[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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]
BILLING CODE 4410-19-P