Congress, using a broad word that can refer to any level of generality, chose on that occasion not to mandate further details. In another section of the same statute Congress used the word “manner” in a highly granular sense. The 1790 statute criminalized the maiming of a person in any of six enumerated “manners”—a list so particularized that “slit[ting] the nose” and “cut[ting] off the nose” were listed separately. § 13, 1 Stat. at 115. Reading the 1790 statute as a whole, Congress used the word “manner” to refer to both general methods and specific details, reinforcing that the term “manner” in isolation has a flexible meaning and must be read in context to determine the appropriate level of specificity.
Judge Katsas argues that the 1790 statute should be read against the backdrop of English common law. Concurring Op. 4 (Katsas, J.). As he notes, Blackstone wrote that the
Judge Katsas’s reliance on two Supreme Court cases from the nineteenth century is similarly unavailing. First, Wilkerson v. Utah, 99 U.S. 130 (1878), simply paraphrased the language of the 1790 statute, see id. at 133 (“Congress provides that the manner of inflicting the punishment of death shall be by hanging.”), so it adds no support for the narrow reading of “manner.” Next, Judge Katsas argues that the Supreme Court used “manner” and “method” interchangeably in Kemmler, 136 U.S. 436. Yet nothing in the Court’s opinion indicates that the two terms are synonymous. To the contrary, the opinion strongly suggests that the term “manner” encompasses more than the general method. In rejecting a petition for habeas corpus, the Court quoted the New York Court of Appeals at length, including its conclusion that the general method of electrocution is painless—not necessarily as a general matter, but when performed “under such conditions and in the manner contemplated by the statute.” Id. at 443–44 (“[T]he application of electricity to the vital parts of the human body, under such conditions and in the manner contemplated by the statute, must
The government also relies on the 1937 statute to argue that “manner” is used in the FDPA to refer only to the method of execution. See DOJ Br. 21–22 (“Congress [in 1937] preserved the meaning of ‘the manner’ as synonymous with ‘the method’ of execution.”). In the 1937 statute, Congress shifted away from the earlier federal death penalty regime to one that required the federal government to adopt whatever “manner” was “prescribed by the laws of the State.” 50 Stat. at 304. The 1790 and 1937 statutes thus had different structures, one specifying a single method of federal execution and the other leaving the manner of execution to be determined by state law. This fundamental change to the statutory scheme undermines DOJ’s contention that Congress forever settled the
For the same reasons discussed with respect to the FDPA, the phrase “manner prescribed by the laws of the State” in the 1937 statute is best read as referring to all execution procedures found in the state’s “law.” In practice, moreover, the federal government incorporated more than the state’s method of execution when it carried out executions under the 1937 statute. The government concedes that nearly all executions conducted under the 1937 statute took place in state facilities. Oral Argument at 3:30. Presumably, those executions were carried out in accordance with state law and possibly with other state procedures. DOJ notes that three executions under the 1937 statute took place in federal facilities, but DOJ is unable to identify a single way in which the executions were otherwise inconsistent with state law. As in the FDPA, the 1937 statute gave the U.S. Marshal discretion over the choice of facilities. See 50 Stat. at 304. Thus, the choice of a federal location does not undermine the requirement that the manner of execution follow whatever details are prescribed by state law.
Not only did the federal government perform the vast majority of executions in state prisons, DOJ has suggested on
In statutory interpretation as in ordinary usage, a word can have a fixed meaning even if, in application, it can refer to a variety of things. DOJ is confusing the sense of the word “manner” with the word’s reference. A word’s sense is its linguistic meaning, while its reference is the “actual thing in the world that the word picks out.” Christopher R. Green, Originalism and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 563 (2006). A single word with a fixed meaning can describe a wide range of references, depending on the factual context and how the word is used. See id. at 564; cf. ConFold Pac., Inc. v. Polaris Indus., Inc., 433 F.3d 952, 957–58 (7th Cir. 2006) (explaining that the term “unjust enrichment” has multiple “referents” because it can refer to several factually distinct circumstances in which restitution is appropriate).11 Rather than explore what the word “manner”
DOJ’s ahistorical reading is also flatly inconsistent with the canons of interpretation governing incorporation. When Congress incorporates a body of law in general terms, the incorporating statute “develops in tandem with the” body of law that was incorporated. Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 769 (2019); see also New Prime Inc., 139 S. Ct. at 539; 2B Sutherland Statutory Construction § 51:8 (7th ed.). For most of the last 80 years, Congress has chosen to incorporate state law rather than specify a manner of execution. As Judge Katsas explains, it was once true that most execution statutes did not “prescribe subsidiary ‘procedural details.’” Concurring Op. 6 (Katsas, J.). Today, however, some “state statutes and regulations do contain many granular details.” Id. at 21. When a state legislature chooses to define the manner of execution in more detail than was common in older statutes, the FDPA directs the federal government to follow suit. See New Prime
The historical record is likewise inconsistent with the plaintiffs’ assertion that the FDPA does not allow DOJ to adopt nationwide procedures. See Plaintiffs’ Br. 23–24. It is true that Congress in 1937 replaced a uniform, nationwide approach with a requirement that the federal government follow the sentencing state’s manner of execution. Nevertheless, neither the 1937 statute nor the FDPA requires that the federal government follow state practices not prescribed by law. The statutory history thus says nothing about whether the Department can create uniform procedures to fill gaps in state law, as the protocol and addendum do in this case.
