[00:00:01] Speaker 01:
Case number 19-5322, in Greek, in the matter of the Federal Bureau of Prison Execution Protocol cases, James H. Rome Jr.

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at L vs. William P. Barr, attorney general at L, appellants.

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Ms.

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Patterson for the appellants, Ms.

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Stetson for the appellees.

[00:00:29] Speaker 05:
Thank you.

[00:00:30] Speaker 05:
May it please the court?

[00:00:31] Speaker 05:
Good morning.

[00:00:32] Speaker 05:
Good morning.

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Melissa Patterson for the federal government.

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I'd like to reserve three minutes for rebuttal.

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The district court here has categorically enjoined the federal government from carrying out four executions

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on just one of the multiple grounds on which plaintiffs sought a preliminary injunction.

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the appeal of a preliminary injunction, we just go ahead and decide the merits of the issue.

[00:01:12] Speaker 05:
Certainly, Your Honor.

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So we don't have to deal with likelihood of success or reparable injury.

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We can just focus on the merits of the case, right?

[00:01:18] Speaker 05:
I think that's right.

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And we think the merits... So why don't we just do that today?

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Why don't you focus on that?

[00:01:23] Speaker 05:
Certainly, Your Honor.

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Turning to the merits of the one ground that the district court addressed, the Federal Death Penalty Act, the FDPA's manner requirement.

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We think that the term manner

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Well, susceptible potentially to multiple meanings needs to be interpreted in light of the long history of that term as used in federal death penalty statutes stretching back to 1790.

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And in those statutes, it has always meant the general means or method of execution at the level of generality of hanging, electrocution, gas.

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That was true in 1790.

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That was true in the 1937 Act.

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We think that was true in 1994 when Congress again used the same term it has.

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So this is a term that comes with a long statutory history.

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And we know that when Congress transplants a term, it brings the soil it came with, the old soil brings it with it.

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So we don't.

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I understand your argument that matter can be method, but why, what's your,

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authority for the proposition that matter can only mean method.

[00:02:35] Speaker 05:
I don't think we need to show that matter can only mean method.

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You don't?

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Isn't that the key question in the case?

[00:02:39] Speaker 05:
No, Your Honor.

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I think the key question in the case is what this term means using all the relevant tools of statutory construction.

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And of course we need to look at how Congress has used this term.

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Congress essentially in 1994

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reenacted a version of the 1937 Act.

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And I urge the court to look at the 1937 legislative history that makes pollucid that what Congress was trying to do in moving from a statute that said the method of execution is hanging to move to a statute that says the manner of execution is that prescribed by the state of conviction, it is clear that what they were trying to do is to entrench a very limited section of state law

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at the level of generality of electrocution or gas, which are the two?

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Except that under the, as best I can tell from the material cited in the briefs, every federal execution under the 37 act, except for three, were carried out by state.

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execution officials.

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In all those executions, the marshal took the condemned person to the state for execution by the state.

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Isn't that true?

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I believe that there were approximately 20 executions under the 1937 Act.

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We have pointed to three that were conducted in federal facilities, but I want to point that... But those three were conducted in the states where the sentence of death had been imposed.

[00:04:17] Speaker 05:
Correct, Your Honor, but they were conducted in federal facilities.

[00:04:20] Speaker 02:
Correct, but every... since you want to rely on the 1937 Act, every execution under the 1937 Act was carried out

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in the state where the condemned person was sentenced?

[00:04:36] Speaker 05:
I don't think that's relevant, Your Honor.

[00:04:37] Speaker 02:
I think what's relevant... Well, you just told me we're supposed to rely on the 37 Act.

[00:04:40] Speaker 05:
Oh, Your Honor, I apologize.

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The fact that it was carried out in the state doesn't tell us much.

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What we need to look at is whether it was carried out according to all the state procedures.

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Now, it is true that the federal government has often opted

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as it is permitted but not required to under both the 1937 Act and as today under the 1994 FDPA, to ask states to use their facilities and personnel.

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And so that often was the case, I think, in the majority of executions under the 1937 Act.

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Yeah.

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Ms.

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Paris, let me ask you, maybe there isn't a different way to look at this.

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So we're interpreting the Federal Death Penalty Act, right?

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Correct.

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3596.

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And yes, the word manner is in there, but that statute gives the, your theory is that manner means only method and that the attorney general has the authority to fill in all the details beyond method, that is.

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Manner means method in this case, lethal injection, everything else, number of injections,

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chemical used where can be filled in by the AG, right?

[00:05:53] Speaker 05:
That's correct.

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Okay.

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And does that come, you're not asking for any deference?

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We are not.

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Okay.

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So, and you're not invoking, as best I could tell, any inherent authority of the Attorney General, right?

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Just the statute?

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Correct.

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Okay.

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So 3596 gives the AG three responsibilities, and only three.

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He retains custody

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during the appeals, when it's time for the execution, he quote, releases the condemned person to the marshal, right?

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And third, he authorizes payment to the states.

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Those are the only three responsibilities the attorney general has under 3596.

[00:06:47] Speaker 05:
I think this may be going to plaintiff's argument that somehow Congress intended to.

[00:06:51] Speaker 02:
No, no, just don't go into plaintiff's argument.

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How would a statute like that, since you're not invoking any other authority, and you're relying just on the plain words of the statute, how, and I'm looking for, how can a statute that gives a federal official three express responsibilities?

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be interpreted to give that official a fourth, namely filling in all the details of the method of the process of execution.

[00:07:32] Speaker 05:
Your Honor, I may have misunderstood your earlier question.

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If the question is why does the Attorney General have the authority to issue

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rules generally.

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Of course, the Attorney General does have general rulemaking authority over all DOJ functions.

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But there's nothing in 3596 that gives an authority to issue regulations, to issue these, to issue these standards, right?

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I think the Attorney General broadly is charged with executing court orders.

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I'm not questioning the Attorney General's power to issue regulation.

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I'm questioning

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where under this statute, where there are three express delegations, he has the authority to issue regulations regarding a different aspect of executions.

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Where does that come from?

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And I think I'm referring to the marriage of the Attorney General's general rulemaking authority with his authority over carrying out sentences of death as well as other sentences.

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And I don't think it's sort of questioned at that level here that the Attorney General can control some aspects of this process.

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The real question here is how much?

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How much do we have to look to states for?

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Don't we conclude you still haven't answered my question?

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We have a statute that gives him three express responsibilities.

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He could issue regulations regarding each of those.

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He could, for example, issue regulations about

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how he's going to maintain custody or the details of the release, or you could issue regulations about the payment and the amounts.

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But how can you interpret a statute like this?

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with three express allegations to imply a fourth delegation of authority, not covering those three.

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That's what I don't understand.

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Maybe there's an answer.

[00:09:23] Speaker 05:
The statute does vest responsibility in the first instance for implementing sentences to the U.S.

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Marshal.

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The U.S.

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Marshal is part of the Department of Justice.

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All of the responsibilities of the Marshal are vested in the Attorney General.

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And so again, I don't think the idea that someone in the federal government has the authority to issue regulations about something is in question here.

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The question is how much.

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Ms.

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Patterson, is this protocol a regulation or is it a general statement of policy?

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Is it a procedural rule?

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I mean, what is the protocol?

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It is not a regulation, Your Honor, certainly.

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And the lines among the various exceptions in 553B to the

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The notice of comment rulemaking requirements are, as this Court has said, fuzzy, but we think it would qualify either as a policy statement or a procedural rule.

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And if that's the case, then why has the Department not argued that this is not reviewable here?

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Because ordinarily general statements of policy and procedural rules are not judicially reviewable because they're not final agency action.

[00:10:22] Speaker 05:
We haven't made a final agency action here, Your Honor.

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We haven't attempted to say that the APA is unavailable to review these.

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What we have said is that we think that this Court should resolve these challenges as expeditiously as possible, consistent with the Supreme Court's recent instructions in Buckloo to not allow these method of execution challenges to essentially provide a new means of post-habeas delay.

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The Supreme Court in

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Cases like Hill may have done in the state context have indicated that 1983 is available as a way to challenge a method of execution.

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And we haven't, I don't think we have an interest in saying there's no federal equivalent here.

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So, I mean, in footnote 11 of your brief, you suggest that you don't really need to have a protocol or a regulation in this context, that you could just implement the death penalty without such a regulation or protocol.

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So I guess what was the reason for

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for issuing the protocol?

[00:11:23] Speaker 05:
Your Honor, we do think that as occurred under the 1937 Act, when I don't think there were any regulations spelling everything out, you know, the power to execute the death sentence comes from a court order.

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We are charged with implementing court orders.

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So as you say, we think there is at minimum a real question whether or not we needed to spell out the particular procedures.

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But of course the federal government is free to be more transparent about its procedures than it might be strictly required to by law.

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Returning to the earlier policy statement or procedural rule question, this court has made clear that just because the government has chosen to go beyond and to issue written guidance to guide its discretion,

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That doesn't sort of, I think, transmogrify was the word that this court used that into the sort of thing that needs to go through notice and comment rulemaking.

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And I noticed that we've touched on that merits issue a few times.

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That along with several other purely legal merits questions were something that the district court did not reach.

[00:12:23] Speaker 00:
So before you get to the other questions, can I just ask you about the Federal Death Penalty Act?

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So you make a...

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To me, this all turns on the meaning of the word manner.

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And one consideration that cuts against you at least a little bit is that that very statute uses the word manner in a different provision, the aggravator provision, in a seemingly broader way.

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defines an aggravator as a crime committed in a heinous, atrocious, and cruel manner.

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Doesn't that cut against you a little bit?

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We would have to conclude that the same word in the same statute has different meanings in different sections.

[00:13:13] Speaker 05:
But of course, the presumption that the same – It's not just – not conclusive, but – Correct.

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But as the Supreme Court has said, that readily gives way where there are reasons to believe that Congress meant the word to mean different things.

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And in the aggravating factor scenario, I think it's true from the context and history of aggravating factor statutes that you are not just looking – the aggravating factor when someone has committed a particularly heinous crime is not at the level of

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strangulation or stabbing or gunshot, the court is supposed to... It's more granular.

[00:13:50] Speaker 05:
Exactly, and that's in part to consider, to eliminate some of the arbitrariness that the Supreme Court was concerned about with the death penalty, that you're supposed to look at the degree of granularity to make sure that the particular circumstances of a case warrant this type of penalty.

[00:14:10] Speaker 05:
Now there is simply nothing about the context or the history or the very implausible consequences that would flow from reading Manor in a like, to impose the same degree of granularity in 3596.

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And in fact, I think all of those considerations make it clear that Manor in 3592 and Manor in 3596 mean very different things.

[00:14:34] Speaker 00:
So let's talk about the history for a second.

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We have, I have jotted in my notes that between 1937 and enactment of the FDPA, there were 23 federal executions and 17

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occurred in state facilities.

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Does that sound right?

[00:15:01] Speaker 05:
I think that's ballpark, correct, Your Honor.

[00:15:03] Speaker 05:
I think that the 23 number, there are some executions that may have happened under, you know, during the time of the FDA, but for example, it may have been under military commissions or other territorial law.

[00:15:18] Speaker 05:
So I believe there are at least 20 that are clearly FDPA.

[00:15:23] Speaker 05:
and that there are at least three.

[00:15:25] Speaker 02:
You mean pre-FDPF?

[00:15:27] Speaker 05:
I'm sorry, my apologies, I do mean the 1937 Act.

[00:15:30] Speaker 00:
Pre-FDPF, yes.

[00:15:31] Speaker 00:
And the vast bulk of these are, I assume, between 1937 and 1984.

[00:15:37] Speaker 00:
I believe that.

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Under the 37 statute as opposed to this odd interim period

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88 to 93 when you have a new statute and 93 to 94 when you have a reg but not the FTPA.

[00:15:56] Speaker 05:
That's right.

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I believe as a historical matter they were all between 37 and 63.

[00:15:59] Speaker 00:
Okay.

[00:16:00] Speaker 00:
So if we take that universe of basically 1937 to 1984, a couple of things strike me.

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One is that we're talking about relatively small numbers.

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Another is the point Judge Tatel made that most of these executions happened in state facilities where presumably, just as a matter of course, all of the state protocols and procedures would just be followed.

[00:16:32] Speaker 05:
A couple of points there, Your Honor.

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Because the act was not uniformly carried out in state facilities, we know

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that no one thought that the word manner in the 37 act.

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With regard to facilities.

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Because many state statutes include, they specify, you know, it has to happen in San Quentin, it has to happen here, it has to happen under the auspices of a particular state official.

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So the mere fact that we know that they occurred in federal facilities.

[00:17:03] Speaker 00:
Well, we know that three occurred.

[00:17:05] Speaker 05:
We know, and I think the circumstances of some of those really suggest the air of the plaintiff's argument about the degree of granularity.

[00:17:13] Speaker 00:
What do we know about those three?

[00:17:14] Speaker 05:
So we know in Michigan, the state had not carried out an execution, I believe, in over 100 years.

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The death penalty was still technically on the books.

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But they didn't have procedures.

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And in fact, I believe that the Michigan governor was adamantly opposed to any executions happening within the state.

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We think this goes to sort of the impossible.

[00:17:37] Speaker 02:
Do you know what happened as a result of that?

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Do you know the rest of the story?

[00:17:41] Speaker 05:
The rest of the story?

[00:17:43] Speaker 05:
I have read something about it.

[00:17:44] Speaker 05:
It's not on the record here.

[00:17:45] Speaker 02:
Well, the rest of the story is that he went to the Attorney General, right, and said, don't execute this person in Michigan.

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And that Attorney General was the same one who had proposed the 37th statute.

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And he said, no, this person needs to be executed in Michigan.

[00:18:01] Speaker 02:
That's the end of your story.

[00:18:03] Speaker 05:
I actually, and again, I'm a little hesitant to go beyond the record.

[00:18:05] Speaker 05:
I think the end of the story is a little different based on my reading.

[00:18:07] Speaker 02:
That's okay.

[00:18:08] Speaker 02:
What do you think it is?

[00:18:10] Speaker 05:
My sources suggest that, in fact, the attorney general and the president went to the district court there to sort of get a rule to ask.

[00:18:22] Speaker 02:
He followed the order of the district court, which said the execution has to be in Michigan.

[00:18:26] Speaker 05:
that he thought the execution had to be in Michigan, but there's no hint that he thought that the execution had to occur under what the governor or the laws of Michigan said it had to be.

[00:18:37] Speaker 05:
And this brings up the real specter of state obstructionism, or even just even short of state obstructionism, even a state that has no interest in thwarting the federal death penalty, but simply doesn't update its protocol.

