[Federal Register Volume 85, Number 229 (Friday, November 27, 2020)]
[Rules and Regulations]
[Pages 75846-75855]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25867]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 26
[Docket Number OAG 171; AG Order No. 4911-2020]
RIN 1105-AB63
Manner of Federal Executions
AGENCY: Office of the Attorney General, Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (``Department'' or ``DOJ'') is
finalizing amendments to 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: This final rule becomes effective December 24, 2020.
[[Page 75847]]
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. Background and Purpose
The Federal Death Penalty Act provides 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, promulgated in a final rule
published on January 19, 1993, Implementation of Death Sentences in
Federal Cases, 58 FR 4898 (Jan. 19, 1993), and codified at 28 CFR part
26, authorize execution only through lethal injection, except to the
extent a court orders otherwise. Specifically, they 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).
Execution by lethal injection is authorized in all 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))). However, some States also authorize execution by
other means in certain circumstances. 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.
States may authorize execution by other means in the future, and 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 current regulations also provide that a Federal execution shall
occur ``[a]t a federal penal or correctional institution designated by
the Director of the Federal Bureau of Prisons.'' 28 CFR 26.3(a)(2).
Section 3597(a), however, provides that State and local facilities and
personnel may be used in carrying out Federal executions. As discussed
above, future situations may arise in which it is necessary to carry
out an execution by some means other than lethal injection. However,
the Federal Bureau of Prisons (``BOP'') facility for carrying out
executions, located at the Terre Haute correctional complex in Indiana,
is equipped for carrying out executions only by lethal injection. If
cases arise in which the Department is required to execute a Federal
inmate according to the law of a State that uses a method other than
lethal injection, the most expedient means of carrying out the
execution may be to arrange for State assistance.
II. Proposed Rule
The Department published a notice of proposed rulemaking (``NPRM'')
on August 5, 2020, Manner of Federal Executions, 86 FR 47324 (Aug. 5,
2020), proposing amendments to 28 CFR part 26 intended to provide the
Federal Government with greater flexibility to conduct executions in
any manner authorized by section 3596(a) and to implement the statutory
authorization in section 3597(a) that provides that State and local
facilities and personnel may be used in carrying out Federal
executions. The proposed rule also proposed various amendments to other
provisions of the regulations, as described in detail below, that would
eliminate redundancies, such as eliminating Sec. 26.2 regarding filing
of a judgment and order with the sentencing court, and that would
update the regulations for current practice by the Department and its
components, such as granting authority for decision-making about
certain matters to the Director of BOP or his designee, rather than to
the Warden of the institution where the execution is to be conducted.
By the end of the 30-day comment period on September 4, 2020, the
Department received 23 comments that were responsive to the proposed
rule. Following are the Department's responses to those comments.
III. Summary of Changes in the Final Rule
After evaluating the 23 public comments, the Department has
determined that no major changes to the proposed rule are necessary. As
described in the next section, the majority of public comments
reflected general opposition to the death penalty. Although the
Department is mindful of those views, no changes are necessary in
response to those comments, as the death penalty is expressly
authorized by Federal statute and has been repeatedly upheld by the
Supreme Court as constitutional. See Bucklew v. Precythe, 139 S. Ct.
1112, 1122 (2019) (``The Constitution allows capital punishment.'').
Other comments opposed various provisions in the rule as unnecessary,
unauthorized by the statute, or contrary to the statute. The Department
disagrees with those assertions for the reasons stated below and
declines to change the proposed rule in response to them. Other
comments suggested amendments to the existing regulations that were not
proposed by the Department and that the Department has declined to
adopt. Other comments raised issues that are more properly addressed in
the BOP execution protocol (including its manual and addendum).
In response to three comments, Department has amended the proposed
rule as follows: First, the final rule corrects a scrivener's error in
the NPRM that deleted ``Except to the extent a
[[Page 75848]]
court orders otherwise,'' from the first line of Sec. 26.4; second, it
adds, in Sec. 26.4(a), a notice to the prisoner of the method of
execution to be employed or, where applicable, of the prisoner's option
to choose from among multiple methods; and third, it clarifies in Sec.
26.4(b) that the designee of the BOP Director can allow other persons
to visit the inmate in the seven days prior to the date of execution.
Although no commenter objected to a proposed amendment in Sec.
26.3(a)(3) changing the officials responsible for selection of
personnel assisting the execution from the United States Marshal and
the Warden of the institution to solely the Director of BOP or his
designee, the Department has determined upon further reflection that
that revision would not be efficient for administrative and management
purposes. Instead, the final rule amends the provision to provide that
personnel will be selected by the Director of the United States
Marshals Service and the Director of BOP or their designees.
