In re: FBOP Execution Protocol Cases ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 15, 2020 Decided April 7, 2020
No. 19-5322
IN RE: FEDERAL BUREAU OF PRISONS’ EXECUTION PROTOCOL
CASES,
JAMES H. ROANE, JR., ET AL.,
APPELLEES
v.
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-mc-00145)
Melissa N. Patterson, Attorney, U.S. Department of
Justice, argued the cause for appellants. With her on the briefs
were Joseph H. Hunt, Assistant Attorney General, Jessie K.
Liu, U.S. Attorney, Hashim M. Mooppan, Deputy Assistant
Attorney General, Paul R. Perkins, Special Counsel, and Mark
B. Stern, Attorney.
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,
2
Stephanie Simon, and Shawn Nolan, Assistant Federal Public
Defender.
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.” 18 U.S.C. § 3596(a). It is common ground that
this provision requires the federal government to adhere at least
to a State’s choice among execution methods such as hanging,
electrocution, or lethal injection. The district court held that
the FDPA also requires the federal government to follow all the
subsidiary details set forth in state execution protocols—such
as, in the case of lethal injection, the method of inserting an
intravenous catheter. On that basis, the court preliminarily
enjoined four federal executions.
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.
3
I
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
4
authorized the death penalty, but no federal statute specified
how it would be carried out.
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.
18 U.S.C. § 3596(a). The FDPA also provides that a marshal
overseeing an execution “may use appropriate State or local
facilities” and “may use the services of an appropriate State or
local official.” Id. § 3597(a).
5
B
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).
6
The Bureau then explored the possible use of other lethal
substances. Its personnel visited state execution sites and
evaluated their protocols. BOP also consulted with medical
experts, reviewed assessments of difficult executions, and
studied relevant judicial decisions. It considered several
options, including three-drug protocols using other
barbiturates, three-drug protocols using weaker sedatives, and
one-drug protocols.
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
7
be stayed pending the decision in Baze. With no objection from
the inmates, the district court granted the request. In 2011, the
government announced that it lacked the substances necessary
to implement its execution protocol. From then through 2019,
the consolidated cases were stayed, and the government
submitted status reports explaining that its revision of the
protocol was ongoing. During that time, one of the plaintiffs
involved in this appeal—Alfred Bourgeois—filed a complaint
challenging the unrevised protocol. On the parties’ joint
motion, that lawsuit was stayed pending the revision.
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
8
prescribed” by state law likely applies both to the selection of
an execution method, such as lethal injection, and to
“additional procedural details” such as the precise procedures
for “how the intravenous catheter is to be inserted.” Id. at *4,
*6. The court did not address whether the plaintiffs were likely
to succeed on their various other claims. The court further held
that the balance of equities and the public interest favored a
preliminary injunction. Id. at *7.
The government filed an interlocutory appeal under 28
U.S.C. § 1292(a)(1) and moved this Court immediately to stay
or vacate the injunction. Without addressing the merits, we
concluded that the motion did not meet “the stringent
requirements for a stay pending appeal.” Order at 1, Roane v.
Barr, No. 19-5322 (D.C. Cir. Dec. 2, 2019).
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
9
the public interest.” Id. at 20. On appeal, we review the district
court’s legal conclusions de novo and its weighing of the four
relevant factors for abuse of discretion. Abdullah v. Obama,
753 F.3d 193, 197–98 (D.C. Cir. 2014).
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
10
injunction must be vacated, and judgment for the government
must be entered on this claim.
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
11
briefed in this Court. We do share the government’s concern
about further delay from multiple rounds of litigation. But the
government did not seek immediate resolution of all the
plaintiffs’ claims, including the constitutional claims and the
claim that the protocol and addendum are arbitrary and
capricious under the APA. Thus, regardless of our disposition,
several claims would remain open on remand.
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.
KATSAS, Circuit Judge, concurring: The principal
question in this appeal is what constitutes a “manner” of
execution within the meaning of the Federal Death Penalty Act
(FDPA). The government says that “manner” here means
“method,” such that the FDPA regulates only the top-line
choice among execution methods such as hanging,
electrocution, or lethal injection. The plaintiffs, the district
court, and Judge Tatel say that “manner” encompasses any
state execution procedure, down to the level of how
intravenous catheters are inserted. Judge Rao agrees, at least if
the procedure is set forth in a state statute or regulation.
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.” 18 U.S.C. § 3596(a). This appeal turns
on the level of detail at which that provision operates. Does it
cover the use of lethal injection rather than other execution
methods such as hanging or electrocution? The selection of a
lethal substance or substances? How much of the substance to
2
inject, and how many syringes to use for the injections? How
many intravenous lines to insert, and where to insert them?
Who should insert the lines? In modern execution practice,
governments address such issues systematically and in advance
of any execution. At the federal level, they are addressed by
the FDPA, Department of Justice regulations, the federal
execution protocol, and the protocol addendum. Likewise, at
the state level, they are addressed in comparable detail by state
statutes, regulations, and execution protocols.
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
3
the method of insertion to be determined based on “a
recommendation from qualified personnel” or “the training and
experience of personnel” on the execution team, App. 75. The
plaintiffs largely embrace the district court’s position, though
they seek to carve out exceptions for de minimis deviations
from state procedures, as well as for procedures insufficiently
related to implementation of the death sentence.
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
4
synonymous with “method” as well as “mode.” See, e.g.,
Manner, Black’s Law Dictionary (6th ed. 1990) (“A way,
mode, method of doing anything, or mode of proceeding in any
case or situation.”). And history strongly indicates that, in the
specific context of capital punishment, all three terms refer
only to the top-line choice. This is reflected in practices and
usages throughout American history.
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
5
carrying out federal executions remained unchanged from 1790
until 1937. During that time, no federal officials undertook to
regulate its “procedural details.” And during much of that time,
hanging “was virtually never questioned,” even though a rope
too long could produce a beheading, while a rope too short
could produce a prolonged death by suffocation. Bucklew v.
Precythe, 139 S. Ct. 1112, 1124 (2019) (quotation marks
omitted).1
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
1
Judge Rao seeks to downplay the Crimes Act of 1790 as merely
reflecting usage “on a single occasion.” Post, at 19. But that statute
governed “the manner” of conducting federal executions for 147
years, and it is a direct predecessor of the FDPA provision at issue
here. It is obviously central to the question presented. Judge Rao
notes that section 13 of the Crimes Act of 1790 set forth different,
more detailed “manners” of committing the offense of maiming. Id.
at 14. True enough, but the FDPA traces back to section 33 of the
Act, which, in the specific context of executions, used “manner” to
refer only to the top-line choice of method.
6
contrary, it surveyed various rules and customs on whether
death sentences would be carried out “by shooting or hanging.”
See id. at 132–36. Moreover, it described the governing statute
as addressing “the manner” of execution, id. at 136, and it used
the words “manner,” “method,” and “mode” interchangeably,
see, e.g., id. at 134 (“shooting or hanging is the method”); id.
at 137 (sentence “let him be hanged by the neck” addresses “the
mode of execution” (quotation marks omitted)).
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
2
Judge Rao highlights the Court’s statement that electrocution was
painless when performed “in the manner contemplated by the [New
York] statute.” Post, at 15; see Kemmler, 136 U.S. at 443–44. Here
is the key statutory provision, quoted in its entirety: “The
punishment of death must, in every case, be inflicted by causing to
pass through the body of the convict a current of electricity of
sufficient intensity to cause death, and the application of such current
must be continued until such convict is dead.” Ch. 489, Laws of the
State of New York § 505 (June 4, 1888), quoted in Kemmler, 136
7
In sum, here is what a reasonably informed English speaker
would have known as of 1937: For over 140 years, Congress
had designated hanging as “the manner of inflicting the
punishment of death” for federal capital sentences. English law
likewise had described “hanging” as a permissible “manner” of
executing a death sentence. “Manner” and “method” often
were used interchangeably, including by the Supreme Court in
assessing alternative execution methods such as hanging, firing
squad, or electrocution. And nobody focused on subsidiary
procedural details in the legal or policy debates over these
various execution methods.
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
U.S. at 444–45. The statute thus required nothing more than
electrocution. Judge Rao briefly notes other statutory details
governing the timing, location, and witnesses of the execution. Post,
at 16 n.9. They would have had no conceivable bearing on the
painlessness of electrocution, and they were irrelevant to the one
“manner” question that the Court framed, discussed, and decided—
the unitary choice between electrocution and hanging.
8
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
3
Judge Rao seeks to downplay this canon in contending that
Congress’s usage in 1790 ought not matter much. She says that to
maintain consistent usage of “manner” in successor statutes is to
confuse the word’s abstract “sense,” which must remain fixed, with
its concrete “reference,” which can evolve. Post, at 19–20. She
bases this view on a law-review article that seeks to link originalism
to the theory of proper names espoused by the philosopher Gottlob
Frege, in pursuit of a “middle ground” between the interpretive
approaches of Justice Scalia and Justice Stevens. Green, Originalism
and the Sense-Reference Distinction, 50 St. Louis U. L.J. 555, 558
(2006). Put aside the fact that leading philosophers hotly debate
whether proper names even have a “sense” apart from their
“reference.” See, e.g., S. Kripke, Naming and Necessity 22–70
(1980). Put aside the fact that no Supreme Court Justice or opinion
has adopted Professor Green’s account of how legal text is “partially
living and partially dead.” Green, supra, at 559. Put aside the fact
that, in my view, Justice Scalia was right that legal text has “a fixed
meaning, which does not change.” A. Scalia, Scalia Speaks:
Reflections on Law, Faith, and Life Well Lived 188 (E. Whelan &
C. Scalia eds., 2017). Even on Professor Green’s account, the
reference to a top-line execution method in the Crimes Act of 1790
has significant interpretive weight in construing that statute (and its
successors) over time. See Green, supra, at 560 (“While the framers
are fallible regarding the reference of their [legal] language, they are
still extremely useful guides.”). Thus, even accepting Professor
Green’s theory, Judge Rao errs by failing to give substantial weight
to how Congress used “manner” in the Crimes Act of 1790.