[00:18:50] Speaker 02:
Is there any evidence of that so far in this case?

[00:18:52] Speaker 05:
Obstructionism?

[00:18:53] Speaker 02:
Yeah.

[00:18:53] Speaker 05:
No, but I do note that the several states, since 2011, when sodium thiopental became unavailable, they have left their protocols in place because they don't have any executions they need to conduct.

[00:19:07] Speaker 05:
Under plaintiff's theory, we would be hamstrung, the federal government would be hamstrung by a protocol that is impossible to carry out, and moreover, it's... Just back to history before we get to consequences.

[00:19:21] Speaker 00:
Let's talk a little bit about... Do we know anything about the other two?

[00:19:24] Speaker 00:
execution, similar pattern, federal facilities, so that supports your argument that manor can't mean place.

[00:19:34] Speaker 01:
Correct.

[00:19:35] Speaker 02:
And do we know anything about the... I think the other two were carried out in Kansas, weren't they?

[00:19:40] Speaker 01:
Correct.

[00:19:40] Speaker 02:
In Leavenworth, probably, by hanging, which was

[00:19:44] Speaker 02:
what the law of Kansas required, correct?

[00:19:47] Speaker 05:
And the law of Kansas, I believe, also had a number of fairly finely grained provisions about... That's what I'm getting at, yeah.

[00:19:55] Speaker 00:
Yes.

[00:19:55] Speaker 00:
Do we know whether they felt compelled or not to follow the granular state

[00:20:03] Speaker 00:
Kansas protocol did one way or the other?

[00:20:06] Speaker 05:
I think we know they didn't because the Kansas law specified that the... Other than place?

[00:20:13] Speaker 05:
Other than place, I believe that there is an impressively long list of witnesses in the Kansas statute that the warden of Kansas is obliged to invite to the execution.

[00:20:24] Speaker 05:
And I don't think there's anything in the historical record that suggests that the federal government considered itself

[00:20:30] Speaker 05:
obligated to invite the local prosecutor to the hanging at Leavenworth.

[00:20:35] Speaker 05:
And this, I think, brings up something the plaintiffs say for the first time in their response brief, which is that maybe there's sort of an atextual diminutive acceptance.

[00:20:43] Speaker 00:
Okay, just one more before we get to that.

[00:20:46] Speaker 00:
The practice under the FDPA, the briefs talk about McVeigh and Jones.

[00:20:54] Speaker 00:
Yes.

[00:20:54] Speaker 00:
Are those the only executions?

[00:20:56] Speaker 05:
There was one other execution post-FDPA, but it was

[00:21:00] Speaker 05:
The sentence was under the ADAA, which at the time had a number of procedures relevant to the death penalty.

[00:21:07] Speaker 00:
So there are just two that are relevant?

[00:21:09] Speaker 05:
Yes.

[00:21:10] Speaker 05:
I don't know that it... I believe that Jones also would have complied with our understanding of the FTP as well.

[00:21:18] Speaker 02:
But not... Of course, neither of those was litigated, right?

[00:21:21] Speaker 05:
The particular question here was not litigated, but notably they occurred under conditions that would have violated Oklahoma's, at minimum, its location requirement.

[00:21:32] Speaker 04:
Can we also take a step back?

[00:21:36] Speaker 04:
I think, of course, manner is a very important term in 3596, but say we assume for a moment that manner could mean either the method of execution or the method plus other procedures.

[00:21:48] Speaker 04:
I think then to figure out what matter means, we actually have to look at many of the other words in 3596, which there are not too many arguments about, right?

[00:21:56] Speaker 04:
So it says that, you know, the U.S.

[00:22:00] Speaker 04:
Marshal who shall supervise implementation of the sentence in the manner prescribed by the law of the state.

[00:22:08] Speaker 04:
So I guess thinking about those words, I mean, supervise is usually a term that includes something, that includes more discretion.

[00:22:18] Speaker 04:
than for instance just choosing a method, right?

[00:22:20] Speaker 04:
Supervised is often a term that is used more broadly.

[00:22:23] Speaker 04:
Implementation of the sentence is often a term, even by DOJ, that's used more broadly to include a number of different protocols.

[00:22:32] Speaker 04:
And then I think it's important that it says prescribed by the law of the state.

[00:22:38] Speaker 04:
There hasn't been much discussion about law of the state, what that includes, right?

[00:22:42] Speaker 04:
Law of the state, for instance, might properly just mean state

[00:22:46] Speaker 04:
statutory law, for instance, not just, you know, not any other procedures that a state happens to use.

[00:22:53] Speaker 04:
So I'm wondering if you can explain why your reading of manner fits within that whole phrase, which also includes supervised implementation and prescribed by law.

[00:23:04] Speaker 05:
Certainly.

[00:23:04] Speaker 05:
On the first two terms, I think your observation that they make note the need to do more

[00:23:09] Speaker 05:
to exercise some discretion very much supports our reading.

[00:23:13] Speaker 05:
Of course, under the district court's reading, we simply need – we have no such discretion.

[00:23:17] Speaker 05:
We simply go and we find out exactly whatever Indiana's manual is, and then we try to follow most, apparently, but not all, since apparently we can carve out its location and personnel and potentially de minimis other things that may or may not matter, may or may not be litigated over.

[00:23:33] Speaker 05:
So I think those first two terms

[00:23:36] Speaker 05:
support the government's reading.

[00:23:37] Speaker 05:
Prescribed in the law of the state, of course, the district court did not limit itself to anything that happens to be entrenched in the state statute.

[00:23:44] Speaker 05:
The district court was talking about things like particular IV insertion procedures.

[00:23:50] Speaker 04:
I'm just wondering what you think the statute means when it says prescribed by the law of the state.

[00:23:55] Speaker 05:
Well, of course, most states, their state law, when they use the word manner, they mean it the same way the federal government has always used that term to mean lethal injection.

[00:24:05] Speaker 05:
There's, I believe, one outlier statute in Mississippi that uses the word shall be in manner of lethal injection via a certain type of drug protocol.

[00:24:15] Speaker 05:
But by and large, the term manner was used by states in the same way that the federal government was using it.

[00:24:20] Speaker 04:
It's not just about the term manner.

[00:24:22] Speaker 04:
Maybe the marshal is bound only to follow those things that are within a state's statutes.

[00:24:30] Speaker 04:
Well, that certainly would be a more limited... And then the protocol could cover other

[00:24:34] Speaker 04:
you know, other procedures and other decisions that are not within the state statute.

[00:24:39] Speaker 05:
That certainly would be a more limited opinion or basis than the one the district court issued here, but I want to push back on the idea that that would have been what Congress intended.

[00:24:48] Speaker 05:
Of course, that's what we're guided by here.

[00:24:49] Speaker 05:
What did Congress mean to do?

[00:24:53] Speaker 05:
And what did Congress actually do?

[00:24:56] Speaker 05:
When Congress used the word manner, we think it was carrying with it the idea that manner relates to the top line, the general

[00:25:04] Speaker 05:
And so when it said the manner prescribed by the law of the state, the only thing prescribed by the law of the state we should be looking to is manner.

[00:25:13] Speaker 05:
And when you look at the consequences of a reading like the one you've posited, why would Congress have intended the exact degree of constraint on a federal execution to depend on the sort of fortuities of what Congress, or I'm sorry, what a state legislator chose to put in the statute.

[00:25:31] Speaker 04:
How granular are the state statutes?

[00:25:33] Speaker 04:
Are they very granular?

[00:25:35] Speaker 04:
I mean, would the protocol conflict with the statutes of the states that are at issue here?

[00:25:41] Speaker 04:
I don't know that, certainly in terms of location.

[00:25:44] Speaker 04:
I think location is another question where I think we can look to the statute because 3597, I think, you know, Congress quite obviously contemplates the use of federal facilities.

[00:25:56] Speaker 05:
I think that's right, Your Honor, but I think just using the, looking at the plain language,

[00:26:01] Speaker 05:
that shows when Congress said that the federal government may, not that they had to use state facilities and personnel, I think Congress was consistent with our understanding, recognizing that manner would not include all the subsidiary procedures, which often include state locations and facilities.

[00:26:20] Speaker 05:
And I think

[00:26:20] Speaker 05:
Maybe the location is specifically carved out by 3597.

[00:26:23] Speaker 05:
I think that's point is suggestion that this court should read it as what it calls a limited exception to what it thinks is a clear statutory command on 3596.

[00:26:34] Speaker 05:
I don't, 3597 is not phrased as an exception to anything.

[00:26:37] Speaker 05:
It's phrased as an affirmative authorization to the government to choose to do something.

[00:26:42] Speaker 05:
So I think we're just fighting the language and structure of the statute.

[00:26:46] Speaker 05:
We sort of bend over backwards to import a meaning of manner that is entirely ahistorical here.

[00:26:54] Speaker 05:
Moreover, looking to the consequences, again, why would Congress have intended that the federal government, among the sort of many ways to implement a method

[00:27:04] Speaker 05:
you know, a three-drug protocol versus a one-drug protocol, why would Congress have intended to hamstring the federal government and require it to choose one that is less administrable and potentially less humane?

[00:27:17] Speaker 04:
What about the change in language between the 1937 statute and the FDPA, right?

[00:27:21] Speaker 04:
Because there is a change.

[00:27:24] Speaker 04:
You know, the current FDPA says implementation of the sentence, and the 37 statute says the manner of inflicting the punishment of death.

[00:27:34] Speaker 05:
But I think the key term that carries over is implementation of a sentence in the manner prescribed.

[00:27:39] Speaker 05:
So all of these, you know, we have slightly different verbs used along, but they're all modifying manner.

[00:27:49] Speaker 05:
And again, the 1937 Act's legislative history was very clear what they meant by manner.

[00:27:55] Speaker 05:
There's no indication that Congress departed.

[00:27:57] Speaker 05:
And I think one of the things the district court relied on,

[00:28:00] Speaker 05:
the post 1994 legislative history actually cuts the other way.

[00:28:04] Speaker 05:
If you look at the 1995 hearing, again I urge the court to go and read it, the lack of uniformity that the DOJ was worried about was the uniformity at the level of the method of execution.

[00:28:22] Speaker 05:
So if you look at page 33, page 37 of that hearing, it's articulating the concerns that right now the only executions that we could use our lethal injection method for in Terre Haute

[00:28:37] Speaker 05:
as contemplated at the time by the federal regime, would be those, quote, in which lethal injection was permissible in the state in which the inmate was convicted.

[00:28:45] Speaker 05:
That was the disconnect.

[00:28:46] Speaker 05:
There were a number of states at the time that did not authorize lethal injection.

[00:28:50] Speaker 05:
DOJ was worried that this could theoretically stymie a future death sentence.

[00:28:55] Speaker 05:
It was not worried somehow that 1994, contrary to all historical practice, we were for the first time bound by every minute detail

[00:29:06] Speaker 05:
right down to IV insertion of state procedure.

[00:29:11] Speaker 02:
Ms.

[00:29:11] Speaker 02:
Patterson, you mentioned the latter state provision, which applies in situations where the sentence is imposed in a state without the death penalty, and the district court picks another state, right?

[00:29:28] Speaker 05:
I'm sorry.

[00:29:28] Speaker 05:
I didn't hear you.

[00:29:29] Speaker 02:
Pardon me?

[00:29:29] Speaker 05:
I don't think I understood your question.

[00:29:31] Speaker 02:
Oh, sorry.

[00:29:31] Speaker 02:
I was picking up on your reference to the latter state.

[00:29:35] Speaker 02:
provision in 3596.

[00:29:36] Speaker 02:
This relates to situations where the federal death penalty is imposed in a state where there is no death penalty, right?

[00:29:47] Speaker 02:
Yes.

[00:29:47] Speaker 02:
The district court picks a state which has a death penalty.

[00:29:51] Speaker 02:
And then this is what I want to ask you.

[00:29:53] Speaker 02:
The statute says, and the sentence shall be implemented in the latter state, right?

[00:30:01] Speaker 02:
Yes.

[00:30:03] Speaker 02:
So why do you think that

[00:30:05] Speaker 02:
languages there and not in the previous sentence about death sentences in death penalty states.

[00:30:14] Speaker 05:
Well, as an initial point, I think the fact that it is in the second manner provision and not in the first manner provision indicates that Congress did not envision manner encompassing things like the location of execution.

[00:30:27] Speaker 02:
Really?

[00:30:28] Speaker 02:
Why?

[00:30:28] Speaker 05:
What is that?

[00:30:28] Speaker 05:
Well, I mean, one possible reason is that there was a congressional view that by and large it was better to not carry out federal executions in a state where we knew that the state itself

[00:30:39] Speaker 05:
had chosen not to have capital punishment.

[00:30:42] Speaker 05:
That's one possible reason.

[00:30:45] Speaker 05:
But there's nothing in the legislative history to explain why this language, which carried over from the 1937 Act, exists.

[00:30:52] Speaker 02:
Well, maybe one explanation for why it's in this clause and not the previous one is that it was obvious in the previous clause that carried out in a manner prescribed by the state in a death penalty statement in the state.

[00:31:07] Speaker 02:
So when it got to the second clause, that is, non-death penalty states, Congress had to be explicit that it wanted those executions to also occur in those states.

[00:31:18] Speaker 05:
I think that's hard to square with a statutory text, Your Honor, because the latter state provision uses the same term, the manner prescribed by the state's law.

[00:31:29] Speaker 02:
So under your current view, OK, so the system we have now, under your view,

[00:31:36] Speaker 02:
The Attorney General could, for all executions in states with a death penalty, the Attorney General could, under your theory, choose any place.

[00:31:49] Speaker 02:
Doesn't have to choose Indiana, right?

[00:31:51] Speaker 02:
Correct.

[00:31:51] Speaker 02:
Could choose any place, right?

[00:31:53] Speaker 02:
That's right.

[00:31:54] Speaker 02:
Okay, so under your view, the way this works is that the Attorney General picks the location

[00:32:05] Speaker 02:
of executions where the crime occurs in a death penalty state, but when the crime occurs in non-death penalty states, the district judge does it, right?

[00:32:16] Speaker 05:
I think that's right, Your Honor.

[00:32:17] Speaker 02:
Why would Congress have set up that kind of scheme?

[00:32:20] Speaker 05:
Well, again, I think the fact that Congress put strictures about location only in the latter state provision indicates that Congress was not... No, you're not answering my question.

[00:32:30] Speaker 02:
I'm asking you why Congress would have

[00:32:33] Speaker 02:
why it would have chosen such a system?

[00:32:37] Speaker 02:
Where the place of execution is chosen in some cases by the Attorney General and other cases by the district court.

