Manner of Federal Executions
| Citation | 85 FR 47324 |
| Record Number | 2020-15039 |
| Published date | 05 August 2020 |
| Court | The Attorney General Office |
Federal Register, Volume 85 Issue 151 (Wednesday, August 5, 2020)
[Federal Register Volume 85, Number 151 (Wednesday, August 5, 2020)]
[Proposed Rules]
[Pages 47324-47327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15039]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 26
[Docket Number OAG 171; AG Order No. 4749-2020]
RIN 1105-AB63
Manner of Federal Executions
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Proposed rule.
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SUMMARY: The Department of Justice is proposing to amend regulations to
authorize implementation of a sentence in a Federal capital case in any
manner consistent with Federal law and to make other amendments.
DATES: Electronic comments must be submitted and written comments must
be postmarked or otherwise indicate a shipping date on or before
September 4, 2020. The electronic Federal Docket Management System at
www.regulations.gov will accept electronic comments until 11:59 p.m.
Eastern Time on that date.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name and referencing
Docket No. OAG 171, by one of the two methods below.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the website instructions for submitting comments.
Mail: Paper comments that duplicate an electronic
submission are unnecessary. If you wish to submit a paper comment in
lieu of electronic submission, please direct the mail/shipment to:
Laurence E. Rothenberg, Deputy Assistant Attorney General, Office of
Legal Policy, U.S. Department of Justice, 950 Pennsylvania Ave. NW,
Washington, DC 20530. To ensure proper handling, please reference the
agency name and Docket No. OAG 171 on your correspondence. Mailed items
must be postmarked or otherwise indicate a shipping date on or before
the submission deadline.
FOR FURTHER INFORMATION CONTACT: Laurence E. Rothenberg, Deputy
Assistant Attorney General, Office of Legal Policy, U.S. Department of
Justice, (202) 514-3116.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule via one of the methods and by the deadline stated above. All
comments must be submitted in English, or accompanied by an English
translation. The Department of Justice (``Department'' or ``DOJ'') also
invites comments that relate to the economic, environmental, or
federalism effects that might result from this rule. Comments that will
provide the most assistance to the Department in developing these
procedures will reference a specific portion of the rule, explain the
reason for any recommended change, and include data, information, or
authority that support such recommended change.
Please note that all comments received are considered part of the
public record and made available for public inspection at
www.regulations.gov. Such information includes personally identifiable
information (``PII'') (such as your name, address, etc.). Interested
persons are not required to submit their PII in order to comment on
this rule. However, any PII that is submitted is subject to being
posted to the publicly accessible www.regulations.gov site without
redaction.
Confidential business information clearly identified in the first
paragraph of the comment as such will not be placed in the public
docket file. The Department may withhold from public viewing
information provided in comments that it determines may impact the
privacy of an individual or is offensive. For additional information,
please read the Privacy Act notice that is available via the link in
the footer of http://www.regulations.gov. To inspect the agency's
public docket file in person, you must make an appointment with the
agency. Please see the FOR FURTHER INFORMATION CONTACT paragraph above
for agency contact information.
II. Background and Purpose
The Federal Death Penalty Act provides generally that a capital
sentence in a Federal case is to be implemented ``in the manner
prescribed by the law of the State in which the sentence is imposed.''
18 U.S.C. 3596(a). However, if the ``law of the State in which the
sentence is imposed'' ``does not provide for implementation of a
sentence of death,'' then the statute directs the court to designate
another State whose law does ``provide for the implementation of a
sentence of death,'' ``and the sentence shall be implemented in the
latter State in the manner prescribed by such law.'' Id.
The current execution regulations of the Department direct the
attorney for the government to ``file with the sentencing court a
proposed Judgment and Order'' stating that ``[t]he sentence shall be
executed by intravenous injection of a lethal substance or substances
in a quantity sufficient to cause death.'' 28 CFR 26.2(a). The
regulations further state that, except to the extent a court orders
otherwise, a sentence of death shall be executed on a date and at a
time and at a ``federal penal or correctional institution designated by
the Director of the Federal Bureau of Prisons . . . [b]y intravenous
injection of a lethal substance or substances in a quantity sufficient
to cause death.'' Id. Sec. 26.3(a). Furthermore, the Federal Bureau of
Prisons facility for carrying out executions, located at the
[[Page 47325]]
Terre Haute correctional complex in Indiana, is equipped for carrying
out executions only by lethal injection.
