[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Notices]
[Pages 58531-58534]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20889]


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DEPARTMENT OF JUSTICE

[Docket No. OLP 171]


Request for Information Regarding the Manner of Execution 
Regulations

AGENCY: Department of Justice.

ACTION: Request for information.

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SUMMARY: The Department of Justice is requesting information in the 
form of written comments that may include information, research, and 
data regarding 28 CFR part 26, which governs the implementation of 
federal executions. On November 27, 2020, the Department amended these 
regulations to expand the permissible methods of execution beyond 
lethal injection to ``any other manner prescribed by the law of the 
State in which the sentence was imposed.'' The amendments also 
authorized the use of state facilities and personnel in federal 
executions and made a number of procedural changes, including granting 
the Attorney General authority to make exceptions to the regulations 
and to delegate duties within the Department.

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. 171, 
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 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 171 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

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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 
moratorium on 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), https://www.justice.gov/opa/page/file/1408636/download. In 
issuing the moratorium, the Attorney General noted that ``[t]he 
Department of Justice must ensure that everyone in the federal criminal 
justice system is not only afforded the rights guaranteed by the 
Constitution and laws of the United States, but is also treated fairly 
and humanely. That obligation has special force in capital cases. 
Serious 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.
    The Attorney General noted that, in the last two years preceding 
the issuance of the moratorium, the Department had made a series of 
changes to its policies and procedures governing capital sentences, 
which were accompanied by the first federal executions in nearly two 
decades. Id. ``To ensure that the Department's policies and procedures 
are consistent with the principles articulated in [the] memorandum,'' 
the Attorney General asked the Deputy Attorney General to supervise 
three reviews on this general subject.
    The second of these reviews directs the Office of Legal Policy to 
consider whether and to what extent amendments made in November 2020 to 
federal regulations governing the manner of federal executions ``should 
be modified or rescinded'' and ``to consider any other changes that 
should be made to the regulations.'' Id. That review is the subject of 
this Request for Information.

A. Statutory and Regulatory Framework for Federal Executions

    In 1993 (pursuant to 5 U.S.C. 301; 18 U.S.C. 4001(b), 4002; and 28 
U.S.C. 509, 510), the Department of Justice issued regulations 
providing for lethal injection as the method of execution for federal 
capital crimes ``except to the extent a court orders otherwise,'' 28 
CFR 26.3, and governing various tasks related to scheduling and 
carrying out the federal death sentences, 58 FR 4898 (Jan. 19, 1993); 
28 CFR part 26 (effective through Dec. 27, 2020). Among other things, 
the regulations provided that, except as otherwise ordered by a court, 
a federal sentence of death shall be executed ``[o]n a date and at a 
time designated by the Director of the Federal Bureau of Prisons,'' 
``[a]t a federal penal or correctional institution designated by the 
Director of the Federal Bureau of Prisons,'' and ``[b]y a United States 
Marshal designated by the Director of the United States Marshals 
Service.'' 28 CFR 26.3(a)(1)-(3) (effective through Dec. 27, 2020).
    A year later, Congress enacted the Federal Death Penalty Act 
(``FDPA''), Public Law 103-322, 60002, 108 Stat. 1796, 1959 (1994), 
which provides that a federal death sentence shall be carried out ``in 
the manner prescribed by the law of the State in which the sentence is 
imposed.'' 18 U.S.C. 3596(a). If the law of the state in which the 
sentence is imposed ``does not provide for implementation of a sentence 
of death,'' then the FDPA instructs that ``the court shall designate 
another state, the law of which does provide for the implementation of 
a sentence of death, and the sentence shall be implemented . . . in the 
manner prescribed by such law.'' Id.

B. November 2020 Amendments to the Manner of Execution Regulations

    On November 27, 2020, the Department of Justice amended the 
regulations governing the manner of federal executions ``to provide the 
Federal Government with greater flexibility to conduct executions in 
any manner authorized by'' the FDPA. 85 FR 75846, 75847 (Nov. 27, 
2020). The amendments, which became effective on December 28, 2020, 
made a number of changes, detailed below.
    Before the amendments were promulgated, the Department published a 
notice of proposed rulemaking (``NPRM'') on August 5, 2020. See Manner 
of Federal Executions, 85 FR 47324 (Aug. 5, 2020). By the end of the 
30-day comment period on September 4, 2020, the Department had received 
23 comments that were responsive to the proposed rule. These comments 
were addressed in the final rule, published in the Federal Register on 
November 27, 2020. 85 FR 75846-75853.
1. Manner of Execution Amendments
    The Department of Justice amended 28 CFR 26.3(a)(4) to provide 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).'' In making this change, the 
Department noted that it ``would ensure that the Department would be 
authorized to use the widest range of manners of execution permitted by 
law.'' 85 FR at 75848.
    The Department also amended section 26.4(a) so that the notice of 
the date of execution provided to a prisoner also stated the method of 
execution to be used. The amendments also added 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.'' 28 
CFR 26.4(a).
2. Use of State Facilities Amendments
    The November 2020 amendments authorized the use of state facilities 
and personnel in federal executions by striking ``federal'' before 
``penal or correctional institution'' in section 26.3(a)(2) and by 
replacing ``[b]y'' with ``[u]nder the supervision of'' a United States 
Marshal in section 26.3(a)(3).
3. Section 26.1
    The amendments added a new provision, section 26.1(b), that 
authorized the Attorney General to vary from the regulations to the 
extent necessary to comply with applicable law. The provision reads: 
``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.'' 28 CFR 26.1(b).
    The November 2020 amendments also added a new provision, section 
26.1(c), that stated 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.
4. Section 26.2
    The amendments removed section 26.2, which had required 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 had included four basic points: (1) The sentence was to be 
executed by a United States Marshal, (2) by injection of a