[00:32:48] Speaker 02:
I mean, what sense does that make?

[00:32:50] Speaker 05:
Again, I think one sort of straightforward reason might have been that where we know a state doesn't want its own executions to take place in its state,

[00:33:01] Speaker 05:
it chooses to say, okay, if that's the case, you need to pick somewhere else.

[00:33:05] Speaker 05:
And the fact that it vested it in the court versus the attorney general, I don't think tells us much about what manner means.

[00:33:14] Speaker 02:
Now, that... But the questions you've been getting from me and from Judge Rao are looking at the whole statute, not just the word manner.

[00:33:25] Speaker 02:
Our obligation when we interpret a statute is to give meaning to all of its language.

[00:33:30] Speaker 02:
And the word manner is just one of many words in this statute.

[00:33:35] Speaker 02:
But I speak for myself.

[00:33:37] Speaker 02:
What I'm trying to understand here, and I think Judge Arales too, is what does this statute mean, the whole statute?

[00:33:46] Speaker 02:
And manner is interpreted in light of all the provisions of the statute.

[00:33:52] Speaker 02:
Right?

[00:33:53] Speaker 02:
I agree.

[00:33:53] Speaker 02:
So we have to look at this.

[00:33:55] Speaker 05:
I quite agree, Your Honor.

[00:33:57] Speaker 02:
So I think what we're, at least what I'm getting at, and I'm not sure of this, that's why I'm asking these questions, is maybe there's something, maybe the debate about manner isn't the right debate.

[00:34:13] Speaker 02:
Maybe the fundamental debate here, or the fundamental proposition of 3596, is that Congress

[00:34:20] Speaker 02:
And again, this is just an idea.

[00:34:22] Speaker 02:
I'm not telling you this is what I think.

[00:34:24] Speaker 02:
If you read 3596 with the limited delegation to the Attorney General and all the references to the state and the history, the pre-federal death penalty history, what this looks like is that Congress was basically vesting responsibility for carrying out federal death penalties in the states.

[00:34:44] Speaker 02:
And if that's the case, the word matter isn't so important anymore, because obviously the states will carry out the executions in the manner prescribed by their law.

[00:34:56] Speaker 02:
I mean, that's one way to look at this.

[00:34:58] Speaker 05:
I think that's the wrong way to look at this.

[00:34:59] Speaker 02:
Yeah, tell me why.

[00:34:59] Speaker 02:
I thought you'd think that's wrong.

[00:35:02] Speaker 05:
But tell me why.

[00:35:04] Speaker 02:
And don't go back to telling me what manner means.

[00:35:06] Speaker 02:
That's not an answer to my question.

[00:35:07] Speaker 05:
As a holistic endeavor, we don't think any of the words in this statute indicate that Congress for the first time ever thought that it was either 1937 or 1994 sort of tying the federal government's hands to make sure that federal executions happened responsibly.

[00:35:25] Speaker 05:
And one way we know

[00:35:26] Speaker 05:
that Congress did not intend to say the states are in charge here is 3597, which specifically, in both 37 and 94, said that the federal government may, if Congress wanted to put the states in the driver's seat and say you just need to make sure that you do whatever the state says, it would not have used a permissive term in 3597.

[00:35:51] Speaker 02:
I agree with you, but that's not inconsistent with my question.

[00:35:57] Speaker 02:
I wasn't saying to you that all executions must be carried out by the states, in the states.

[00:36:04] Speaker 02:
I was just saying that if you look at the statute in the history, it looks like Congress expected that to be the normal course.

[00:36:10] Speaker 02:
And in fact, when Congress passed 3596, again, tell me if I'm wrong about this, there was one person

[00:36:19] Speaker 02:
on that federal death row, right?

[00:36:21] Speaker 02:
Just one.

[00:36:22] Speaker 02:
And there was no federal execution facility at all.

[00:36:25] Speaker 02:
So when Congress passed this statute, 3596, it would have been perfectly logical for it.

[00:36:31] Speaker 02:
Given that, given that there was only one person, most executions were being carried out in the states, and the federal government didn't have Terre Haute at the time, we're going to have the states do it.

[00:36:42] Speaker 05:
I believe that there was more than one.

[00:36:46] Speaker 05:
I believe that there were at least two people who had been convicted in Virginia in 1993 of capital crimes.

[00:36:52] Speaker 02:
Okay, two.

[00:36:52] Speaker 05:
I don't know what the answer is.

[00:36:53] Speaker 05:
And there may have been more.

[00:36:54] Speaker 05:
It is a small number.

[00:36:56] Speaker 02:
But there weren't dozens, as there are now.

[00:36:58] Speaker 05:
That is correct, but again, there – I think that – I'm also going to quarrel with your characterization of what happened under the 1937 act.

[00:37:07] Speaker 05:
I think both from its origins in 1937, when both the attorney general recommended that we switch to a regime that depended on state method, such as at the level of generality of electrocution or gas,

[00:37:21] Speaker 05:
And when Congress itself adopted that, it did not intend to sweep in whatever subsidiary procedures a state may or may not have chosen to assert in its law.

[00:37:32] Speaker 05:
And we know that there were federal executions carried out when the state was unwilling.

[00:37:37] Speaker 05:
I doubt that the governor of Michigan, had there been procedures on the book at that time, I do not think that Governor Murphy would have said,

[00:37:44] Speaker 05:
Yes, please come in and use our facilities.

[00:37:47] Speaker 05:
We will tell you exactly how we conduct a hanging, and it is somewhat remarkable that plaintiffs suggest with no evidence that the sort of understanding included such details as the particular drop method used in a hanging.

[00:38:01] Speaker 05:
It may have been that states had preferences as to a short drop or a long drop, but there is just

[00:38:06] Speaker 05:
No record.

[00:38:07] Speaker 05:
It should back up the idea.

[00:38:08] Speaker 04:
Why do you read prescribed by the law of the state so broadly?

[00:38:13] Speaker 04:
I mean, do the state laws specify the procedures at that level of detail?

[00:38:19] Speaker 04:
I think a number of the states don't even, do they specify lethal injection but not the specific drug that's to be used?

[00:38:26] Speaker 04:
Is that correct?

[00:38:27] Speaker 05:
At the statutory level, that's right, Your Honor.

[00:38:29] Speaker 04:
And there may be... So why do you read prescribed by law to include

[00:38:34] Speaker 04:
any other procedures that a state may use in the process.

[00:38:39] Speaker 05:
Well, of course, we don't need them to include any procedures a state used, but the district court read it to include all of the procedures that a particular state used.

[00:38:47] Speaker 05:
Recall that the district court's reasoning is that the federal government essentially has no role in deciding how to carry out... Maybe it's not all or nothing.

[00:38:55] Speaker 05:
Yes, but we also think that if you said, well, the district court was wrong to go as far as it did, you simply look at the state statutes and

[00:39:04] Speaker 05:
look to what the state legislature chose to sort of put in a statute versus a regulation versus a prison manual.

[00:39:11] Speaker 05:
I think it's pretty incongruous to think that Congress thought the degree of federal control over how to implement responsibly 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.

[00:39:31] Speaker 04:
Again, it is

[00:39:32] Speaker 04:
Remarkable to think Congress.

[00:39:34] Speaker 04:
I think that's so strange.

[00:39:35] Speaker 04:
I mean, you can imagine that Congress wants to allow this to, you know, to defer to the states about issues regarding the death penalty that were important enough for them to enact in positive law.

[00:39:48] Speaker 04:
I don't know why that would be so peculiar.

[00:39:51] Speaker 02:
I mean, you yourself said that it's understandable that Congress would want federal executions carried out.

[00:39:59] Speaker 02:
in, not carried out in states without the death penalty.

[00:40:02] Speaker 02:
So it's being respectful to state law.

[00:40:06] Speaker 02:
As Judge Rao just said, that seems to be what the statute says.

[00:40:09] Speaker 05:
Well, I'm gonna come back to manner at potential, Judge Hiddle's potential dismay.

[00:40:15] Speaker 05:
But we do, we have to, It's not my dismay.

[00:40:18] Speaker 05:
We have to look at what Congress said, and Congress said the only thing that is prescribed by the law of the state, that the federal government has to abide by,

[00:40:28] Speaker 05:
is the manner.

[00:40:29] Speaker 02:
It shows a particular term.

[00:40:30] Speaker 02:
Let me ask you, while we're talking about this, just a few other clues that I want to ask you about, about how I should think about.

[00:40:37] Speaker 02:
So when Congress passed 3596, there were in existence federal regulations that required, that called for federal implementation of executions in accordance with federal standards, right?

[00:40:51] Speaker 05:
Yes, the lethal injection regulation.

[00:40:53] Speaker 02:
They were in existence then, right?

[00:40:55] Speaker 02:
Yes.

[00:40:55] Speaker 02:
And the Attorney General at the time warned

[00:40:58] Speaker 02:
Congress that the bill they were considering, and I'm quoting here, the procedures contemplate a return to an earlier system in which the federal government did not directly carry out executions, but made arrangements for states to do it.

[00:41:16] Speaker 02:
So how do we think about that?

[00:41:19] Speaker 02:
Since at the time Congress passed 3596, there were regulations in place like the ones you have, but Congress seems to have ignored them, including the Attorney General's warning that this statute would return us to a previous system.

[00:41:35] Speaker 02:
How do I think about that?

[00:41:36] Speaker 05:
I think you would think about it in terms of what state law provided at the time.

[00:41:39] Speaker 05:
And at the time, a significant number of states did not permit lethal injection.

[00:41:44] Speaker 05:
And so when DOJ was concerned about a law... Did she say anything about lethal injection?

[00:41:49] Speaker 05:
She did not.

[00:41:50] Speaker 05:
That's what I thought.

[00:41:51] Speaker 05:
But the statement, which is very brief, is consistent with the concern about lack of uniformity at that level, at the level of the fact that, okay, we have a federal regulation that says the federal government is only willing to use lethal injection.

[00:42:05] Speaker 05:
We have a law that comes along that says, no, you need to look at the method.

[00:42:09] Speaker 05:
You need to look to whether a state uses lethal injection or electrocution or firing slot.

[00:42:14] Speaker 05:
Now, we're not contesting that the 1994 Act introduced some degree of potential non-uniformity, and that was what DOJ was concerned in the legislative history about the 1994 Act.

[00:42:32] Speaker 05:
And I think if you look at the 95 hearing, that concern about the degree of non-uniformity

[00:42:38] Speaker 05:
is very clearly pegged to the method of execution.

[00:42:43] Speaker 05:
Now of course this concern disappeared over time.

[00:42:46] Speaker 05:
States around the same time started adopting, they all adopted eventually, lethal injection as the method.

[00:42:54] Speaker 05:
So there, and I don't believe there were any federal executions that needed to go forward.

[00:42:58] Speaker 05:
I believe both Jones and McVeigh, their states did provide for an execution by lethal injection.

[00:43:05] Speaker 05:
So the concern dissipated over time, but it is that concern, that lack, that degree of non-uniformity.

[00:43:11] Speaker 05:
We agree that there was some degree of non-uniformity that was introduced, but it is a question of degree.

[00:43:16] Speaker 02:
And we say- You think the Attorney General wants

[00:43:21] Speaker 02:
The Attorney General's only obligation is to use lethal injection, right?

[00:43:25] Speaker 02:
He can fill in all the other details.

[00:43:27] Speaker 02:
And I know you mean certainly the number of injections.

[00:43:31] Speaker 02:
Do you also, does he also have authority to select the substance?

[00:43:36] Speaker 05:
Certainly, Your Honor.

[00:43:37] Speaker 02:
So in this case, the substance is the substance the states are using, right?

[00:43:40] Speaker 05:
No, in these particular plaintiffs, two of the inmates would be in states where the protocol would be the same, a single-drug penobarbital.

[00:43:51] Speaker 05:
But two of the states, Mr. Lee in Arkansas and Mr. Honkin, convicted in Iowa that Indiana was designated, would be subject to the three-drug sequence if the federal government was aware.

[00:44:04] Speaker 02:
Right, but suppose, for example, could the Attorney General pick a completely different chemical?

[00:44:08] Speaker 02:
There's a letter in the

[00:44:09] Speaker 02:
in the record from the BOP saying they found a source of fentanyl.

[00:44:13] Speaker 02:
Could the Attorney General use fentanyl, even though no state in the United States uses it?

[00:44:17] Speaker 05:
Absolutely, Your Honor, because manner is properly written in... You aren't consistent with your principles.

[00:44:22] Speaker 02:
I'll say that.

[00:44:23] Speaker 05:
Okay.

[00:44:23] Speaker 05:
Yes, I think that the Attorney... Well, I think this goes to the Attorney General's discretion to... And what Congress would have intended the federal government

[00:44:31] Speaker 05:
to be able to pick a method, a manner of injection that is both practicable, that hasn't been sort of put out of practice by states that may not have had a reason to update their protocols, and also that the federal government is permitted to choose among the wide range of acceptable means of implementing lethal injection under the Eighth Amendment.

[00:44:52] Speaker 05:
That is a range, and we should be allowed to choose, and there's no reason Congress would have wanted to forestall us.

[00:44:58] Speaker 05:
from choosing the method.

[00:45:01] Speaker 02:
What would the Attorney General do, and I think maybe there may be a case like this, suppose a district judge in a non-death penalty state doesn't pick Indiana.

[00:45:11] Speaker 02:
Hasn't that happened somewhere?

[00:45:13] Speaker 05:
I believe there may have been one case that hasn't finished its review.

[00:45:18] Speaker 05:
What would you do about that?

[00:45:19] Speaker 05:
I think, well, of course we could simply use a federal facility in the designated state.

[00:45:24] Speaker 02:
In the designated state?

[00:45:26] Speaker 02:
Yes.

[00:45:26] Speaker 02:
Is that what you do?

[00:45:27] Speaker 05:
Correct.

[00:45:28] Speaker 05:
We also, just as a practical matter, I imagine we could return to the court and ask it to designate Indiana for administrative practicability reasons, but certainly it would be open to us to carry out the execution in a federal facility in whatever the alternate state was.

[00:45:43] Speaker 00:
Can I take you back to the state statutes?

[00:45:46] Speaker 00:
So Judge Rao was asking you how granular they are.

[00:45:52] Speaker 00:
I'm curious about how they use the word manner.

[00:46:00] Speaker 00:
You cite Missouri and California, which seemed to cut in your favor.

[00:46:07] Speaker 00:
Your friends on the other side cite Mississippi and Colorado, which seem to cut against you.

[00:46:13] Speaker 00:
That looks a little thin and looks like it's a close race.

[00:46:20] Speaker 00:
What do we know beyond those four states?