This proposed rule would provide the Federal Government with
greater flexibility to conduct executions in any manner allowed by
federal law and implement the statutory authorization in the Federal
Death Penalty Act, at 18 U.S.C. 3597, that provides that State and
local facilities and personnel may be used in carrying out Federal
executions.
The proposed regulation would also clarify that the Attorney
General has the authority to make all determinations of issues with
regard to execution procedures, including designating other DOJ
officials to make such determinations, in line with the Attorney
General's well-established authority to manage the Department. Federal
law vests all powers of components of the Department in the Attorney
General and permits the Attorney General to reassign powers among the
components. See 28 U.S.C. 509 (``All functions of other officers of the
Department of Justice and all functions of agencies and employees of
the Department of Justice are vested in the Attorney General[.]''); 28
U.S.C. 510 (granting the Attorney General authority to delegate powers
to ``any other officer, employee, or agency of the Department of
Justice''). When sections 3596 and 3597 of title 18 assign certain
duties to a component of DOJ, those assignments are initial, default
assignments. However, those duties are legally vested in the Attorney
General, and because of this, the Attorney General may also assign
those duties to other DOJ components, as is expressly permitted by
long-standing Federal law. Sections 3596 and 3597 contain no language
expressly prohibiting the Attorney General from deciding or delegating
matters relating to executions.
The issues addressed in the proposed rule are manner of execution,
use of State and local facilities and personnel, and other amendments.
A. Manner of Execution
Section 3596 of title 18 provides that Federal executions are to be
carried out in the manner prescribed by the law of the relevant State,
and the Federal execution regulations provide that Federal executions
are to be carried out by lethal injection except to the extent a court
orders otherwise, 28 CFR 26.2(a)(2), 26.3(a). Execution by lethal
injection is now universally authorized in States that have capital
punishment, see In re Fed. Bureau of Prisons' Execution Protocol Cases,
955 F.3d 106, 114 (D.C. Cir. 2020) (Katsas, J., concurring) (``Every
state that authorizes capital punishment uses lethal injection `as the
exclusive or primary means of implementing the death penalty.' ''
(quoting Baze v. Rees, 553 U.S. 35, 42 (2008) (plurality opinion))),
but some States currently authorize execution by other means in certain
circumstances, and more States may authorize execution by other means
in the future. See, e.g., Ala. Code 15-18-82.1(a) (by lethal injection
but electrocution or nitrogen hypoxia may be elected); Miss. Code Ann.
99-19-51(1)-(4) (by lethal injection but by nitrogen hypoxia,
electrocution, or firing squad if other methods are held
unconstitutional or otherwise unavailable); Okla. Stat. tit. 22, sec.
1014 (same); Ark. Code Ann. 5-4-617(l) (by electrocution if execution
by lethal injection is invalidated); Fla. Stat. 922.105 (by lethal
injection but electrocution may be elected); see also Bucklew v.
Precythe, 139 S. Ct. 1112, 1142 (2019) (Breyer, J., dissenting) (noting
States permitting use of nitrogen hypoxia); Glossip v. Gross, 135 S.
Ct. 2726, 2796 (2015) (Sotomayor, J., dissenting) (noting State using
firing squad). One State has recently used electrocution. See Media
Advisory, Tenn. Dep't of Corr. (Dec. 5, 2019, 7:27 p.m.), https://www.tn.gov/correction/news/2019/12/5/media-advisory.html. Some States
also provide by law that a prisoner may choose the manner of execution
from among several options in at least some circumstances. See Ala.
Code 15-18-82.1(b); Ariz. Rev. Stat. Ann. 13-757(B); Cal. Penal Code
3604; Fla. Stat. 922.105; Ky. Rev. Stat. Ann. 431.220(1)(b); S.C. Code
Ann. 24-3-530(A); Tenn. Code Ann. 40-23-114(b); Va. Code Ann. 53.1-234.
In recent U.S. Supreme Court litigation involving Eighth Amendment
challenges to execution by lethal injection, nitrogen hypoxia and
firing squad have been identified as potential alternative methods of
execution, including by prisoners themselves, that might--or even
must--be used instead of lethal injection, in particular because those
methods allegedly carry a lesser risk of pain. The Supreme Court has
rejected such arguments in the case of nitrogen hypoxia, in part
because it has not been shown that the proffered alternative can be
readily implemented by the relevant State and is less likely to cause
pain. See Bucklew, 139 S. Ct. at 1129-33 (regarding nitrogen hypoxia);
id. at 1142-43 (Breyer, J., dissenting) (same); see also id. at 1136
(Kavanaugh, J., concurring) (regarding firing squad); Glossip, 135 S.