IV. Responses to Public Comments on the Proposed Rule
As noted above, a large majority of comments did not address
specific proposed changes to the regulations. Rather, they expressed
opposition to the use of capital punishment in general. Furthermore,
many of those comments misunderstood the nature of the proposed
amendments as designed to expedite executions or expand the use of
capital punishment. As described above, the proposed amendments are not
designed to achieve those objectives.
One comment by counsel for Federal death row inmates, as well as
several other comments, had specific comments on the edits proposed in
the NPRM. Following are responses to those comments.
A. Manner of Execution
The proposed rule proposed to amend part 26 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).'' The amendment would
ensure that the Department would be authorized to use the widest range
of manners of execution permitted by law. Two commenters opposed this
amendment.
One commenter argued that the rule should specify the guidelines
that the Department would follow to ensure the humane implementation of
a sentence and gave several examples of procedures for lethal injection
that the commenter argued should be delineated in the regulations, as
well as how a prisoner's medical conditions would be accommodated. A
second commenter argued that the language of the preamble of the
proposed rule inappropriately referred to authorizing any method under
Federal law while the statute refers to requiring use of any method
authorized by State law.
The Department declines to make changes to the proposed rule in
response to these comments.
The issues raised by the first commenter included detailed matters
about lethal injection, such as the nature of drugs used, placement and
other procedures for use of the IV for provision of the drugs, and use
of lethal injection in inmates with certain medical conditions. These
are matters that the current regulations do not address and that the
proposed rule did not propose to address. To the extent that the
comment is arguing that issues it raises should nevertheless be
addressed in the regulations, the Department considers these matters
properly addressed in the BOP execution protocol, which includes more
granular details regarding execution procedures.
The Department notes that this comment included a recommendation
for consideration of alternative methods of execution, such as the
firing squad, for prisoners with medical conditions for whom the
commenter contended lethal injection would be inappropriate. The
Department takes this comment as consistent with the overall purpose of
the proposed rule to provide for methods of execution besides lethal
injection, where they are prescribed by the relevant State law,
although the specific application of any method to a particular
prisoner is beyond the scope of this rulemaking.
This commenter also recommended that the notice of the date of
execution provided to a prisoner also should state the method of
execution to be used. The Department agrees with this recommendation.
As the final rule provides for the possibility that methods other than
lethal injection may be employed by the Department, it is reasonable
that a prisoner be provided with notice of the method to implement that
prisoner's sentence. In addition, as noted above, some State laws
provide the prisoner the option to choose the method of execution.
For these reasons, in Sec. 26.4(a), the final rule inserts ``the
manner of execution and'' before ``date designated for execution,''
deletes ``date of'' after ``previously scheduled and noticed,'' and
adds a new sentence at the end of the paragraph to read as follows:
``If applicable law provides that the prisoner may choose among
multiple manners of execution, the Director or his designee shall
notify the prisoner of that option.''
The second commenter misunderstands the proposed rule. The
commenter is correct that the Federal Death Penalty Act refers to the
use of the method of execution ``prescribed by the law of the State in
which the sentence was imposed.'' However, the preamble of the proposed
rule properly referred to ``federal'' law, because it is the Federal
Death Penalty Act that provides the authority for the rule. In any
event, the text of the proposed rule uses exactly the language of the
statute, namely, ``by any other manner prescribed by the law of the
State in which the sentence was imposed,'' as the commenter apparently
was concerned that it should do.
B. Use of State Facilities
The NPRM proposed to permit use of State facilities, in accordance
with the authorization in section 3597(a), by 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). This change also is addressed in the
regulatory certification with regard to Executive Order 13132 on
federalism, which stated that there were no federalism implications
under that order.
Several commenters objected to these changes. One commenter argued
that it was ``implausible'' that the change would not have an impact on
States and that the federalism implications were ``self-evident.'' In
addition, this commenter alleged that the provision could violate the
constitutional ``anti-commandeering'' principle. A second commenter
opposed the provision on unclear grounds but possibly because the
commenter believed that State officials would not be able to implement
a Federal sentence without facing criminal liability for doing so. A
third commenter stated that rather than using State facilities, the
Department should expand the capabilities of the Terre Haute facility
or other facilities to be able to implement executions through means
other than lethal injection.
The Department declines to make changes to the proposed rule in
response to the comments. Each of the commenters misunderstands the
need for this change and the nature of the change. First, as noted, the
change does nothing more than implement an existing statutory
provision, which
[[Page 75849]]
expressly provides the Federal Government with the option to contract
with willing States to use their facilities and personnel in Federal
executions. The policy implications or trade-offs, such as whether to
expand Federal capabilities or potential liability for State workers,
are not at issue in this rulemaking, which simply ensures that the
Department is able to use an option expressly provided by statute.