[00:46:24] Speaker 05:
I'm going to disagree that Colorado actually cuts against us.

[00:46:28] Speaker 05:
I think if you look at the text of the statute, it uses manner to refer to lethal injection.

[00:46:33] Speaker 00:
And then it defines lethal injections as sodium thiopental.

[00:46:37] Speaker 05:
Correct, but it only uses the word manner in connection sort of with its top line.

[00:46:41] Speaker 05:
that shalt use lethal injection.

[00:46:43] Speaker 05:
So we actually don't think Colorado is a counterexample.

[00:46:47] Speaker 05:
Mississippi does use Nanner in the way that they suggest, but again, I think there are more states, and I apologize, we have not done a survey of the something like 40 states that had the death penalty at the time to figure out exactly the degree of granularity, but I do know that something like

[00:47:06] Speaker 05:
I think the majority of states do specify sort of who is supposed to be there, who is supposed to perform.

[00:47:14] Speaker 00:
So if you go from top line to bottom line, right, your position is, I mean, lethal injection versus electrocution and everybody gets that.

[00:47:26] Speaker 00:
And on the other end of the spectrum is where, which vein you pick and that seems awfully granular.

[00:47:36] Speaker 00:
But the question of which drug you pick, and that might not be top line, but that's line number two.

[00:47:44] Speaker 00:
It's not which vein, how do you insert the catheter, or how big does the catheter have to be.

[00:47:52] Speaker 05:
I agree with that, but again, we think the history and the implausible consequences that would flow from going that next degree of granularity down cut against reading this term to have that, even that second line of granularity.

[00:48:07] Speaker 05:
Moreover, if we're talking about sort of how far down do you go, you get into very difficult questions about, okay, on their reading of manner, how much is detailed enough versus too detailed?

[00:48:20] Speaker 05:
And again, I want to return to their suggestion that there is some form of de minimis exception that the court shouldn't graft onto this.

[00:48:28] Speaker 05:
I assume that they propose this because it could be nigh on unworkable to comply, potentially even at the statutory level, but certainly at the level the district court picked with every, every dot of state statutes.

[00:48:43] Speaker 05:
And there are no guide posts in this suggestion.

[00:48:46] Speaker 05:
for how the government would know which ones are of the sort of significance that Congress intended to entrench in this law.

[00:48:54] Speaker 05:
Of course, Congress itself gives no indication and we say that's because it never contemplated that the federal government or courts would be in this endeavor of trying to figure out what is the right level

[00:49:06] Speaker 05:
of granularity, and I think that this would put courts in a position the Supreme Court has said they should not occupy, into inquiring into the levels, at that level of detail, into how a government conducts an execution.

[00:49:20] Speaker 02:
Well, maybe those decisions should be made by Congress.

[00:49:23] Speaker 02:
I think that Congress is... Maybe that's the answer.

[00:49:25] Speaker 02:
You're clearly right about judges.

[00:49:27] Speaker 02:
We shouldn't be deciding that.

[00:49:29] Speaker 02:
Maybe Congress should be making these decisions.

[00:49:32] Speaker 02:
Life and death decisions.

[00:49:34] Speaker 05:
I think Congress could make those decisions.

[00:49:36] Speaker 02:
I asked you whether or not maybe they should be required.

[00:49:39] Speaker 05:
Well, Your Honor, I'm not in a position to issue policy edicts to Congress about the level of detail with which it should speak.

[00:49:47] Speaker 05:
I can only talk about what Congress has to do.

[00:49:50] Speaker 02:
The only reason it's a relevant question, Ms.

[00:49:52] Speaker 02:
Patterson, is that

[00:49:53] Speaker 02:
many of your arguments have been that if 3596 does not contemplate a federal system under federal standards, that there are lots of problems, that states could interfere, that the Attorney General would be limited in his ability to pick a substance, my only point about that then is maybe the Attorney General should go back to Congress and say, look, these are really fundamentally unknown questions

[00:50:21] Speaker 02:
that the, you know, politically accountable branches of government should make a decision of that.

[00:50:26] Speaker 05:
Well, the executive branch is politically accountable, too, Your Honor, and I think that Congress is free to leave these sorts of details to the executive branch.

[00:50:33] Speaker 05:
I think that this is, again, an argument very much in our favor of the reading of the statute.

[00:50:37] Speaker 05:
I think that the cases like U.S.

[00:50:39] Speaker 05:
Telecom they cite about the sort of blurring of lines of accountability

[00:50:43] Speaker 05:
very much cut in our favor, if the federal government is obliged to hand over and use only the process.

[00:50:50] Speaker 04:
But that's part of the – aren't those consequences just a natural result of a federalist system, right, where Congress has chosen to leave certain decisions to the states?

[00:51:00] Speaker 04:
I mean, all these decisions about not being able to pick a single uniform

[00:51:05] Speaker 04:
you know, rational, more humane, you know, whatever adjectives you want to use, protocol.

[00:51:10] Speaker 04:
I mean, that's just a consequence of a choice made to leave some of these decisions to the states.

[00:51:14] Speaker 04:
I mean, you could say that about any statute that leaves certain decisions to the states.

[00:51:18] Speaker 05:
I think that presupposes an answer to the central question here, which is how much of the state stuff did Congress intend to put in the statute?

[00:51:26] Speaker 05:
And on our reading,

[00:51:28] Speaker 05:
the one historically based, it leaves the federal government accountable for carrying out federal executions in a responsible way.

[00:51:37] Speaker 05:
Their reading means that the federal government, if it had to either sort of hand over responsibility for the execution to the state personnel because there was no practicable way for the federal government itself to do it, or if it had to sort of try its best to read every detail of state procedure and follow it, if something goes wrong,

[00:51:58] Speaker 05:
It's hard to know whom to hold accountable.

[00:52:00] Speaker 05:
Do you hold accountable the federal ones, the federal officials who carried out this execution or who authorized this execution by state personnel?

[00:52:11] Speaker 05:
Or does the federal government say, don't blame us, we were required to do that by the states?

[00:52:16] Speaker 05:
The much more natural reading of the statute

[00:52:19] Speaker 05:
is that Congress intended to leave federal executions in the responsibility, in the keeping of the federal government.

[00:52:26] Speaker 05:
Now, the government may choose to use state facilities, and of course, it would bear any political consequences if something went wrong after it had chosen to contract with the state to carry it out.

[00:52:36] Speaker 02:
Let me ask you about that.

[00:52:38] Speaker 02:
This is my last textual question, I promise.

[00:52:42] Speaker 02:
And it follows from what you just said to Judge Lau,

[00:52:47] Speaker 02:
that what Congress clearly intended here was to have the federal government execute its prisoners in accordance with its standards.

[00:52:55] Speaker 02:
So my question then is, what do you make of this language in 3596?

[00:52:59] Speaker 02:
It says, the attorney general shall release the person to the custody of a United States marshal, okay?

[00:53:10] Speaker 02:
So the four, the three plaintiffs in this case are in Terre Haute now, right?

[00:53:16] Speaker 02:
A BOP facility, correct?

[00:53:18] Speaker 02:
Correct.

[00:53:19] Speaker 02:
So two questions.

[00:53:21] Speaker 02:
One, if Congress had expected these executions to be carried out by the federal government pursuant to federal standards in Terre Haute, why did it need to say anything at all about the marshals?

[00:53:34] Speaker 02:
I mean, under federal law, the marshals are responsible for executing court, for implementing court orders and for transferring prisoners.

[00:53:42] Speaker 02:
That's what marshals do.

[00:53:44] Speaker 02:
So in the Terre Haute situation, what does this mean?

[00:53:48] Speaker 02:
The prisoner's already in BOP facility, which is where the death chamber is.

[00:53:54] Speaker 02:
So how does this language work?

[00:53:56] Speaker 02:
What does it do?

[00:53:57] Speaker 05:
I think it maintains US Marshal's historic default role of, as you say, transferring prisoners.

[00:54:03] Speaker 02:
What does it mean to transfer a prisoner who's in BOP custody to US Marshal custody, who then

[00:54:14] Speaker 02:
supervise implementation of the sentence in the manner prescribed, but I don't understand how that works in the Terre Haute situation.

[00:54:20] Speaker 05:
Well, of course, the Terre Haute situation... He's in BOP.

[00:54:23] Speaker 02:
These three people are in BOP custody now.

[00:54:26] Speaker 05:
The Terre Haute situation is not entrenched in the statute, so you may want to... Is not what?

[00:54:30] Speaker 05:
As you said, the Terre Haute situation is not a necessary part of the statute.

[00:54:35] Speaker 05:
That's a choice made by the federal government.

[00:54:37] Speaker 02:
Well, but forget Terre Haute.

[00:54:38] Speaker 02:
The BOP, any prisoner awaiting execution is in the custody of the attorney general.

[00:54:44] Speaker 02:
When the appeals are completed, the attorney general releases him to the custody of a marshal.

[00:54:54] Speaker 02:
Doesn't that suggest that the execution is going to be somewhere other than the federal government?

[00:54:59] Speaker 05:
Okay, even if that were true, you could have a situation like the one we posited where a court has designated an alternate state and you need to move the federal prisoner via the U.S.

[00:55:10] Speaker 02:
Marshal.

[00:55:11] Speaker 02:
I'm reading from the provision that applies where there's a death penalty state.

[00:55:17] Speaker 05:
I think that that same provision regarding the U.S.

[00:55:19] Speaker 05:
marshal carries over to the latter state provision.

[00:55:22] Speaker 05:
So you may well have to transport a prisoner.

[00:55:24] Speaker 05:
It may have been that there was a federal death chamber somewhere other than a VOP facility.

[00:55:28] Speaker 05:
But more fundamentally, I want to push back on the tacit notion that the U.S.

[00:55:33] Speaker 05:
marshal would have been understood to be sort of entirely separate and distinct from the attorney general.

[00:55:38] Speaker 02:
I didn't say that.

[00:55:39] Speaker 02:
Congress – I was just reading to you from the statute.

[00:55:41] Speaker 05:
Yes.

[00:55:42] Speaker 05:
And so Congress wanted to, in the first instance and by default, have the U.S.

[00:55:46] Speaker 05:
Marshal, who I believe since 1790 has played a role in federal executions and certainly has experience in this area, to be involved in the process.

[00:55:54] Speaker 05:
But that does not suggest some sort of fundamental distinction between the – DOJ on this hand and DOJ on that hand.

[00:56:01] Speaker 05:
It's all DOJ.

[00:56:02] Speaker 05:
And so the, you know, I think the Attorney General would have been free to reassign someone to the U.S.

[00:56:07] Speaker 05:
Marshal's roles.

[00:56:08] Speaker 05:
Of course, that's not what's happened.

[00:56:10] Speaker 05:
The Marshal continues to play a supervisory role in executions under the protocol announced here.

[00:56:16] Speaker 05:
But there's, I don't think we can draw any inference about sort of the level of detail of state procedure from the reference to U.S.

[00:56:27] Speaker 05:
Marshals.

[00:56:28] Speaker 02:
Okay.

[00:56:28] Speaker 02:
Ms.

[00:56:29] Speaker 02:
Paris, thank you.

[00:56:30] Speaker 02:
We do have another side.

[00:56:31] Speaker 02:
So let's hear from them.

[00:56:33] Speaker 05:
If I could have a few minutes of rebuttal.

[00:56:35] Speaker 02:
You definitely can have some time.

[00:56:37] Speaker 02:
Thank you so much.

[00:56:37] Speaker 05:
Don't worry about that.

[00:56:38] Speaker 02:
We definitely took up your rebuttal time.

[00:56:45] Speaker 06:
Good morning, Your Honors, and may it please the Court.

[00:56:47] Speaker 06:
My name is Kate Stenson.

[00:56:48] Speaker 06:
I'm arguing on behalf of the Plaintiffs this morning.

[00:56:51] Speaker 06:
Listening to the Council's argument and the panel's questions, it strikes me that this argument breaks down into three basic parts, text and history and consequences.

[00:57:02] Speaker 06:
And I'd like to start with the text, and I'd actually like to start, Judge Rao, with your question about that entire line of text, because I think it is important to look at that entire line.

[00:57:10] Speaker 02:
By the way, I'm sorry to interrupt you, but do you agree with the government that we can just deal with the merits here, right?

[00:57:15] Speaker 02:
Yes.

[00:57:15] Speaker 02:
We don't have to worry about the preliminary injunction?

[00:57:17] Speaker 06:
With the merits of this issue.

[00:57:19] Speaker 02:
Of this issue.

[00:57:20] Speaker 06:
Yes.

[00:57:20] Speaker 06:
Okay, great.

[00:57:21] Speaker 06:
Sorry, go ahead.

[00:57:22] Speaker 06:
Sure.

[00:57:22] Speaker 06:
So with respect, Judge Rao, to this phrase, supervise implementation of the sentence in the manner prescribed by the law of the state.

[00:57:31] Speaker 06:
So first, with respect to law of the state, this of course isn't an argument that the government made probably for good reason, that the law of the state is confined to statutes.

[00:57:40] Speaker 06:
But the other good reason is that the Supreme Court for many decades, even as early as 1957, it was saying we have repeatedly ruled that the law of the state includes administrative orders and binding administrative issuances.

[00:57:55] Speaker 06:
And that was in U.S.

[00:57:55] Speaker 06:
v. Howard.

[00:57:57] Speaker 06:
You can also look at Chrysler versus Brown from 1979.

[00:58:02] Speaker 06:
So a lot of the state is definitely more capacious than just statutes.

[00:58:06] Speaker 06:
Getting back to the front of the text, supervise implementation.

[00:58:11] Speaker 06:
Supervise, of course, has to be read in terms of what is being supervised.

[00:58:16] Speaker 06:
And what is being supervised is implementation of the sentence.

[00:58:21] Speaker 06:
And I want to get to of the sentence as well, but just to pause on implementation because the one thing I don't think we heard other than your question, Judge Rao, was an explanation about how implementation

[00:58:33] Speaker 06:
fits into this particular analysis.

[00:58:36] Speaker 06:
I suspect that is because, and you didn't see it in the government's reply brief either, the government understands what implementation means.

[00:58:44] Speaker 06:
If you look at the top of the addendum that we're challenging, it says federal death sentence implementation procedures.

[00:58:53] Speaker 00:
That doesn't help you.

[00:58:55] Speaker 00:
Implementation seems broader.

[00:59:00] Speaker 00:
than simply method of execution.

[00:59:04] Speaker 00:
But it could mean, it could be coextensive with manner and manner means procedures, which is your theory.

[00:59:14] Speaker 00:
Or it could mean you implement the sentence and one thing you have to do is follow the method of execution.

