In this case, two Trump Judges vs a Clinton Judge. But even the Trump Judges took two different tacks, so what we have is a per curiam Opinion of the Court presumable shared by Katsas and Rao, a concurring opinion by Katsas, a concurring opinion by Rao and a dissenting opinion by Tatel.
The relevant part of the statute, 18 USC 3596 reads as follows:
A person who has been sentenced to death pursuant to this chapter shall be committed to the custody of the Attorney General until exhaustion of the procedures for appeal of the judgment of conviction and for review of the sentence. When the sentence is to be implemented, the Attorney General shall release the person sentenced to death to the custody of a United States marshal, who 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.
Pretty straightforward statute.
State law dictates the the method of execution, including drug protocol.
And herein lies the problem. Indiana uses a three drug cocktail. However, Justice Department guidelines dictate a single drug, Phenobarbital. The four death row inmates sued on several grounds, including the fact that the Justice Department was not using Indiana protocol as dictated by Federal statute. United States District Judge Tanya Chutkan granted an injunction on that ground, blocking the executions.
The above opinion lifts her injunction, but I feel the en banc DC Circuit will take this case and reverse the three Judge panel.
I oppose the per curiam opinion and the two concurrences and I support the Tatel dissent, as well as the original placement of the injunction by Judge Chutkan.
I should note that the Justice Department merely need to change its protocols to comport with Indiana law, at which time they could push forward with the executions. They just cannot push forward with the executions using a protocol different than Indiana’s.
Congress could rewrite the statute authorizing the Justice Department to write its own protocol for executions.
But I feel that Katsas to a greater extent and Rao to a lesser extent are taking an implausible interpretation of the statute in an attempt to move these executions forward. Tatel is taking the correct interpretation of the statute.
In any event, this will almost certainly be reversed en banc.