9
Likewise, the FDPA carried forward the relevant language
and “old soil” from the 1937 Act. In fact, the statutes are
virtually identical in all relevant respects. Both statutes provide
for implementation of federal death sentences in the “manner”
provided by state law. Compare 18 U.S.C. § 3596(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”), with 50 Stat. at 304 (“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.”). Both statutes permit, but do not require, the use
of state facilities for federal executions. Compare 18 U.S.C.
§ 3597(a) (“A United States marshal charged with supervising
the implementation of a sentence of death may use appropriate
State or local facilities for the purpose, may use the services of
an appropriate State or local official or of a person such an
official employs for the purpose, and shall pay the costs thereof
in an amount approved by the Attorney General.”), with 50
Stat. at 304 (“The United States marshal charged with
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, and pay
the cost thereof in an amount approved by the Attorney
General.”). And for convictions in states with no death penalty,
both statutes require conformity to the “manner” of execution
in some other state designated by the sentencing judge.
Compare 18 U.S.C. § 3596(a) (“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.”), with 50 Stat. at 304 (“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
10
executed in the manner prescribed by the laws thereof.”). This
wholesale copying surely indicates the preservation—not
abrogation—of previously settled understandings.
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., Cal. Penal Code § 3604(a), (d) (1994) (“manner of
execution” is either by “lethal gas” or “intravenous injection of
a substance or substances in a lethal quantity sufficient to cause
death”); La. Rev. Stat. Ann. § 15:569 (1994) (“manner of
execution” is either “electrocution,” defined as “causing to pass
through the body of the person convicted a current of electricity
of sufficient intensity to cause death,” or “lethal injection,”
defined as “the intravenous injection of a substance or
substances in a lethal quantity into the body of a person
convicted”); Mo. Rev. Stat. § 546.720 (1994) (“The manner of
inflicting the punishment of death shall be by the
administration of lethal gas or by means of the administration
of lethal injection.”); Vt. Stat. Ann. tit. 13, § 7106 (1994)
(“Manner of execution” is “causing to pass through the body of
the convict a current of electricity of sufficient intensity to
cause death”). A handful of state statutes went one small step
further, by using “manner” to refer to types of lethal
substances. But none of them required the use of any particular
substance, much less even more granular details. See Colo.
Rev. Stat. § 16-11-401 (1994) (“The manner of inflicting the
punishment of death shall be by the administration of a lethal
injection,” defined as “continuous intravenous injection of a
lethal quantity of sodium thiopental or other equally or more
effective substance sufficient to cause death.”); Md. Code
Ann., Crimes and Punishments § 71(a) (1994) (“The manner of
inflicting the punishment of death shall be the continuous
intravenous administration of a lethal quantity of an ultrashort-
11
acting barbiturate or other similar drug in combination with a
chemical paralytic agent.”);4 Miss. Code Ann. § 99-19-51(1994) (similar to Maryland, but with alternative provision that
“the manner of inflicting the punishment of death shall be by
lethal gas”); Okla. Stat. tit. 22, § 1014 (1994) (“Manner of
inflicting punishment of death” is either “continuous,
intravenous administration of a lethal quantity of an ultrashort-
acting barbiturate in combination with a chemical paralytic
agent,” or “electrocution” or “firing squad”).5
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.
4
Three other states used a similar formulation. See N.H. Rev. Stat.
Ann. § 630:5, XIII (1994); N.M. Stat. § 31-14-11 (1994); S.D.
Codified Laws § 23A-27A-32 (1994).
5
Despite this occasional, slightly broader usage of “manner” in state
statutes, the traditional usage remained common, and no state statute
even remotely addressed items such as the details of catheter
insertion. In any event, the obvious model for the FDPA was the
1937 federal statute, so it is by far the most important data point.
12
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.” 18 U.S.C. § 3597(a). These grants of
authority would be unnecessary if section 3596(a), the
“manner” provision directly at issue, independently required
the use of all state execution procedures. After all, states
conduct executions in designated state facilities. See, e.g., Ind.
Code § 35-38-6-5 (2019) (“inside the walls of the state
prison”); Mo. Rev. Stat. § 546.720 (2019) (“within the walls of
a correctional facility of the department of corrections”); Tex.
Dep’t of Crim. Justice, Execution Procedure § III.B (2019)
(Huntsville Unit). Thus, if section 3596 required use of state
facilities, section 3597 accomplished nothing by permitting
their use. Of course, interpretations that create surplusage are
disfavored. See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31
6
Judge Rao cites a handful of judicial opinions loosely using the
word “manner” to refer to subsidiary execution details. Post, at 4–5
& n.2. Three of them post-date Nelson and Hill—the first Supreme
Court decisions to suggest that such details might have any legal
relevance. Two others are either lower-court decisions or dissents.
None involves a statutory usage of “manner.”
13
(2001). The plaintiffs respond that section 3597 creates a
“limited exception to Section 3596, permitting (but not
requiring) the Government to use its own facilities.”
Appellees’ Br. 30 n.6. But that makes section 3597 even
stranger, for providing that the federal government “may” use
“State” facilities would be a remarkably clumsy way of
permitting the federal government to use federal facilities.
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
14
render the defendant eligible for the death penalty, 18 U.S.C.
§ 3592(b)–(d); by allowing a jury to consider any mitigating
circumstances, id. § 3592(a); and by requiring separate guilt
and sentencing determinations, id. § 3593. These provisions
cured potential Eighth Amendment problems, see, e.g.,
Maynard v. Cartwright, 486 U.S. 356, 361–63 (1988)
(aggravating factors); Eddings v. Oklahoma, 455 U.S. 104,
110–12 (1982) (mitigating factors); Gregg v. Georgia, 428
U.S. 153, 190–92 (1976) (plurality opinion) (separate
sentencing hearing), to ensure that the scheme would be usable.
Finally, the FDPA contains one provision specifically designed
to prevent the choices of an individual state from effectively
nullifying the federal death penalty. It provides: “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 ….”
18 U.S.C. § 3596(a).
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.,
Ark. Code Ann. § 5-4-617(i)(1) (2019). The plaintiffs’ only
7
See Calif. Exec. Order No. N-09-19 (Mar. 13, 2019); Governor
Tom Wolf Announces a Moratorium on the Death Penalty in
Pennsylvania, Office of the Pa. Gov. (Feb. 13, 2015), https://www.
governor.pa.gov/newsroom/moratorium-on-the-death-penalty-in-
pennsylvania.
15
response is that the federal government obtained several state
protocols in developing its own 2019 protocol. Yet while about
thirty states authorize capital punishment, the federal
government was able to obtain only five actual state protocols,
plus a “summary” of the others provided by a private advocacy
group. App. 10.
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
16
suggestion that some protocol details might not relate
sufficiently to “implementation” of the sentence. Would that
exception cover rules for how long the inmate must remain
strapped to the gurney? App. 40 (under federal protocol,
between 30 minutes and three hours). Rules about whom the
inmate may have present? Rules about the inmate’s final meal
or final statement? Rules about opening and closing the
execution chamber’s drapes? All such questions would be
raised at the last minute—likely producing stays, temporary
restraining orders, preliminary injunctions, and interlocutory
appeals like this one, which will delay lawful executions for
months if not years. In sum, the plaintiffs’ interpretation would
make the federal death penalty virtually un-administrable.8
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. 18 U.S.C.
§ 3596(a). The plaintiffs contend that “implementation” of a
death sentence refers to the entire process for carrying it out,
not just the use of a top-line execution method. But the only
8
Judge Rao correctly notes that bargains reflected in statutory text
must be enforced as against generalized appeals to statutory purpose.
Post, at 22–24. But statutory purpose, as reflected in “the language
and design of the statute as a whole,” can help determine textual
meaning or resolve textual ambiguity. See, e.g., K Mart, 486 U.S. at
291. Judge Rao does not dispute that one significant purpose of the
FDPA is to ensure an administrable system of capital punishment,
and her own analysis thus properly considers whether the plaintiffs’
proposed construction would raise “practical, and perhaps
insurmountable, difficulties to the implementation of federal death
sentences.” Post, at 12–13.
17
implementing detail that must follow state law is the “manner”
of carrying out the execution—which begs the question of what
that term does and does not encompass.
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.” 18 U.S.C.
§ 3592(c)(6). They reason that this FDPA provision uses
“manner” broadly, so other FDPA provisions must do likewise.
But the presumption of consistent usage “readily yields to
context, especially when” the term at issue “takes on distinct
characters in distinct statutory provisions.” Return Mail, Inc.
v. USPS, 139 S. Ct. 1853, 1863 (2019) (quotation marks
omitted). That qualification perfectly fits this case, for each
FDPA provision has its own history. As explained above, the
provision regarding the “manner” of executing a death sentence
traces back to the Crimes Act of 1790. In contrast, section
3592(c)(6) was copied nearly verbatim from the Anti-Drug
Abuse Act of 1988, see Pub. L. No. 100-690, § 7001, 102 Stat.
4181, 4392, which in turn responded to a Supreme Court
decision allowing consideration of a “heinous, atrocious, or
cruel” aggravating factor only as narrowed to require “torture
or serious physical abuse,” Cartwright, 486 U.S. at 363–65
(quotation marks omitted). Because section 3592(c)(6) carries
its own “old soil,” the presumption of consistent usage must
yield to context.
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.
18
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
19
as an adjective and modifies the noun “manner.” By using the
adjective to construe the noun broadly, Judge Rao overlooks
“the ordinary understanding of how adjectives work.”
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361,
368 (2018). “Adjectives modify nouns—they pick out a subset
of a category that possesses a certain quality.” Id. They
ordinarily do not expand the meaning of the noun they modify.
Thus, “critical habitat” must first be “habitat.” See id.Likewise, “full costs” must first be “costs.” See Rimini Street,
Inc. v. Oracle USA, Inc., 139 S. Ct. 873, 878–79 (2019). And
here, whatever is “prescribed by the law of the State” must first
be a “manner” of execution. In short, the limiting adjective
provides no basis for interpreting the noun broadly.
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,
20
they also use their laws to specify additional procedural details.