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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.
5. Section 26.3
    In section 26.3(a)(3), the November 2020 amendments clarified that 
``qualified'' personnel must carry out an execution, regardless of 
manner.
    The amendments to section 26.3(a)(3) also provided 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.
6. Section 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 November 2020 
amendments placed responsibility for such notification with the 
``Director of the Federal Bureau of Prisons or his designee'' instead 
of with the ``Warden.''
    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 or his designee--
``such other proper persons as the prisoner may request.'' The 
amendments clarified that the BOP Director or his designee may approve 
prisoner requests for types of visitors not listed in the regulation, 
eliminating a reference to the ``Warden.''
    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 amendments eliminated 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.
7. Section 26.5
    The amendments to section 26.5 extended to non-Department of 
Justice employees (including contractors) existing protections that 
applied to Department of Justice 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 
Department of Justice employee.

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

    As noted above, Attorney General Garland issued a moratorium on 
federal execution during the pendency of three reviews. The second, and 
the subject of this Request for Information, is a review ``to consider 
whether and to what extent [the November 2020] amendments should be 
modified or rescinded'' and ``to consider any other changes that should 
be made to the regulations.'' See Memorandum from the Attorney General, 
Moratorium on Federal Executions Pending Review of Policies and 
Procedures (July 1, 2021), https://www.justice.gov/opa/page/file/1408636/download.

III. Solicitation of Comments

    The Department of Justice requests information from individuals or 
organizations regarding whether the November 2020 amendments should be 
modified or rescinded and whether any other changes should be made to 
the regulations in 28 CFR part 26. To contribute effectively to this 
review, all commenters are encouraged to provide comments that are 
responsive specifically to the topics of this review.
    The Department is particularly interested in responses to the 
questions below, although the Department would welcome any comment 
within the scope of this inquiry.

Manner of Execution

    1. If a State authorizes two or more manners of execution (e.g., 
lethal injection and firing squad), what limitations or restrictions, 
if any, should be placed on the federal government's ability or 
authority to choose which of those manners of execution it would employ 
for federal executions, both in contexts where the State provides the 
inmate a choice among methods as well as in contexts where the State 
does not have a choice provision but authorizes two or more permissible 
manners?
    2. If the manner of execution prescribed by the law of the State in 
which the sentence is imposed was unconstitutional for violation of the 
8th Amendment's ``cruel and unusual punishment'' clause, how should the 
federal government implement the death sentence?
    3. What obligation, if any, would the federal government have to 
independently analyze and assess the constitutional validity of state-
law manners of execution before employing one?
    4. If an inmate's medical conditions made it likely that use of a 
State's manner of execution would subject the inmate to 
unconstitutional pain and suffering, should the federal government be 
permitted to use an alternative form of execution? Who would determine 
and how would they determine that the inmate's medical conditions made 
it likely that use of a State's manner of execution would subject the 
inmate to unconstitutional pain and suffering?
    5. Currently, the federal government only has the equipment and 
personnel to conduct executions by lethal injection. What logistical, 
practical, or legal steps would the federal government need to take to 
implement a State method of execution other than lethal injection?

Use of State Facilities

    6. Are there logistical or practical concerns with allowing the 
federal government to make arrangements or agreements with the relevant 
State to use State equipment, facilities, and personnel for federal 
executions? Please explain.

Notice

    7. When regulations, guidance, or policy regarding implementation 
of the death sentence is changed, what process should the federal 
government follow to ensure appropriate notice?
    8. Should inmates and/or inmate's counsel be notified of any 
potential deviations from the regulations? If so, how and by whom?
    9. What limitations or modifications should be made, if any, to the 
Attorney General's authority in 28 CFR 26.1(b) to vary from the 
regulations ``to the extent necessary to comply with the applicable 
law''?
    10. Should the notice requirement in 28 CFR 26.4 include notice to 
counsel? If so, how and by whom?
    11. Are the time periods for notice provided in the regulations 
sufficient, for example, to permit the filing of a clemency petition or 
to request a stay of execution? If not, how much time should be 
allotted for notice and why?

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Delegation of Duties

    12. When duties are reassigned between Department of Justice 
components, what types of processes or protocols should be implemented 
to ensure transparency, effective implementation of the law, and 
consistency?

Judgment and Order Filings

    13. What was the practical function that a Judgment and Order 
filing had in litigation?

Definitions

    14. Are there any undefined terms in the regulations or statute 
that would benefit from a definition? If yes, please explain why the 
term should be defined and what the definition should be. In 
particular, please consider whether the following terms should be 
defined and, if so, what the definitions should be:

 ``When a stay is lifted''
 ``Promptly''
 ``Qualified''

Visitors and Witnesses

    15. What criteria should be applied regarding access to visitors in 
the week before the designated execution date?
    16. What criteria should be applied to the selection of witnesses 
who are present during federal executions?
    17. To what extent should the federal government limit the number 
of--or otherwise participate in the selection of--spiritual advisers, 
attorneys, friends, or relatives who may access a prisoner prior to a 
designated date of execution?

Generally

    18. Are there particular provisions of the November 2020 amendments 
or the prior regulatory scheme that should be retained, modified, or 
rescinded and, if so, why?
    19. Should any other changes be made to 28 CFR Ch. I, Pt. 26, 
Subpart A?

    Dated: September 21, 2022.
Hampton Y. Dellinger,
Assistant Attorney General, Office of Legal Policy.
[FR Doc. 2022-20889 Filed 9-26-22; 8:45 am]
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