Second, as to the federalism implications, the Department
reiterates that the rule 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 as laid out in Executive Order 13132. The
commenter misunderstands the purpose of Executive Order 13132. It is
intended to limit Federal power to make national standards in policy
and legislation that would preempt States from developing their own,
and to prevent imposition of ``unfunded mandates'' on States by the
Federal Government. The amendments at issue here do not implicate these
concerns, nor do they implicate the anti-commandeering principle. The
Federal Government would be implementing its own policy by an agreement
with a willing State government and would cover any costs to the State,
as expressly provided by section 3597(a). It is notable that Federal
executions routinely occurred in State facilities in the 20th century,
and that practice does not appear to have raised any federalism
concerns. See Execution Protocol Cases, 955 F.3d at 137 (Rao, J.,
concurring). It also is significant that no State government--that is,
none of the affected entities--commented in opposition to the proposed
regulation.
For these reasons, the final rule makes no changes to the proposed
rule's amendments to implement the statutory authority to use and pay
for State facilities.
C. Other Amendments
1. Sec. 26.1
The NPRM proposed to add a new provision, Sec. 26.1(b), that would
authorize the Attorney General to vary from the regulation to the
extent necessary to comply with applicable law. One commenter commented
that the NPRM did not provide sufficient explanation of why the
addition of this paragraph was necessary or identify the legal basis
for that paragraph. In addition, the commenter claimed that the new
paragraph would provide a catch-all provision allowing the Attorney
General to ignore or change regulations at will with no further
process, and ad hoc, even in specific cases for impermissible reasons,
at the last moment, and without notice. The commenter claimed that this
would be a conflict of interest as well, because the Attorney General
could change the regulations that apply to the individual his agency is
responsible for prosecuting and executing. The comment identified these
alleged concerns but did not suggest specific changes to the proposed
rule.
The Department declines to make changes to the proposed rule in
response to the comment. This provision was added to account for the
statutory requirement that the Attorney General implement an execution
``in the manner prescribed by the law of the State in which the
sentence is imposed.'' 18 U.S.C. 3596(a). The new paragraph is
therefore intended only to ensure that the Attorney General can comply
with State statutes that contradict the regulations. It is possible
that at some point in the future a State statute that applies to the
execution of a Federal inmate may differ, even in a minor respect, from
the regulations. The specifics of such a difference are not currently
foreseeable, however. Hence, in order to allow the execution to proceed
without undue delay, this provision authorizes the Attorney General to
account for that difference. The language of new Sec. 26.1(b) itself
clearly indicates that this is the intended purpose. It states,
emphasis added, ``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.'' In fact, rather
than providing the Attorney General with discretion to act arbitrarily
or ad hoc, this provision limits the Attorney General's ability to vary
from the regulation only in circumstances where controlling law
requires him to do so and only to the extent necessary.
For these reasons, the final rule adopts new Sec. 26.1(b) as
proposed.
The NPRM also proposed to add a new provision, Sec. 26.1(c), that
would 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. Two commenters opposed this
provision, stating that this change would allow the Attorney General to
change regulations without notice to the public, rewrite the statute in
violation of Congress's specific designation of certain officials--
particularly a United States Marshal--to carry out certain duties, and
violate the ``statutory scheme'' for executions in which the U.S.
Marshals Service is given responsibility and accountability for
implementation.
The Department declines to make changes to the proposed rule in
response to the comments. As the NPRM explained, the proposed new
paragraph is in line with the Attorney General's well-established
authority to manage the Department. The commenters' arguments to the
contrary are unavailing. First, one commenter's claim that the Attorney
General could change regulations without notice is not relevant, as
this provision itself is notice to the public that the Attorney General
may re-designate responsibilities to other officials. Second, two
commenters argued that the Attorney General lacks authority to reassign
responsibilities that Congress has vested in other components by
default. These comments ignore the plain language of the relevant
sections of title 28 of the U.S. Code: ``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. 509; ``The Attorney General may from time to time
make such provisions as he considers appropriate authorizing the
performance by any other officer, employee, or agency of the Department
of Justice of any function of the Attorney General,'' 28 U.S.C. 510.
One commenter also argued that the provision would violate the
``statutory scheme'' for executions because the Director of the U.S.
Marshals Service is accountable to Congress, as a Senate-confirmed
officer. However, the U.S. Marshals Service is ``a bureau within the
Department of Justice under the authority and direction of the Attorney
General,'' 28 U.S.C. 561(a), and, as the provisions of title 28 noted
above establish, the ultimate accountability for all actions of the
Department and its officials lies with the Attorney General, who is
also a Senate-confirmed officer. Likewise, the same principle applies
to the commenter's arguments that the U.S. Marshals Service is
``uniquely suited'' to carrying out the law in localities across the
country. As a matter of law, the Attorney General, through all the
components of the Department of Justice, enforces Federal law in all
districts of the Nation. This is true notwithstanding the 26-year-old
internal DOJ memo cited by the commenter, Memorandum to U.S. Marshals
Service
[[Page 75850]]
Director Gonzalez et al. from Deborah Westbrook, General Counsel, The
``Violent Crime Control and Law Enforcement Act of 1994'' (House Report
103-771) (Sept. 9, 1994), which makes the factual determination that
the U.S. Marshals Service would be responsible for implementation of
death sentences. Finally, the commenter is incorrect that implementing
executions ``falls squarely within the `primary role and mission' '' of
the U.S. Marshals Service of enforcing court orders--and no other
component's role and mission. As explained in more detail later in this
preamble, although all death sentences are embodied in court orders,
the details of implementing a death sentence by the Department of
Justice do not depend on a court order alone.