[00:59:23] Speaker 00:
So I don't see how the breadth of implementation tends to answer

[00:59:29] Speaker 00:
the interpretive ambiguity of the word manner?

[00:59:33] Speaker 06:
I think it answers it, and it's more, of course, than that particular document.

[00:59:37] Speaker 06:
Back when the proposed and final rules were issued in 1993 and 94, those rules were called implementation of a death sentence.

[00:59:47] Speaker 06:
So I think it is a far more strained reading to say that one is implementing a lethal injection.

[00:59:56] Speaker 06:
The question is, under implementation, what is the process that is being gone through in order to effectuate the lethal injection?

[01:00:04] Speaker 06:
Judge Katz, you also asked a question about manner that I think bears on this as well.

[01:00:09] Speaker 06:
The question had to do with the aggravator.

[01:00:11] Speaker 00:
So before we get to that, that argument, we take that to its logical conclusion, then manner means any process

[01:00:25] Speaker 00:
specified in the positive law of the state, statutes, regs, a protocol which has binding effect, anything.

[01:00:36] Speaker 06:
I would say no to that for this reason, and I think this actually goes to one of the consequences that the government and Ms.

[01:00:42] Speaker 06:
Patterson today have flagged.

[01:00:45] Speaker 00:
You have an argument for carving out place, and you have an argument for carving out de minimis.

[01:00:52] Speaker 00:
And we can talk about those, but at a minimum you're saying everything else.

[01:00:56] Speaker 06:
Well, but I want to touch on what that means when I say de minimis.

[01:00:59] Speaker 06:
Okay.

[01:00:59] Speaker 06:
What we are talking about here is the manner of implementing this sentence.

[01:01:04] Speaker 06:
In other words, the manner of effectuating the death.

[01:01:07] Speaker 06:
So there are, I think Judge Rao, you might have asked a question about how detailed these particular protocols are.

[01:01:13] Speaker 06:
They vary, of course.

[01:01:14] Speaker 06:
There are some that are very targeted to the particulars of the lethal injection.

[01:01:19] Speaker 06:
What is the IV process?

[01:01:21] Speaker 06:
Who monitors the prisoner?

[01:01:22] Speaker 06:
Who is, is there a physician in the room?

[01:01:25] Speaker 06:
Those types of things.

[01:01:26] Speaker 06:
But there are other protocols, of course, that talk about much more.

[01:01:29] Speaker 06:
They talk about how many phone calls a prisoner gets in the days before the execution.

[01:01:33] Speaker 06:
They talk about who's in the chamber, those sorts of things.

[01:01:37] Speaker 06:
That is not part of the manner

[01:01:40] Speaker 06:
of implementing the sentence.

[01:01:42] Speaker 06:
That is why when we talk, we can talk about it in terms of de minimis exception, you can talk about it in terms of harmless error, you can talk about it in terms of standing, what a prisoner have standing to challenge.

[01:01:52] Speaker 00:
So if we go to the protocol, 2019 protocol, it says three sets of syringes, each syringe, each set has, itself has three syringes and there's a sequence of

[01:02:08] Speaker 00:
2.5 ml or whatever, followed by another 2.5, followed by saline.

[01:02:14] Speaker 00:
All of that is regulated by state law.

[01:02:18] Speaker 06:
It is indeed.

[01:02:19] Speaker 06:
And I can point you to the ways in which the courts have understood this as well.

[01:02:25] Speaker 06:
If you look in the administrative record of page 364, there is a copy of the Judge Ketledge opinion in the Ohio execution protocol cases.

[01:02:35] Speaker 06:
And I want to focus in on something he says on that page, which is he discusses the procedures that ensure that executions are carried out humanely.

[01:02:44] Speaker 06:
That is his quote.

[01:02:46] Speaker 06:
And there he gives examples, and the examples he says are including instructions for how to place the IV, a consciousness check, training requirements for execution personnel.

[01:02:56] Speaker 00:
So those are the... Sorry, which cases is this?

[01:02:58] Speaker 06:
This is the in Rio, Ohio execution protocol case.

[01:03:01] Speaker 06:
It's reprinted at AR 364.

[01:03:03] Speaker 06:
You can also look, for example, at the cluster of Supreme Court cases that have come out in the last several years, Glossop, Bays, Buckloo.

[01:03:12] Speaker 06:
And each of them, by the way, of course, is called a method of execution case.

[01:03:17] Speaker 06:
But they're not challenging lethal injection.

[01:03:19] Speaker 06:
They are challenging aspects of the lethal injection process.

[01:03:22] Speaker 06:
And if you look at those cases and what they are challenging and what the courts have said is important for the question that Judge Ketledge posed, how is this execution to be carried out humanely?

[01:03:33] Speaker 06:
What you'll see is the particulars of the drug protocol, of course, in all of them, the dosages were an issue in Bayes.

[01:03:41] Speaker 06:
The qualifications of the executioners were at issue in Bayes.

[01:03:45] Speaker 06:
The IV safeguards, including things like how to flush and monitor the IV lines, were at issue in Bayes and Glosset and Bucklew.

[01:03:54] Speaker 06:
And the means of access to somebody's veins were at issue in Bucklew.

[01:03:58] Speaker 06:
So when we talk about manner, no, it doesn't include every jot of a state's broad protocol.

[01:04:06] Speaker 06:
Yes, it does include.

[01:04:07] Speaker 00:
What about strapping federal protocols as you have to strap the inmate to the execution table 30 minutes prior?

[01:04:17] Speaker 00:
Is that covered?

[01:04:18] Speaker 06:
I think no.

[01:04:20] Speaker 06:
I think that the 30 minutes prior, of course, there are many different state protocols.

[01:04:25] Speaker 06:
You can look at Missouri's, for example, that has a very detailed, timed protocol starting 24 hours, I think, before the execution.

[01:04:34] Speaker 06:
There is not a sense in which that pertains to the manner of execution in anything other than a completely tangential way.

[01:04:41] Speaker 06:
So the 30 minutes before I don't think would be covered.

[01:04:45] Speaker 06:
I do think when you come to the question about what the prisoner is experiencing,

[01:04:50] Speaker 06:
Those types of things, IV placement, monitoring, consciousness check, qualifications, dosage, those are the core of any execution protocol.

[01:05:01] Speaker 06:
And that is what we are talking about when we talk about manner, not what time the prisoner gets to make the call or what the prisoner gets to eat.

[01:05:10] Speaker 00:
And you think a federal facility, well let me ask you this, do you think the execution can occur in a federal facility?

[01:05:19] Speaker 00:
or does manner include state?

[01:05:23] Speaker 00:
Does it require state?

[01:05:24] Speaker 06:
I do, and this is one respect in which I think Ms.

[01:05:28] Speaker 06:
Patterson and I are not far apart, although obviously for different reasons.

[01:05:32] Speaker 06:
3597 carves out an exception for federal

[01:05:39] Speaker 06:
personnel to carry that out at federal facilities.

[01:05:43] Speaker 06:
It talks about the, as Ms.

[01:05:45] Speaker 06:
Patterson said, the marshal may use state facilities or state personnel.

[01:05:50] Speaker 06:
The attorney general, as Judge Tatel pointed out, has to re-inverse.

[01:05:54] Speaker 06:
But may means, of course, that you can use federal facilities, federal personnel.

[01:05:58] Speaker 06:
So that would not be part of the manner.

[01:06:00] Speaker 00:
Except it's not written as an exception.

[01:06:05] Speaker 06:
know that it's written.

[01:06:06] Speaker 00:
If it were an exception, if manner means what you say, and 3597 is an exception for location, it would have read, may carry out executions in federal facilities.

[01:06:24] Speaker 06:
I don't think, I mean it could equally perhaps have been written that way, but I think the fact that it was written to provide not just the U.S.

[01:06:33] Speaker 06:
Marshal with the ability to carry it out in state facilities, but of course with the assurance that the states would be paid for that, the fact that it was drafted in some different way I think doesn't undermine the reading of manner.

[01:06:46] Speaker 00:
It's a very odd way to create an exception if manner means

[01:06:51] Speaker 00:
all state process.

[01:06:53] Speaker 00:
It's a very odd way to say except with regard to whether the facility is state or federal.

[01:07:01] Speaker 06:
I think it also goes back though Judge Katz's to what I was describing as the scope of manner, right, because the place of an execution

[01:07:10] Speaker 06:
whether it is in Terre Haute or somewhere down the road in a state facility, that does not pertain to the kind of the cluster of issues that makes an execution more humane.

[01:07:22] Speaker 06:
The particular person carrying it out, as long as that person is qualified,

[01:07:28] Speaker 06:
which is a question of humanness, of prisoner dignity under those cases.

[01:07:33] Speaker 06:
Who exactly carries it out is not part of the manner.

[01:07:36] Speaker 06:
So whether we talk about it as a carve out so that the federal government can have its own execution facility, or we just say that actually doesn't bear on manner at all.

[01:07:46] Speaker 06:
I think 3597, however you read it, gets you to that place.

[01:07:50] Speaker 04:
So how is the federal court supposed to determine where this line is?

[01:07:55] Speaker 04:
I mean, because you're suggesting it's not

[01:07:57] Speaker 04:
everything that's in the positive law, whether that's statutory or regulatory law of the state.

[01:08:03] Speaker 04:
But it's something else.

[01:08:05] Speaker 04:
I mean, how is a federal court supposed to sort out what is part of manner and what's not?

[01:08:10] Speaker 04:
Because your line is saying not everything, not necessarily even everything in law, and you've named a number of different things that could be included, but a number of things you say are definitely not included.

[01:08:22] Speaker 04:
Is that really something that we can sort out?

[01:08:25] Speaker 04:
I think it is.

[01:08:26] Speaker 06:
I mean, it hasn't been something that you've been called upon to sort out yet because the government's position, as Ms.

[01:08:33] Speaker 06:
Patterson mentioned in Judge Tatel, is method means lethal injection, full stop, so they don't get into a question about what manner could mean

[01:08:42] Speaker 06:
if it means, as it must, something more than just lethal injection.

[01:08:46] Speaker 06:
It has to mean, in addition to that, for example, the drugs and the dosages and so forth.

[01:08:51] Speaker 06:
But I think the ways that courts would deal with it are among the ways that I mentioned earlier, I think, to Judge Katzis, which are questions about standing.

[01:09:01] Speaker 06:
If someone comes in and files a lawsuit saying, I want my dinner six hours before the execution and not eight,

[01:09:11] Speaker 06:
strikes me as not something perhaps that is likely to bear on the manner of execution.

[01:09:16] Speaker 06:
Questions about harmless error under the APA, which of course has the provision that due notice must be taken of the rule of harmless error.

[01:09:26] Speaker 06:
That's another way that a court could manage it.

[01:09:29] Speaker 06:
But I think

[01:09:30] Speaker 06:
Even the government, as I said, understands what it means to pass procedures that implement an execution.

[01:09:38] Speaker 06:
And if you look even at the detailed state procedures, they break down into different sections.

[01:09:43] Speaker 06:
There's a section on media protocol.

[01:09:46] Speaker 06:
There's a section on visitors and witnesses.

[01:09:49] Speaker 06:
And there's a section on execution.

[01:09:51] Speaker 06:
So I think it's quite easy, in fact, for a court and for the federal government, which has been doing this for many decades,

[01:09:59] Speaker 06:
to look at the execution procedures, the procedures that are meant to effectuate a humane execution and be able to map their practice onto that practice.

[01:10:09] Speaker 06:
I want to say one thing about history.

[01:10:10] Speaker 00:
I mean both the addendum and the original protocol mix together provisions that you say are covered and provisions that you say are not covered.

[01:10:24] Speaker 00:
It doesn't cleave as neatly as you're suggesting.

[01:10:28] Speaker 06:
I think the addendum itself is relatively thorough goingly addressed to manner, with the exception perhaps of- Restraining 30 minutes, strapping them to the table 30 minutes in advance.

[01:10:41] Speaker 00:
You tell me that wasn't covered.

[01:10:43] Speaker 00:
That's in the middle of the addendum.

[01:10:46] Speaker 06:
Yes, but with respect to, I think that the fact that you can isolate a couple things like the identity shall be shielded, the person will be strapped 30 minutes in advance, the nature of that document is, as Ms.

[01:11:01] Speaker 06:
Patterson also said,

[01:11:03] Speaker 06:
to try to ensure a humane execution.

[01:11:05] Speaker 06:
So I think to Judge Rao's question, the way to sort out those issues is just as I've described them.

[01:11:12] Speaker 06:
Does this bear on whether an execution is humane?

[01:11:16] Speaker 06:
And the way that Judge Kethledge I think put it.

[01:11:18] Speaker 00:
And you don't think a very creative lawyer faced with an imminent execution could come up with some argument that being strapped to the table for half an hour

[01:11:30] Speaker 00:
itself induces an extra level of terror?

[01:11:33] Speaker 06:
I think there are many lawyers who have challenged many aspects of many state protocols, and many of those aspects have been found either appropriate or not warranting, or not rising to the level, of course, of an Eighth Amendment violation.

[01:11:50] Speaker 06:
But the question here, I think, is are we talking about... How much does manner sweep up?

[01:11:56] Speaker 00:
Yes.

[01:11:58] Speaker 00:
Your no answer to questions like that is less than definitive.

[01:12:04] Speaker 00:
Take witnesses.

[01:12:06] Speaker 00:
Suppose an inmate says, it's really important to me to have my minor child present.

[01:12:17] Speaker 00:
Federal protocol says no.

[01:12:18] Speaker 00:
Is that covered?

[01:12:22] Speaker 06:
In my estimation, I will say this, that certainly has not been in any of the cases I have read involving method of execution.

[01:12:31] Speaker 00:
No, but we're getting more and more granular.

[01:12:33] Speaker 00:
We've gone from challenges to method to challenges to drugs, and now you're telling us it's challenges to whether you use three syringes or six.

[01:12:46] Speaker 06:
Perhaps we can look at it this way.

[01:12:48] Speaker 06:
The state procedures that we're talking about, of course, have been repeatedly, repeatedly brought under challenge.

[01:12:56] Speaker 06:
So this is not what we are arguing for, which is the reading of manner that goes

[01:13:02] Speaker 06:
that hews most closely to the text and to the word implementation and to the way the government has thought of that word, which we can get to in a moment.

[01:13:12] Speaker 06:
But this is not, talking about manner in terms of talking about the aspects of an execution that make it as humane as possible for the prisoner, that's not a new concept and it doesn't carve out new opportunities or material for

[01:13:29] Speaker 06:
Lawyers, those opportunities and that material have been there all along in the state protocols.

