[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
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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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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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