Notice2022-20889
Request for Information Regarding the Manner of Execution Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 27, 2022
Issuing agencies
Justice Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 186 (Tuesday, September 27, 2022)</title>
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[Federal Register Volume 87, Number 186 (Tuesday, September 27, 2022)]
[Notices]
[Pages 58531-58534]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="http://www.regulations.gov">www.regulations.gov</a>. Follow the
instructions for submitting comments.
<bullet> 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.
<bullet> 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
<a href="http://www.regulations.gov">www.regulations.gov</a>. 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
[[Page 58532]]
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), <a href="https://www.justice.gov/opa/page/file/1408636/download">https://www.justice.gov/opa/page/file/1408636/download</a>. 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
[[Page 58533]]
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), <a href="https://www.justice.gov/opa/page/file/1408636/download">https://www.justice.gov/opa/page/file/1408636/download</a>.
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:
<bullet> ``When a stay is lifted''
<bullet> ``Promptly''
<bullet> ``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]
BILLING CODE 4410-BB-P
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</html>Indexed from Federal Register on September 27, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.