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Thread: Federal Capital Punishment News

  1. #181
    Senior Member Frequent Poster Steven AB's Avatar
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    (1) Before Ginsburg and Breyer, Justice Clarence Thomas was confirmed by a Democratic Senate, and Justice Antonin Scalia by a 98-0 vote.

    At the time it was the custom to have some bipartisan agreement on Supreme Court appointments, but that's no longer the case.

    It is you, Mike, who live near the Reagan era.

    Today we are in the Garland-Kavanaugh world, not the Ginsburg-Breyer one.

    (2) As to why a ballot measure success is a victory even when the measure is not immediately enforced, I have already replied in previous posts:

    https://www.cncpunishment.com/forums...610#post125610

    https://www.cncpunishment.com/forums...658#post125658

    (3) For those interested by the subject matter of this thread:

    https://www.cncpunishment.com/forums...825#post126825
    Last edited by Steven AB; 04-07-2020 at 08:43 PM.

  2. #182
    Administrator Moh's Avatar
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    April 8, 2020

    Splintered DC Circuit Vacates Injunction Against Federal Executions

    By Kent Scheidegger
    crimeandconsequences.com

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

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

    The Simple and Correct Answer


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

    The Maximally Complex Answer

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

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

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

    The Less Complex and Wrong Answer

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

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

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

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

    https://www.crimeandconsequences.blo...ions/#more-877

  3. #183
    Administrator Heidi's Avatar
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    Death row inmates ask appeals court to rehear challenge to executions

    Attorneys for four federal inmates on death row have asked an appeals court to rehear their case challenging the Trump administration's plan to resume executions after a divided panel of judges ruled that the process could move forward.

    In a filing Friday, the inmates' legal team asked the full D.C. Circuit Court of Appeals to take up the case two weeks after a panel ruled 2-1 against them, upholding the administration's new execution protocol.

    "In its haste to uphold the Protocol, the panel majority disregarded foundational principles of statutory interpretation, administrative law, and judicial review," the lawyers wrote. "These errors are troubling in their own right, as they could affect a wide range of this Court’s administrative-law cases. But the consequences here are far more imminent and grave. The panel’s decision will allow the Government to execute scores of federal inmates pursuant to an unlawful protocol."

    Earlier this month, two Trump-appointed D.C. Circuit judges lifted an injunction against the new protocols, which establish uniform, nationwide regulations for federal executions.

    The inmates argue that the protocols violate the Federal Death Penalty Act (FDPA), which requires federal executions to abide by the capital punishment laws in the states where they take place.

    A district court judge agreed, imposing an injunction in November.

    "There is no statute that gives the (federal government) the authority to establish a single implementation procedure for all federal executions,” Judge Tanya Chutkan, an Obama appointee, wrote at the time. “To the contrary, Congress, through the FDPA, expressly reserved those decisions for the states of conviction.”

    https://thehill.com/regulation/court...r-challenge-to
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  4. #184
    Administrator Heidi's Avatar
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    DC Circuit Won’t Overturn Trump Appointees’ Ruling For Barr's Death Penalty Protocol

    The U.S. Court of Appeals for the D.C. Circuit on Friday denied a request for an en banc rehearing of a challenge to Attorney General William Barr’s new federal death penalty protocols, with one judge pointing to the U.S. Supreme Court’s direction for the court to not hold up the case.

    A three-judge panel on the court ruled 2-1 earlier this year to lift a preliminary injunction placed on the protocols, which would allow federal executions to resume. Judges Neomi Rao and Gregory Katsas, both appointed by President Donald Trump to the bench, disagreed on their legal reasoning but came to the same conclusion on lifting the injunction.

    Judge David Tatel disagreed with that finding, and in a dissenting opinion said he believed the protocol is “contrary” to federal death penalty law. He issued a statement with Friday’s order saying he believes the case “is en banc worthy” but “did not call for a vote because, given that the Supreme Court directed this court to proceed ‘with appropriate dispatch,’ I agree that ‘[our] review should be concluded without delay.’” Chief Judge Sri Srinivasan did not participate in consideration of the petition.

