In my last post, I discussed how President Trump and Attorney General Sessions—both strong supporters of capital punishment—might seek to increase use of the federal death penalty (and how this effort might be resisted). In this post, I consider how capital punishment might fare in the states under the Trump administration.

The most important background point here is that Trump has very little direct authority over the death penalty in the states. However, there are a few ways in which the Trump administration could facilitate executions of individuals already sentenced to death in state courts. The difficulty of acquiring lethal injection drugs has been a major obstacle to executions in recent years, and the Trump administration could attempt to facilitate the acquisition of such drugs by states. The administration also could utilize a previously-unused provision in federal law to expedite federal court post-conviction review of state death sentences. However, both projects would be of questionable legality, and it is unclear whether they would ultimately succeed.

Facilitating the Acquisition of Lethal Injection Drugs By The States

Perhaps the most significant current obstacle to the death penalty in the states is the difficulty of acquiring drugs for lethal injection. Death penalty opponents have successfully pressured many pharmaceutical companies to desist from selling their products for use in executions. European Union human rights law provides a further obstacle, since many of the drugs are manufactured by European companies forbidden from exporting products for use in executions. As a result, many states have attempted to acquire drugs from questionable unlicensed third-party distributors, attracting the interest of federal regulatory agencies including the Food and Drug Administration (FDA) and the Drug Enforcement Administration (DEA).

Since 2011, the DEA and FDA have blocked imports of lethal injection drugs or seized them from several states that have tried to acquire drugs from unlicensed importers, including Alabama, Arizona, Georgia, Kentucky, Nebraska, Ohio, South Carolina, Tennessee, and Texas. As a result, many states have been forced to delay executions due to inability to acquire drugs.

If the Trump administration wishes to expedite executions, it may instruct the DEA and FDA to use their enforcement discretion to allow the importation of lethal injection drugs from unlicensed providers. However, doing so would be clearly illegal under established law.

Prior to 2012, the FDA took the position that it could use enforcement discretion to allow importation of lethal injection drugs. However, in a challenge brought by a number of death row inmates, the United States District Court for the District of Columbia disagreed, concluding that §801(a) of the Food, Drug, and Cosmetic Act created a mandatory duty for the FDA to block importation of unlicensed drugs—and that as a result, exercising “enforcement discretion” to allow unlicensed importation of lethal injection drugs would be arbitrary and capricious under §706(2)(a) of the Administrative Procedure Act. The DC Circuit affirmed. Attempts to reinstitute the pre-2012 “enforcement discretion” regime would therefore likely fail.

Perhaps as a result of these judicial determinations, during the early days of the Trump administration, the FDA has continued its policy of blocking states’ attempts to illegally import execution drugs. However, Texas has challenged this policy, arguing that importation of drugs for lethal injection falls into a law enforcement exception to the requirements of the Food, Drug and Cosmetic Act. The Trump administration could take Texas’ side in this litigation, which, if successful, would again allow imports of lethal injection drugs from third-party sources.

Even if the Trump administration is unable to facilitate drug acquisition by reopening importation, there are potentially other ways that it could help states acquire lethal injection drugs. In 2011, several state attorneys general wrote to then-Attorney General Eric Holder, requesting that the federal government provide assistance in locating domestic sources of drugs or provide the states with drugs directly. Although Attorney General Holder did not provide assistance then, claiming that the federal government itself lacked the requisite drugs or a source for acquiring them, DOJ under Attorney General Sessions may be more hospitable to a similar request. Many states have turned to acquiring lethal injection drugs from compounding pharmacies, which are not regulated by the FDA. Most compounding pharmacies have declined to participate in executions, since doing so is discouraged by the American Pharmacists Association. But the federal government could still facilitate drug acquisition from compounding pharmacies by taking a leading role in locating private pharmacists willing to produce the drugs.

The DOJ could also support the states in one or more of the many ongoing challenges to state lethal injection protocols through amicus briefs or intervention. The Obama administration did not do so: for instance, the Solicitor General did not file a brief in Glossip v. Gross, the most recent major Supreme Court challenge to lethal injection. The Trump administration could do so, arguing for the constitutionality of new lethal injection protocols proposed by the states as they struggle to acquire drugs. Since the federal government is generally considered quite influential when it intervenes or supports a party in litigation, lower courts may be more inclined to support new or revised lethal injection protocols if they have the backing of the federal government.

Expediting Federal Habeas Corpus Review of State Capital Sentences under AEDPA

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), which governs post-conviction review of capital sentences in federal court, states can opt in to expedited federal review of capital cases under certain conditions. The opt-in provision requires states to (1) “establish[] a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings . . . “; (2) request certification from the Attorney General that the system of appointment of postconviction counsel meets federal standards; and (3) receive certification before expedited review can begin.

The Attorney General is required to promulgate implementing regulations for the provision. If a state is certified, federal courts are required to “give[] priority” to applications for capital post-conviction relief from that state over “all noncapital matters.” District courts are required to rule on applications within 450 days of filing, and circuit courts are required to rule on appeals from a grant or denial of relief within 120 days of the completion of briefing.  Applications for federal post-conviction review of capital cases from opt-in states also must be filed within 180 days of final affirmance of the conviction and sentence in state court, shorter than the 1-year statute of limitations applied to all other federal post-conviction review. Certification decisions are subject to de novo review in the D.C. Circuit.

Despite attempts, no state has successfully opted into AEDPA’s expedited review scheme. If the Trump administration and Sessions wish to expedite executions in the states, they could allow states to opt in, presumably by revising the implementing regulations to make them more lenient and then by approving opt-in under their own more lenient regulations.

However, these efforts are unlikely to succeed. Both the Bush and Obama administrations attempted to promulgate implementing regulations and to let states opt in. The Bush administration did not attempt to do so until late in the Bush presidency and the proposed attempt was withdrawn when President Obama took office. The Obama administration’s attempt, in turn, was blocked as a result of a challenge brought by several capital defense organizations.

In 2013, the U.S. District Court for the Northern District of California granted a preliminary injunction blocking implementation of the Obama administration’s proposed rule as likely arbitrary and capricious under the Administrative Procedure Act. The court concluded that the rule, which allowed states to opt in if able to show that its capital defense standards “reasonably assure a level of proficiency appropriate for State post-conviction litigation in capital cases,” was likely illegally vague, leading to a risk that the Attorney General could approve states to opt in even if they did not actually provide competent representation. The 9th Circuit reversed on the basis that the capital defense organizations lacked standing and that the case was not ripe because the Attorney General had not yet allowed a state to opt in, and the Supreme Court denied certiorari. 

The litigation in the 9th Circuit suggests that any challenges to the certification process must occur as challenges to an Attorney General certification decision in the D.C. Circuit. That said, the litigation also indicates that challenges to an opt-in allowed under the current implementing regulations, or more lenient future implementing regulations, may be successful.

Thanks to Professor Carol Steiker for her comments. 

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