Ct. at 2739 (same); id. at 2796-97 (Sotomayor, J., dissenting) (same);
Arthur v. Dunn, 137 S. Ct. 725, 733-34 (2017) (Sotomayor, J.,
dissenting from denial of certiorari) (discussing a prisoner's claim
that the firing squad should be imposed as an alternative method in
Alabama).
Nonetheless, in these cases, litigants have argued, and some
jurists have noted, that there is evidence that certain alternative
means of execution may be humane methods of execution if they were made
available. See Bucklew, 139 S. Ct. at 1142-43 (Breyer, J., dissenting)
(``[The petitioner] introduced into the record reports from Oklahoma
and Louisiana indicating that nitrogen hypoxia would be simple and
painless.''); Glossip, 135 S. Ct. at 2797 (Sotomayor, J., dissenting)
(``At least from a condemned inmate's perspective, . . . [death by
shooting's] visible yet relatively painless violence may be vastly
preferable[.]''); Arthur, 137 S. Ct. at 734 (Sotomayor, J., dissenting
from denial of certiorari) (``In addition to being near instant, death
by shooting may also be comparatively painless.''). The Supreme Court
has long held that death by firing squad and death by electrocution do
not violate the Eighth Amendment's prohibition on cruel and unusual
punishment. See Wilkerson v. Utah, 99 U.S. 130, 130-31, 134-35 (1878)
(firing squad); In re Kemmler, 136 U.S. 436 (1890) (electrocution); see
also Bucklew, 139 S. Ct. at 1125.
Furthermore, it is possible that a State in the future will provide
that a manner other than lethal injection is the only authorized means
of execution. Section 3596(a) would then require execution in that
manner for a Federal offender sentenced in the State. The proposed rule
would therefore forestall potential future arguments by prisoners in
litigation that they cannot be executed under the existing regulation
because the regulation does not expressly authorize execution by means
other than lethal injection.
Accordingly, the proposed rule would amend the regulations to
provide, in 28 CFR 26.3(a)(4), that Federal executions are to be
carried out by lethal injection ``or by any other manner prescribed by
the law of the State in which the sentence was imposed or which has
been designated by a court in accordance with 18 U.S.C. 3596(a).''
(There is no similar change to Sec. 26.2(a)(2) as the proposed rule
proposes to rescind that section entirely, as discussed below.) The
proposed rule thus ensures that the Department is authorized to use the
widest range of humane manners of execution permitted by law.
B. Use of State Facilities
The current regulations provide that a Federal execution shall
occur ``[a]t a
[[Page 47326]]
federal penal or correctional institution designated by the Director of
the Federal Bureau of Prisons.'' 28 CFR 26.3(a)(2). Under the proposed
amendments to the regulation, the Government will have the authority to
carry out an execution in any appropriate Federal, State, or local
facility. For example, as discussed above, future situations may arise
in which it is necessary to carry out an execution by some means other
than lethal injection, which could be beyond the current capacities of
Federal facilities.
If cases of this nature arise, the most expedient means of carrying
out the execution may be to arrange for State assistance. This is
expressly authorized by section 3597(a), which provides that State and
local facilities and personnel may be used in carrying out Federal
executions. The proposed rule provides for such use by amending the
regulations through striking ``federal'' before ``penal or correctional
institution'' in Sec. 26.3(a)(2) and replacing ``[b]y'' with ``[u]nder
the supervision of'' a United States Marshal in Sec. 26.3(a)(3).
C. Additional Amendments
The proposed rule also proposes a number of other changes to the
regulations, as follows:
First, it proposes to amend Sec. 26.1 to clarify application of
the regulations in certain circumstances. It designates existing
language in that section as paragraph (a), and creates new Sec.
26.1(b) that would provide the Attorney General the flexibility to vary
from the regulation in the event that applicable law (such as
controlling State law) requires different procedures, stating that
where applicable law conflicts with any provision of part 26, the
Attorney General may vary from that provision to the extent necessary
to comply with the applicable law. It also adds new Sec. 26.1(c) to
reiterate the Attorney General's authority to manage the Department's
execution process, by stating that any task or duty assigned to any
officer or employee of the Department of Justice under part 26 may be
delegated by the Attorney General to any other officer or employee of
the Department of Justice.
Second, the proposed rule would eliminate unnecessary and redundant
language in the regulations by striking the entirety of Sec. 26.2 and
reserving that section for future use.