2. Sec. 26.2
The NPRM proposed removing the content of Sec. 26.2, concerning a
proposed Judgment and Order, and reserving it for future use. One
commenter commented that the NPRM did not provide sufficient
explanation for why the deletion of this section was necessary. In
addition, the commenter claimed that deleting this section--and in
particular, the requirement that the court's Judgment and Order include
a statement that the sentence be executed on a date and at a place
designated by the Director of the BOP--runs afoul of a claimed legal
principle that BOP's authority to set an execution date is derived
solely from the authority of the courts. The commenter further asserted
that vesting authority for setting an execution date in BOP would
deprive courts of necessary oversight over when and whether death-
sentenced inmates had exhausted their judicial remedies.
The Department declines to make changes to the proposed rule in
response to the comment. Section 26.2 was promulgated in 1993,
requiring prosecutors to submit a proposed Judgment and Order to the
court in cases in which the defendant was sentenced to death. The
content of the Judgment and Order would include four basic points: (1)
The sentence was to be executed by a United States Marshal, (2) by
injection of a lethal substance, (3) on a date and at a place
designated by BOP, and (4) the prisoner under sentence of death was to
be committed to the custody of the Attorney General or his designee for
detention pending execution of the sentence. Subsequently, Congress
enacted the Federal Death Penalty Act, 18 U.S.C. 3591 et seq. Within
that Act, section 3596(a) essentially codified two of these points,
leaving out that the execution occur by lethal injection and on a date
and at a place designated by BOP. The rule's requirement that the
Judgment and Order specify the manner of execution as lethal injection
is inconsistent with section 3596(a), which authorizes executions ``in
the manner prescribed by the law of the State in which the sentence is
imposed,'' which may not necessarily involve lethal injection. As to
the requirement for the Judgment and Order to specify that executions
occur on a date and at a place designated by BOP, that provision is
also reflected in Sec. 26.3(a)(1) and (2) (``Except to the extent a
court orders otherwise, a sentence of death shall be executed: (1) On a
date and at a time designated by the Director of the Federal Bureau of
Prisons . . . ; (2) At a federal penal or correctional institution
designated by the Director of the Federal Bureau of Prisons . . . .'').
The provisions of 18 U.S.C. 3596 and 28 CFR 26.3 thus render Sec. 26.2
unnecessary, meriting its removal.
In any event, the commenter's premise that BOP's authority to set
an execution date derives solely from the courts is incorrect as a
matter of law. See, e.g., LeCroy v. United States, 975 F.3d 1192, 1195-
96 (11th Cir. 2020) (recognizing that, while the courts may
historically have had some ``concurrent'' responsibility in setting
execution dates, ``[t]he Code of Federal Regulations vests the Bureau
Director with broad authority and discretion to set execution dates as
an initial matter''); United States v. Lee, No. 4:97-cr-00243-LPR-2,
2020 WL 3921174, at *3 (E.D. Ark. July 10, 2020) (expressing skepticism
``that the founding generation . . . understood the implementation of a
sentence to be of an entirely judicial nature'' and noting that ``until
1830 courts were all over the place as to whether they would set
execution dates themselves or leave it to the Executive Branch''). The
Executive Branch's authority to set an execution date, and the Attorney
General's codification of that authority in the 1993 regulations, also
are consistent with the Executive Branch's constitutional and statutory
duties in general. Cf. United States v. Tipton, 90 F.3d 861, 902-03
(4th Cir. 1996) (concluding that ``absent directly preempting
congressional action, the Attorney General had constitutional and
statutory authority to provide by regulation the means for executing
death sentences imposed under [the Anti-Drug Abuse Act of 1988],''
which preceded the Federal Death Penalty Act). Moreover, even if BOP's
authority to set an execution date were derived from the authority of
the courts, nothing would compel the court to use the precise ``magic
words'' contained in Sec. 26.2 to effectuate the delegation of its
authority to BOP. Lee, 2020 WL 3921174, at *4 (rejecting claim that the
only way a court may properly delegate its authority to implement a
death sentence is by adopting the content of Sec. 26.2 in an order).
The commenter's concern that removal of Sec. 26.2 would deprive
courts of oversight relating to execution dates also is misplaced.