So the adjectival phrase “prescribed by the law of the State”
tells us nothing about the meaning of the noun “manner”—and
certainly does not undermine a historical understanding of that
term dating back to our country’s founding.9
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.” Ark. Code Ann. § 5-4-
617(f) (2019). The Indiana statute excludes lawyers from the
persons who “may be present at the execution.” Ind. Code
9
To make the adjectival reference to state law narrow the noun
“manner,” Judge Rao must retreat to the position that “manner,”
construed without reference to the adjectival phrase, “is broad
enough to encompass execution procedures at every level of
generality.” Post, at 9 n.5. As explained above, that position cannot
be reconciled with historical usages and understandings tracing back
to the First Congress.
21
§ 35-38-6-6(a) (2019). The Missouri statute requires the
execution chamber to be “suitable and efficient.” Mo. Rev.
Stat. § 546.720.1 (2019). And the Texas statute prohibits the
infliction of any “unnecessary pain” on the condemned
prisoner. Tex. Code Crim. Proc. Ann. art. 43.24 (2019).
Assimilating the various state statutes and regulations will
present significant logistical challenges. And, of course, these
various provisions will provide ample opportunity for last-
minute stay litigation.
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
10
To be clear, I agree with Judge Rao that the FDPA’s reference to
“law of the State” covers only state statutes and binding regulations.
Post, at 6–8. I also agree with Judge Rao that because the state
protocols in this case “do not appear to have the binding force of law,
they cannot be deemed part of the ‘law of the State.’” Id. at 28 n.15.
Accordingly, those propositions constitute holdings of this Court.
22
* * * *
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. 18 U.S.C. § 3596(a);
see also id. § 3597(a). The district court did not reach this
argument, but the parties have briefed it and the plaintiffs urge
it as an alternative ground for affirmance.
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
See Marks v. United States, 430 U.S. 188, 193–94 (1977). But I do
not share Judge Rao’s optimism that a “law of the State” limitation,
imposed on an otherwise unbounded interpretation of “manner,” will
avoid “practical, and perhaps insurmountable, difficulties to the
implementation of federal death sentences.” Post, at 12–13.
23
direction of the United States Marshal.” App. 74. And once
the execution is complete, the marshal must notify the court
that its sentence has been carried out. App. 44–45. The
protocol thus tasks the USMS with supervising executions.
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.” 28 U.S.C. § 509. The Marshals
Service is “a bureau within the Department of Justice under the
authority and direction of the Attorney General.” Id. § 561(a).
Its powers are thus ultimately vested in the Attorney General.
Moreover, the Attorney General may delegate his powers to
“any other officer, employee, or agency of the Department of
Justice.” Id. § 510. Together, these provisions permit the
Attorney General to reassign duties from the Marshals Service
to the Bureau of Prisons.
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
11
Judge Rao contends that the plaintiffs forfeited this argument by
not raising it below. Post, at 32. But plaintiff Lee, in support of his
motion for a preliminary injunction, identified eight provisions in the
24
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 5
U.S.C. § 553(b)(3)(A).
“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, 28
C.F.R. § 26.3(a)(4), and the protocol simply sets forth
procedures for carrying out the injections.
The execution protocol is also a general statement of
agency policy. In defining this category, “[o]ne line of analysis
execution protocol that he says impermissibly granted authority to
the Bureau of Prisons. See Lee Mot. for Prelim. Inj., In re Execution
Protocol Cases, No. 1:19-mc-145 (D.D.C.), ECF Doc. 13-1, at 10–
12. Lee argued that each of the provisions is “[c]ontrary to Section
3596 of [the] FDPA, which only refers to the U.S. Marshal
supervising implementation.” Id. Moreover, the government did not
argue for a forfeiture, and thus “forfeited [the] forfeiture argument
here.” Solomon v. Vilsack, 763 F.3d 1, 13 (D.C. Cir. 2014). And for
several reasons, it would make good sense for us to excuse any
forfeiture: The plaintiffs’ alternative FDPA claim turns on purely
legal questions, it was fully briefed on appeal, both parties ask us to
decide it, the Supreme Court has asked us to proceed with
appropriate dispatch, and this claim, even if not pursued in the
preliminary-injunction motions, would remain live on remand.
25
considers the effects of an agency’s action, inquiring whether
the agency has (1) impose[d] any rights and obligations, or (2)
genuinely [left] the agency and its decisionmakers free to
exercise discretion.” Clarian Health West, LLC v. Hargan, 878
F.3d 346, 357 (D.C. Cir. 2017) (quotation marks omitted). A
second line “looks to the agency’s expressed intentions,
including consideration of three factors: (1) the [a]gency’s own
characterization of the action; (2) whether the action was
published in the Federal Register or the Code of Federal
Regulations; and (3) whether the action has binding effects on
private parties or on the agency.” Id. (quotation marks
omitted). Here, the protocol contains no rights-creating
language. Just the opposite, it states that “[t]his manual
explains internal government procedures and does not create
any legally enforceable rights or obligations.” App. 24.
Likewise, the protocol explicitly permits “deviation[s]” and
“adjustment[s]” upon a determination “by the Director of the
BOP or the Warden” that the deviation is “required,” thus
preserving a healthy measure of agency discretion. Id. Finally,
the protocol was published in neither the Code of Federal
Regulations nor the Federal Register.
For these reasons, the federal protocol was not subject to
notice-and-comment requirements, and the plaintiffs’ contrary
claim is without merit.12
12
Given the flexibility built into the federal protocol, I agree with
Judge Rao that it may be adjusted to conform to state law to whatever
extent the FDPA may require. Post, at 29–30. That saves the
protocol itself from attack under Judge Rao’s construction of the
FDPA. But, as explained above, it opens the door to a wide range of
challenges to federal executions under the minutiae of state
execution statutes and regulations.
26
II
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
27
punishing the guilty.’” Id. (quoting Herrera v. Collins, 506
U.S. 390, 421 (1993) (O’Connor, J., concurring)).
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
28
on direct review, id. at 744, and later denied him collateral
relief, Purkey v. United States, 729 F.3d 860 (8th Cir. 2013).
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
29
take the girl’s limp body to the hospital, but a passer-by called
an ambulance. “The doctors sustained [her] on life support
until her mother could get to the hospital, where the baby died
in her mother’s arms the next day.” Id. at 505. In affirming
the death sentence, the Fifth Circuit described this as “not a
close case.” Id. at 512. That court later denied post-conviction
relief. United States v. Bourgeois, 537 F. App’x 604, 605 (5th
Cir. 2013) (per curiam).
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
30
and induce cardiac arrest. Its hesitation in the face of
uncertainty proved reasonable, as four Justices would later
describe this protocol as possibly “the chemical equivalent of
being burned at the stake.” Id. at 2781 (Sotomayor, J.,
dissenting).
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
31
nor to ensure that needles are properly inserted into veins—a
task that nurses routinely perform without difficulty. Instead,
they are designed to delay lawful executions indefinitely. We
should not assist in that undertaking.
* * * *
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.
RAO, Circuit Judge, concurring: The Department of
Justice specified a range of procedures to govern federal
executions in its 2019 protocol and addendum. Plaintiffs allege
that the Department’s protocol is inconsistent with the Federal
Death Penalty Act (“FDPA”), which requires that federal
executions be implemented “in the manner prescribed by the
law of the State in which the sentence is imposed.” 18 U.S.C.
§ 3596(a). At every stage of this litigation, the debate has
centered on whether “manner” should be read at a particular
level of generality. The word “manner,” however, cannot be
interpreted in isolation. It is a broad, flexible term whose
specificity depends on context. The FDPA explicitly defines
the level of generality of “manner”: It is the “manner prescribed
by the law of the State.” Thus, the FDPA requires the federal
government to apply state law—that is, statutes and formal
regulations—at whatever level of generality state law might be
framed. Where state law is silent, the federal government has
discretion to choose whatever lawful execution procedures it
prefers.
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,
2
assert that “manner” means any procedures used by a state
when implementing the death penalty, thereby precluding any
kind of uniform federal protocol. Neither reading comports
with the FDPA when read as a whole. In the FDPA, Congress
left certain choices regarding execution to the States.
Considering the text and structure of the statute, I explain why
the FDPA requires the federal government to apply only those
execution procedures prescribed by a state’s statutes and
formal regulations, but leaves the federal government free to
specify other procedures or protocols not inconsistent with
state law. Moreover, nothing in the statutory history offers a
basis to override the plain meaning of the FDPA.
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.” 18 U.S.C. § 3596(a). The parties as well as my
colleagues focus on the meaning of the word “manner.” As I
explain, the word “manner” may refer to varying levels of
specificity, both in its ordinary meaning and in the context of
execution procedures. Reading “manner” alongside other
words in Section 3596(a), as well as the statute as a whole,
demonstrates that the FDPA uses “manner” to include the
positive law and binding regulations of a state—those
procedures “prescribed by the law of the State.” State “law,”
however, does not include informal procedures or protocols. In
the absence of binding state law, the FDPA leaves other
procedures to the discretion of the U.S. Marshal who must
“supervise implementation of the sentence” of death.
1.
In ordinary usage, the word “manner” has a broad, flexible
meaning. A “manner” is “a characteristic or customary mode
3
of acting” or “a mode of procedure.” Manner, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2014). Put
differently, a “manner” is “[a] way of doing something or the
way in which a thing is done or happens.” Manner, The
American Heritage Dictionary of the English Language (5th
ed. 2018). “Manner” may therefore refer to a general way of
doing something or the more specific way in which an action
is carried out. The word had a similarly broad meaning when
the first two federal death penalty statutes were passed in 1790
and 1937. See Manner, New International Dictionary of the
English Language (2d ed. 1941) (“[A] way of acting; a mode
of procedure; the mode or method in which something is done
or in which anything happens.”); 2 S. Johnson, A Dictionary of
the English Language (1755) (“Custom; habit; fashion.”).1
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”
1
Judge Katsas makes much of the fact that eighteenth-century
dictionaries, including Samuel Johnson’s, also defined “manner” as
a “method,” Concurring Op. 4–5 (Katsas, J.), but he overlooks that
those dictionaries defined “method” in broad terms. For instance,
Johnson’s dictionary states: “Method, taken in the largest sense,
implies the placing of several things, or performing several
operations in such an order as is most convenient to attain some end.”