    Barr announced last year the adoption of the new federal execution policies, which were quickly challenged in federal court. U.S. District Judge Tanya Chutkan issued a preliminary injunction blocking the protocol, and both the D.C. Circuit and the U.S. Supreme Court denied DOJ’s motions to stay that ruling. The justices said in December they expected the circuit court to “render its decision with appropriate dispatch.”

    In a statement issued with the Supreme Court’s findings written by Justice Samuel Alito and joined by Justices Neil Gorsuch and Brett Kavanaugh, the justices said they believed the Justice Department “is very likely to prevail when this question is ultimately decided.”

    “Nevertheless, in light of what is at stake, it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out,” the justices said.

    Hogan Lovells appellate attorney Catherine Stetson argued the case before the D.C. Circuit in January. In the petition for an en banc rehearing of the case, signed by attorneys from Hogan Lovells, Wilmer Cutler Pickering Hale and Dorr, KaiserDillon and federal defenders, lawyers argued the panel opinion “conflicts with Supreme Court and D.C. Circuit precedent and will carry grave and irremediable consequences.”

    “The upshot: In its haste to uphold the protocol, the panel majority disregarded foundational principles of statutory interpretation, administrative law, and judicial review. These errors are troubling in their own right, as they could affect a wide range of this court’s administrative-law cases,” the petition filed last month reads. “But the consequences here are far more imminent and grave. The panel’s decision will allow the government to execute scores of federal inmates pursuant to an unlawful protocol.”

    In a filing last week, the Justice Department urged the circuit to uphold the panel opinion. “If plaintiffs wish to attempt to persuade the Supreme Court that Judge Tatel’s dissenting views are correct, they are free to seek further review there,” the DOJ lawyers wrote. “But this court should not frustrate the Supreme Court’s expectation that this court would render a decision with dispatch, by engaging in lengthy en banc proceedings to second-guess rulings that present neither a conflict with governing precedent nor questions of exceptional importance.”

    https://www.law.com/nationallawjourn...0200415120251#
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  5. #185
    Senior Member Frequent Poster NanduDas's Avatar
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    Does this mean Barr can finally give it another go?
    Last edited by NanduDas; 05-15-2020 at 01:03 PM.
    "The pacifist is as surely a traitor to his country and to humanity as is the most brutal wrongdoer." -Theodore Roosevelt

  6. #186
    Senior Member CnCP Legend Neil's Avatar
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    It depends on the Supreme Court and if they deny any other injunctions to this. Hopefully this winds up like what Steven talked about when he mentioned that Supreme Court case with Robert Harris.

  7. #187
    Moderator Ryan's Avatar
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    Federal executions delayed until June 8 as death row inmates file appeals to Supreme Court

    An appeals court in Washington, D.C. agreed Friday to stay its ruling concerning the legality of federal execution protocols until June 8 while four inmates on death row appeal to the U.S. Supreme Court.

    The U.S. Department of Justice introduced the Federal Execution Protocol Addendum in 2019, which sought to provide a blanket method for executions.

    Attorney General William Barr said the multiple drugs normally used in lethal injection procedures would be replaced by the single drug, pentobarbital. Many states use different drugs during their executions.

    The lawsuit filed on behalf of the four death row prisoners says the addendum violates the Federal Death Penalty Act of 1994. Under that act, those sentenced to death must be executed "in the manner prescribed by the law of the State in which the sentence is imposed."

    Legal counsel for the inmates wrote in their court filing that the "outcome of this case will dictate whether the Government may employ this Protocol in executing the more than sixty prisoners under federal sentences of death, including several whose execution dates were announced at the same time as the new Protocol itself."

    Barr introduced the addendum in 2019 and ordered the executions of five death row inmates. "The Justice Department upholds the rule of law," Barr said in a statement at the time, "and we owe it to the victims and their families to carry forward the sentence imposed by our justice system."

    U.S. District Judge Tanya S. Chutkan blocked Barr's actions, placing four of the five executions on hold. In her ruling, Chutkan said the public was "greatly served by attempting to ensure that the most serious punishment is imposed lawfully."

    Barr appealed Chutkan's decision to the U.S. Supreme Court, which upheld the lower court's decision to block the plan to resume executions.

    In the ruling, Justice Samuel Alito wrote that federal executions must take place in the same way state executions would be performed, "down to the selection of the way a catheter is inserted."