[01:13:34] Speaker 04:
Where does that standard come from in the statute, the standard that you keep repeating about ensuring that we have a humane execution?

[01:13:41] Speaker 04:
Of course we'd like to have executions that are as humane as possible.

[01:13:45] Speaker 04:
But I'm not sure where that line comes, where the statute draws that line.

[01:13:50] Speaker 06:
I think I was using it as an example of how the courts have

[01:13:57] Speaker 06:
identify the aspects of the execution that pertain to the manner of execution.

[01:14:01] Speaker 06:
So, of course, it's not in the statute.

[01:14:03] Speaker 06:
What the statutory hook is, and the government mentions in its reply brief, and I think Ms.

[01:14:08] Speaker 06:
Patterson did today, that this idea that a minimus exception is not grafted onto anything, we don't need to graft, it's in the statute.

[01:14:15] Speaker 06:
The statutory hook says, supervise implementation of the sentence.

[01:14:20] Speaker 06:
So, what I was attempting to do with the reference to the Catholic phrase is,

[01:14:25] Speaker 06:
What does that mean, implementation in the manner prescribed, of the sentence itself, not of the witnesses, not of when the curtain opens or closes, but when the execution itself happens?

[01:14:39] Speaker 06:
What is that implementation?

[01:14:40] Speaker 04:
Can we also talk a little bit about what this protocol is, right?

[01:14:44] Speaker 04:
Because I think your position is that it's a kind of legislative rule, that it requires some kind of delegated authority from Congress in order to enact it.

[01:14:53] Speaker 04:
and that it should have been subject to notice and comment rule.

[01:14:57] Speaker 04:
That is one of our arguments.

[01:14:58] Speaker 04:
That is one of the arguments.

[01:14:59] Speaker 04:
I mean, when I look at this protocol and the addendum, it reads to me much more like a general policy statement, right, or a procedural rule.

[01:15:09] Speaker 04:
I mean, the addendum, you know, has quite a few carve-outs, right, that it has to be followed, you know, as may, you know, unless, you know, there are other circumstances, right, as may be required by other circumstances.

[01:15:22] Speaker 04:
There are enormous number of carve-outs even in the protocol itself, right?

[01:15:26] Speaker 04:
There's, you know, this idea that, you know, it's very open-ended, right?

[01:15:32] Speaker 04:
It reads much more like a statement of policy or procedural rule that's not binding.

[01:15:39] Speaker 06:
I think a couple of responses to that in addition to the threshold one which is of course this wasn't ruled on by the district court below.

[01:15:47] Speaker 06:
But to your point, I think the first observation is that this addendum has an 1100 page administrative record attached to it.

[01:15:56] Speaker 06:
That says something.

[01:15:58] Speaker 06:
Second observation is in 1993 and 1994 when the government in the absence of any statute which came the following year,

[01:16:07] Speaker 06:
decided to attempt to implement procedures for executing on sentences, it issued a proposed rule, it received comments, including by the way that the government didn't have the authority to do that, and then it issued a final rule.

[01:16:21] Speaker 06:
To your point about the open-endedness, I would resist that a little bit because I think most of the aspects of this protocol are in fact quite closed-ended.

[01:16:31] Speaker 06:
the director shall do X, the director shall do Y, the director shall do Z. There are a couple open-ended opportunities for the director depending on the circumstances presented by that execution to alter a particular approach, but that itself doesn't take this out of any kind of a

[01:16:48] Speaker 06:
a binding directive that has an effect on these prisoners.

[01:16:51] Speaker 06:
The example I think that the government gives is with respect to winter, that this is just sort of a procedural challenge and therefore this is just a policy issue.

[01:17:00] Speaker 06:
This has real effects on them.

[01:17:02] Speaker 04:
Would something like the U.S.

[01:17:03] Speaker 06:
Attorney's Manual have to go through notice and comment rulemaking?

[01:17:08] Speaker 06:
I would say no as to the U.S.

[01:17:10] Speaker 06:
Attorney's Manual.

[01:17:11] Speaker 06:
Why is that different from this protocol?

[01:17:14] Speaker 06:
Because this, I would argue, and again, the reason that we're a little bit hamstrung talking about this, of course, is that the district court hasn't fully analyzed this.

[01:17:24] Speaker 06:
But what I would say is, when you have a series of commands that purports to affect an execution of another person, that that person has some rights that are bound up in that process.

[01:17:39] Speaker 06:
Not so much, perhaps, with the more generalized and more generally applicable U.S.

[01:17:43] Speaker 06:
Attorneys Manual.

[01:17:45] Speaker 06:
But with respect to the history of this statute, I want to make one point if I could, which is with respect to 1937 Act, what you heard from Ms.

[01:17:53] Speaker 06:
Patterson today was that since 1790, the statute has said the same thing.

[01:17:57] Speaker 06:
One word on 1790.

[01:17:58] Speaker 06:
The 1790 statute, as I think Judge Rao observed, says the manner of inflicting death shall be hanging.

[01:18:07] Speaker 06:
So it says inflicting, and it also says the manner shall be X. So set aside 1790.

[01:18:11] Speaker 06:
1937.

[01:18:12] Speaker 00:
Sorry, why do we set aside that?

[01:18:15] Speaker 00:
It seems like it's a crystal clear example that Congress, in the particular context of method mode process of execution,

[01:18:31] Speaker 00:
used manner in the way the government is suggesting.

[01:18:35] Speaker 06:
Yes, but the statute also used inflicting, as Judge Rao pointed out.

[01:18:40] Speaker 06:
But the 1937 Act is where Miss Patterson, I think, was concentrating.

[01:18:46] Speaker 00:
Just on 1790, that statute didn't regulate the length of the rope, the width of the rope, where the rope is placed on the neck, which are the analogs of which drug and how many syringes and the like.

[01:19:00] Speaker 06:
It didn't, but I think this is an important point and I think it came up during Ms.

[01:19:04] Speaker 06:
Patterson's argument as well.

[01:19:06] Speaker 06:
If there is no protocol in place to carry out an execution, then of course the statute, the second part of 3596 provides for what happens, which is that

[01:19:18] Speaker 06:
The government goes to the sentencing court and asks the sentencing court to send that particular prisoner to a state that does have the death penalty.

[01:19:27] Speaker 06:
And Judge Tatel, in response to your question, the case perhaps that's useful here is U.S.

[01:19:31] Speaker 06:
versus Sampson, which was a case involving a Massachusetts prisoner sent to New Hampshire, not Terre Haute.

[01:19:38] Speaker 06:
But with respect to 1937... Well, what happened in that case?

[01:19:41] Speaker 06:
I think, as Ms.

[01:19:42] Speaker 06:
Patterson said, that case is still being litigated.

[01:19:45] Speaker 06:
I think it is not yet final.

[01:19:47] Speaker 02:
But you know, that person could be executed in New Hampshire, right?

[01:19:52] Speaker 02:
In a federal facility.

[01:19:53] Speaker 06:
Yes.

[01:19:54] Speaker 06:
Yes, indeed.

[01:19:55] Speaker 06:
That was the ruling of the court.

[01:19:56] Speaker 06:
And I don't think, maybe Ms.

[01:19:58] Speaker 06:
Patterson correct me, that the government is challenging that particular ruling.

[01:20:02] Speaker 06:
I think there's other litigation around the sentence and so forth.

[01:20:06] Speaker 06:
But with respect to 1937, if I can say this, Ms.

[01:20:10] Speaker 06:
Patterson is putting a lot of emphasis on this statute reading the same as it did in 1937.

[01:20:16] Speaker 06:
But what the government said about the 1937 statute, it said it in its final rule, the one I mentioned, 58 Federal Register 4899.

[01:20:27] Speaker 06:
The 1937 act made federal executions, quote, dependent on procedures in the states, close quote.

[01:20:36] Speaker 06:
So the idea that somehow we have transmogrified from 1937 to 1994 is a fiction.

[01:20:47] Speaker 06:
The 1937 act, the government was realizing in the early 1990s made that process dependent on procedures in the states.

[01:20:55] Speaker 06:
I would mention too briefly because I think we outlined it.

[01:20:59] Speaker 00:
Let's go back to 1937, right?

[01:21:02] Speaker 00:
What, how would,

[01:21:05] Speaker 00:
a competent speaker of English have understood the word manner in the context of an execution statute.

[01:21:16] Speaker 00:
And you have 150 years under the 1790 statute, which seems to be top line method.

[01:21:28] Speaker 00:
And you have the legal background at the time

[01:21:33] Speaker 00:
which is method of execution claims you have Wilkerson and Kemmler, which firing squad and electrocution, same focus, top line lethal agent cases.

[01:21:48] Speaker 00:
So why would you construe silence on is man or the same or does man or expand to

[01:22:02] Speaker 00:
changed pretty dramatically that seemingly common and settled understanding.

[01:22:09] Speaker 06:
I think the government has already done that for us, that the government's understanding in 1993 of what manner means was that it incorporated in the 1937 Act the procedures set forth by the states.

[01:22:22] Speaker 06:
But the other way to look at this, Judge Katzis, is referencing back to your question about that aggravator statute.

[01:22:28] Speaker 00:
That one cuts in your favor.

[01:22:30] Speaker 00:
I'll give you that one.

[01:22:32] Speaker 06:
So we can either look to a 1937 act that contains a different word, by the way, inflicting, and that the government conceded a couple decades ago incorporates the procedures set forth by the state, or we can look at the neighboring statute that you mentioned.

[01:22:47] Speaker 06:
Now, the government's response to this in the reply brief is to cite a case from the Supreme Court that says, yes, we usually construe words the same way, but when it's very clear that they're not construed the same way, then they don't construe them the same way.

[01:22:59] Speaker 06:
That case, of course, if you look at it, and I urge you to, involved the phrase term of imprisonment.

[01:23:04] Speaker 06:
And it was very clear from that statute, as Justice Breyer said, that term of imprisonment plainly meant one thing in one part of the statute and another in another.

[01:23:13] Speaker 00:
We have an interpretive choice.

[01:23:17] Speaker 00:
And you tell us, look at the same statute, which presumptively we would.

[01:23:27] Speaker 00:
But on the other hand, that other provision is addressed to a very different set of issues with its own legal soil, right?

[01:23:37] Speaker 00:
The whole jurisprudence of aggravating circumstances under Woodson and the like.

[01:23:44] Speaker 00:
as opposed to the government's theory, which is you're looking across statutes back in time, but with respect to the precise issue in the case, which is

[01:23:57] Speaker 00:
method of execution.

[01:23:58] Speaker 06:
But I think the government's argument on this score is a little bit of Ipsedixit and a little bit of focusing overly much on manner.

[01:24:07] Speaker 06:
We've talked about the role that implementing plays in this, and we've talked about the fact a couple times that the government itself, and not just in that final rule,

[01:24:18] Speaker 06:
has noted that the 1937 Act requires federal executions to be dependent on procedures in the states.

[01:24:24] Speaker 06:
Ms.

[01:24:25] Speaker 06:
Patterson mentioned the legislative history and the various attempts to change this law, and she talked about the fact that while a lot of those attempts were happening, there were execution methods available in other states that weren't lethal injection.

[01:24:39] Speaker 06:
But by 2002,

[01:24:41] Speaker 06:
All states but one had gone to lethal injection.

[01:24:44] Speaker 06:
And in 2006, the head of the DOJ capital case unit, Margaret Griffey, came to Congress and said the prior law, this law returns us to the prior law which makes us dependent on procedures of the states.

[01:25:00] Speaker 06:
So it was very clear even in 2006 when there was I think one state if even that at that point left.

[01:25:07] Speaker 06:
that what the government, what the DOJ, the BOP, and the Marshall Service, all of whom had issues with the 1994 Act, what they were complaining about were the procedures issued by the states that they had to follow.

[01:25:20] Speaker 00:
But that is not... When did the last state not to have done so authorize lethal injection?

[01:25:28] Speaker 00:
We thought it was around the time DOJ stopped seeking this amendment.

[01:25:33] Speaker 06:
No, Nebraska by I think the early 2000s was the only state that had not adopted lethal injection.

[01:25:42] Speaker 06:
I don't know when it did, but I do know, to Ms.

[01:25:45] Speaker 06:
Patterson's point, that the challenge to the 1994 Act that the DOJ and the BOP kept bringing

[01:25:53] Speaker 06:
did not pertain to method.

[01:25:55] Speaker 06:
It pertained, and I can quote this.

[01:25:56] Speaker 06:
This is the hearing on H.R.

[01:25:58] Speaker 06:
5040 in March of 2006, the Margaret Griffey statement.

[01:26:02] Speaker 06:
Existing statutes reflect the practice and expectation that federal death sentence inmates, and existing statutes of course being the 1994 Act, that federal death sentence inmates would be executed under state procedures.

[01:26:15] Speaker 06:
That is the understanding that the capital case unit head came into Congress with in 2006.

[01:26:20] Speaker 06:
Executed under state procedures.

[01:26:22] Speaker 00:
That's much less helpful to you if the background law is that states permit different execution methods.

[01:26:32] Speaker 00:
That would be a true statement.

[01:26:35] Speaker 00:
There are different procedures.

[01:26:37] Speaker 00:
One state is electrocution and five states are lethal injections.

[01:26:41] Speaker 06:
Well, but now I think we're getting into an argument that even the government isn't making, which is procedures just means method.

[01:26:48] Speaker 06:
You know, method apparently means... No, no, no.

[01:26:50] Speaker 00:
It's an argument that procedures is a broader term, but they're using it in context.

[01:26:57] Speaker 00:
A method is a subset of a procedure.

[01:26:59] Speaker 06:
I think that may be an overly strained reading of that word, which is perhaps why the government hasn't adopted it.

[01:27:07] Speaker 06:
Procedures used by the states.

[01:27:09] Speaker 06:
The government understood a decade and a half before Margaret Griffey came to Congress means the procedures used by the states to effectuate the execution, to carry out the sentence.

[01:27:21] Speaker 00:
All I'm saying is the question of methods versus other procedures is just harder to isolate

[01:27:29] Speaker 00:
until the states uniformly adopt the same method.

[01:27:35] Speaker 06:
No, I don't think it is.

[01:27:39] Speaker 06:
I believe Judge Tatel may have mentioned this as well.

[01:27:41] Speaker 06:
You know, Nebraska was not some kind of a thorn in the government side at that point.

[01:27:46] Speaker 06:
I don't think there even was a federal death sentence.

[01:27:49] Speaker 06:
Jim, what was a thorn in the government side is that they wanted to perform federal executions their way, not the way that the state set forth.

[01:27:56] Speaker 06:
And Judge Rao, you made the point earlier, you know, we're here in a very volatile case, of course.

