[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Notices]
[Pages 58529-58531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20886]


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DEPARTMENT OF JUSTICE

[Docket No. OLP 173]


Request for Information Regarding the Use of Pentobarbital in 
Federal Executions

AGENCY: Office of Legal Policy, Department of Justice.

ACTION: Request for information.

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SUMMARY: The Department of Justice is seeking comments from the public 
regarding the risk of pain and suffering associated with the use of 
pentobarbital sodium (``pentobarbital''), and any other relevant 
portion of the Bureau of Prisons' 2019 Addendum to the Federal 
Execution Protocol.

DATES: Electronic comments must be submitted, and written comments must 
be postmarked, on or before November 28, 2022.

ADDRESSES: You may submit comments, identified by Docket No. OLP 173, 
through the Federal eRulemaking Portal: www.regulations.gov. Follow the 
instructions for submitting comments.
     Postal Mail or Commercial Delivery: If you do not have 
internet access or

[[Page 58530]]

electronic submission is not possible, you may mail written comments to 
Docket Clerk, 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. OLP 173 on your 
correspondence.
     Please note that comments submitted by email or fax may 
not be reviewed by DOJ.
    Privacy Note: The Justice Department's policy is to make all 
comments received from members of the public available for public 
viewing in their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to include 
in their comments only information that they wish to make publicly 
available.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, U.S. Department of Justice, (202) 514-8059 
(this is not a toll-free number). If you use a telecommunications 
device for the deaf (TDD) or a text telephone (TTY), please call the 
toll-free Federal Information Relay Service (FIRS) at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Public Participation

    Interested persons are invited to comment on this notice by 
submitting written data, views, or arguments.

II. Background

    On July 1, 2021, Attorney General Merrick Garland issued a 
memorandum imposing a moratorium on all federal executions pending a 
review of certain policies and procedures. See Memorandum from the 
Attorney General, Moratorium on Federal Executions Pending Review of 
Policies and Procedures (July 1, 2021), available at https://www.justice.gov/opa/page/file/1408636/download. In the memorandum, the 
Attorney General stated that ``[s]erious concerns have been raised 
about the continued use of the death penalty across the country, 
including arbitrariness in its application, disparate impact on people 
of color, and the troubling number of exonerations in capital and other 
serious cases.'' Id.
    In the two years preceding the issuance of the moratorium, the 
Justice Department made a series of changes to its policies and 
procedures governing capital sentences and carried out the first 
federal executions in nearly two decades between July 2020 and January 
2021. Id. ``To ensure that the Department's policies and procedures are 
consistent with the principles articulated in [the] memorandum,'' 
Attorney General Garland directed the Deputy Attorney General to 
undertake and supervise reviews concerning both the method and manner 
of federal executions and the policies and procedures governing all 
federal cases in which a defendant is charged, or could be charged, 
with an offense subject to the death penalty. The subject of this 
Request for Information concerns the method of execution. Id.

A. State Lethal Injection Protocols

    Almost all states that currently permit the death penalty allow for 
lethal injections as their primary method of execution (South Carolina 
is an exception, having established electrocution as the primary method 
of execution).\1\ State protocols concerning the use of lethal 
injection vary; they consist of one-, two-, and three-drug methods. The 
three-drug protocol used by the states typically involves an anesthetic 
or sedative, followed by pancuronium bromide to stop breathing and 
paralyze the inmate, and finally potassium chloride to stop the 
inmate's heart. The one- or two-drug protocols typically use a lethal 
dose of an anesthetic or sedative.\2\
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    \1\ Death Penalty Information Center, Methods of Execution, 
https://deathpenaltyinfo.org/executions/methods-of-execution.
    \2\ Death Penalty Information Center, State by State Lethal 
Injection, https://deathpenaltyinfo.org/state-lethal-injection.
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    There has been much litigation regarding death penalty protocols. 
In Baze v. Rees, 553 U.S. 35 (2008), the Supreme Court upheld 
Kentucky's use of a three-drug combination, including sodium pentothal 
(also called sodium thiopental), which induces unconsciousness; 
pancuronium bromide; and potassium chloride. However, practical 
obstacles soon emerged as pharmaceutical companies began refusing to 
supply the drugs used to implement the death sentences. See Glossip v. 
Gross, 576 U.S. 863, 869-70 (2015). In particular, the sole American 
manufacturer of sodium pentothal stopped producing the drug because of 
its use in the death penalty.\3\
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    \3\ Press Release, Hospira, STATEMENT FROM HOSPIRA Regarding its 
halt of production of PentothalTM (sodium thiopental) 
(Jan. 21, 2011), https://files.deathpenaltyinfo.org/legacy/documents/HospiraJan2011.pdf.
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    After the availability of sodium pentothal declined, several states 
developed an alternative drug combination that replaced sodium 
pentothal with pentobarbital. Glossip, 576 U.S. at 870. Georgia, Idaho, 
Missouri, South Dakota, and Texas administer a single-drug 
pentobarbital protocol as the primary method of execution.\4\
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    \4\ Death Penalty Information Center, State by State Lethal 
Injection, https://deathpenaltyinfo.org/state-lethal-injection.
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B. Federal Death Penalty Legal Framework and Practice

