Death Penalty

D.C. Circuit Panel Splits on Lawfulness of Federal Execution Protocol (and Whether to Enjoin It).

The court improbably concludes that the execution protocol is illegal, but does not enjoin its use


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 pending appeal. We affirm the district court's grant of summary judgment to the government based on Plaintiffs' new challenges to the Death Penalty Act, but we reverse its dismissal of the Plaintiffs' Eighth Amendment challenge for failure to state a claim. We also hold that the district court should have ordered the 2019 Protocol to be set aside to the extent that it permits the use of unprescribed pentobarbital in a manner that violates the Federal Food, Drug, and Cosmetic Act (FDCA). But we affirm the district court's denial of a permanent injunction to remedy the FDCA violation.

Judge Pillard wrote a separate opinion concurring in part and dissenting in part. It begins:

The court correctly holds that, because the 2019 Protocol calls for the use of pentobarbital unaccompanied by an FDCA-mandated prescription, it must be set aside as contrary to law under the APA. That conclusion alone requires a stay of the pending executions until the government complies. It is the government's prerogative to execute the Plaintiffs by a method of its choosing. But if it elects a method subject to statutory requirements, the government must then abide by those requirements. The government could choose to execute Plaintiffs by firing squad, for instance, assuming the method remained permissible under the Eighth Amendment. But if a federal statute required that members of a firing squad first be certified marksmen, the government could not execute a death row inmate until it ensured that the members of its firing squad were so certified.

Even if equitable relief is not necessary to pause the upcoming executions, however, it is my view that the district court also erred in denying Plaintiffs an injunction  preventing the government from continuing to violate the FDCA. The district court denied the injunction for want of irreparable harm, and my colleagues affirm. Because I believe that error is of continued importance, I dissent from Part III.B of the opinion.

Judge Rao also wrote separately, concurring in part, concurring in the judgment, and dissenting in part. It begins:

The district court held that the government's decision to administer pentobarbital for lethal injections without a prescription violates the Federal Food, Drug & Cosmetic Act ("FDCA") and so is contrary to law under the Administrative Procedure Act ("APA"). The district court also dismissed Plaintiffs' Eighth Amendment claim for failure to state a claim and granted summary judgment to the government on Plaintiffs' Federal Death Penalty Act ("Death Penalty Act") claim. I agree to vacate the district court's dismissal of the Eighth Amendment claim and affirm the grant of summary judgment on the Death Penalty Act claim. My colleagues conclude that binding circuit precedent mandates the application of the FDCA to drugs administered for capital punishment and order the district court to set aside the Protocol under the APA until the government procures prescriptions for the lethal injection drugs. I disagree that this conclusion is required by our precedent. Moreover, application of the FDCA to drugs used in lethal injections is inconsistent with the statutory text and the Supreme Court's decision in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000). In any event, Plaintiffs have no authority to challenge the Food and Drug Administration's decision not to enforce the FDCA in this context. See Heckler v. Chaney, 470 U.S. 821, 837–38 (1985). Accordingly, I respectfully concur in part, concur in the judgment, and dissent in part.

In addition to concluding that the FDCA does not apply to the use of lethal injection drugs, Judge Rao took issue with the panel's conclusion that the plaintiffs could even challenge the lawfulness of the protocol under the FDCA.

Even if the FDCA applied in this case, these Plaintiffs cannot challenge the FDA's nonenforcement decision. As the Court held in Heckler, the "FDA's decision not to take … enforcement action[]" to prevent the use of drugs intended for use in lethal injection is "not subject to judicial review under the APA." 470 U.S. at 837–38. The FDCA specifically confers such enforcement authority on the government. See 21 U.S.C. § 337(a) ("[A]ll such proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States.") (emphasis added).  This is not an enforcement proceeding, but it is an attempt by the Plaintiffs to restrain violations of the FDCA. Section 337 gives that authority to the government.

Despite the absence of a private right of action in the FDCA, the district court held that the APA provides a private right of action for agency actions "not in accordance with law" under 5 U.S.C. § 706(2)(A). Mem. Op., Roane v. Barr, No. 19- mc-145, at *5 (D.D.C. Aug. 27, 2020), ECF No. 213. Acknowledging that the FDCA does not contain a private right of action, the district court relied on Chrysler Corp. v. Brown, 441 U.S. 281, 316–18 (1979), to find that the APA could nonetheless supply what the statute lacked: a right to enforce the FDCA's premarketing, labeling, and prescription requirements against the federal government. Mem. Op. at *5.