2 S. Johnson, A Dictionary of the English Language (1755). This
“largest sense” is the only definition Johnson provides for “method.”
Judge Katsas notes that “[o]ther dictionaries” also “indicate that
‘manner’ is synonymous with ‘method’ as well as ‘mode.’”
Concurring Op. 4 (Katsas, J.). These dictionaries, however, are not
referring to the narrow sense of “method” employed in the execution
context.
4
is also frequently used to refer to granular details, including in
the FDPA itself. In a provision governing aggravating factors
in homicide cases, the statute reads, “In determining whether a
sentence of death is justified …, the jury … shall consider …
[whether] [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.” 18
U.S.C. § 3592(c)(6). In this instance, the “manner” of
committing homicide refers not to the general method of
killing, but to the precise way in which the offense was
committed.
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., Miss. Code. Ann. § 99-19-51 (“The manner of
inflicting the punishment of death shall be by the sequential
intravenous administration of a lethal quantity of the following
combination of substances ….”); Md. Code Ann., Correctional
Services, § 3–905 (repealed in 2013) (“The manner of inflicting
the punishment of death shall be the continuous intravenous
administration of a lethal quantity of an ultrashort-acting
barbiturate or other similar drug in combination with a
chemical paralytic agent.”); Colo. Rev. Stat. Ann. § 18-1.3-
1202 (“The manner of inflicting the punishment of death shall
be by the administration of a lethal injection …. For the
purposes of this part 12, ‘lethal injection’ means a continuous
intravenous injection of a lethal quantity of sodium thiopental
or other equally or more effective substance.”).
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
5
humans.” (quoting a party’s expert report)); id. at 2790(Sotomayor, J., dissenting) (“These assertions were amply
supported by the evidence of the manner in which midazolam
is and can be used.”); Baze v. Rees, 553 U.S. 35, 57 (2008)
(plurality opinion) (“[T]he Commonwealth’s continued use of
the three-drug protocol cannot be viewed as posing an
‘objectively intolerable risk’ when no other State has adopted
the one-drug method and petitioners proffered no study
showing that it is an equally effective manner of imposing a
death sentence.”); Holden v. Minnesota, 137 U.S. 483, 491
(1890) (“[The state statute] prescribes … the manner in which[]
the punishment by hanging shall be inflicted.”); Williams v.
Hobbs, 658 F.3d 842, 849 (8th Cir. 2011) (“The prisoners next
contend that they have demonstrated a facially plausible claim
that the Act [which provides for lethal injection in all cases] …
increases mental anxiety before execution since the prisoners
cannot know the manner in which they will be executed.”).2
These examples demonstrate that the word “manner” is used
2
See also Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 474
(1947) (Burton, J., dissenting) (“The Supreme Court of Louisiana has
held that electrocution, in the manner prescribed in its statute, is more
humane than hanging.”); In re Kemmler, 136 U.S. 436, 443–44
(1890) (“‘[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 result in instantaneous, and consequently in
painless, death.’” (citation omitted)); Harris v. Dretke, No. 04-
70020, 2004 WL 1427042, at *1 (5th Cir. June 23, 2004) (“David
Harris appeals the dismissal of his suit … challenging the manner in
which the State of Texas intends to carry-out his execution by lethal
injection.”).
6
frequently in the execution context as a broad term that may
encompass any level of detail.3
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.” 18 U.S.C.
§ 3596(a). In this context, “manner” does not operate in
isolation, but is modified by the requirement that the Marshal
adopt the manner “prescribed by the law of the State.” The
district court did not address this qualifying language, and both
parties gloss over it. In defending the 2019 protocol, the
government contends that the Marshal must apply only the
state’s method of execution, without reference to other details
that might be included in state law; the plaintiffs contend that
the Marshal must apply all state procedures, again without
reference to whether those procedures were prescribed by state
law. The government’s distinction is not found anywhere in the
FDPA, while the plaintiffs’ interpretation would read the
phrase “prescribed by … law” out of the statute entirely.
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
3
As the question before us concerns the meaning of the FDPA and
whether “manner” can include procedural details prescribed by state
law, it is of no consequence that the Supreme Court recognized
constitutional challenges to the procedural details of execution only
relatively recently. See Concurring Op. 11–12 & n.6 (Katsas, J.).
7
States v. Howard that a Florida regulation was part of the “law
of the state” because violations of the regulation were
“punishable as a misdemeanor.” 352 U.S. 212, 216–17, 219
(1957). In Chrysler Corporation v. Brown, the Court held that
the phrase “authorized by law” encompasses “properly
promulgated, substantive agency regulations” that “have the
‘force and effect of law.’” 441 U.S. 281, 295–96 (1979); 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
4
Judge Tatel argues that the four state execution protocols at issue
in this case are in fact part of the “manner prescribed by the law of
the State” because they were adopted pursuant to state statutes that
“delegate to state prison officials the task of developing specific
execution procedures.” Dissenting Op. 2. In other words, because
8
In light of the FDPA’s requirement that the manner of
execution be prescribed by state “law,” the district court’s
expansive interpretation of Section 3596(a) fails because it
includes state procedures regardless of whether they are part of
state “law.” See Matter of Fed. Bureau of Prisons’ Execution
Protocol Cases, No. 12-CV-0782, 2019 WL 6691814, at *6
(D.D.C. Nov. 20, 2019) (citing informal execution policies
from Texas, Missouri, and Indiana). The FDPA simply does
not require the U.S. Marshal to follow aspects of a state
execution procedure that were not formally enacted or
promulgated. “[P]rescribed by the law of the State” sets an
outer boundary on what the federal government must follow.
On the other hand, the statutory command also means that the
federal government cannot look only to the “method” of
execution prescribed by the state. The interpretation adopted
by Judge Katsas and the government does not account for other
details that might be included in state law and formal
regulations. While, as discussed below, formal state law often
“‘by law,’ each state directed its prison officials to develop execution
procedures, and ‘by law,’ those officials established such procedures
and set them forth in execution protocols,” Judge Tatel contends that
the protocols are subsumed within the phrase “prescribed by … law.”
Id. at 4–5. Yet neither the Supreme Court nor our court has ever
adopted such a capacious understanding of “law.” Instead, the
Supreme Court has directed that we ask whether a protocol has the
“force and effect of law,” Chrysler, 441 U.S. at 295–96, and not
everything an official does pursuant to his statutory authority carries
the force of law. For instance, agencies issue interpretive rules
pursuant to their statutory authority, yet interpretive rules
emphatically do not carry the force of law. See, e.g., Perez v. Mortg.
Bankers Ass’n, 575 U.S. 92, 97 (2015). Indeed, the Supreme Court
explicitly said in Chrysler that neither “[a]n interpretive regulation
[nor] general statement of agency policy” can be considered an
“authorization by law” because they lack “the binding effect of law.”
441 U.S. at 315–16 (alterations omitted).
9
specifies little more than the method of execution, the federal
government is nonetheless bound by the FDPA to follow the
level of detail prescribed by state law.5
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.” 18 U.S.C. § 3596(a)
(emphasis added). This broad language encompasses more than
earlier federal death penalty statutes, which incorporated state
law only to define the “manner of inflicting the punishment of
death.” See An Act to Provide for the Manner of Inflicting the
Punishment of Death § 323, 50 Stat. 304, 304 (June 19, 1937);
An Act for the Punishment of Certain Crimes § 33, 1 Stat. 112,
119 (Apr. 30, 1790). The ordinary meaning of “implementation
of the sentence” includes more than “inflicting the punishment
of death.” The latter refers to the immediate action of
execution, whereas “implementation of the sentence” suggests
5
Judge Katsas claims that the “participial phrase ‘prescribed by the
law of the State’ functions as an adjective,” and adjectives usually
“do not expand the meaning of the noun they modify.” Concurring
Op. 19 (Katsas, J.). This argument begs the question: It makes sense
only if we presume that the word “manner” refers exclusively to the
general method. But there is no evidence of such an exclusive
meaning. Rather, as cases and statutes demonstrate, the word
“manner” is broad enough to encompass execution procedures at
every level of generality. The phrase “prescribed by the law of the
State” actually narrows the meaning of the word “manner.” Thus,
my reading is consistent with the most common grammatical
function of a participial phrase.
10
additional procedures involved in carrying out the sentence of
death.6
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.
6
Compare Implementation Plan, Black’s Law Dictionary (10th ed.
2014) (“An outline of steps needed to accomplish a particular goal.”),
with Inflict, Merriam-Webster’s Collegiate Dictionary (11th ed.
2014) (“[T]o cause (something unpleasant) to be endured.”).
11
An interpretation requiring the federal government to
follow all procedures prescribed by state statutes and formal
regulations, but no more, similarly coheres with the statute’s
directive that the Marshal “supervise” implementation of the
sentence. 18 U.S.C. § 3596(a). To “supervise” is to
“superintend” or “oversee.” See Supervise, Merriam Webster’s
Collegiate Dictionary (11th ed. 2014). The concept of
supervision does not fit with DOJ’s position that it may
establish a uniform protocol for all procedures short of the
method of execution specified by state law. In the context of
executing the law, supervision must occur within legal
boundaries. While supervision often includes a degree of
discretion, it does not include authority to create new law or to
act in contravention of law. See Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 588 (1952) (emphasizing that “the
President’s power to see that the laws are faithfully executed”
does not include the power to “make laws which the President
is to execute”). Elsewhere, Congress used more active
language. In the 1937 statute, for instance, the Marshal was
“charged with the execution of the sentence,” 50 Stat. at 304,
and other provisions of the FDPA refer to “carr[ying] out” an
execution. See 18 U.S.C. § 3596(b), (c). Congress’s choice in
Section 3596(a) to provide only that the Marshal will
“supervise” implementation hardly suggests that DOJ was
given the authority to dictate nearly every aspect of the
execution procedure regardless of what state law prescribes.
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.
