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The Department of Justice created new regulations allowing the use of more methods for federal executions, including firing squad and electrocution.
The new rule, which is expected to be published in the Federal Register on Friday, comes as the administration rushes to execute five more prisoners before President Trump’s term expires. It’s part of a series of movements and rule-making processes before he leaves office.
Unlike some of the last minute decisions, the practical effect of the rule remains uncertain. The Justice Department has not indicated that it plans to execute detainees in a manner other than lethal injection, which has been the only method of execution used by the federal government for decades. Although lethal injection is increasingly the subject of assault, the Supreme Court has already rejected recent challenges brought by federally sentenced inmates. And President-elect Joseph R. Biden Jr., who can overturn the rule, has signaled his opposition to the federal death penalty.
Last week, the Justice Department announced it planned to execute three more inmates in the Federal Death Ward. If the administration does so, along with two other executions already scheduled, it will have killed 13 prisoners since July, marking one of the deadliest periods in the history of the federal death penalty since at least 1927, according to the officials. Federal Office data. prisons.
The rule, previously reported by ProPublica, states that the federal government may carry out executions by lethal injection “or in any other manner prescribed by the law of the state in which the sentence was imposed or which has been appointed by a court. in accordance with »the law governing the execution of the death penalty. It will go into effect 30 days after its scheduled publication Friday, before some of the executions are scheduled.
All states that apply the death penalty allow execution by lethal injection, in accordance with the rule. Some also allow other means. For example, Alabama allows the prisoner to choose death from electrocution or hypoxia with nitrogen (a lethal dose of gas) instead of a lethal injection. A law signed by the governor of Utah in 2015 states that a firing squad must be used to execute an inmate if lethal injection substances are not available on the scheduled date.
States have previously struggled to obtain drugs to suit their lethal injection protocols. Several years ago, reports of high-profile botched executions involving prisoners panting or writhing in pain prompted a new review of the death penalty. After a court case in Oklahoma, President Barack Obama ordered his attorney general to review the application of the death penalty in the United States.
Federal executions since the Trump administration ended a nearly two-decade hiatus on the practice have been exclusively by lethal injection. The government’s protocol uses a single chemical, pentobarbital, for which the Supreme Court paved the way in June.
The rule recently finalized by the Trump administration concerns how the federal government must comply with state execution protocols. Federal law on the death penalty requires executions to be carried out “in the manner prescribed by the law of the state in which the sentence is imposed”.
When it filed an early version of the rule released in August, the Justice Department noted that a state may one day require executions to be carried out by means other than lethal injection. The proposed rule said it sought to prevent prisoners from challenging their executions because federal regulations did not allow execution by means other than lethal injection.
Agencies are generally expected to allow at least 60 days for public comment. The Trump administration has only given 30 days for the proposed rule.
Steve Vladeck, a law professor at the University of Texas, noted that Mr Biden could reverse the rule, but said it represented a “symbolic” and “deeply practical” step for the department to complete its five scheduled executions.
“It’s a pretty horrible way to get out,” he says. “It’s basically the attorney general stepping up, you know, sort of to get as many federal prisoners as possible executed before his term ends.
He also underlined the recent legal obstacles that the Ministry of Justice has faced in litigation relating to the death penalty. Before the execution of federal inmate Orlando Cordia Hall last week, the United States Court of Appeals for the District of Columbia Circuit ruled that the department’s lethal injection protocol could violate federal law. on food, drugs and cosmetics. This law requires a prescription for the executive drug, pentobarbital. But the court has always refused to issue an injunction in the case.
In its efforts to revive the death penalty under the Trump administration, the Justice Department refused to use the three-drug cocktail it had once used and instead introduced a protocol using a single drug, pentobarbital.
Justice ministry announcements for the five planned executions indicate that four prisoners would be executed by lethal injection at the federal penitentiary in Terre Haute, Indonesia. The department did not specify how a prisoner, Dustin John Higgs, convicted of kidnapping was executed. and murder three women. An official from the Ministry of Justice who spoke on condition of anonymity also did not comment on his method of execution.
Ruth Friedman, director of the Federal Capital Habeas Project, which represented the first man to be executed by the Trump administration, called the rule a “grand arrogation of power.” She criticized the department’s decision to remove some judicial review. The rule removed the requirement for a government lawyer to submit to the court, among other things, the date and place of execution, part of a provision the ministry deemed unnecessary.
Ms Friedman also said that, more troubling than the rule, was the administration’s intention to execute prisoners so soon before a new administration that expressed its opposition to capital punishment.
The Justice Department official defended the decision, saying the regulations were aimed at bringing federal sentences in line with the law.
Robert Dunham, the executive director of the Death Penalty Information Center, expected that the new rule would most likely result in fewer and less complicated court challenges to executions, but that it would quickly become irrelevant. under an administration that does not seek to execute detainees.
“This tells us more about the administration’s willingness to kill prisoners than any real correctional need,” he said.
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