The district court's holding appears to conflict with the Supreme Court's acknowledgement that an APA action is precluded by federal statutory schemes that foreclose private party enforcement. The APA confers a general cause of action upon persons "adversely affected or aggrieved by agency action within the meaning of a relevant statute," 5 U.S.C. § 702, but withdraws that cause of action to the extent the relevant statute "preclude[s] judicial review," id. § 701(a)(1). See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 352–53 (1984) (holding that Congress intended to preclude consumer challenges to milk marketing orders and that such a holding would not frustrate the statute's objectives). "Whether and to what extent a particular statute precludes judicial review" is by necessity a fact specific inquiry that turns on the express statutory language, structure, purpose, and history, and the nature of the administrative action involved. Block, 467 U.S. at 345. It is not enough to assume, as the district court did, that the APA can provide the right of action here. Such an assumption is unwarranted under the FDCA, which places enforcement authority exclusively with the government. Cf. Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n.4 (2001); Perez v. Nidek Co., 711 F.3d 1109, 1119 (9th Cir. 2013) ("Although citizens may petition the FDA to take administrative action … private enforcement of the statute is barred."). Because enforcement of the FDCA is committed to the government, private litigants cannot sue to enforce its provisions.

It is certainly odd to see a court conclude that the execution protocol is illegal, but can still be used. It almost comes across as an effort to set a circuit precedent without provoking Supreme Court review, but perhaps that's too cynical a take.

Of note, this is not the first time legal challenges to the federal execution protocol has split the D.C. Circuit in interesting ways. Back in April, another challenge produced four separate opinions from a three-judge panel. Given indications President-elect Biden wishes to end federal executions, however, it may be the last (at least for a while).

NEXT: Eleventh Circuit Enjoins Local Ordinances Barring "Conversion Therapy"

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  1. Back to a choice of hanging or firing squad.

  2. I have friends of the persuasion that technical legal matters matter less than the outcome. I often disagree, but not here – the idea that the government can’t use a particular drug to execute without a prescription seems ridiculous. If I was on death row it’s a straw I’d grasp at but still.

    Simplest solution would be to switch to using carbon dioxide. Cheap, painless and quick.

    1. Hardly. The human breathing reflex is primarily driving by CO2 levels in the blood. That’s why you can hold your breath longer after hyperventilating: It’s not extra blood oxygen, it’s that you purged the CO2, and don’t feel any urge to breath until it builds back up again.

      The result is that, if you walked into a room full of CO2 and took a breath, you’d instantly be subject to a desperate suffocating sensation. You’d also probably experience some pain as the dissolved excess CO2 was converted to carbonic acid, but likely wouldn’t notice it in your desperation to breathe.

      Perhaps you were thinking N2? That would be cheap, painless, and quick. CO2 would just be 2 out of the three.

      1. Yes Nitrogen must be what the OP was thinking. It is a significant hazard in confined spaces. You don’t know you’re not breathing any Oxygen in the presence of pure Nitrogen.

        1. No, I was thinking of CO2. I have personal experience with this, once the oxygen level drops below a certain percentage you just go to sleep…

          1. Aren’t you thinking of carbon monoxide?

            1. Just FWIW, here’s my understanding of the biology: a good engineer would have designed humans so that breathing was driven by oxygen levels – too little oxygen in the blood–> increase breathing. But that’s not the case – when you hold your breath, for example, what drives the eventual compulsion to breathe is CO2 levels rising in the blood. Similarly, in submarine or mining accidents, the rising CO2 levels cause various kinds of discomfort before eventual unconsciousness.

              However, if you keep the CO2 levels down, but don’t have enough oxygen, your body never notices until your brain doesn’t have enough oxygen to function … at which point you still don’t notice.

              CO is one way to do that, because it binds preferentially to hemoglobin, so you don’t have enough oxygen in the blood even though the air in your lungs has plenty of oxygen.

              An atmosphere that has no oxygen (e.g. one consisting of pure nitrogen, argon, helium, …) still lets your body exhaust CO2, so you body doesn’t notice a problem, right up until your brain shuts down.