12
The FDPA specifies one exception to the general rule that
the federal government must follow state law—the federal
government may choose state or federal facilities for
executions, irrespective of state law. Section 3597(a) addresses
the question of where executions will take place and which
facilities the Marshal may use. It provides that the Marshal
“may use appropriate State or local facilities,” so long as the
Marshal “pay[s] the costs thereof.” 18 U.S.C. § 3597(a). This
language establishes that the Marshal has discretion to choose
between state and federal facilities, notwithstanding any state
law requiring executions in a particular location. Under
familiar canons of construction, the more specific provision
controls the general. See RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (noting this
canon “is a commonplace of statutory construction” (citation
omitted)). Section 3596(a) directs the government to follow a
state’s death penalty law generally, while Section 3597(a) is
best read as an exception, specifying one aspect of the
execution process by allowing the federal government a choice
of location. See id.7
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
7
While it is true that Section 3597 is not written explicitly as an
exception, see Concurring Op. 13 (Katsas, J.), it provides specific
authority that supersedes the general reliance on state law.
13
implementation of federal death sentences. For instance, at
least some state protocols are not publicly available. See Ark.
Code Ann. § 5-4-617(i)(1)(C). Others are “revised as needed”
through informal means. See Indiana State Prison Facility
Directive, ISP 06-26: Execution of Death Sentence 14 (Jan. 22,
2014). When Congress used the term “prescribed by the law of
the State,” it did not mean secret policies and constantly
changing informal protocols.8
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.
8
This interpretation is largely consistent with other courts to have
considered the issue. The Fifth Circuit upheld a death sentence under
an earlier version of DOJ’s protocol because nothing in the protocol
was “inconsistent with Texas law.” United States v. Bourgeois, 423
F.3d 501, 509 (5th Cir. 2005). The only source of law the court
considered was Texas’s criminal code, id., which does not provide
for specific procedures or designate a lethal substance. See Tex. Code
Crim. Proc. Ann. art. 43.14. Similarly, the District of Vermont held
that a U.S. Marshal is “to adopt local state procedures for execution,”
but the court looked only to state statutes in defining the state’s
procedures. See United States v. Fell, No. 5:01-CR-12-01, 2018 WL
7270622, at *4 (D. Vt. Aug. 7, 2018); but see Higgs v. United States,
711 F. Supp. 2d 479, 556 (D. Md. 2010) (declining to reach the
Section 3596(a) question, but briefly suggesting in dicta that
“manner” refers only to lethal injection).
14
B.
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
15
punishment for many capital crimes was to be “hanged by the
neck till dead.” 4 W. Blackstone, Commentaries on the Laws
of England 370 (1769). Notably, Blackstone does not say that
hanging by the neck was the “manner” of execution. He says
that hanging was the “judgment” pronounced by the court. Id.
Indeed, this passage never uses the word “manner.” Later,
Blackstone wrote that a “sheriff cannot alter the manner of the
execution by substituting one death for another.” Id. at 397.
Nor could the king substitute one death for another—for
instance, by “altering the hanging or burning into beheading.”
Id. at 397–98. Nothing in this passage suggests that the choice
of general method was the only detail encompassed by the term
“manner of the execution.” At most, this passage shows that
changing the general method was one way to change the
manner of execution.
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
16
result in instantaneous, and consequently in painless, death.”
(citation omitted)). The term “manner” in that sentence must
refer to details more specific than the general method of
electrocution. Id.9 Even if at points Wilkerson and Kemmler
refer to hanging and electrocution as manners of execution,
they are still consistent with the ordinary meaning of “manner,”
which can refer to the general and the specific. It is not unusual
for courts to refer to hanging or lethal injection as manners of
execution, just as courts commonly use “manner” to refer to
specific details of an execution procedure. See supra at 4–5.
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
9
I agree with Judge Katsas that the level of detail in the New York
statute is not relevant in itself. Concurring Op. 6 n.2 (Katsas, J.); see
also Chapter 489, Laws of the State of New York §§ 492, 505–07
(June 4, 1888) (regulating execution timing, location, and personnel,
among other things). Indeed, my analysis consistently maintains that
the meaning of the word “manner” does not change whenever a
legislature chooses to specify more or less detail in a given statute,
whether a state statute or the FDPA. Regardless of how detailed the
statute was, the Supreme Court in Kemmler used the word “manner”
to encompass more than the general method of electrocution. See 136
U.S. at 443–44.
17
scope of federal death penalty legislation in 1790 when it chose
hanging as the method of execution. Indeed, the fact that
Congress amended the legally operative text suggests that the
1937 Act did not use “manner” in precisely the same way as
the 1790 statute. See Hall v. Hall, 138 S. Ct. 1118, 1128 (2018)
(stating that a statute “brings the old soil with it” only when
“obviously transplanted”); Merrill Lynch, Pierce, Fenner &
Smith Inc. v. Manning, 136 S. Ct. 1562, 1578 (2016) (Thomas,
J., concurring) (“[W]hen Congress enacts a statute that uses
different language from a prior statute, we normally presume
that Congress did so to convey a different meaning.”).
Statutory predecessors can help us to interpret a modern statute,
but we must respect the changes Congress enacted.
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
18
several occasions that it understood the 1937 statute to require
compliance with state procedures. In its 1993 protocol, DOJ
hypothesized that Congress might have repealed the 1937
statute because it “no longer wanted the federal method of
execution dependent on procedures in the states, some of which
were increasingly under constitutional challenge.” 58 Fed. Reg.
at 4,899 (discussing repeal of the 1937 statute in 1984).
Similarly, Attorney General Janet Reno wrote shortly before
the FDPA’s enactment that the bill “contemplate[s] a return to
an earlier system in which the Federal Government does not
directly carry out executions, but makes arrangements with
states to carry out capital sentences in Federal cases.” See H.R.
Rep. No. 104-23, at 22 (1995) (quoting Letter from Attorney
General Janet Reno to Hon. Joseph R. Biden, Jr., at 3–4 (June
13, 1994)). While such sources are not determinative of the
meaning of the FDPA, they demonstrate that the Department’s
narrow interpretation of the statute has hardly been
consistent.10
10
Judge Katsas also argues that between 1790 and 1937, “nobody
[was] focused on subsidiary procedural details in the legal or policy
debates over [] various execution methods.” Concurring Op. 7
(Katsas, J.). Even assuming that assessment is correct, it has no
bearing on the broader sense of “manner” or how it was used in the
FDPA. This observation would be relevant only to the meaning of
“manner” in statutes that do not specify the scope of the term’s
application. For example, if the FDPA said something like “the
manner employed by the state,” then we would have to determine, as
Judge Katsas asks, “the level of detail at which [Section 3596(a)]
operates.” Id. at 1. Yet the FDPA explicitly specifies the level of
detail—it is the level of detail “prescribed by the law of the State.”
That leaves a question of what is included in the “law of the state,”
but it does not leave open the level of generality regarding the
manner of execution.
19
Despite rejecting DOJ’s historical evidence, I start from
the same fundamental principle: that we should not “depart
from the original meaning of the statute at hand.” New Prime
Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019). As explained, the
meaning of the word “manner” has always been broad, and its
application has always depended on context. DOJ, however,
asks us to go beyond established canons of interpretation:
Rather than apply the original, broad sense of the word
“manner,” DOJ argues that the word should be deprived of its
ordinary meaning because Congress chose on a single occasion
in 1790 to specify one level of detail. There is no support for
this novel approach.
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”
11
Judge Katsas’s only linguistic critique of the sense-reference
distinction is that sense and reference arguably converge when
dealing with proper names, Concurring Op. 8 n.3 (Katsas, J.),
something that is completely irrelevant to this case. We both agree
with Justice Scalia (and Professor Green, for that matter) that statutes
have “a fixed meaning, which does not change.” Id. That recognition
20
meant in 1790 (i.e., what sense it carried), DOJ focuses
narrowly on which procedures Congress chose to require on
one occasion (i.e., the reference of “manner”). According to
DOJ, the word “manner” in 1994 cannot be broad enough to
refer to specific procedures unless the 1790 statute also referred
to specific procedures. But Congress’s choice not to specify
details like the length of the rope did not change the underlying
meaning of the word “manner.” The word “manner” was broad
enough in 1790 to encompass more than the general method (as
demonstrated by the statute’s discussion of maiming), and the
word retains that broad sense today. There is simply no reason
to artificially cabin the word in later statutes so that it refers
only to the same kinds of procedures required by Congress in
1790.
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
does nothing to undermine the commonly accepted distinction
between a word’s meaning and the thing the word refers to on a given
occasion.
21
Inc., 139 S. Ct. at 539 (explaining that statutes incorporating a
general body of law must be read to incorporate “later
amendments and modifications”).12
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.
12
Failing to find support in the FDPA’s text, history, or practice, DOJ
tries to prop up its arguments with the 1937 statute’s legislative
history. This legislative history, however, did not run the Article I,
section 7, gauntlet, and cannot determine a statute’s meaning. Even
for those who find legislative history persuasive, the evidence is thin.
DOJ explains that the House Judiciary Committee twice used the
word “method” to refer to executions by hanging, electrocution, and
gas. H.R. Rep. No. 75-164, at 1 (1937). DOJ argues that because the
Committee changed the word “method” to “manner” in the statute, it
must have understood the two words to be synonymous. Yet the
legislative history is silent about why the Committee made that
choice in the final text of the FDPA. If we are playing the legislative
history guessing game, another inference is perhaps more likely: that
Congress chose to use a different word in order to convey a different
meaning. Cf. Allina Health Servs. v. Price, 863 F.3d 937, 944 (D.C.
Cir. 2017). Ultimately, however, legislative history is not the law,
and the history from 1937 tells us little about what the 1937 statute
meant, much less what the 1994 FDPA means.
22
In sum, the historical evidence does not suggest the term
“manner” has the narrow meaning pressed by DOJ; neither
does it support the plaintiffs’ conclusion that the federal
government may not create national procedures that govern in
the absence of any state law. Rather, for over 200 years,
Congress has used the term “manner” flexibly, with the word’s
scope clarified by additional specifying language—“hang[ing]
by the neck,” slit[ting] the nose, and “prescribed by the law of
the State.” In light of this history, the best interpretation follows
the plain meaning of the FDPA, which specifies that “manner”
is whatever is prescribed by state law. This interpretation
respects Congress’ decision to create a federal death penalty
that relies on federalism. The FDPA requires DOJ to follow the
procedures set forth in state laws and regulations but does not
foreclose federal protocols that apply in areas not addressed by
state law.