[01:28:01] Speaker 06:
But this is a statute that delegates to states the responsibility to do something.

[01:28:07] Speaker 06:
And the responsibility is to prescribe methods of execution, manner of execution, implement in the manner prescribed by the states.

[01:28:15] Speaker 06:
So in that respect, it's like any other statute, as I think you said, that confers certain responsibilities on the states.

[01:28:23] Speaker 06:
Now, the federal government has the opportunity and has taken it to try to encourage Congress to change that law.

[01:28:31] Speaker 06:
But what it can't do is override the prerogative of the states to set the manner of execution.

[01:28:36] Speaker 04:
Do you think that the Department of Justice can issue a protocol that fills in any gaps in state procedure?

[01:28:46] Speaker 04:
So, you know, a state that has, you know, very bare bones procedures, could this protocol apply there?

[01:28:53] Speaker 06:
I think if a state has bare bones procedures, you know, that there are states, for example, that have no protocol in place.

[01:29:01] Speaker 06:
So for example, California, the government talks about the California moratorium.

[01:29:06] Speaker 06:
It's not just a moratorium.

[01:29:07] Speaker 06:
There is no protocol in place.

[01:29:09] Speaker 06:
So in those circumstances where something is either not in place or very bare bones, there's a provision for how the government deals with that as well in the statute, right, which is they go to the second part of 3596

[01:29:21] Speaker 06:
and they go to the sentencing court and they say, this law does not provide for implementing this sentence.

[01:29:27] Speaker 06:
Now, there may be some kind of gray area between a bare bones protocol and the law that doesn't provide for implementation of the sentence, but I think the question about the government's gap-filling authority is not, of course, something

[01:29:42] Speaker 06:
government has called on yet for that categorical reason.

[01:29:45] Speaker 06:
The government says this is our protocol and we're sticking with it.

[01:29:49] Speaker 06:
So that bare bones protocol question hasn't come up.

[01:29:52] Speaker 06:
It's not likely to come up because all of the protocols that I've reviewed, far from being bare bones and because of the number of challenges that are raised to these protocols,

[01:30:02] Speaker 06:
are very detailed.

[01:30:04] Speaker 06:
But the details matter.

[01:30:05] Speaker 06:
The details aren't just there for decoration.

[01:30:08] Speaker 06:
The details about the syringes matter.

[01:30:10] Speaker 06:
The details about how the IV is placed matter.

[01:30:13] Speaker 06:
The details about how closely the prisoner is monitored for consciousness, which is something that is present in all four of these state's protocols and not in the government's, that matters.

[01:30:24] Speaker 06:
Those are the sorts of things that courts have found to matter.

[01:30:27] Speaker 06:
Let me say one more thing.

[01:30:28] Speaker 02:
Before you go on, let me ask you

[01:30:31] Speaker 02:
a couple sort of general questions.

[01:30:34] Speaker 02:
We spent a lot of time with Ms.

[01:30:35] Speaker 02:
Patterson talking about the pre-94 history, the experience under the 37th Statute and the number of executions.

[01:30:46] Speaker 02:
Do you draw any conclusions from that?

[01:30:49] Speaker 02:
Is that relevant to what we're facing here?

[01:30:53] Speaker 06:
I think the general conclusion that I would draw is that the federal government and the U.S.

[01:30:59] Speaker 06:
Marshals

[01:31:00] Speaker 06:
who have been responsible for this task since the late 1700s, they understand that they are to go to the states to carry out these executions.

[01:31:11] Speaker 06:
Now the government will point to examples where that wasn't followed.

[01:31:14] Speaker 02:
What about the three that were done in federal facilities?

[01:31:17] Speaker 06:
I think what we would say to that and I think what we say in our responsive brief is the fact that you can point to counter examples or aberrations doesn't somehow give the government, the federal government, the power to do something it doesn't otherwise have.

[01:31:33] Speaker 06:
There's not a kind of adverse possession theory to this.

[01:31:35] Speaker 06:
The fact that Timothy McVeigh was executed in a certain way, that Mr. Jones was executed in a certain way, neither of those two, by the way, challenged the protocol of their executions.

[01:31:45] Speaker 06:
But the fact that those executions occurred under a federal protocol that was unchallenged doesn't mean the government has the authority to issue a federal protocol.

[01:31:53] Speaker 06:
It just means that nobody challenged it in that case, and we're challenging it now.

[01:31:59] Speaker 02:
Just another question about our discussion with Ms.

[01:32:03] Speaker 02:
Ms.

[01:32:03] Speaker 02:
Patterson, you, like she, focus on the word matter.

[01:32:08] Speaker 02:
Are there other parts of this statute that you find relevant that we should be looking at?

[01:32:17] Speaker 02:
Judge Rao and I asked her about several aspects of it.

[01:32:19] Speaker 02:
Are there other provisions in this statute that you think are relevant one way or the other?

[01:32:25] Speaker 06:
Yes, very much so.

[01:32:26] Speaker 02:
Why don't you explain what those are, which ones and why.

[01:32:28] Speaker 06:
Sure, so to begin with, and I think you can start with the word manner, but as we pointed out.

[01:32:34] Speaker 02:
But I'm asking you about other words.

[01:32:36] Speaker 06:
Yes, but you can start with that word, which is where the government started, but I do think it's important, as one of Judge Rao's questions said, to back out the lens a little bit.

[01:32:44] Speaker 06:
If you back out the lens to the entire phrase, then you get, if you back out the camera lens a little bit and you look at the entire phrase, that's an issue here.

[01:32:52] Speaker 06:
implemented in the manner, supervised implementation in the manner prescribed by the law of the state.

[01:32:59] Speaker 06:
Each of those elements, and this is what I broke down a little bit earlier, I think has a role.

[01:33:04] Speaker 06:
The most important role and the thing you have not heard the government answer is this question about implementation.

[01:33:11] Speaker 06:
Implementation is something that the government uses when it describes the very procedures that we are talking about.

[01:33:18] Speaker 06:
So that's step one.

[01:33:19] Speaker 06:
Step two, if you back up a little bit further and you look at the statute more generally, what you will see in keeping with your observation, I think Judge Tatel, your first question.

[01:33:29] Speaker 06:
is that this statute assigns certain responsibilities to certain entities, not just the attorney general, who then hands the prisoner over at the point at which the sentence is to be carried out to the US Marshal, but to the courts, to the federal court system.

[01:33:46] Speaker 06:
In the event that a law does not provide for a death penalty, the sentence of death, the avenue is not for the federal government to impose its own protocol

[01:33:58] Speaker 06:
The avenue prescribed by the statute in 3596 is to go to the sentencing court and say, send us to another state.

[01:34:05] Speaker 06:
And just as you said, Judge Tatel, that doesn't need to be Indiana.

[01:34:08] Speaker 06:
The government can ask for Indiana, but the reason that Mr. Sampson was sent to New Hampshire was because it was close to Massachusetts.

[01:34:15] Speaker 06:
And the court there decided that it was important that the execution be carried out in a place where perhaps the witnesses or the victims could come and

[01:34:23] Speaker 06:
So there's no way to read the government's sort of categorical, you know, one size fits all protocol with respect to that aspect of the statute either.

[01:34:36] Speaker 06:
And then I think there's 3597, which is what Judge Katz was asking about earlier.

[01:34:42] Speaker 06:
The 3597 I think plays an important role in establishing that the federal government doesn't have to

[01:34:50] Speaker 06:
carry out these procedures by itself.

[01:34:53] Speaker 06:
And that's for good reason.

[01:34:54] Speaker 06:
Of course, you know, the U.S.

[01:34:55] Speaker 06:
Marshals for a very long time have had responsibility for executions.

[01:34:59] Speaker 06:
The federal government has only executed 37 people in the last hundred years.

[01:35:04] Speaker 06:
The people who know what they're doing are the states that are carrying out the death penalty.

[01:35:09] Speaker 06:
So 3597 is designed to permit

[01:35:12] Speaker 06:
the federal government to seek their assistance and to compensate the state's assistance for doing that.

[01:35:18] Speaker 06:
So I think if you look at the statute in the round.

[01:35:20] Speaker 02:
The Attorney General doesn't have to do it, right?

[01:35:23] Speaker 06:
No, no.

[01:35:24] Speaker 02:
Your theory leaves space, am I right, for Attorney General for death penalty protocols issued by the Attorney General to fill in what you call the non-substantive

[01:35:41] Speaker 02:
or non-important parts of an exhibition, right?

[01:35:45] Speaker 06:
Certainly to fill... I think there's two different questions.

[01:35:48] Speaker 06:
The Attorney General certainly doesn't need to call upon state facilities or personnel.

[01:35:55] Speaker 06:
The U.S.

[01:35:55] Speaker 06:
Marshal in that instance would supervise the federal execution in keeping with the manner that the state law prescribes.

[01:36:04] Speaker 02:
And that could be done in Terre Haute or in Texas?

[01:36:08] Speaker 06:
That could be done in Terre Haute or in Texas as long as the

[01:36:11] Speaker 06:
the execution itself, the carrying out of the sentence, is done in the way that the law of the sentencing state prescribes.

[01:36:18] Speaker 02:
Now, the question about whether, and I'm sorry, I forgot the second part of your question, but there's a question about whether the government... Whether the Attorney General could, I mean, let's assume that you prevail here, could the Attorney General then issue a second set of protocols

[01:36:41] Speaker 02:
address the issues left open by state law or deal with the issues that you explained aren't, what was the phrase you used, critical to the implementation of the death penalty, like for example, the amount of time for the final dinner, meal or something.

[01:37:00] Speaker 06:
Yes, and in fact if you- They could have protocols for that, right?

[01:37:04] Speaker 06:
Absolutely.

[01:37:05] Speaker 06:
And that's in keeping with our argument about what manner means when you read it in light of the statute.

[01:37:12] Speaker 06:
Implement the sentence in the manner.

[01:37:14] Speaker 06:
So the BOP protocol, the long-form protocol that was issued in 2019, has many aspects that are not relevant to the manner of execution.

[01:37:23] Speaker 06:
So the BOP certainly can issue some kind of a protocol that goes to that.

[01:37:28] Speaker 06:
What it can't do under this statute is impinge on the state's prerogative

[01:37:33] Speaker 06:
to set forth the protocols that pertain to the execution itself.

[01:37:38] Speaker 06:
And that is what the government purported to do here, and that is what the district court found wanting.

[01:37:49] Speaker 02:
You may not want to answer this, but let's assume you prevail here, and could the governor, and take the three prisoners from the death penalty states, Texas, Missouri, and Arkansas, right?

[01:38:04] Speaker 06:
There are four, Texas, Missouri, Arkansas, and Indiana, the Terre Haute.

[01:38:08] Speaker 02:
Now I was talking about just the three from the states that have the death penalty, right?

[01:38:13] Speaker 02:
Even without the protocol, could the Attorney General, quote, release the three to the Marshal who would then take them to those three states to supervise their execution there?

[01:38:25] Speaker 06:
As long as the executions were carried out in accordance with the respective state protocols, I think the answer is yes.

[01:38:33] Speaker 06:
And let me make one more point with respect to recalcitrant states, because this is a policy point that the government raised.

[01:38:40] Speaker 06:
And I want to make both a legal and a factual observation.

[01:38:43] Speaker 06:
The factual observation is the democratic governors of states that still have the death penalty are five.

[01:38:50] Speaker 06:
and all of them have committed to upholding the death penalty.

[01:38:55] Speaker 06:
So that's the factual response.

[01:38:56] Speaker 06:
The legal response is, even if you can hypothesize a rogue governor of a state that has an active death penalty in which there is a federal defendant and an execution is to be carried out, the solution is, in fact, contained in one of the cases that the government cites to you in its reply, which is the Mississippi Band of Choctaw

[01:39:18] Speaker 06:
Indian's case on page 11 of its reply.

[01:39:21] Speaker 06:
That case in turn cites a case called Reconstruction Finance Corporation versus Beaver County, Pennsylvania, Supreme Court case from 1946.

[01:39:36] Speaker 06:
And I gave government counsel a copy of that case before we came in today.

[01:39:41] Speaker 06:
What that case says is congressional purpose is best accomplished by application of settled state rules

[01:39:46] Speaker 06:
So long as it is plain, as it is here in that case, that the state rules do not affect a discrimination against the government or run counter to the terms of the federal act.

[01:39:56] Speaker 06:
So what the Supreme Court has said in that case and another case called Little Lake, Missouri that came out in 1973, what the court has said is when, not if, but when you have a circumstance where a state

[01:40:10] Speaker 06:
is so far going rogue that it is impeding the government's ability to do its job.

[01:40:16] Speaker 06:
The government, of course, has many options.

[01:40:19] Speaker 06:
Number one, if the state does withhold its protocol, and by the way, the three that don't make their protocol publicly available are Alabama, Louisiana, and South Carolina.

[01:40:29] Speaker 06:
So I don't think the government would have trouble obtaining those protocols, but let's say it does.

[01:40:33] Speaker 06:
The government can go to court and ask for the protocols.

[01:40:35] Speaker 00:
On what basis?

[01:40:38] Speaker 06:
because the government needs the protocol in order to carry out its obligations under the statute.

[01:40:42] Speaker 00:
That gives the government a legal entitlement to a document that state law makes confidential?

[01:40:48] Speaker 06:
It gives the government an entitlement to understand, perhaps under some kind of protective order, the manner of the execution that it is federally statutorily charged.

[01:40:58] Speaker 00:
What source of federal law would entitle the government to that document?

[01:41:03] Speaker 06:
the obligation of the government to carry out a sentence in accordance with 3596.

[01:41:08] Speaker 06:
But even if you set that aside, and I think that's the most modest way to attack the problem that the government has identified, which is a fictional problem, for reasons other than those three states I mentioned, all of these protocols are available in some way or another, including through litigation.

[01:41:25] Speaker 02:
Isn't the government's easiest option in those three cases is to transfer the prisoner to those three states for execution?

[01:41:34] Speaker 02:
So that is another opportunity.

[01:41:39] Speaker 06:
The government invokes 3597 and says the marshal will supervise you carrying out the protocol.

[01:41:46] Speaker 00:
But the government can't force the state to conduct the execution, right?

[01:41:53] Speaker 02:
Obviously, commandeering.

[01:41:56] Speaker 02:
An extreme form of commandeering.

[01:41:57] Speaker 06:
Exactly.

[01:41:59] Speaker 06:
That is where I think that Reconstruction Finance and Little Lake Nazarian case come in.

[01:42:03] Speaker 06:
And by the way, understand that this is all, I know the golden rule that I'm not supposed to say it's a hypothetical, this is all purely hypothetical for the reasons that I've said.