              From personal experience, if you spend too much time at a party inhaling helium balloons while singing the Star Spangled Banner, you abruptly go out like someone threw a switch. Similarly, there are periodic tragedies in industrial settings where people go into an oxygen free space. The ones who survive report sudden unconsciousness, without warning or unpleasantness.

              1. “However, if you keep the CO2 levels down, but don’t have enough oxygen, your body never notices until your brain doesn’t have enough oxygen to function … at which point you still don’t notice.”

                Well, not quite. Primary breathing regulation is based off CO2 levels, while secondary regulation is off O2. But the secondary doesn’t kick in until O2 IS dangerously low. Then you get what’s called “Cheyne-Stokes breathing. My dad used to do that in his sleep after his heart attack, because his breathing regulation was damaged.

                The catch in an O2 free atmosphere, is that breathing actually removes oxygen from your blood. Your first couple of breaths seem perfectly normal, and your blood O2 drops to the point where you lose consciousness. Then the emergency backup regulatory system kicks in, and keeps you breathing until O2 levels drop to the point where your muscles and nerves shut down entirely, and you die shortly after. Whereas you’d last much longer, maybe even several minutes, if you’d known to hold your breath.

            2. The incident of which I speak definitely involved CO2, not CO or N2. In my case a cylinder leaking CO2 displaced most of the oxygen in the container which caused me to (almost) pass out. Luckily I was close to the opening. And luckily there was someone close by as the amount of time from when I noticed something odd to dropping was mere seconds. Brett’s description below is spot on.

              Hold one’s breath causes a gradual increase of CO2 which the person can perceive since they’re still conscious. Rapid O2 removal is a different matter. Any gas would work.

      2. Brett, you are right.

        The term is inert gas asphyxiation.. Absolutely painless way to die.

        So is an altitude chamber, if the altitude is set high enough. I had to practice the preliminary symptoms many times over a flying career, and experience them once for real.

        Pain is notable for its absence.

    2. Execution by vacuum chamber.

  3. The death penalty is to the left what abortion is to the right: Having failed in their attempts to ban it outright, their second choice is to make it as difficult to obtain as possible. And yeah, the FDA argument is fairly outlandish, but no more so than the requirement that women seeking abortions first submit to a medically unnecessary vaginal ultrasound and endure a three day waiting period.

    Maybe at some point people who disagree with abortion, the death penalty, or both, simply need to be told: You lost. Deal with it. (And I say that as someone who is both pro-abortion and anti-death penalty.)

    1. Actually, the point of the ultrasound is perfectly sensible: It’s so they see what they’re going to kill, and then have a little time to think about it. The sort of thing doctors call “informed consent”.

      I suppose from some perspective informed consent isn’t “medically necessary”.

      Ultrasound IS probably the worst thing that ever happened to the abortion industry, in as much as it made that black box transparent. Made it much harder to convince mothers that they were killing “a lump of tissue”.

      1. In other words, since you disagree with their choice you want to make it as difficult as possible for them to carry out that choice. Much like opponents of the death penalty want to make that choice hard to carry out too.

        1. If knowing what you’re doing makes it difficult to do something, that only underscores that you should know what you’re doing.

          What you’re talking about isn’t “difficulty”, it’s the terrifying possibility that some woman, somewhere, might change her mind about having an abortion.

          1. The point is, though, that she already made up her mind. She knows full well what she’s doing. You’re just trying to put pressure on her to change her mind. (Which I’m fine with, by the way, so long as it is *she* that is changing her mind and she’s not being pressured into doing so).

            Maybe before people go to church they should be forced to listen to a half hour speech by prominent atheists explaining why they shouldn’t go to church, and then give them a three day waiting period to think it over.

            1. That’s not how informed consent works in the medical profession, Krychek_2. You can be absolutely convinced you want your spleen removed, or whatever, but the procedure normally doesn’t go ahead until the doctor has made sure you know what you’re getting into. Already knowing you want to do it just demonstrates “consent”, not “informed consent”.

              And cute analogy: Tell you what, let’s do that: The abortion clinic has to put up with the ultrasound, and the execution chamber has to make clear to the guy being executed that this is going to result in him dying.

              1. Ok, and juries can’t impose the death penalty until they’ve seen videos of botched executions

                1. No one has passed a law requiring anyone to view images of a botched abortion, so why would you show a jury images of a botched execution?
                  For that matter, showing a fetus is showing the human that is about to be killed in the process, so the parallel would be showing the jury a picture of… the defendant.