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
13
Judge Katsas suggests that arguments about consequences are
relevant to “help resolve textual ambiguity.” Concurring Op. 16 n.8
(Katsas, J.). Yet the word “manner” as used in Section 3596 is not
23
DOJ’s concerns are rooted in what the Department deems
to be the purposes of the FDPA. DOJ Br. 15; see also
Concurring Op. 13 (Katsas, J.) (discussing one purpose of the
FDPA “to ensure a workable and expanded system of capital
punishment”). As a court, however, “our function [is] to give
the statute the effect its language suggests,” not to further
whatever “admirable purposes it might be used to achieve.”
Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 270
(2010). DOJ urges us to give the FDPA the interpretation
producing what it believes would be the most effective
execution regime, but to do so would ignore both the limited
nature of our judicial function and the realities of legislative
deliberation:
[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).
ambiguous. Rather, as already explained, the ordinary meaning of
the word “manner” is broad and flexible, but as qualified in the
FDPA, the “manner” of execution is unambiguous: It is whatever
“manner” is prescribed by applicable state law. See supra at 6–8; see
also Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (“Broad
general language is not necessarily ambiguous”). Speculations about
congressional intent are rarely illuminating, particularly when, as
here, the text of the statute provides the relevant level of specificity.
24
In the FDPA, Congress incorporated state law instead of
directing DOJ to promulgate a uniform protocol. This suggests
that Congress was balancing at least two competing values: the
need to effectively implement federal death sentences and an
interest in federalism. Perhaps Congress simply decided to
duck controversial specifics by leaving some questions to state
law. Whatever the reason, statutes strike a bargain and must be
enforced in their details, not in their lofty goals. After all, “[i]f
courts felt free to pave over bumpy statutory texts in the name
of more expeditiously advancing a policy goal, we would risk
failing to take account of legislative compromises essential to
a law’s passage and, in that way, thwart rather than honor the
effectuation of congressional intent.” New Prime Inc., 139 S.
Ct. at 543 (quotation marks and alterations omitted). We should
decline DOJ’s invitation to question the bargain Congress
struck here. To the extent more detailed state statutes raise
additional interpretive questions, that is an unavoidable
consequence of the incorporation of state law. Unless and until
Congress amends the FDPA, DOJ is bound to “follow its
commands as written, not to supplant those commands with
others it may prefer.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348,
1355 (2018). We have no license to read into the FDPA a
limitation on “manner” that has no basis in the text and to read
out of the statute its incorporation of state law.
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
25
execution methods also differed, albeit to a lesser extent, when
the FDPA was passed in 1994. Thus, even under DOJ’s
interpretation that “manner” means only method, until recently
the federal government would have had to apply varying
execution methods on a state-by-state basis. DOJ claims that
state-by-state administration is unworkable, but state-by-state
administration has indisputably been a feature of this statutory
framework since 1937. A uniform method is possible under
DOJ’s interpretation only because all the death penalty states
have made independent choices since the FDPA’s enactment
to adopt the method of lethal injection.
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
26
DOJ’s concerns, they are necessary features of the statute
Congress enacted.14
In any event, as a practical matter, my textual
interpretation of the FDPA mitigates many of the concerns
raised by the district court’s broad reading. The FDPA’s
reliance on state law leaves ample scope for DOJ to follow its
federal execution procedures and protocols. Few of the
procedural details cited by the plaintiffs appear to carry the
force of law, so the federal government need not follow them.
State execution statutes tend to be rather brief, specifying lethal
injection without adding further details. For example, none of
the four states at issue in this case have statutes precluding the
use of pentobarbital. See Tex. Code Crim. Proc. Ann. art. 43.14
(calling for lethal injection without specifying which chemical
to be used); Ark. Code Ann. § 5-4-617 (allowing lethal
injection using either a barbiturate like pentobarbital or a three
drug solution); Ind. Code § 35-38-6-1 (calling for lethal
injection without specifying which chemical must be used);
Mo. Ann. Stat. § 546.720 (calling for lethal injection without
specifying which chemical must be used).
14
Like the DOJ, Judge Tatel invokes the FDPA’s goal of ensuring
more humane executions, but to support the opposite interpretation.
He argues that reading “prescribed by the law of the State” to exclude
non-binding state execution protocols would “defeat section
3596(a)’s purpose—to make federal executions more humane by
ensuring that federal prisoners are executed in the same manner as
states execute their own.” Dissenting Op. 8. Yet that argument
deprives the phrase “prescribed by … law” of all meaning. If
Congress had intended the federal government to incorporate all of
the state’s execution procedures, it would have said so. Instead,
Congress chose to incorporate only the manner prescribed by state
law.
27
Indeed, I have not been able to locate statutes or formal
regulations in any state that would prevent the federal
government from using pentobarbital, the drug currently
specified in DOJ’s protocol addendum. In the rare cases where
state law provides for a particular substance, states generally
either include pentobarbital on the list of permitted substances,
see 501 Ky. Admin. Regs. 16:330 (allowing either
pentobarbital or thiopental sodium), or include a general
provision allowing any equally effective substance, see Utah
Admin. Code r. 251-107-4 (providing for “a continuous
intravenous injection, one of which shall be of a lethal quantity
of sodium thiopental or other equally or more effective
substance to cause death”).
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., Ark. Code Ann. § 5-
4-617(h); Middleton v. Mo. Dep’t of Corr., 278 S.W.3d 193,
195–97 (Mo. 2009); Porter v. Commonwealth, 661 S.E.2d 415,
432–33 (Va. 2008); Abdur’Rahman v. Bredesen, 181 S.W.3d
292, 312 (Tenn. 2005). Even in states that provide for formal
rulemaking, execution protocols tend to be informal and non-
binding. Consider Indiana, the state designated by DOJ
whenever the sentencing state does not provide for the death
penalty. Indiana allows its department of corrections to adopt
rules under the state’s formal rulemaking provisions to
implement its execution statute. See Ind. Code § 35-38-6-1(d).
Yet the state’s current execution procedures were not
promulgated under that statute and do not purport to carry the
force of law. See Indiana State Prison Facility Directive, ISP
06-26: Execution of Death Sentence 14 (Jan. 22, 2014) (noting
that Indiana’s protocol is “revised as needed,” not under the
state’s formal rulemaking procedures, but in accordance with
the department of corrections’ policies). Similarly, both
28
Arkansas’ and Missouri’s protocols permit the director of the
department of corrections to modify certain aspects of the
execution procedures. See Missouri Department of
Corrections, Preparation and Administration of Chemicals for
Lethal Injection 1 (Oct. 18, 2013); Arkansas Lethal Injection
Procedure 3 (Aug. 6, 2015), https://bit.ly/2ExLkTE. A state
execution protocol that explicitly allows the department of
corrections to depart from the protocol’s requirements on a
case-by-case basis cannot be said to be binding. Given that
most details found in state execution protocols are not
prescribed by law, DOJ will be able to make most procedural
choices regarding federal executions.15
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
15
Judge Tatel does not dispute that the four protocols at issue were
not promulgated through formal rulemaking procedures. Instead, he
attempts to cabin Chrysler’s holding to its facts, ignores the
consistent line of cases requiring “law” to have binding effect, see
supra at 7 (collecting cases), and makes a general appeal to
examining “context” when determining whether a regulation issued
outside a formal rulemaking process constitutes “law.” Dissenting
Op. 7–8. Judge Tatel, however, fails to identify a single case
supporting his theory that non-binding protocols can qualify as “law”
in any context—despite the fact that, as Judge Tatel emphasizes,
“prescribed by law” or similar language appears at least 1,120 times
in the United States Code. Id. at 7. As the Court explained in
Chrysler, the question is simply whether these state protocols are
binding on state officials. Because these protocols do not appear to
have the binding force of law, they cannot be deemed part of the “law
of the State.”
29
usually address execution procedures only in general terms.
See supra at 24–26. Should cases arise in which the protocol
differs from state law—for example, in states with more
detailed regulations governing executions, see, e.g., 501 Ky.
Admin. Regs. 16:330; Or. Admin. R. 291-024-0080—DOJ
remains free to depart from the federal protocol. Indeed, the
protocol provides explicitly that the Director may depart from
its procedures in the face of superseding legal obligations—
namely, when “necessary” to “comply with specific judicial
orders” or when “required by other circumstances.” BOP
Addendum 1; see also Department of Justice, BOP Execution
Protocol 4 (2019) (“Execution Protocol”) (“These procedures
should be observed and followed as written unless deviation or
adjustment is required ….”). In addition, the protocol directs
BOP to “make every effort … to ensure the execution process
… [f]aithfully adheres to the letter and intent of the law.”
Execution Protocol 4–5. These provisions indicate that the
government must depart from the protocol as necessary to
“adhere to the letter and intent of” the FDPA—including the
requirement that the government apply the manner of execution
prescribed by state law. Reading the protocol and addendum as
a whole suggests that DOJ must follow state law, and not that
the BOP Director is merely granted “discretion.” Dissenting
Op. 9. Because the 2019 protocol allows departures as needed
to comply with state law, it is consistent with the FDPA.
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
30
claim is properly before the court, the court is not limited to the
particular legal theories advanced by the parties, but rather
retains the independent power to identify and apply the proper
construction of governing law.” Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991); see also U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 446–47 (1993).
Irrespective of the government’s litigation strategy, the issue
before us in this case is whether the 2019 protocol exceeds the
government’s authority under the FDPA, and it is entirely
appropriate to conduct an independent assessment of all
relevant materials—including, in particular, the text of the
protocol—in order to fulfill our duty to say what the law is.
Because the district court’s order was premised
exclusively on the plaintiffs’ claim that the protocol was “in
excess of statutory … authority,” 5 U.S.C. § 706(2)(C), I would
vacate the preliminary injunction. I would further hold that the
2019 protocol is a “rule[ ] of agency organization, procedure,
or practice” exempt from the APA’s notice and comment
requirements. See 5 U.S.C. § 553(b). The plaintiffs maintain
we should not reach this claim before the district court has
considered it. It is true that we ordinarily decline to resolve
claims and arguments not addressed by the district court in
deciding a preliminary injunction motion. See Sherley v.