Section 26.3(a)'s prefatory language belies this concern, authorizing
BOP's Director to set an execution date and time ``[e]xcept to the
extent a court orders otherwise.'' And nothing in the proposed
amendment of the regulations, including the deletion of Sec. 26.2,
alters the courts' power to set aside or postpone execution dates
pursuant to their authority to issue stays and injunctions. See LeCroy,
975 F.3d at 1196 (``the regulations . . . sensibly recognize--as they
must--a court's authority to stay or enjoin a scheduled execution'').
For these reasons, the final rule removes Sec. 26.2 as proposed.
3. Sec. 26.3
Section 26.3(a)(1) addresses the date and time of an execution and
specifies that if the date designated for execution passes by reason of
a stay of execution, then a new date shall be designated promptly by
the Director of the Federal Bureau of Prisons when the stay is lifted.
The NPRM did not propose any changes to this paragraph. Nonetheless,
several commenters sua sponte suggested alterations to this provision,
contending that: The BOP Director lacks authority to designate the date
and time of an execution; the Department should further define the
phrase ``when the stay is lifted'' and the term ``promptly''; and the
regulations should set out procedures to follow in the event of a stay.
The Department declines to make changes to the proposed rule in
response to the comments. First, the suggested changes are beyond the
scope of the current rulemaking, in which the Department did not
propose any changes to this portion of the regulations. In any event,
as explained above in this preamble, the Attorney General may delegate
authority in execution-related matters to the BOP Director. Moreover,
as reflected in the current regulations, detailed procedures are better
addressed in the Federal execution protocol. The Department also notes
that the existing rule (along with Sec. 26.4(a)) appropriately takes
into account the possibility that an inmate's or court's last-minute
actions may delay an execution past midnight, causing the
[[Page 75851]]
execution to be performed the day after it had been formally scheduled.
The Department may consider the suggestions and proposals made in the
comments if it undertakes further changes to the regulations or
execution protocol.
For these reasons, the final rule makes no changes to Sec.
26.3(a)(1).
In Sec. 26.3(a)(3), the NPRM proposed clarifying that
``qualified'' personnel must carry out an execution, regardless of
manner. Commenters suggested that ``qualified'' must be defined with
objective criteria.
The Department declines to make changes to the proposed rule in
response to the comment. The regulatory requirement that the Department
employ ``qualified personnel'' in an execution is not new; the current
language of Sec. 26.3(a)(4) requires that lethal injections ``be
administered by qualified personnel.'' With the expansion of
permissible Federal execution methods, moving this phrase from
paragraph (a)(4) to paragraph (a)(3) merely ensures that whatever
method of execution is employed in light of the relevant State's laws,
the personnel implementing that method will be suitably qualified. To
the extent that the Department considers it appropriate to set out
further details regarding qualifications, it may do so in the Federal
execution protocol, as it has done in the addendum to the protocol
regarding lethal injection. The Department notes that the relevant
qualifications may change depending on the execution method called for
by State law, and that to the extent that States change their methods,
see supra (discussing expansion of Federal execution methods),
entrenching static qualification criteria in regulations would be
antithetical to the rulemaking's goal of ensuring that Federal
executions may be responsibly carried out in accordance with any
State's prescribed method of execution.
The amendments to Sec. 26.3(a)(3) in the NPRM also had the effect
of revising the official responsible for selection of personnel
assisting the execution from the Marshal and the Warden of the
institution to solely the Director of BOP or his designee. No commenter
commented on this provision. The Department has determined that that
revision would not be efficient for administrative and management
purposes, however. Instead, the final rule amends the provision to
provide that personnel will be selected by the Director of the U.S.
Marshals Service and the Director of BOP or their designees.
For these reasons, the final rule revises Sec. 26.3(a)(3) to
provide that the sentence of death be executed under the supervision of
a United States Marshal designated by the Director of the United States
Marshals Service, assisted by additional qualified personnel who are
selected by the Director of the United States Marshals Service and the
Director of the Federal Bureau of Prisons, or their designees, and
acting at the direction of the Marshal.
4. Sec. 26.4
In the first line of Sec. 26.4, the proposed rule eliminated the
phrase ``Except to the extent a court orders otherwise''. One commenter
claimed that this change was unexplained, contrary to the original
justification for the existing regulation, and would ``eliminate
judicial oversight over critical aspects of the execution process.''
The Department notes that this change was a scrivener's error that
inadvertently appeared in the final text of the NPRM during the process
of formatting the operative text of the proposed rule.
For this reason, the final rule re-inserts the phrase ``Except to
the extent a court orders otherwise,'' in the first line of Sec. 26.4.
Section 26.4(a) provides that a prisoner will receive notice 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
prisoner shall be notified ``as soon as possible.'' The only change
proposed to this section in the NPRM was to place responsibility for
such notification with the ``Director of the Federal Bureau of Prisons
or his designee'' instead of with the ``Warden.''