                  I’m pretty sure that ALL juries get to see the defendant. Maybe in absentia trials would be require to post a picture?

          2. And, more to the point of this thread, if your side is entitled to pass laws to harass people who want abortions, then the anti-death-penalty side is entitled to use the legal system to harass people trying to carry out executions. Fair is fair.

    2. The left has been significantly more successful methinks. The death penalty is neigh nonexistant.

      1. Meanwhile there are several hundred thousand abortions in the US every year…

        1. Yes, but that’s a regional thing. In large swaths of the South, abortion may as well be illegal; Mississippi is trying to shut down the last abortion clinic in the entire state.

          Which is also true of the death penalty; most executions happen in the same handful of states.

          1. There were over 2000 abortions in Mississippi in 2017. A far cry from “may as well be illegal”

            1. And how many Mississippi women who wanted abortions couldn’t get one?

              1. Fun question. Perhaps not many. For example:

                Mississippi abortion rate: 4.3
                Massachusetts abortion rate: 13.5

                (I’m just wildly guessing that Mass. is fairly liberal, abortion wise)

                So, obviously, the only possible explanation is that the rights of MS women are being trampled, amirite? But just for the sake of completeness, could there be any other explanation? For instance, I wonder if there are any differences in the number of evangelical Christians?

                Mississippi: 41%
                Massachusetts: 9%

                So MS has 4.5x the evangelical Christians as MA, while MA has only 3.1x the abortions. Could there be some element of … women making choices here that explains the different rates, or is oppression the only possibility?

                Source for abortion rates

                1. (on rereading that, it comes across as really snarky; that wasn’t the intent, apologies for that)

                2. Respectfully, what makes you think evangelical women don’t have abortions? Their divorce and teen pregnancy rates are the same or higher than those of the general population so why wouldn’t their abortion rates be so as well?

                  Also, if you compare Mississippi crime rates to Massachusetts crime rates, you find there is, if anything, a negative correlation between evangelical Christianity and violence.

                  1. “Respectfully, what makes you think evangelical women don’t have abortions?”

                    I’m sure some do. I bet there are some big-name preachers who are getting a little on the side as well :-). But what makes you think, though, that there isn’t a correlation between a worldview that generally looks on abortion unfavorably, and fewer such women choosing it?

                    Similarly, I bet there are Jews who indulge in bacon, but I bet per-capita bacon sales are lower in Jewish neighborhoods.

                    “Also, if you compare Mississippi crime rates to Massachusetts crime rates..”

                    You’ve gone from ‘abortion may as well be illegal’ to ‘there are fewer than in other states’ to ‘mumble … crime rates … mumble’. It’s getting a little hard to track the train of thought.

                    1. The train of thought drifts as to keep pace with where the tracks go.

                      I was raised evangelical. I did two years at Moody Bible Institute. I know evangelicalism and evangelicals. And in my experience, the disconnect between the worldview and the practice is fairly dramatic. If you have any actual numbers on how many evangelicals have or don’t have abortions I’ll be happy to look at them, but I’m not going to assume without actual numbers that you’re right.

                    2. “I’m not going to assume without actual numbers that you’re right.”

                      Oh, indeed! Similarly, I’m not going to conclude that there are a lot of women in MS who want abortions but can’t get them because of government restrictions, without seeing actual numbers.

                      Having data, rather than suppositions, is exactly the point here.

  4. The Supreme Court has been pretty good about sorting out this type of nonsense lately. Hopefully they can get this fixed without delaying any of the currently executions any further.

  5. Biden is opposed to federal executions until a right-winger does something, then that person will go the way of Timothy McVeigh. Honestly, why does anyone ever credit any elected official with moral or intellectual consistency?

    1. The best kind of hypocrisy is completely hypothetical hypocrisy.

      1. But faux libertarians — who sometimes like to be known as “often libertarian,” and claim that government they otherwise scorn becomes competent (if not infallible), righteous, trustworthy, and legitimate when it wishes to kill someone, ideally other than a White man — are the worst kind of libertarian.

        Carry on, clingers . . . without the respect of your betters.

        1. Is it cat urine or your own endogenous body odor? The former: wash your clothes more than once a month, or change your cat’s litter boxes (do you even have one?). The latter: wash your self more frequently, or at least try soap. My god, that horrific stink lasts even after your departure from the locale!