Sebelius, 644 F.3d 388, 397–98 (D.C. Cir. 2011). But if our
holding on appeal makes a conclusion “inevitable” then “we
have power to dispose [of a claim] as may be just under the
circumstances, and should do so to obviate further and entirely
unnecessary proceedings below.” Wrenn v. Dist. of Columbia,
864 F.3d 650, 667 (D.C. Cir. 2017) (cleaned up); see also 28
U.S.C. § 2106 (granting appellate courts authority to “direct the
entry of … judgment … as may be just under the
circumstances”). The plaintiffs’ notice and comment challenge
rises and falls with the merits of their FDPA claim—that the
protocol is a procedural rule follows inescapably from my
31
conclusion that the protocol does not exceed DOJ’s authority
under the FDPA. Because the issues are intertwined and the
plaintiffs’ notice and comment challenge fails under my
interpretation of the FDPA, it is entirely unnecessary for the
district court to address this claim on remand.
“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.” 18 U.S.C. § 3596(a). To the contrary, the protocol
simply lays out procedures for the federal government to
follow in cases where state law does not address some aspect
of the execution process. It directs the federal government in
all cases “to ensure the execution process … [f]aithfully
adheres to the letter and intent of the law,” Execution Protocol
4–5, which necessarily includes following the FDPA’s
directive to implement death sentences in conformity with state
positive law. As such, the protocol cannot be said to “impose
[any] new substantive burdens,” Aulenback, Inc. v. Fed.
Highway Admin., 103 F.3d 156, 169 (D.C. Cir. 1997), or to
“alter the rights or interests of [affected] parties,” Nat’l Min.
Ass’n, 758 F.3d at 250 (citation omitted)—rather, any
substantive burdens are derived from the FDPA and the state
laws it incorporates.
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
32
pre-execution, execution and post execution procedures,”
Execution Protocol 4, including matters as specific as
arranging food services for an inmate’s final meal, id. at 17,
“open[ing] the drapes covering the windows of the witness
rooms” during an execution, id. at 24, and announcing the time
of death “prior to the drapes being closed,” id. at 25. DOJ’s
decision to promulgate detailed “written guidelines to aid [its]
exercise of discretion” during the highly sensitive process of
conducting executions should not come “at the peril of having
a court transmogrify those guidelines into binding norms
subject to notice and comment strictures.” Aulenback, 103 F.3d
at 169 (citation and quotation marks omitted). Because the
protocol possesses the essential features of a procedural rule,
the plaintiffs’ notice and comment challenge also fails.
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
16
The evidence Judge Katsas relies on to conclude that this argument
was not forfeited comes from a chart included in the factual
background section of one plaintiff’s preliminary injunction motion,
summarizing the “Details of 2019 Protocol and Concerns That Are
Implicated.” See Pl.’s Mot. for Prelim. Inj., Roane v. Barr, No. 19-
mc-0145, at 10 (D.D.C. Sept. 27, 2019). Such “fleeting reference[s]”
do not a developed legal argument make. Williams v. Lew, 819 F.3d
466, 471 (D.C. Cir. 2016).
33
by my interpretation of the FDPA. Thus, it will be “for the
district court to determine, in the first instance, whether the
plaintiffs’ showing on [these claims] warrants preliminary
injunctive relief.” Sherley, 644 F.3d at 398.
TATEL, Circuit Judge, dissenting: Plaintiffs Daniel Lee,
Wesley Purkey, Alfred Bourgeois, and Dustin Honken do not
challenge the federal government’s authority to execute them.
Instead, they argue that the Attorney General’s plan for their
executions—that is, the federal protocol—conflicts with
section 3596(a) of the Federal Death Penalty Act of 1994
(FDPA), 18 U.S.C. §§ 3591 et seq. Section 3596(a) instructs
U.S. Marshals to carry out federal death sentences by arranging
for prisoners to be executed “in the manner prescribed by the
law of the State” in which they were sentenced—or, if that state
has no death penalty, the law of “another State” “designate[d]”
by the sentencing judge. Id. § 3596(a). Notwithstanding its
weighty subject matter, then, this case presents a classic
question under the Administrative Procedure Act: whether an
agency has acted “in accordance with law.” 5 U.S.C.
§ 706(2)(A).
In defending the federal protocol, the government argues
that the word “manner” in section 3596(a) refers only to the
general execution method—e.g., lethal injection—not, as
plaintiffs argue, to the procedures and techniques used to
implement that method, e.g., substance administered or dosage.
Because the government seeks no deference to its interpretation
of the statute, see Oral Arg. Rec. 5:57–6:00 (confirming this),
to prevail it must demonstrate not merely that its interpretation
of section 3596(a) is reasonable, but that it “best effectuates the
underlying purposes of the statute.” Vanguard Interstate Tours,
Inc. v. ICC, 735 F.2d 591, 597 (D.C. Cir. 1984).
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.
2
Beyond this, Judge Rao and I part company. She would
hold that when carrying out executions under section 3596(a),
the Attorney General must comply with state execution
procedures set forth in “statutes and formal regulations,” but
not those in state execution protocols. Rao Op. at 1. She also
reads the federal protocol to contain a “carveout” “indicat[ing]
that the government must depart from the protocol as necessary
to . . . apply the manner of execution prescribed by state law.”
Id. at 1, 29. The government, however, makes neither
argument, and the protocol contains no such carveout. In my
view, section 3596(a), best understood, requires federal
executions to be carried out using the same procedures that
states use to execute their own prisoners—procedures set forth
not just in statutes and regulations, but also in protocols issued
by state prison officials pursuant to state law. Because the
federal protocol, on its face, takes no account of these
procedures, it is contrary to section 3596(a), and I would vacate
it. See 5 U.S.C. § 706(2)(A), (C) (requiring courts to “hold
unlawful and set aside agency action . . . found to be . . . not in
accordance with law” or “in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right”).
Plaintiffs were sentenced to be executed “in the manner
prescribed by the law,” 18 U.S.C. § 3596(a), of Arkansas,
Missouri, Texas, and Indiana, respectively. All four states have
enacted statutes that establish lethal injection as the method of
execution and delegate to state prison officials the task of
developing specific execution procedures. Pursuant to these
statutes, state officials have adopted execution protocols that
designate, among other things, the chemicals to be
administered, dosages, procedures for vein access, and
qualifications of execution personnel. State officials adopt such
protocols not just to comply with state law, but also to ensure
3
that executions comply with the Constitution. Cf. Baze v. Rees,
553 U.S. 35, 55–56 (2008) (plurality opinion) (rejecting Eighth
Amendment method-of-execution challenge “in light of”
“important safeguards” contained in state execution protocol,
including “that members of the [intravenous] team . . . have at
least one year of professional experience” and specific vein-
access procedures); Raby v. Livingston, 600 F.3d 552, 560 (5th
Cir. 2010) (rejecting Texas inmate’s Eighth Amendment claim
because state execution protocol “mandates . . . that sufficient
safeguards are in place to reduce the risk of pain below the level
of constitutional significance”).
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.” Tex. Code Crim. Proc. Ann. art. 43.14(a). Pursuant to
that statute, the Director “adopt[ed]” an “Execution
Procedure,” under which “100 milliliters of solution containing
5 grams of Pentobarbital” “shall be mixed . . . by members of
the drug team,” which, in turn, “shall have at least one
medically trained individual,” a term defined in the protocol.
Texas Department of Criminal Justice, Correctional
Institutions Division, Execution Procedure 2, 7–8 (Apr. 2019),
Administrative Record (A.R.) 84, 89–90. The protocol further
requires that intravenous lines be inserted by “a medically
trained individual” who “shall take as much time as is needed”
to do so “properly,” and who is prohibited from employing a
“cut-down” technique, a surgical procedure that exposes the
vein. Id. at 8, A.R. 90.
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
4
necessary appliances” for carrying out lethal injections and
requires “[t]he director . . . [to] select an execution team.” Mo.
Rev. Stat. § 546.720.1–2. Pursuant to that statute, the Director
issued a protocol requiring prisoners to be executed using two
five-gram doses of pentobarbital—quantities that “may not be
changed without prior approval of the department director”—
which “shall be injected into the prisoner . . . under the
observation of medical personnel,” namely, “a physician,
nurse, and pharmacist.” Missouri Department of Corrections,
Preparation and Administration of Chemicals for Lethal
Injection 1–2 (Oct. 18, 2013), A.R. 70–71.
The other two states—Arkansas and Indiana—have
similar statutory schemes. See Ark. Code Ann. § 5-4-617 (“The
director [of the Department of Correction] shall develop
logistical procedures necessary to carry out the sentence of
death, including . . . [e]stablishing a protocol for any necessary
mixing or reconstitution of the drugs and substances set forth
in this section in accordance with the instructions.”); Ind. Code
§ 35-38-6-1 (authorizing “[t]he department of correction [to]
adopt rules” to implement lethal-injection statute); see also
Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016)
(discussing Arkansas’s lethal injection protocol); Department
of Correction, Indiana State Prison Facility Directive, ISP 06-
26: Execution of Death Sentence 16–17 (Jan. 22, 2014), Mot.
for Prelim. Inj. Barring the Scheduled Execution of Pl. Dustin
Lee Honken, Ex. 6, In the Matter of the Federal Bureau of
Prisons’ Execution Protocol Cases, No. 19-mc-145 (D.D.C.
Nov. 5, 2019).
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
5
procedures, and “by law,” those officials established such
procedures and set them forth in execution protocols.
Accordingly, the protocols have been “prescribed by . . . law.”
18 U.S.C. § 3596(a). Apparently agreeing, the government
argues that interpreting “manner” to mean more than
“method,” as Judge Rao and I do, would require it to use the
same drugs as the states—drugs “prescribed” in the relevant
states’ protocols, not in their statutes. See Appellants’ Br. 29.
Indeed, at oral argument government counsel rejected the
notion that “the law of the State” excludes execution protocols,
calling it “incongruous to think that Congress thought the
degree of federal control over how to implement . . . a federal
execution was going to depend on the happenstance of exactly
where in its law or regulation or sub-regulatory guidance a state
chose to write out very detailed procedures.” Oral Arg. Rec.
39:12–32.