C.
The Department raises a parade of horribles if “manner” is read to include more than the method of execution. Specifically, DOJ argues that a broader reading will make it much more difficult to execute prisoners and will leave the federal government unable to choose the most humane execution procedures. The government’s purpose-driven arguments rely on broad policy goals and practical difficulties, rather than the plain meaning of the text. These policy arguments, however valid, cannot overcome Congress’s plain choice in the FDPA to allow the manner of execution to turn on state law.13
[N]o legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice—and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute’s primary objective must be the law.
Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 646–47 (1990) (citation and quotation marks omitted).
In addition, DOJ’s policy concerns about administrability would have applied with equal force in 1937, when Congress first incorporated state law to govern the manner of federal executions. See New Prime Inc., 139 S. Ct. at 539 (“[I]t’s a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute.” (quotation marks omitted)). In 1937, permissible execution methods varied significantly across the country and included hanging, electrocution, the gas chamber, and others. State
Similarly, the federal government has never had absolute license to choose the most humane execution procedures. When Congress passed the 1937 statute, it chose state practice over hanging in part because “[m]any States”—but not all—“use[d] more humane methods of execution, such as electrocution, or gas.” H.R. Rep. No. 75-164, at 1 (1937). Congress could have selected one of those more humane methods instead of hanging, but it chose to leave that decision to the states—many of which continued to hang criminals. See Andres v. United States, 333 U.S. 740, 745 (1948) (noting that the “method of inflicting the death penalty” in Hawaii in 1948 was “death by hanging”). Indeed, some states continued to provide for hanging even after the passage of the FDPA in 1994. See Baze, 553 U.S. at 43 n.1 (plurality opinion) (noting that New Hampshire and Washington still allowed for hanging in 2008). Even under DOJ’s interpretation of the FDPA, the government may choose what it considers to be the most humane procedures only when state law does not provide for another method of execution. Whatever the legitimacy of
More specific details are generally found in informal state policies and protocols. Execution protocols are exempted from many states’ administrative procedure acts, including their formal rulemaking requirements. See, e.g.,
II.
Based on this interpretation of Section 3596(a), I would hold that the 2019 protocol did not exceed the government’s authority under the FDPA. As an initial matter, the protocol is unlikely to conflict with state law in most cases, as state laws
Judge Tatel casts this reading of the protocol’s plain text as an improper effort to “rewrite the protocol” to support an interpretation that the government has not advanced. Dissenting Op. 10. As an initial matter, my interpretation requires no revision—it rests on the words DOJ used in promulgating its protocol. Moreover, “[o]ur duty in conducting de novo review on appeal is to resolve the questions of law this case presents.” Citizens for Responsibility & Ethics in Wash. v. FEC, 892 F.3d 434, 440 (D.C. Cir. 2018). “When an issue or
Because the district court’s order was premised exclusively on the plaintiffs’ claim that the protocol was “in excess of statutory … authority,”
“The critical feature of a procedural rule is that it covers agency actions that do not themselves alter the rights or interests of parties.” Nat’l Min. Ass’n, 758 F.3d at 250 (quotation marks omitted). By its terms, the protocol does nothing to interfere with the Marshal’s ability to comply with the FDPA or with the plaintiffs’ right to have their sentences implemented “in the manner prescribed by the law of the State.”
Moreover, the procedures outlined in the 2019 protocol bear all the hallmarks of “internal house-keeping measures organizing [DOJ’s] activities” with respect to preparing for and conducting executions. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987) (citation omitted). The protocol and accompanying addendum provide lengthy “checklists for
I would not reach the plaintiffs’ argument that only the U.S. Marshal Service has the authority to promulgate rules under the FDPA. The plaintiffs did not develop this argument below, so it is forfeited. See Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir. 2019) (“Absent exceptional circumstances, a party forfeits an argument by failing to press it in district court.”).16 I would also decline to reach the plaintiffs’ claims under the Food, Drug & Cosmetic Act and the Controlled Substances Act, which were neither addressed by the district court nor pressed by the plaintiffs on appeal. Unlike the notice and comment challenge to the protocol, the outcome of the FDCA and CSA claims is not plainly dictated
In defending the federal protocol, the government argues that the word “manner” in
I agree with Judge Rao that the term “manner” refers to more than just general execution method. Because her detailed opinion so thoroughly addresses the government’s arguments and convincingly responds to Judge Katsas’s survey of the historical record, I see no need to say anything more on the issue.