    Implementation of the federal death penalty is governed by 18 
U.S.C. 3596-3597. These provisions require the federal government to 
carry out death sentences ``in the manner prescribed by the law of the 
State in which the sentence is imposed.'' 18 U.S.C. 3596(a). Federal 
regulations further clarify that executions must be conducted 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).'' 28 CFR 26.3(a)(4).
    In 2004, the federal government issued a 50-page ``BOP Execution 
Protocol,'' which outlined the Bureau of Prisons' execution procedures. 
See BOP Execution Protocol Manual (2004). The protocol provided that 
execution would occur using lethal injection but did not specify the 
type of drugs to be used. Id. at pp. 7, 10. That being said, for the 
three federal executions conducted between 2001 and 2003, the Bureau of 
Prisons used a combination of sodium pentothal, pancuronium bromide, 
and potassium chloride. See In re Federal Bureau of Prisons' Execution 
Protocol Cases, 955 F.3d 106, 110 (D.C. Cir. 2020).
    In 2007 and 2008, the government issued two three-page addenda to 
the 2004 BOP Execution Protocol. The 2008 Addendum memorialized the 
Bureau of Prisons' use of those three substances in federal executions. 
See Addendum to BOP Execution Protocol: Federal Death Sentence 
Implementation Procedures (Effective August 1, 2008). In 2011, the 
Department of Justice announced that the Bureau of Prisons did not have 
the drugs it needed to implement the 2008 Addendum. However, no 
executions had been conducted since 2003, in part because of the 
unavailability of sodium pentothal.\5\
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    \5\ See Letter from Office of Attorney General to National 
Association of Attorneys General (Mar. 4, 2011), available at http://cdn.ca9.uscourts.gov/datastore/general/2011/11/15/11-35940_EOR_VOL_5.pdf (at 000678).

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[[Page 58531]]

C. 2019 Addendum to the Federal Execution Protocol

    In July 2019, the then-Attorney General directed the Bureau of 
Prisons to adopt an Addendum to the Federal Execution Protocol that 
provided for the use of a single drug, pentobarbital. See Press 
Release, Department of Justice, Federal Government to Resume Capital 
Punishment After Nearly Two Decade Lapse (July 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse; Memorandum for the Attorney General, The 
Federal Bureau of Prisons' Federal Execution Protocol Addendum (July 
24, 2019); Memorandum for the Attorney General, Summary of the Federal 
Bureau of Prisons' Federal Execution Protocol Addendum (July 24, 2019); 
see also Addendum to BOP Execution Protocol: Federal Death Sentence 
Implementation Procedures (Effective July 25, 2019), available at 
https://www.supremecourt.gov/DocketPDF/19/19-1348/145068/20200605210117775_2020%2006%2005%20Appendix.pdf (at 210a).
    The Bureau of Prisons indicated in a memorandum to the then-
Attorney General that it had a ``viable domestic source'' to obtain 
pentobarbital and that the manufacturer is properly registered as a 
bulk manufacturer of pentobarbital. See Memorandum for the Attorney 
General, Summary of the Federal Bureau of Prisons' Federal Execution 
Protocol Addendum (July 24, 2019). The Bureau of Prisons also ``secured 
a compounding pharmacy to store the [active pharmaceutical ingredient] 
and to convert the [active pharmaceutical ingredient] into injectable 
form as needed.'' Id.
    The 2019 Addendum, like at least one previous addendum, asserts 
that the ``identities of personnel considered for and/or selected to 
perform death sentence related functions . . . shall be protected from 
disclosure to the fullest extent permitted by law.'' Addendum to BOP 
Execution Protocol: Federal Death Sentence Implementation Procedures 
(Effective July 25, 2019). The 2019 Addendum also specifies other 
details such as defining the ``qualified personnel'' who can serve as 
the executioner(s); the number of rehearsals that non-medically 
licensed or certified qualified personnel must participate in prior to 
participating in an actual execution; dosage; identification of 
appropriate injection sites; the number of backup syringes; and how and 
when the condemned individual should be escorted into the room, 
restrained, and monitored. Id.
    From July 2020 to January 2021, the federal government executed 
thirteen death row inmates pursuant to the 2019 Addendum.

D. 2021 Moratorium on Federal Executions Pending Review of Policies and 
Procedures

    As noted above, the Attorney General issued a moratorium on federal 
execution during the pendency of three reviews. The first, and the 
subject of this Request for Information, is a review to ``assess the 
risk of pain and suffering associated with the use of pentobarbital.'' 
The review may also ``address any other relevant portion'' of the 2019 
Addendum. See Memorandum from the Attorney General, Moratorium on 
Federal Executions Pending Review of Policies and Procedures (July 1, 
2021).
    As noted in the Attorney General's memorandum, although some 
medical experts have concluded that the use of pentobarbital may risk 
inflicting painful pulmonary edema, the Supreme Court found that this 
risk was insufficient ``to justify last-minute intervention by a 
Federal Court'' shortly before an execution was scheduled to occur. 
Barr v. Lee, 140 S. Ct. 2590, 2591 (2020) (per curiam). However, ``[a] 
risk need not meet the Court's high threshold for such relief, or 
violate the Eighth Amendment, to raise important questions about our 
responsibility to treat individuals humanely and avoid unnecessary pain 
and suffering.'' Memorandum from the Attorney General, Moratorium on 
Federal Executions Pending Review of Policies and Procedures (July 1, 
2021). To ensure that these considerations are taken into account, the 
Attorney General ordered this review.

III. Solicitation of Comments

    The Department of Justice requests information from individuals or 
organizations regarding the risk of pain and suffering associated with 
the use of pentobarbital and any other relevant portion of the 2019 
Addendum. To contribute effectively to this review, all commenters are 
encouraged to provide comments that are responsive specifically to the 
topics of this review.

    Dated: September 21, 2022.
Hampton Y. Dellinger,
Assistant Attorney General, Office of Legal Policy.
[FR Doc. 2022-20886 Filed 9-26-22; 8:45 am]
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