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 section 3596(a) to include state
execution protocols “best effectuates the underlying purposes
of the statute,” Vanguard Interstate Tours, 735 F.2d at 597. As
Judge Rao points out, section 3596(a) replicates nearly word-
for-word the statute that governed federal executions from
1937 to 1984. Like the FDPA, that statute required executions
to be carried out in “the manner prescribed by the laws of the
State within which the sentence [wa]s imposed,” or, if that state
had no death penalty, another state designated by the
sentencing court. Act of June 19, 1937, ch. 367, 50 Stat. 304(repealed 1984) (“1937 Act”). Central to the issue before us,
Congress passed the 1937 Act because the states were
undertaking serious efforts to make executions more humane.
See H.R. Rep. 75-164 at 2 (1937) (letter from Attorney General
Homer Cummings) (advising Congress that states “have
6
adopted more humane methods” of execution than hanging and
recommending that “the Federal Government likewise . . .
change its law in this respect”); see also Stuart Banner, The
Death Penalty: An American History 171 (2002) (explaining
that, as early as the 1830s, states had begun experimenting with
execution procedures, endeavoring to “minimize the
condemned person’s pain”). Accordingly, almost all federal
executions pursuant to the 1937 Act were carried out by state
officials, who, supervised by U.S. Marshals, executed federal
prisoners in the same “manner” as they executed their own. See
Oral Arg. Rec. 15:00–03 (government counsel agreeing that
most executions pursuant to the 1937 Act were carried out in
state facilities); David S. Turk, Forging the Star: The Official
Modern History of the United States Marshals Service 23–24
(2016) (describing how the U.S. Marshal arranged for Ethel
and Julius Rosenberg to be executed at Sing-Sing Correctional
Facility, then home to New York state’s death row and electric
chair).
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 section 3596(a) to exclude state execution
protocols, which set forth the very procedures states use to
carry out executions humanely, would run contrary not only to
section 3596(a)’s “‘ultimate purpose[]’” of ensuring more
humane executions, but also to “‘the means [Congress] has
deemed appropriate . . . for the pursuit of [that] purpose[]’”—
requiring federal prisoners to be executed in the same manner
as states execute their own. Gresham v. Azar, 950 F.3d 93, 101
(D.C. Cir. 2020) (quoting MCI Telecommunications Corp. v.
7
American Telephone & Telegraph Co., 512 U.S. 218, 231 n.4
(1994)). And at least as recently as 2008, the states have “by all
accounts” “fulfilled” their “role . . . in implementing their
execution procedures . . . with an earnest desire to provide for
a progressively more humane manner of death.” Baze, 553 U.S.
at 51.
Judge Rao argues that state execution protocols are not
“prescribed by . . . law” within the meaning of section 3596(a)
because they are not “formal regulations.” Rao Op. at 1. In
support, she cites Chrysler Corp. v. Brown, 441 U.S. 281(1979), in which the Supreme Court considered a provision of
the Trade Secrets Act that protected confidential information
by prohibiting its disclosure unless “‘authorized by law,’” id.
at 294 (quoting 18 U.S.C. § 1905). The Court held that a
regulation issued pursuant to an agency’s “housekeeping”
statute and without notice-and-comment procedures did not
qualify as “law” under the Act. Id. at 309–16. From this, Judge
Rao concludes that the word “law” in FDPA section 3596(a) is
limited to regulations issued pursuant to notice-and-comment
procedures. See Rao Op. at 7, 28 n.13.
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
8
manner prescribed by the law of the State” to execution
procedures contained in statutes and in regulations issued
pursuant to notice and comment, and thereby excluding those
contained in state execution protocols, would defeat section
3596(a)’s purpose—to make federal executions more humane
by ensuring that federal prisoners are executed in the same
manner as states execute their own.
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, section 3596(a)
shifts authority for determining how to “implement” death
sentences to the states, leaving no comparable authority for the
Attorney General. Indeed, apart from the Attorney General’s
authority to establish procedures unrelated to “effectuat[ing]
the death,” see infra at 12, the statute assigns the Attorney
General just three narrow tasks: keeping custody of persons
sentenced to death until they exhaust their appeals, 18 U.S.C.
§ 3596(a); releasing prisoners into Marshal custody for
implementation of their death sentences, id.; and approving the
amount Marshals may pay for the use of state facilities and
personnel, id. § 3597(a).
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 . . .
9
apply the manner of execution prescribed by state law.” Rao
Op. at 1, 29. But it does not. In relevant part, the protocol states:
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 section 3596(a), and it
leaves the decision to “modif[y]” protocol procedures to “the
discretion” of the BOP Director, id. Moreover, only the third
justification for departing from the protocol—“other
circumstances,” id.—could possibly encompass inconsistent
state law. But the government—which, after all, wrote the
protocol—does not so argue. At most, the government suggests
that it could exercise its residual discretion in accordance with
state law, noting that “nothing in the federal protocol expressly
precludes” “offer[ing] . . . a sedative” or having a physician
present. Appellants’ Br. 33 (referring to the two differences
between the federal protocol and the relevant state protocols
identified by the district court).
Where, as here, agency action is challenged under the
Administrative Procedure Act, we can uphold the action only
10
on “[t]he grounds . . . upon which the record discloses that [it]
was based.” SEC v. Chenery Corp., 318 U.S. 80, 87 (1943).
Throughout this litigation, the government has insisted that
requiring it to comply with state law would be “perverse[],”
Appellants’ Br. 19, and would “hamstring” implementation of
the federal death penalty, Reply Br. 13. We have no authority
to rewrite the protocol to ensure it complies with the FDPA.
“[A]gency policy is to be made, in the first instance, by the
agency itself . . . . Courts ordinarily do not attempt . . . to
fashion a valid regulation from the remnants of the old rule.”
Harmon v. Thornburgh, 878 F.2d 484, 494 (D.C. Cir. 1989).
The problem with Judge Rao’s interpretation of the protocol,
then, is not just that it represents an “independent assessment”
of the protocol’s meaning, Rao Op. at 30, but more
fundamentally that “it sustains a rule which the agency has
never adopted at all,” Harmon, 878 F.2d at 495 n.20.
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 28 C.F.R.
§ 26.3) (1993 Regulation). This regulation was a gap-filler:
several years earlier, Congress had repealed the 1937 Act,
leaving unclear how federal executions would be carried out.
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While Congress was considering the bill that would become the
FDPA, General Barr’s successor, Attorney General Janet Reno,
warned that section 3596(a)’s “proposed procedures
contemplate a return to an earlier system”—i.e., the 1937
Act—“in which the Federal Government does not directly
carry out executions, but makes arrangements with states to
carry out capital sentences in Federal cases.” H.R. Rep. No.
104–23, at 22 (1995) (quoting Letter of Attorney General Janet
Reno to Honorable Joseph R. Biden, Jr., Detailed Comments at
3–4 (June 13, 1994)). She therefore recommended that
Congress amend the bill “to perpetuate the current approach”—
i.e., the 1993 Regulation—“under which the execution of
capital sentences in Federal cases is carried out by Federal
officials pursuant to uniform regulations issued by the Attorney
General.” Id. Despite this recommendation, “Congress didn’t
choose to pursue that known and readily available approach
here. And its choice”—to require executions to be carried out
according to state, not federal, law—“must be given effect
rather than disregarded.” SAS Institute, 138 S. Ct. at 1356.
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,
section 3596(a), like the 1937 Act, relies on the states, not the
Attorney General, to ensure that federal executions are
humane. Perhaps circumstances have changed and authorizing
the Attorney General to select lethal substances, dosages, and
injection procedures would lead to more humane executions.
That, however, “is a decision for Congress and the President to
make if they wish by enacting new legislation.” Loving v. IRS,
742 F.3d 1013, 1022 (D.C. Cir. 2014); see also Rao Op. at 24.
They have ready templates in the nine bills Congress has
considered and rejected in the years since the FDPA’s
enactment, every one of which would have permitted federal
12
executions to be carried out “pursuant to regulations prescribed
by the Attorney General.” H.R. 2359, 104th Cong. § 1 (1995);
see also H.R. 851, 110th Cong. § 6 (2007); H.R. 3156, 110th
Cong. § 126 (2007); S. 1860, 110th Cong. § 126 (2007); H.R.
5040, 109th Cong. § 6 (2006); S. 899, 106th Cong. § 6504
(1999); H.R. 4651, 105th Cong. § 501 (1998); S. 3, 105th
Cong. § 603 (1997); H.R. 1087, 105th Cong. § 1 (1997).
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 section 3596(a) requires the federal
government to follow only “implementation” procedures, 18
U.S.C. § 3596(a), which plaintiffs define as those procedures
that “effectuat[e] the death,” Oral Arg. Rec. 1:01:06, including
choice of lethal substances, dosages, vein-access procedures,
and medical-personnel requirements, see id. 1:01:58–1:05:25.
To be sure, plaintiffs’ interpretation could present courts with
line-drawing challenges: is, for example, color-coding syringes
part of effectuating an execution? But here we face no such
challenges given that the federal protocol fails to account for
state procedures that are obviously integral to
“implement[ing]” a death sentence, 18 U.S.C. § 3596(a).
In any event, if crafting a federal protocol consistent with
the FDPA proves too difficult, then the Attorney General may,
pursuant to section 3596(a), arrange for plaintiffs to be
executed by the relevant states—just as most federal prisoners
have been since 1937. See Oral Arg. Rec. 1:38:13–34
(plaintiffs’ counsel acknowledging as much). The government
fears that states could “block implementation of a federal death
sentence,” Appellants’ Br. 28, but at oral argument government
counsel assured us that the government has no evidence of state
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recalcitrance in this case, see Oral Arg. Rec. 18:50–55
(responding “no” to the question whether there “is any
evidence of” “obstructionism” “in this case”). And if such
problems do come to pass—that is, if section 3596(a)’s
incorporation of state procedures creates obstacles for federal
executions—then Congress will have all the more reason to
revise the statute. Until it does, this court must enforce section
3596(a) as written. “[I]t is never our job to rewrite . . . statutory
text under the banner of speculation about what Congress
might have done had it faced a question that, on everyone’s
account, it never faced.” Henson v. Santander Consumer USA
Inc., 137 S. Ct. 1718, 1725 (2017).