Third, the proposed rule would amend the heading of Sec. 26.3 to
replace ``method'' with ``manner,'' in accordance with the language
used in the statute.
Fourth, the proposed rule would clarify responsibilities for
decisions about execution procedures by replacing the term ``Warden''
(or ``Warden of the designated institution'') with ``Director of the
Federal Bureau of Prisons or his designee'' in Sec. Sec. 26.3(a)(3),
26.4(a), 26.4(c)(1), 26.4(c)(4), 26.4(e), and 26.4(g), and deleting
``Warden'' in Sec. 26.4(b) and in the first line of Sec. 26.4(c).
Fifth, the proposed rule would amend Sec. 26.3(a)(3) to authorize
the Director of the Federal Bureau of Prisons to choose the personnel
to carry out the sentence. To do so, the proposed rule strikes, in
Sec. 26.3(a)(3), ``the Marshal and''.
Sixth, the proposed rule would in Sec. 26.3(a)(3) clarify that
qualified personnel must be used for any manner of execution.
Seventh, the proposed rule makes an edit to Sec. 26.4(b) to
clarify that ``the institution'' refers to the correctional institution
that has been designated in Sec. 26.3(a)(2).
Eighth, an additional edit to Sec. 26.4(b) clarifies that the
Director has the discretion to grant a prisoner's request to visit with
additional persons as the Director deems proper.
Ninth, to clarify the responsibility of the Marshal regarding
notification to the sentencing court that the execution has been
carried out, in Sec. 26.4(g), the proposed rule states that the
Marshal ``shall ensure that appropriate notice of the sentence's
implementation is filed with the sentencing court,'' replacing the
existing requirement that the Marshal sign a return referenced in Sec.
26.2(b).
Tenth, the proposed rule would extend to non-DOJ employees
(including contractors) existing protections that currently apply to
DOJ employees, allowing them not to be in attendance at or to
participate in any execution if such attendance or participation is
contrary to the moral or religious convictions of the DOJ employee. The
new language is almost the exact language on this matter from 18 U.S.C.
3597(b).
III. Regulatory Review
A. Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this proposed regulation and by
approving it certifies that this proposed regulation would not have a
significant economic impact on a substantial number of small entities
because it concerns the manner of implementing Federal capital
sentences.
B. Executive Orders 12866, 13563, and 13771--Regulatory Planning and
Review
This proposed regulation has been drafted and reviewed in
accordance with Executive Order 12866, ``Regulatory Planning and
Review,'' section 1(b), ``The Principles of Regulation,'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review.'' The Office
of Information and Regulatory Affairs has determined that this proposed
rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f).
This proposed rule, if made final, may entail financial costs if,
at some point in the future, a prisoner is to be executed by a manner
other than lethal injection. The Department would then either have to
provide its own system for an execution by a manner other than lethal
injection or pay for the use of State or local facilities and personnel
to perform the execution. In such a circumstance, the cost would likely
be the development of Federal capabilities to implement such a sentence
or payment for the use of State or local facilities and personnel.
This proposed rule is not expected to be a regulatory action for
purposes of Executive Order 13771.
C. Executive Order 13132--Federalism
This proposed regulation will not have substantial direct effects
on the States, on the relationship between the National Government and
the States, or on the distribution of power and responsibilities among
the various levels of government. Section 3597 of title 18 provides
that the Federal Government ``may use appropriate State or local
facilities for the purpose [of implementing a sentence of death], may
use the services of an appropriate State or local official or of a
person such an official employs for the purpose, and shall pay the
costs thereof.'' The statutory authorization and the proposed rule to
implement it are directed at the Federal Government. Neither the
statute nor the proposed rule imposes any requirements for action or
costs on States. Therefore, in accordance with Executive Order 13132,
it is determined that this proposed rule does not have sufficient
federalism implications to warrant the preparation of a federalism
assessment.
E. Executive Order 12988--Civil Justice Reform
This proposed regulation meets the applicable standards set forth
in sections 3(a) and 3(b)(2) of Executive Order 12988.
[[Page 47327]]
F. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
G. Congressional Review Act
This proposed rule is not expected to be a major rule as defined by
the Congressional Review Act, 5 U.S.C. 804. This rule will not result
in an annual effect on the economy of $100 million or more; a major
increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, or innovation, or on
the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.
List of Subjects in 28 CFR Part 26
Law enforcement officers, Prisoners.