A.
Plaintiffs were sentenced to be executed “in the manner prescribed by the law,”
For example, Texas’s governing statute requires condemned prisoners to be “executed . . . by intravenous injection . . . , [with] such execution procedure to be determined and supervised by the director of the correctional institutions division of the Texas Department of Criminal Justice.”
The governing Missouri statute “authorize[s] and direct[s]” “the director of the department of corrections . . . to provide a suitable and efficient room or place . . . and the
The other two states—Arkansas and Indiana—have similar statutory schemes. See
The “law” of each state, then, requires executions to be implemented according to procedures determined by state corrections officials, who, in turn, have set forth such procedures in execution protocols. In other words, “by law,” each state directed its prison officials to develop execution
Were there any doubt about this, “the natural way to draw the line is in light of the statutory purpose,” Rose v. Lundy, 455 U.S. 509, 517 (1982) (internal quotation marks and citation omitted), and here, interpreting
By using virtually identical language in FDPA section 3596(a), Congress signaled its intent to continue the same system—for federal executions to be carried out in the same manner as state executions. See Lorillard v. Pons, 434 U.S. 575, 580 (1978) (“Congress is presumed to be aware of an administrative . . . interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.”). Given this, reading
Judge Rao argues that state execution protocols are not “prescribed by . . . law” within the meaning of
By my count, the phrase “authorized by law” and its twin sisters—“prescribed by law” and “prescribed by the law”—appear 1,120 times in the United States Code, and the Supreme Court has repeatedly made clear that, even within the same statute, “the presumption of consistent usage ‘readily yields’ to context.” Utility Air Regulatory Group v. EPA, 573 U.S. 302, 320 (2014) (quoting Environmental Defense v. Duke Energy Corp., 549 U.S. 561, 574 (2007)). In Chrysler, moreover, it was only after closely examining “evidence of legislative intent,” including statutory text and legislative history, that the Court limited “law” in the Trade Secrets Act to notice-and-comment regulations. 441 U.S. at 312. In other words, context matters, and here context requires a different result. Limiting “the
Judge Rao also argues that the Attorney General need not follow state execution protocols because they “do not appear to have the binding force of law,” “leav[ing] the federal government free to specify” its own procedures. Rao Op. at 2, 28 n.15. But whether state execution protocols are binding under state law has nothing to do with whether the Attorney General has authority under federal law to issue a uniform execution protocol. And as explained above,
B.
Of course, the federal protocol’s failure to incorporate state execution procedures would pose no problem if, as Judge Rao believes, it contained a “carveout,” “indicat[ing] that the government must depart from the protocol as necessary to . . .
The procedures utilized by the [Bureau of Prisons (BOP)] to implement federal death sentences shall be as follows unless modified at the discretion of the Director or his/her designee, as necessary to (1) comply with specific judicial orders; (2) based on the recommendation of on-site medical personnel utilizing their clinical judgment; or (3) as may be required by other circumstances.
Department of Justice, Addendum to BOP Execution Protocol, Federal Death Sentence Implementation Procedures 1 (July 25, 2019) (emphasis added).
Far from requiring Marshals to follow state law, this provision mentions neither state law nor
Where, as here, agency action is challenged under the Administrative Procedure Act, we can uphold the action only
C.
I end with a few observations about the government’s defense of the protocol.
First, had Congress intended to authorize the Attorney General to adopt a uniform execution protocol, “it knew exactly how to do so.” SAS Institute, Inc. v. Iancu, 138 S. Ct. 1348, 1355 (2018). The year before Congress enacted the FDPA, then-Attorney General William Barr issued a regulation setting lethal injection as the uniform federal method of execution and authorizing the BOP Director to determine which chemicals to use. See Department of Justice, Implementation of Death Sentences in Federal Cases, 58 Fed. Reg. 4898, 4901–02 (Jan. 19, 1993) (codified at
Second, the government argues that requiring it to comply with state law would “preclud[e]” it “from selecting more humane lethal-injection protocols than those used by the states.” Appellants’ Br. 29. As explained above, however,
Finally, the government argues that requiring it to follow “every nuance” of state protocols “could impose significant barriers to administering” the federal death penalty. Appellants’ Br. 27. Plaintiffs, however, do not contend that the government must follow “every nuance.” Quite to the contrary, they argue, and I agree, that
In any event, if crafting a federal protocol consistent with the FDPA proves too difficult, then the Attorney General may, pursuant to