    Executions are currently allowed in 29 states with lethal injection being the primary form of execution.

    Most states used a combination of three drugs—an anaesthetic, a paralyzing agent and a drug that stopped the heart—until 2009, when drug shortages forced states to find other alternatives. Pentobarbital, which is used by veterinarians to euthanize animals, has already been used in executions carried out in 14 states.

    According to the Death Penalty Information Center, three individuals have been executed by order of the federal government since 1988.

    One of them was Timothy McVeigh, who set off an explosion in an Oklahoma City federal building in 1995, killing 168 people. McVeigh was executed by lethal injection in 2001.

    https://www.newsweek.com/federal-exe...-court-1506127
    "How do you get drunk on death row?" - Werner Herzog

    "When we get fruit, we get the juice and water. I ferment for a week! It tastes like chalk, it's nasty" - Blaine Keith Milam #999558 Texas Death Row

  8. #188
    Senior Member CnCP Legend Mike's Avatar
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    As usual the attorneys filed the appeal at the last minute.

    https://www.courthousenews.com/wp-co...P-Petition.pdf
    "There is a point in the history of a society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly. Punishing somehow seems unfair to it, and it is certain that imagining ‘punishment’ and ‘being supposed to punish’ hurts it, arouses fear in it." Friedrich Nietzsche

  9. #189
    Administrator Moh's Avatar
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    Trump Federal Execution Revival Back at Supreme Court

    By Jordan S. Rubin
    bloomberglaw.com

    The U.S. Justice Department’s determination to resume federal executions after a decade-plus hiatus is back in Supreme Court justices’ hands, with the filing of a petition from death row prisoners challenging the way the government wants to execute them.

    Their appeal, filed on June 5, presents the latest test for the high court on the hot-button issue of capital punishment, a subject that’s split the court along ideological lines and sparked some of the most tense exchanges between justices in recent years.

    Attorney General William Barr announced last summer that the government would resume executions, but the petitioning prisoners are fighting that move in court, raising technical challenges.

    The case, which involves several prisoners that the government wants to execute—all of whom were convicted of murdering children—was before the justices in December on a preliminary matter. While the court sided with the prisoners then, Justices Samuel Alito, Neil Gorsuch, and Brett Kavanaugh made clear in a separate opinion that they thought DOJ had the better of the argument.

    Now with the issues more squarely presented to the high court, if those three justices still hold the same view, then the question could be how the rest of the court comes down on the sensitive subject.

    The petitioner-prisoners are challenging a 2-1 April ruling by the influential U.S. Court of Appeals for the District of Columbia Circuit.

    An internal split

    President Donald Trump’s two appointees, Neomi Rao and Gregory Katsas, diverged in their reasoning before arriving at the same conclusion: a trial judge shouldn’t have blocked the government from carrying out the executions. Bill Clinton-appointee David Tatel dissented.

    The high court may want to weigh in, regardless which side it favors, to clarify the issue one way or the other. Four justices are needed to grant review.

    The federal death penalty act says 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 government’s lethal injection protocol doesn’t duplicate the minutiae of every aspect of how every state carries out executions.

    Katsas said “manner” in the act only refers to the “method” of execution, like lethal injection as opposed to electrocution. It doesn’t regulate “various subsidiary details cited by the plaintiffs and the district court.”

    Rao disagreed with Katsas’ "manner” analysis, saying that the act requires the government to follow state execution statutes and formal regulations, but not less formal state procedures.

    Tatel said in dissent that he agreed with Rao that “manner” means more than just general execution method, but he disagreed with her beyond that, saying that the law requires executions to be carried out by state procedures “not just in statutes and regulations, but also in protocols issued by state prison officials pursuant to state law.”

    ‘Grave uncertainty’

    The D.C. Circuit’s “very different opinions” create “grave uncertainty about what the Federal Death Penalty Act means and what rules the federal government must follow when it carries out executions,” said Hogan Lovells’ Cate Stetson, lead counsel for the prisoners Alfred Bourgeois, Dustin Lee Honken, Daniel Lewis Lee, and Wesley Purkey.

    “The panel’s decision, if uncorrected,” she said, “will have significant effects on both future death-penalty litigation and administrative law more broadly.”