Accordingly, for the reasons stated in the preamble, part 26 of
chapter I of title 28 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 26--DEATH SENTENCES PROCEDURES
0
1. The authority citation for part 26 is revised to read as follows:
Authority: 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002, 3596, 3597; 28
U.S.C. 509, 510, 2261, 2265.
0
2. Amend Sec. 26.1 by:
0
a. Designating the existing language as paragraph (a); and
0
b. Adding paragraphs (b) and (c) to read as follows:
Sec. 26.1 Applicability.
* * * * *
(b) Where applicable law conflicts with any provision of this part,
the Attorney General may vary from that provision to the extent
necessary to comply with the applicable law.
(c) Any task or duty assigned to any officer or employee of the
Department of Justice by this part may be delegated by the Attorney
General to any other officer or employee of the Department of Justice.
Sec. 26.2 [Removed and Reserved]
0
3. Remove and reserve Sec. 26.2.
0
4. Amend Sec. 26.3 by revising the section heading and paragraphs
(a)(2), (3), and (4) to read as follows:
Sec. 26.3 Date, time, place, and manner of execution.
(a) * * *
(2) At a penal or correctional institution designated by the
Director of the Federal Bureau of Prisons;
(3) Under the supervision of a United States Marshal designated by
the Director of the United States Marshals Service, assisted by
additional qualified personnel selected by the Director of the Federal
Bureau of Prisons or his designee and acting at the direction of the
Marshal; and
(4) By intravenous injection of a lethal substance or substances in
a quantity sufficient to cause death, such substance or substances to
be determined by the Director of the Federal Bureau of Prisons, or by
any other manner prescribed by the law of the State in which the
sentence was imposed or which has been designated by a court in
accordance with 18 U.S.C. 3596(a).
* * * * *
0
5. Amend Sec. 26.4 by revising paragraphs (a), (b), (c), (e), and (g)
to read as follows:
Sec. 26.4 Other execution procedures.
(a) The Director of the Federal Bureau of Prisons or his designee
shall notify the prisoner under sentence of death of the date
designated for execution at least 20 days in advance, except when the
date follows a postponement of fewer than 20 days of a previously
scheduled and noticed date of execution, in which case the Director of
the Federal Bureau of Prisons or his designee shall notify the prisoner
as soon as possible.
(b) Beginning seven days before the designated date of execution,
the prisoner shall have access only to his spiritual advisers (not to
exceed two), his defense attorneys, members of his family, and the
officers and employees of the institution designated in Sec.
26.3(a)(2). Upon approval of the Director of the Federal Bureau of
Prisons, the prisoner may be granted access to such other persons as
the prisoner may request.
(c) In addition to the Marshal, the following persons shall be
present at the execution:
(1) Necessary personnel selected by the Marshal and the Director of
the Federal Bureau of Prisons or his designee;
(2) Those attorneys of the Department of Justice whom the Deputy
Attorney General determines are necessary;
(3) Not more than the following numbers of persons selected by the
prisoner:
(i) One spiritual adviser;
(ii) Two defense attorneys; and
(iii) Three adult friends or relatives; and
(4) Not more than the following numbers of persons selected by the
Director of the Federal Bureau of Prisons or his designee:
(i) Eight citizens; and
(ii) Ten representatives of the press.
* * * * *
(e) The Director of the Federal Bureau of Prisons or his designee
should notify those individuals described in paragraph (c) of this
section as soon as practicable before the designated time of execution.
* * * * *
(g) After the execution has been carried out, qualified personnel
selected by the Director of the Federal Bureau of Prisons or his
designee shall conduct an examination of the body of the prisoner to
determine that death has occurred and shall inform the Marshal and
Director of the Federal Bureau of Prisons or his designee of his
determination. Upon notification of the prisoner's death, the Marshal
shall ensure that appropriate notice of the sentence's implementation
is filed with the sentencing court.
* * * * *
0
6. Amend Sec. 26.5 by revising the first sentence to read as follows:
Sec. 26.5 Attendance at or participation in executions by Department
of Justice personnel.
No officer or employee of the Department of Justice or a State
department of corrections, or any employee providing services to those
departments under contract, shall be required, as a condition of that
employment or contractual obligation, to be in attendance at or to
participate in any execution if such attendance or participation is
contrary to the moral or religious convictions of the officer or
employee, or, if the employee is a medical professional, if the
employee considers such participation or attendance contrary to medical
ethics. * * *
Dated: July 7, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-15039 Filed 8-4-20; 8:45 am]
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