Commenters provided a number of suggestions unrelated to the
proposed change, including arguments that this regulation should:
Require notice to counsel; define what constitutes sufficient notice;
limit who can be a ``designee'' for purposes of notice; and limit the
Government's ability to continue a noticed execution date. Commenters
also criticized the existing regime as limiting prisoners' ability to
apply for clemency.
The Department declines to make changes to the proposed rule in
response to the comments. These suggestions are beyond the scope of the
current rulemaking, which sought only to change the official charged
with providing notice of an execution date, not to alter the contours
of that notice. In all respects relevant to these comments, the
proposed rule is the same as the existing rule. Moreover, as discussed
in connection with Sec. 26.3(a)(1), the prompt rescheduling of an
execution date may be necessary and appropriate where last-minute
litigation requires a delay of execution past midnight of an originally
scheduled date. Further, the Department observes that prisoners are
free to prepare clemency petitions at any time and, per 28 CFR 1.10(b),
to file such petitions as soon as proceedings on their direct appeal
and first petition under 28 U.S.C. 2255 have terminated.
Furthermore, commenters' suggestion that 28 CFR 1.10(b) provides
prisoners with a right to 30 days to file a clemency petition is
incorrect; that provision creates a limitation, not an entitlement,
providing that such petitions should be filed ``no later than 30 days
after the petitioner has received notification from the Bureau of
Prisons of the scheduled date of execution.'' (Emphasis added.) Nor
does the existing regulation conflict with 28 CFR 1.10(c), which
permits prisoners' counsel to request to make an oral presentation to
the Office of the Pardon Attorney within the Department. Clemency
counsel may still request and make such presentations well before a
scheduled execution, even if the prisoner receives the minimum 20-day
notice. Indeed, a clemency proceeding may be conducted within 20 days
where an impending execution date requires such dispatch.
For these reasons, the final rule adopts new Sec. 26.4(a) as
proposed. The Department may consider the suggestions and proposals
made in the comments if it undertakes further changes to the
regulations or to the execution protocol.
Section 26.4(b) governs prisoner access to other persons in the
week before the designated execution date, limiting such access to
spiritual advisers, defense attorneys, family members, institution
officials, and--upon the approval of the BOP Director--``such other
proper persons as the prisoner may request.'' The NPRM proposed to
clarify that the BOP Director may approve prisoner requests for types
of visitors not listed in the regulation, eliminating a reference to
the ``Warden.'' It did not propose any other changes to this provision.
Commenters nevertheless suggested a wide range of changes nonresponsive
to the proposal, suggesting that the language limiting prisoner visits
should be deleted, and that the regulation should be revised to permit
attendance by anyone the inmate wants, subject to disapproval by
officials only for good cause. Commenters also suggested replacing
[[Page 75852]]
``defense attorneys'' with ``members of defense team,'' adding ``all''
before ``members of his family,'' and eliminating ``only'' before the
list of permitted visitors in the week before the execution. Some
commenters even suggested removing all ``restrict[ions on] the type of
visitors'' other than that they ``pass the security clearances'' at the
facility.
The Department declines to make changes to the proposed rule in
response to the comments. The NPRM did not propose substantive changes
to the categories of persons to whom a prisoner may have access in the
week before his execution date, and the comments are thus beyond the
scope of the present rulemaking. The Department may consider the
suggestions and proposals made in the comments if it undertakes further
changes to the regulations or to the execution protocol.
Even were these comments responsive to proposed changes to the
rules, the Department notes that to the extent that commenters desire a
regulation creating a prisoner entitlement to unlimited types or
numbers of visitors, their proposals are inconsistent with the need to
limit visiting when necessary to ensure the security and good order of
the institution and consideration of institution resources. The
existing rule strikes an appropriate balance between providing a
prisoner with access to spiritual, legal, and familial support, while
maintaining security and conserving resources. The existing rule also
already provides a mechanism to permit additional visitors identified
by commenters (such as friends or paralegals working with a legal
defense team), where BOP agrees that a prisoner's particular
circumstances so warrant and the additions can be made without
disrupting that balance or disturbing prison officials' discretion to
determine which visitors may enter these high-security facilities, as
provided at 28 CFR part 540, subpart D. The Department further notes
that additional details, such as those relating to the frequency or
method of visitation, are better addressed in the more finely
reticulated provisions of BOP policy.
Another comment noted that proposed Sec. 26.4(b), by deleting
``Warden,'' would authorize only the BOP Director to allow other
persons to visit the inmate, which may be impractical. The commenter's
observation is correct as to the proposed paragraph and the practical
impact of deleting ``Warden''; the Department did not add ``or his
designee'' after the reference to the BOP Director in Sec. 26.4(b),
when it deleted ``Warden,'' whereas the reference to the ``Warden''
throughout the regulation was elsewhere replaced with the BOP Director
``or his designee.'' For the sake of consistency with the rest of the
amendments in the proposed rule, the Department agrees with the
commenter that Sec. 26.4(b) should also refer to the Director's
designee.