[01:42:13] Speaker 06:
There is no recalcitrant state in a position to stop a death penalty from being carried out.

[01:42:19] Speaker 06:
But if there were,

[01:42:20] Speaker 00:
If there were... There are states that have moratoria, right?

[01:42:25] Speaker 06:
Yes, yes.

[01:42:25] Speaker 00:
If the federal government went to California and said, please execute someone, you think it's unrealistic that they would say, well, no, thank you, because we, our executive, has made a policy judgment that we're going to reconsider capital punishment and stop it, at least for the foreseeable future.

[01:42:47] Speaker 06:
I think it's not unrealistic at all that California would say that.

[01:42:50] Speaker 06:
The issue with California, as I mentioned earlier, is it's not just a moratorium.

[01:42:54] Speaker 06:
There is no protocol in place.

[01:42:56] Speaker 06:
And what the statute provides in that event is if the law of the state does not provide for implementation of a sentence of death.

[01:43:03] Speaker 02:
And you're interpreting law as not just, okay, California has a death penalty on its books.

[01:43:08] Speaker 06:
Correct.

[01:43:08] Speaker 02:
But your point is, why would they be able to revoke that provision?

[01:43:13] Speaker 06:
Because the death penalty on the books does not provide for the implementation of the sentence.

[01:43:20] Speaker 06:
It does not give the protocol for how to carry out that sentence.

[01:43:24] Speaker 02:
And this perhaps is why- No, California does have a protocol, or maybe it doesn't.

[01:43:27] Speaker 02:
It does not.

[01:43:27] Speaker 02:
Does it not have one at all?

[01:43:29] Speaker 06:
It does not have one at all.

[01:43:30] Speaker 06:
That's the problem.

[01:43:30] Speaker 00:
And there are a couple- There's no legal requirement that a state spell out all these details by regulation or by protocol.

[01:43:39] Speaker 00:
You just do it the old-fashioned way, which is have a statute that says if you commit the following offense with the following aggravating circumstances, you get death by lethal injection, period, full stop.

[01:43:52] Speaker 06:
I think the reason that many states have the protocols that we've been discussing, though, is because courts, of course, pay attention to how those things are carried out.

[01:44:01] Speaker 06:
There are, as Judge Kethledge said, humane ways of doing it.

[01:44:06] Speaker 06:
and non-humane ways of doing it.

[01:44:07] Speaker 06:
So there is no state with them listed.

[01:44:10] Speaker 00:
I mean, your claim here is going way beyond any Eighth Amendment claim that's ever succeeded.

[01:44:17] Speaker 00:
I mean, even challenges to top-line methods, there's not a single one that has succeeded.

[01:44:23] Speaker 06:
To be very clear, though, this is not an Eighth Amendment challenge.

[01:44:26] Speaker 00:
I understand.

[01:44:27] Speaker 06:
This is an APA challenge.

[01:44:28] Speaker 06:
And the APA challenge is with respect to the procedures that the federal government has dictated, they are different, demonstrably.

[01:44:35] Speaker 00:
Understood, but we're talking about how realistic or not the problem is when states have a death penalty on the books and less fulsome protocols than, say, the federal ones.

[01:44:48] Speaker 06:
There's two responses.

[01:44:50] Speaker 06:
Again, I am not familiar with a state that is actively carrying out the death penalty that does not have a fulsome procedure.

[01:44:56] Speaker 06:
The states that have moratoria, the government, of course, can go into the sentencing court and say, we are not able to implement the sentence in this state because there is a moratorium in this state or under the state law.

[01:45:09] Speaker 02:
But in California, Ms.

[01:45:10] Speaker 02:
Stetson, the law of the state of California, quote, provides for the implementation of a sentence of death.

[01:45:17] Speaker 02:
The law of California does do that, right?

[01:45:20] Speaker 02:
The statutory law.

[01:45:21] Speaker 06:
The law provides for the method of the sentence of death.

[01:45:27] Speaker 02:
Provides for what?

[01:45:28] Speaker 06:
The method of the sentence of death.

[01:45:30] Speaker 06:
But the California law doesn't have a protocol in place.

[01:45:33] Speaker 06:
And our position, and I suspect it would be the governor's position.

[01:45:36] Speaker 02:
So this goes back to your earlier question.

[01:45:37] Speaker 02:
Law means not just the statute, but everything else.

[01:45:41] Speaker 06:
Yes.

[01:45:41] Speaker 02:
And so the moratorium that the governor of California announced, you would say to a district judge, they would say to a district judge in California,

[01:45:51] Speaker 02:
the law of the state in California does not provide, right, for the implementation of death penalty.

[01:45:57] Speaker 02:
Is that right?

[01:45:58] Speaker 06:
But not because of the moratorium, because of the lack of an active protocol.

[01:46:02] Speaker 02:
Well, suppose it has an active protocol, but the governor just implements a moratorium.

[01:46:10] Speaker 02:
A newly elected governor says, this has happened in several states.

[01:46:15] Speaker 02:
I think it happened in Illinois.

[01:46:16] Speaker 02:
Illinois had been executing people regularly.

[01:46:19] Speaker 06:
It has happened in several states.

[01:46:21] Speaker 02:
So what happens in that situation?

[01:46:22] Speaker 06:
I think there are a couple different avenues.

[01:46:25] Speaker 06:
One of them is, as I've mentioned, which is if

[01:46:28] Speaker 06:
The government wishes it can go into the sentencing court and say, the law of the state does not provide for us to carry out this execution.

[01:46:35] Speaker 06:
The sentencing court could disagree, right?

[01:46:38] Speaker 06:
The sentencing court could say, no, the law of the state provides for what it provides for, in which event the federal government in Terre Haute carries out that execution under the protocol issued by the state, regardless of the state's moratorium on state executions of prisoners.

[01:46:52] Speaker 06:
Now, I think the government would stop.

[01:46:57] Speaker 02:
In your hypothetical, it's okay to use hypotheticals.

[01:47:00] Speaker 02:
Does the District Court in your case, the California District Court pick Indiana?

[01:47:05] Speaker 06:
The California District Court does not need to pick Indiana.

[01:47:09] Speaker 06:
It would need to pick another state that has a death penalty in which the protocol can be implemented.

[01:47:15] Speaker 06:
But again, all of this discussion about recalcitrant states.

[01:47:18] Speaker 02:
But that has to be in that whatever state he picks.

[01:47:20] Speaker 02:
Sorry?

[01:47:21] Speaker 02:
The execution has to be in that state.

[01:47:24] Speaker 02:
Whichever state he picks, I'm asking how he gets over the hump of the fact is that the law of California still provides for a death penalty.

[01:47:32] Speaker 06:
Yes, but with respect to your earlier point though, there is a phrase in that statute when it comes to the sentencing court assigning a different state, that statute actually does say in that event the executions shall take place in that state.

[01:47:48] Speaker 06:
That's why Mr. Sampson is being executed in New Hampshire and not Terre Haute.

[01:47:52] Speaker 06:
It's not just the law.

[01:47:53] Speaker 02:
Maybe I asked my questions wrong, or maybe I misunderstood people.

[01:47:56] Speaker 02:
Assume a state where the governor imposes a moratorium.

[01:48:01] Speaker 02:
It's been executing people, so it has a protocol.

[01:48:05] Speaker 02:
Okay?

[01:48:06] Speaker 06:
Yes.

[01:48:08] Speaker 02:
In that situation, can the district court invoke the latter state clause?

[01:48:13] Speaker 06:
Can the district court invoke the latter state clause?

[01:48:17] Speaker 06:
I believe it could.

[01:48:18] Speaker 06:
I think the government presumably would argue that it could, regardless of the moratorium, because the law does not provide for implementation of the sentence under the reading of the law that the Supreme Court has endorsed.

[01:48:31] Speaker 04:
But again, to all of this... So I was concerned earlier about the line drawing problem for what the executive branch could do, but now it seems that there might also be a line drawing problem for when

[01:48:43] Speaker 04:
a district court would have jurisdiction to assign this to another state.

[01:48:47] Speaker 04:
And so it's, I mean, some of the comments that you made suggest that that might turn on how detailed the procedures are of a particular state.

[01:48:55] Speaker 04:
So even a state that has the death penalty and has, you know, maybe some protocols but not enough protocols for the government to move forward, well then that creates the authority for the district court to assign it to another state.

[01:49:09] Speaker 04:
In that line, drawing problems seems even more concerning perhaps.

[01:49:13] Speaker 06:
I think Judge Rao, it's no more a line drawing problem than any other disputed legal issue in which a court is called upon to adjudicate.

[01:49:23] Speaker 06:
And just like the examples of manner that we were discussing, the district court has tools, including what the statute says and the party's arguments, to enable it to figure out on what side of the line that particular argument falls.

[01:49:36] Speaker 06:
So it doesn't strike me any more than the nature of determining what manner of execution is.

[01:49:42] Speaker 06:
doesn't strike me as any more of a line-drying problem than that.

[01:49:45] Speaker 04:
But with respect to this issue... What if the government were to go to a district court and say, I think that this, you know, state law doesn't provide for the implementation of a sentence of death in a manner that's, you know, humane and appropriate, and therefore ask the court to move it to another state?

[01:50:01] Speaker 04:
Would the government be able to do that?

[01:50:03] Speaker 06:
I think if the argument is based on in a manner that is humane and appropriate, that's the government's argument for why it is putting in place the protocol that it did, that it considers its protocol more humane than some other states.

[01:50:17] Speaker 06:
That is not what that statute calls upon the judge to do.

[01:50:21] Speaker 06:
So if that's the argument, I think the judge would decline to entertain that.

[01:50:25] Speaker 06:
If the argument is this law doesn't provide for implementation of the sentence, full stop.

[01:50:31] Speaker 06:
That's an argument that the judge could be called, should be called upon to address and resolve.

[01:50:36] Speaker 06:
But again, all of these questions about the states and the recalcitrant states, the reason I mention them is because they fall in line with a series of policy arguments of course the government has made.

[01:50:48] Speaker 06:
It would be more efficient for the government to have a single protocol.

[01:50:51] Speaker 06:
It would be a problem if a state were to resist

[01:50:54] Speaker 06:
a federal execution.

[01:50:56] Speaker 06:
All of those are policy arguments that can be made to a different body.

[01:51:00] Speaker 06:
The question here is, getting back to your initial question, Judge Rao, what does the statute say?

[01:51:06] Speaker 06:
What does it direct the states to do?

[01:51:07] Speaker 06:
And how does it direct the federal government to effectuate what the states prescribe?

[01:51:12] Speaker 06:
And our view is when the states prescribe the manner of execution, the federal government follows it.

[01:51:19] Speaker 06:
Is there no further questions?

[01:51:21] Speaker 02:
No.

[01:51:21] Speaker 02:
Thank you.

[01:51:22] Speaker 02:
Thank you.

[01:51:23] Speaker 02:
Ms.

[01:51:23] Speaker 02:
Patterson, you can take three minutes.

[01:51:27] Speaker 05:
Thank you very much, Your Honor.

[01:51:29] Speaker 05:
I have just a few points to make.

[01:51:32] Speaker 05:
First, an understanding of manner that turns on the prisoner's experience has no historical basis, and I think it conflicts with the statute in an important way.

[01:51:45] Speaker 05:
I think even on that reading of the manner of carrying out an execution, the training and identity of the personnel who carry out the execution

[01:51:56] Speaker 05:
are unquestionably, I think they said it themselves, part of that manner.

[01:52:00] Speaker 05:
But we know that Congress did not want to hamstring the federal government in terms of personnel because of 3597.

[01:52:08] Speaker 05:
That gives the federal government flexibility.

[01:52:11] Speaker 05:
So I think there are textual reasons, even aside from the history, to reject and the real line drawing problems that come with that, to reject that reading.

[01:52:22] Speaker 05:
In terms of the history,

[01:52:24] Speaker 05:
that plaintiffs invoke the style of gallows drop, which unquestionably affected the experience of hanging.

[01:52:33] Speaker 05:
Whether or not your neck breaks or you strangle, I think everyone would agree is relevant to that experience.

[01:52:40] Speaker 05:
And yet nothing in the 1790 statute carries that level of detail, suggests that manner is determined by the prisoner's experience.

[01:52:50] Speaker 05:
On the 3596 point regarding alternative designations, the federal government may well find it convenient to ask a court to designate another state if it is impracticable to carry out a sentencing state's protocol.

[01:53:08] Speaker 05:
We cannot do that under the plain language of the statute.

[01:53:11] Speaker 05:
They are reading in the word manner into that alternative designation

[01:53:16] Speaker 05:
proceedings.

[01:53:16] Speaker 05:
So they are saying what it means is that the law of the state does not provide for a manner of implementation of the sentence of death.

[01:53:22] Speaker 05:
We have that sort of flexibility to go and ask for an alternative state to be designated.

[01:53:28] Speaker 05:
Our reading, and I think this is the only one that works as a matter of text, is that if the death penalty is on the books, if you are allowed to carry out, to implement the sentence of death for any crime in the state,

[01:53:40] Speaker 05:
we are stuck with that state's laws.

[01:53:42] Speaker 05:
So if a state chooses through inaction even, or recalcitrance, to not help us understand the details of its protocol or to use the facilities entrenched in the state proceeding, we could well be unable to carry out a lawful federal execution.

[01:53:59] Speaker 05:
On the point of recalcitrant states, and Ms.

[01:54:02] Speaker 05:
Dutton referred to a few cases,

[01:54:05] Speaker 05:
I urged the court to look at those cases.

[01:54:07] Speaker 05:
I took a look at them before court.

[01:54:09] Speaker 05:
And what it's referring to is when a state is trying to use its law to frustrate the government.

[01:54:16] Speaker 05:
We're not talking, I mean, I suppose you could imagine a hypothetical where the state was trying to create statutes in a way to really frustrate the government.

[01:54:25] Speaker 05:
But by and large, what we're talking about is states making their own legitimate choices

[01:54:29] Speaker 05:
about the death penalty within their own territory.

[01:54:32] Speaker 05:
They don't have to want to stymie the federal government to have that incidental effect under their reading of the statute.

[01:54:38] Speaker 05:
If there are no further questions, we ask the court to vacate the injunction.

[01:54:43] Speaker 02:
Ms.

[01:54:43] Speaker 02:
Patterson and Ms.

[01:54:44] Speaker 02:
Stetson, on behalf of the court, I want to thank you for your excellent briefs and arguments today.

[01:54:48] Speaker 02:
They've been very helpful.

[01:54:50] Speaker 02:
The case is submitted.