    The prisoners’ petition argues that the circuit panel ran afoul of administrative law by adopting a reading of the protocol that the agency never advanced and by deeming the protocol a procedural rule exempt from notice and comment requirements.

    “The Supreme Court should grant review,” Stetson said, “to resolve this confusion and hold that the statute means what it says, requiring the government to follow state execution protocols.”

    The Justice Department didn’t respond to a request for comment on the petition. It will have the opportunity to file a brief opposing high court review, due July 9, before the justices decide whether to take the case.

    Noting the disagreement even within the appeals court majority, Death Penalty Information Center executive director Robert Dunham said “if you’re looking for clarity, I would think the court would want to review the case.”

    Dunham said it should be clear “whether the protocol follows the law and why. And I think that benefits everybody to have clarity. When there is clarity, one side or the other isn’t going to be happy. But that’s better than having confusion.”

    ‘Unusual aspect’

    Death penalty proponent Kent Scheidegger observed that the court might not take up the case because there’s no circuit split and the panel reached the right result, in his view.

    “Normally that would indicate a denial of certiorari,” said Scheidegger, legal director of the Criminal Justice Legal Foundation.

    “The unusual aspect, though, is that the odd panel split will lead to an incorrect result in a future case unless corrected,” he said, referring to a potential situation where, in light of that D.C. Circuit precedent, a prisoner raises a challenge from a state where formal statute or regulation would control the analysis.

    He said that could be a reason for the court to take the case now, “rather than decide the issue on an eve-of-execution basis later.”

    The case is Roane v. Barr, U.S., No. 19-1348.

    https://news.bloomberglaw.com/us-law...-supreme-court

  10. #190
    Administrator Heidi's Avatar
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    Federal death-row inmates ask court to put on hold D.C. Circuit ruling that would allow executions to proceed

    This morning federal death-row inmates asked the Supreme Court to temporarily block a lower-court ruling that upheld new federal regulations for carrying out the death penalty. The decision by the U.S. Court of Appeals for the District of Columbia Circuit, which is scheduled to go into effect tomorrow, would allow the federal government to resume executions for the first time in over 15 years.

    This is the second time that the justices have been asked to intervene in the dispute between the inmates and the federal government over the lethal-injection protocol that the government plans to use to execute them. In November, a federal district judge in Washington, D.C., put the executions on hold indefinitely. U.S. District Judge Tanya Chutkan ruled that federal law requires the government to carry out executions using not only the same method of execution – here, lethal injection – as the state in which the execution takes place, but also precisely the same protocol. When the D.C. Circuit refused to stay Chutkan’s order while the government appealed, the government went to the Supreme Court, asking the justices to lift the order and allow executions to proceed. The Supreme Court rejected the government’s request, but it added that it expected the D.C. Circuit to “render its decision with appropriate dispatch.”


    A divided three-judge panel of the D.C. Circuit issued its decision in early April, overturning Chutkan’s order. Judges Gregory Katsas and Neomi Rao agreed (although for different reasons) that the lower court had misinterpreted federal death-penalty laws; Judge David Tatel dissented. On May 15, the full court of appeals declined to weigh in; the court’s ruling goes into effect tomorrow at 5 p.m.


    In their filing today
    , the inmates urged the justices to “maintain the status quo while deciding whether to answer the important questions presented in” their petition for review of the D.C. Circuit’s decision, which they filed last week. The decision below, they added, not only “raises more questions than it resolves about how to conduct federal executions” and “announces sweeping principles that will reshape administrative practice if they take root,” but is “also wrong, as proper application of prevailing principles of statutory interpretation and administrative law readily demonstrate.” And if the decision is not put on hold, they continued, the government could execute the inmates even though the protocol may later be determined to be illegal.


    The inmates’ request went to Chief Judge John Roberts, who handles emergency appeals from the District of Columbia. He can rule on the request himself, but he is more likely to refer it to the full court.


    [Disclosure: Goldstein & Russell, P.C. (or its predecessor firm) has in the past served as as counsel to Wesley Purkey, one of the inmates in this case, but neither the firm nor the author of this post represents him at this time or is otherwise involved in this litigation.]

    This post was originally published at Howe on the Court.
    An uninformed opponent is a dangerous opponent.

    "Y'all be makin shit up" ~ Markeith Loyd

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