For these reasons, the final rule revises Sec. 26.4(b) as
proposed, but also adds ``or his designee'' after ``Director of the
Federal Bureau of Prisons.''
Section 26.4(c) governs execution attendance, requiring certain
official personnel to attend and imposing limits on the numbers and
types of other persons whom the prisoner and officials may designate to
attend. The NPRM proposed eliminating references to the ``Warden,''
thus eliminating the requirement that the Warden attend executions,
while maintaining the requirement that the Marshal attend. The only
other proposed change was to vest authority for selecting necessary
personnel in the Marshal and the BOP Director or his designee, instead
of in the Marshal and the Warden. With respect to Sec. 26.4(c)(1),
commenters expressed concern that such authority could not be vested in
the BOP Director or his designee and sought clarification whether the
regulation was intended to require the agreement of both the Marshal
and the BOP Director or his designee regarding personnel attendance.
With respect to Sec. 26.4(c)(3), although the commenters recognized
that its text in the proposed rule remained materially unchanged from
the existing regulation, they nonetheless proposed changes to it.
Specifically, commenters requested that the regulation be revised to
provide prisoners with an entitlement to have persons they specify
attend their executions, suggesting that the inability of a prisoner-
designated witness to attend should halt or delay an execution,
potentially through litigation.
The Department declines to make changes to the proposed rule in
response to the comments.
With respect to Sec. 26.4(c)(1), as explained above, the BOP
Director, or his designee, may properly be vested with authority in
execution-related matters. With respect to the commenter's concerns
about potential disagreements between Department officials regarding
the personnel necessary to attend the execution, those concerns are
unfounded as a practical matter, as each official selects personnel
from his own agency to attend and no disagreements about personnel have
ever arisen between the Marshal and the Warden under the existing
regulation. In any event, the Attorney General has ultimate authority
over all relevant officials and functions of the Department.
With respect to Sec. 26.4(c)(3), no changes were proposed to this
provision, and the commenters' proposed alterations are outside the
scope of this rulemaking. In any event, the commenters erroneously
suggest that the existing rule can be read to provide certain potential
witnesses an entitlement to attend an execution. The clear language of
the regulation specifies that ``[n]ot more than the following numbers
of'' certain persons designated by the prisoner ``shall be present'' at
an execution. (Emphasis added.) As the Seventh Circuit concluded in
interpreting analogous language in Sec. 26.4(c)(4), these terms
establish ``a limitation on, not an entitlement to, witness
attendance.'' Peterson v. Barr, 965 F.3d 549, 553 (7th Cir. 2020) (also
rejecting the argument that Sec. 26.4(c)(4) required the attendance of
witnesses designated by Department officials ``before the execution may
proceed''). To the extent commenters suggest that the regulation should
instead provide an entitlement for specific persons to attend an
execution, or even to permit potential witnesses to delay or halt an
execution if unable or unwilling to attend, the Department disagrees.
Such a regime could permit a prisoner's lawyers or family members to
unilaterally halt an execution they oppose by the simple expedient of
refusing to attend. The existing rule provides a reasonable avenue for
Department officials to permit a prisoner's spiritual advisor, defense
attorneys, and friends or relatives to attend without effecting this
unprecedented and potentially disruptive change in execution
procedures.
For these reasons, the final rule adopts the amendments to Sec.
26.4(c) as proposed, and declines to make any changes to Sec.
26.4(c)(3) as suggested by the commenters.
Current Sec. 26.4(f) provides that ``[n]o photographic or other
visual or audio recording of the execution shall be permitted.'' One
commenter objected to this paragraph, stating that defense counsel
should be permitted to video- and audio-record executions, and
alternatively recommends that the Department also record executions.
The commenter states that a recording is necessary to ensure a record
for review by courts and by the legislature to adjudge whether the
execution method is humane. The commenter states that witness
observation through the window of rooms adjacent to the execution room
is insufficient.
[[Page 75853]]
The Department declines to make changes to the proposed rule in
response to the comment. The NPRM did not propose changes to Sec.
26.4(f) and the Department will not change this provision in response
to the comment. The Department values preserving the order, privacy,
and solemnity of the proceeding more than the speculative value of
audio or video recording of the execution. Recording also risks
revealing the identities of personnel performing tasks implementing an
execution; these persons' identities are not publicly available in
order to protect them from harassment and threats. Further, multiple
witnesses as identified in Sec. 26.4(c) may attend the execution to
observe. The presence of these witnesses accommodates the public
interest in reports and eyewitness accounts of the execution.