  6. At times like this I remember what a backward, barbaric country we are.

    1. Hardly dummy. We do actually talk about these things. It is likely the death penalty will eventually end, and it is far more rare than it was a century ago.

      Unlike say in other countries I could mention.

      1. I’m not thrilled by people pointing out that we are better than Saudi Arabia, Burundi, the Taliban.

    2. Agreed. A drug dealer can kidnap an innocent girl, repeatedly rape her, and bury her alive, while nevertheless staying alive for more than 35 years through taxpayer-financed frivolous lawsuits, to the point of successfully convincing two judges on the most prestigious court in the land that he cannot be executed without a prescription for lethal injection drugs.

      No civilized nation deserves the barbarism that the pro-criminal, anti-death penalty crowd puts us through.

      1. Anti-death penalty is not pro-criminal.

        I didn’t take you for one to go emotionalism as an argument.

        1. Correct: there are people who are opposed to the death penalty for principled reasons that aren’t part of a general philosophy that punishing criminals is bad and we’re bad for doing it.

          Those aren’t the people that are responsible for the barbarity.

        2. I’m also not sure what the “emotionalism” is that you’re trying to call out. People like Mr. Hall deserve to be executed, and it’s a disgrace that it took more than 35 years to make that happen.

    3. What we are is a small “d” democratic country. The countries in Europe that abolished the death penalty did so in defiance of public opinion, not in response to it.

  7. A federal statute should end the death penalty in the United States. It is a $billion, worthless, lawyer make work, rent seeking bunko appellate operation.

    All remedies have a dose-response curve. Too little does not help. Too much is toxic. Eight federal executions is too little to do anything except generate lawyer jobs.

    I thought there would have to be 10000 executions to be effective through incapacitation. Right now, there are 70000 fentanyl deaths of a lot of criminals, each costing 50 cents.

    This mass extinction of criminals will cause massive lawyer unemployment. That is why there is a serious decarceration movement going on, to maintain the dropping crime rate. The irony is that the decarcerated will die by fentanyl soon after release, further suppressing the crime rate and exploding the lawyer unemployment rate.

    That extinction makes the death penalty unnecessary, and a needless expense.

    Video addiction and the obesity epidemic also coincided with big drops in crime rate.

  8. Another rousing gathering of Libertarians For Statist Killing (Because Government Becomes Infallible And Righteous When It Wants To Kill Someone, Ideally A Black Guy) convened at the self-proclaimed “Often Libertarian” blog.

    If there is anything decent about Judge Rao, she strives to conceal it — and succeeds.

    1. I don’t mean to make personal remarks. You have a bad temper.

    2. Are you suggesting that there’s some question as to the guilt of either of the men involved in this case?

      1. I am asserting that I do not trust government — especially government that does not hire the best or brightest for law enforcement, and does not arrange adequate training, management, accountability, or character in that context, and is often shackled by system bigotry — to kill citizens for alleged criminal conduct. Even those who deserve to die.

        Why do you ask?

  9. The state of the death penalty is because the left has tried to, disingenuously, end it using the ‘death by 1000 cuts’ strategy. We need to recognize the real victims here and that is the convicted criminals who have to languish on death row for decades as they are pawns for the left and also the family of the victims who have to wait that long for closure.

    The fix is actually really easy. Just bring back a more reliable method of execution. Firing squad or hanging both qualify. Lethal injection was just a way to try to “play nice” with the left and avoid another constitutional challenge to the death penalty. I think if we have learned anything over the interceding time period it is you can’t play in the same sandbox with the left anymore.

    1. I might consider supporting the death penalty if voter suppression becomes a capital offense.

      What do you think, clingers?

      1. We think that what you support or do not support matters not at all to anyone else and is persuasive of nothing.

      2. How about we make the relentless trashing of threads with the same relentless, repetitive, mindless, crap worthy of the death penalty?

        It wouldn’t be used very often, because no one is in your league.

      3. What AK meant to write was “I will support the death penalty if it could be applied in a manner consistent with politically persecuting people I don’t like. Then state sponsored executions are just fine…”

        And these are the people that are going to act surprised when the bottom falls out and their number finally comes up….

  10. Well, there is always the alternative. Treat the condemned to the same death, they dished out so freely. In this case, repeatedly raped and buried alive. Play fatal games, win fatal prizes. Televise it on pay-per-view. Now, THAT’s Reality TV!

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