Accordingly, the Department adopts the rule as proposed without
revising Sec. 26.4(f).
5. Sec. 26.5
The proposed rule proposed to 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 was almost the exact language on this matter used in 18
U.S.C. 3597(b).
No comments were received on this proposed amendment. Therefore,
the final rule adopts the amendments to Sec. 26.5 as proposed.
6. Access to Mobile Phones
One commenter commented that attorneys for the prisoner present at
the execution should be allowed to have mobile phones or immediate
access to a dedicated phone line to communicate outside the facility.
The commenter further stated that prisoners should be able to
communicate with counsel by phone when in the execution facility.
The Department declines to make changes to the proposed rule in
response to the comment. Modifying the rule to detail the manner and
means of accommodating phone communication between the prisoner and his
attorney, and attorney access to phone communications when inside the
execution facility, is unnecessary. The current rule and the NPRM do
not address phone calls and visits with attorneys. The BOP execution
protocol addresses this subject and permits calls and visits between
the prisoner and his attorney including during the final 24 hours
leading to the execution. The Department declines to incorporate the
details of the manner and means of those communications into the text
of the rule.
7. References to the Director of BOP or His Designee
One commenter objected to all those provisions (Sec. Sec.
26.3(a)(3), 26.4(a), 26.4(c)(1), 26.4(c)(4), 26.4(e), and 26.4(g)) in
which the proposed rule proposed to add ``or his designee'' after
``Director of the Federal Bureau of Prisons'' or replace ``Warden''
with ``Director of the Federal Bureau of Prisons or his designee.'' The
commenter stated that the rule fails to define who can be a designee
and fails to set any limits on which designees may make the decision or
take the action described in the rule. Thus, the comment recommended
that the rule include a definition of ``designee'' to ensure the person
entrusted with the task is competent to do so and is specifically
authorized.
The Director of the Federal Bureau of Prisons is authorized to
redelegate duties vested in him. See 28 CFR 0.97. The authority to
redelegate responsibilities regarding management of Federal
correctional institutions and the custody and care of persons held
therein allows appropriate flexibility in managing correctional
institutions, including activities related to executions. Adopting the
recommendation would unnecessarily curtail flexibility. Further, to the
extent the Director redelegates the duties vested in him by this rule,
such delegations would be better placed in the BOP execution protocol,
which sets forth internal policy and procedures for carrying out the
execution of a person convicted of a capital offense. Therefore, this
subject is not suited to further elaboration in the rule and there is
no need to modify the rule as the commenter recommends.
V. 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 final rule and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities because it concerns
the manner of implementing Federal death sentences on individuals
convicted of capital offenses.
B. Executive Orders 12866, 13563, and 13771--Regulatory Planning and
Review
This final rule 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 the rule is a
``significant regulatory action'' under Executive Order 12866, section
3(f).
In the proposed rule, the Department stated that if finalized, the
rule could 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. No further information
either in support of this analysis or in contradiction of it was
received during the public comment period. The Department has therefore
not changed its analysis of the impact of the rule.
This final rule is not a regulatory action for purposes of
Executive Order 13771.
C. Executive Order 13132--Federalism
This final rule 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 rule to implement it are directed
at the Federal Government. Neither the statute nor the final rule
imposes any requirements for action or costs on States. Any actions
using the services of State or local governments would be done by
agreement, and with the Federal Government paying the costs thereof. As
noted above, some commenters opposed the rule on federalism grounds,
but those commenters misunderstood the requirements of Executive Order
13132
[[Page 75854]]
and the impact of the rule. Therefore, in accordance with Executive
Order 13132, it is determined that this final rule does not have
sufficient federalism implications to warrant the preparation of a
federalism assessment.
E. Executive Order 12988--Civil Justice Reform
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
F. Unfunded Mandates Reform Act of 1995
This final 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 (adjusted for inflation), 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 final rule is not 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 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 new 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 (Marshal)
designated by the Director of the United States Marshals Service,
assisted by additional qualified personnel selected by the Director of
the United States Marshals Service and the Director of the Federal
Bureau of Prisons, or their designees, 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 the introductory text, paragraphs (a),
(b), (c), (e), and (g) to read as follows:
Sec. 26.4 Other execution procedures.
Except to the extent a court orders otherwise:
(a) The Director of the Federal Bureau of Prisons or his designee
shall notify the prisoner under sentence of death of the manner of
execution and 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 execution, in which case the
Director of the Federal Bureau of Prisons or his designee shall notify
the prisoner as soon as possible. If applicable law provides that the
prisoner may choose among multiple manners of execution, the Director
or his designee shall notify the prisoner of that option.
(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 or his designee, 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 the
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
[[Page 75855]]
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: November 18, 2020.
William P. Barr,
Attorney General.
[FR Doc. 2020-25867 Filed 11-25-20; 8:45 am]
BILLING CODE 4410-19-P